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Porter v. Sexton

United States District Court, E.D. Tennessee, Chattanooga

December 19, 2019

DAVID SEXTON, Respondent.



         Following his conviction for first-degree murder, Petitioner, Alex Stevino Porter, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. §2254, alleging sufficiency of the evidence claims, violations of his Sixth Amendment rights to confrontation and the effective assistance of counsel, and prosecutorial suppression of exculpatory evidence [Doc. 1]. Petitioner's petition for habeas corpus was stayed in its entirety, pursuant to his motion for abeyance requested to allow him to exhaust state court remedies, and he filed a Motion to Reopen on January 22, 2018 [Doc. 34]. Petitioner's Motion to Reopen will be GRANTED. After reviewing the parties' filings and the relevant state court record, the Court has determined that Petitioner is not entitled to relief under §2254, and no evidentiary hearing is warranted. See Rules Governing § 2254 Cases, Rule 8(a) and Schriro v. Landrigan, 550 U.S. 465, 474 (2007). For the reasons set forth below, the §2254 petition will be DENIED, and this matter will be DISMISSED.

         I. BACKGROUND

         In June of 2005, Petitioner was charged with first-degree murder and conspiracy to commit first-degree murder related to the shooting death of Antonio Ware. State v. Porter, No. E2007-01101-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 965, at *2 (Tenn. Crim. App. Dec. 10, 2008)(“Porter I”). At trial, the State adduced evidence that on August 2, 2004, Petitioner asked Dustin Witt to drive him near Tennessee Wesleyan College; the two were accompanied by Kenneth Hammonds, Cornell Perry Gunter, and Clifton Omar Robinson.[1" name="FN1" id= "FN1">1] Id. While Mr. Witt parked the car, the other four men walked to the home of Kim Arnwine. Id. at *3. Petitioner, along with Mr. Gunter and Mr. Robinson, hid behind bushes near Ms. Arnwine's home; however, Mr. Hammonds was apprehensive about the body language of the other men and decided to leave the area. Id. at *4.

         The victim and an associate, Marvin Goodman, had stopped by Ms. Arnwine's home around 9:30 or 9:45 p.m. that same evening after seeing Ms. Arnwine earlier in the day at Cook Park, an area known for drug activity. Id. at *3. Ms. Arnwine testified at trial that the victim, who was carrying a gun, was agitated and mentioned going to “take care of” some boys in Athens and that Mr. Goodman attempted to calm him down. Id. She further stated that while the victim was in her home, her brother Ezra Arnwine, who frequently associated with Mr. Robinson, Mr. Gunter, and Mr. Hammonds, called and asked if she had company. Id. at *4. Petitioner called soon after, also asking if she had company and if he could come over, to which Ms. Arnwine indicated that he could come over in a little while after her company, whom she did not identify, left. Id. at *3 - 4. Confirming this testimony, Mr. Witt testified that he and Petitioner had moved from the bushes to a shed behind Ms. Arnwine's house and that he overheard the phone call. Id. at *4. He stated that after hanging up the phone, Petitioner pulled out a gun and stated that he was “ready to give it to this mother f---er because he tried to rob my sister Mary not too long ago and I still haven't forgot [sic] about it.” Id. at *4 - 5. Mr. Witt testified that at this point he also decided to leave. Id. at *5. Mr. Robinson, who had remained in the bushes, left after approximately ten to fifteen minutes. Id.

         Mr. Witt testified that as he began to leave, the victim and Mr. Goodman exited Ms. Arnwine's house, [2] and that when Mr. Witt turned around, he saw Petitioner crouch down and fire his weapon at the victim. Id. Mr. Gunter confirmed this testimony; he stated that he heard Petitioner say he was going to “handle this, ” and likewise saw Petitioner crouch down and shoot the victim, without any indication that the victim ever saw Petitioner before he shot. Id. at *6. Mr. Witt claimed that he dropped his keys and that by the time he located them, Petitioner and Mr. Gunter were running towards him and they all got into the car and left. Id. at *5. They later picked up Mr. Robinson. Id.

         Ms. Arnwine, who had heard the gunfire, had huddled her children on the floor when Mr. Goodman ran back into the house to tell her that something had happened to the victim. Id. at *4. Ms. Arnwine then called 911, after which she walked outside and saw the victim's body on the ground. Id. Van Sliger, a nearby neighbor, stated that he was awakened by the gun shots and when he looked out his window, “he saw three black males run around his garage, get into an older model white Oldsmobile or Buick, and drive away.” Id. at *6. Mr. Sliger then drove to the scene where he saw police officers as well as the victim's body. Id.

         Mr. Robinson and Mr. Gunter each gave their weapons to Petitioner, who was to dispose of them along with his own weapon. Id. at *5 - 6. Petitioner would later lead police officers to a two-feet deep hole in a wooded area with burnt pieces of a 9mm Hi-Point semi-automatic and other burnt material in it. Id. at *6 - 7. Officers indicated that “investigation revealed that [Petitioner] was in possession of the Hi-Point 9mm on the night of Mr. Ware's death.” Id. at *7.

         When officers arrived at the scene, they found the body of Mr. Ware, who had been shot several times. Id. at *2. They likewise found “one bullet in the gravel under Mr. Ware's head and several other shell casings that were both 9mm and .380 caliber.”[3] Id. at *6. Autopsy revealed that Mr. Ware had died of the multiple gunshot wounds to his head, arm, chest[4], and hip, which had moved from back to front and right to left respectively. Id. at *7. Special Agent Shelly Betts, an agent with the Tennessee Bureau of Investigation, “examined three fired bullets, six fired cartridge cases, several unfired cartridges, two revolvers, one pistol and firearms that had been destroyed with some sort of torch.” Id. She found that all three bullets had similar rifling, but that while she could identify the two .380 bullets as coming from the same weapon, the 9mm bullet “did not have ‘sufficient individualizing characteristics' remaining for her to conclusively state that it was also fired from the same weapon.” Id. at *7-8. Of the six cartridge cases, Agent Betts determined that three of the cartridge cases were .380 cases while the other three were 9mm cases; she ascertained that all were fired from the same weapon, but was unable to determine if they were fired from the destroyed Hi-Point pistol. Id. at *8.

         On January 30, 2007 a McMinn County jury convicted Petitioner of first-degree premeditated murder and sentenced him to life in prison. Id. at *1. Petitioner appealed this conviction to the Tennessee Court of Criminal Appeals (“TCCA”), raising claims (1) that the evidence was insufficient to support his conviction, (2) that the trial court erred in denying his Motion for Judgment of Acquittal, and (3) that the trial court deprived him of his Sixth Amendment right to present a defense by excluding the testimony of Valerie Ware and Mary White [Brief of Appellant on Direct Appeal, ADD. 2-1]. The TCCA affirmed the conviction. Id. Petitioner then applied for permission to appeal to the Tennessee Supreme Court (“TSC”) which the TSC denied. State v. Alex Stevino Porter, No. E2007-01101-SC-R11-CD, 2009 Tenn. LEXIS 446 (Tenn. May 4, 2009).

         Petitioner next filed a petition for state post-conviction relief, alleging the ineffective assistance of counsel and the prosecution's suppression of exculpatory evidence, which was denied [Petition for Relief from Conviction or Sentence, ADD. 3-1 p.1 - ADD. 3-2 p. 205]. Petitioner appealed the dismissal of his post-conviction petition to the TCCA alleging five grounds of the ineffective assistance of counsel, one ground of the ineffective assistance of appellate counsel, and that he was ultimately deprived of due process [Brief of Appellant on Post-Conviction Appeal, ADD. 4-1]. The TCCA affirmed the denial. Alex Stevino Porter v. State, No. E2012-00481-CCA-R3-PC, 2013 Tenn. Crim. App. LEXIS 796 (Tenn. Crim. App. Sept. 18, 2013)(“Porter II”). Petitioner then applied for permission to appeal to the TSC which was again denied. Alex Stevino Porter v. State, No. E2012-00481-SC-R11-PC, 2014 Tenn. LEXIS 201 (Tenn. Mar. 5, 2014).

         Finally, Petitioner filed this petition for writ of habeas corpus in June of 2014. On March 21, 2016, Petitioner filed a motion for abeyance, asking that the Court stay his case until he had properly exhausted his available local and state court remedies [Doc. 20]. There was no opposition and the Court stayed the matter in its entirety and ordered Respondent to notify the Court when the state remedies were exhausted and to file an amended answer addressing Petitioner's additional state claims [Doc. 21]. On March 16, 2016, Petitioner filed a motion in state court to re-open post-conviction proceedings, raising the ineffective assistance of counsel for improperly informing Petitioner of his right to testify and prosecutorial misconduct [Doc. 27 p. 2].[5] On April 11, 2016, the post-conviction court dismissed the motion as untimely and duplicative of a previously decided petition, and found that it failed to provide a legal basis for reopening [Id.]. Petitioner did not appeal this judgment to the TCCA [Doc. 27 p. 3]. Respondent did not alert the court to the termination of state court proceedings or file a supplemental response as ordered until April 19, 2017 [Doc. 27].

         Petitioner filed a Motion to Reopen federal habeas proceedings on January 22, 2018 [Doc. 34]. Petitioner did not, at any time, attempt to amend his federal habeas petition to include his claim that counsel was ineffective for failing to alert him to his right to testify at trial. The only mention of this claim in federal pleadings was a reference to it in his Motion for Abeyance, filed nearly two years after his federal habeas petition. As such, this claim is not properly before the Court, but the Court notes that even if it were, it would clearly be barred by the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. §2244(d)(1)(A), (2). Accordingly, the Court will now address the claims for §2254 relief that Petitioner raised in his original petition below.


         Under the AEDPA, codified in 28 U.S.C. §2254, a district court may not grant habeas corpus relief for a claim that a state court adjudicated on the merits unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d)(1) and (2). This standard is intentionally difficult to meet. Woods v. Donald, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (quotation marks omitted). Under the unreasonable application clause, the proper inquiry is whether the state court's decision was “objectively unreasonable, ” and not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 409 - 11 (2000). The AEDPA likewise requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131');">160 F.3d 1131, 1134 (6th Cir. 1998). Where the record supports the state court's findings of fact, those findings are entitled to a presumption of correctness which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         III. ANALYSIS

         A. Exhaustion and Procedural Default

         In his §2254 petition, Petitioner raises thirty-six claims, one alleging that the evidence was insufficient to support his conviction, one contending that his Sixth Amendment right to present a defense was violated, thirty-one claims of the ineffective assistance of trial and appellate counsel, and three claims that the prosecution suppressed exculpatory evidence [Doc. 1]. Respondent raises that many of the claims set forth in Petitioner's federal habeas corpus petition have been procedurally defaulted and may not now be addressed on the merits [Doc. 9 p. 2 - 9]. Petitioner raises various grounds as cause to excuse any such procedural default, however, this Court finds that with the exception of six, Petitioner's claims were not fairly presented to the state courts and there is no cause for which to excuse his default.

         Before a federal court may grant habeas relief to a state prisoner, the prisoner must first exhaust the remedies available in state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims to state courts to ensure states have a “full and fair opportunity to rule on the petitioner's claims.” Manning v. Alexander, 12 F.2d 878');">912 F.2d 878, 881 (6th Cir. 1990); See O'Sullivan, 526 U.S. at 842. Generally, to fulfill the exhaustion requirement, each claim must have been presented to all levels of the state appellate system, including the state's highest court. Duncan v. Henry, 13 U.S. 364');">513 U.S. 364, 365-66 (1995); Wagner v. Smith, 1 F.3d 410');">581 F.3d 410, 414 (6th Cir. 2009). However, the Tennessee Supreme Court has established that when the Tennessee Court of Criminal Appeals has denied relief on a claim, it is exhausted regardless of appeal to the Tennessee Supreme Court. Tenn. S.Ct. Rule 39 (Supp. 2001). Although exhaustion is typically required for merits review of a claim, if there are no further state court remedies available to a petitioner, lack of exhaustion will not foreclose merits review. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

         Regardless of exhaustion, a claim may be precluded from review if it is procedurally defaulted. Wallace v. Sexton, 570 Fed.Appx. 443, 449 (6th Cir. 2014). Procedural default occurs when (1) the claim was never presented to the highest available state court and is now barred from such presentation by a state procedural rule, or (2) a state court was prevented from “reaching the merits of the petitioner's claim” because petitioner failed to comply with an applicable state procedural rule, which is regularly enforced and is an “adequate and independent” state ground. Id. (citing Maupin v. Smith, 135');">785 F.2d 135, 138 (6th Cir. 1986)); Seymour v. Walker, 224 F.3d 542, 549-550 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 8487 (1977)).

         Petitioner has twice been before the TCCA, once on Direct Appeal and again appealing the denial of post-conviction relief. On Direct Appeal, Petitioner raised only three claims: (1) that the evidence was insufficient to support his conviction, (2) that the trial court erred in denying his Motion for Judgment of Acquittal, and (3) that the trial court deprived him of his Sixth Amendment right to present a defense by excluding the testimony of Valerie Ware and Mary White [Brief of Appellant on Direct Appeal, ADD. 2-1]. In the appeal of the dismissal of his post-conviction appellate brief, Petitioner raised five claims of the ineffective assistance of counsel alleging that counsel was ineffective for inadequately developing a theory of self-defense, allowing a witness to improperly assert Fifth Amendment silence, failing to inform Petitioner of his right to testify, announcing to the jury that Petitioner was incarcerated, and failing to challenge the expert testimony proffered by Agent Betts. [Brief of Appellant on Post-Conviction Appeal, ADD.4-1, p. 36]. He likewise alleged an unspecific claim of the ineffective assistance of appellate counsel, which does not encompass any of the facts or legal theories included in his federal habeas petition regarding appellate counsel, and another generalized claim alleging that he was denied due process in his post-conviction proceedings due to “the deficiencies marring the investigation and presentation of evidence at the evidentiary hearing” [Id.].

         Although Petitioner raised nearly all of the claims he now raises in his post-conviction petition, he failed to raise them on direct appeal and abandoned these claims on appeal of the dismissal of his post-conviction petition, thus rendering them unexhausted.[6] However, due to Tennessee's one-year statute of limitations and one petition rule, state remedies are foreclosed to Petitioner and lack of exhaustion will not prevent federal habeas review of his claims. Rust, 17 F.3d at 160; See Tenn. Code Ann. § 40-30-102. Instead, Petitioner's claims are procedurally defaulted as a result of having never been raised to the state's highest court and being foreclosed from such presentation now. Wallace, 570 Fed.Appx. at 449. As such, Petitioner's claims will only be considered on their merits to the extent that he can demonstrate cause and actual prejudice to excuse this default.

         B. Cause and Prejudice

         Petitioner contends that his procedural default should be excused for cause; specifically, he alleges that the procedural default of any ineffective assistance of counsel claims may be attributed to the ineffective assistance of post-conviction counsel and that the procedural default of any prosecution suppression claims is a result of the state's continued suppression of the evidence needed to properly raise these claims [Doc. 1, Doc. 15]. Neither of these are sufficient cause to excuse Petitioner's procedural default and his defaulted claims will not be reviewed on their merits.

         The Courts have carved out a narrow set of circumstances in which procedural default may be excused and defaulted claims may be evaluated on their merits. Procedurally barred claims may be considered on their “merits only if the petitioner establishes (1) cause for his failure to comply with the state procedural rule and actual prejudice from the alleged violation of federal law or (2) demonstrates that his is ‘an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Wallace, 570 Fed.Appx. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)”; See House v. Bell, 547 U.S. 518, 536 (2006). To show sufficient “cause, ” Petitioner must point to “some objective factor external to the defense” that prevented him from raising the issue in his first appeal. Murray ...

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