Whaley v. Gross

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

DORIS A. WHALEY, )

)

Petitioner, )

)

v. ) No. 2:17-CV-156-HSM-SKL

)

GLORIA GROSS, Warden, )

)

Respondent. )

MEMORANDUM OPINION

Petitioner Doris A. Whaley, a Tennessee inmate proceeding pro se, has filed a federal

habeas petition pursuant to 28 U.S.C. § 2254 challenging her Tennessee judgment of conviction

for first-degree murder and resulting life sentence. Having considered the submissions of the

parties, the State-court record, and the law applicable to Whaley’s claims, the Court finds that the

petition should be denied.

I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

Charles Campbell was stabbed to death on August 28, 2006, and Doris A. Whaley was

charged with his murder. State v. Whaley, No. E2010-00389-CCA-R3-CD, 2011 WL 2519762, at

*1, 3 (Tenn. Crim. App. June 23, 2011) perm. app. denied (Tenn. Oct. 18, 2011) (“Whaley I”). At

Whaley’s trial, the State presented evidence that Whaley gave several conflicting accounts of what

happened the night of the murder, that she had threatened the victim just prior to his murder, that

Whaley told Campbell she would kill him if he did not return her cell phone, and that she was

enraged and “tearing the house apart” when she counted to five and then told Campbell, “[y]ou’re

dead.” Id. at *6, 12. Whaley’s son testified that upon arriving at Whaley’s home, he witnessed

her “scrunched down and leaned over” with a weapon that “looked like a knife” while Campbell

lay dying on the floor. Id. at *5, 12.

A Washington County jury convicted Whaley on one count of first-degree premeditated

murder, and the trial court sentenced Whaley to life imprisonment. Id. at *11. The Tennessee

Court of Criminal Appeals (“TCCA”) affirmed the conviction on direct appeal, and the Tennessee

Supreme Court denied discretionary review. Id. at *1.

Thereafter, Whaley filed a pro se petition for post-conviction relief in the trial court [Doc.

9-18 p. 8-11]. The trial court appointed post-conviction counsel, who filed an amended petition

for post-conviction relief alleging several claims of ineffective assistance of trial counsel [Id. at

44-52]. Specifically, post-conviction counsel asserted that trial counsel was ineffective for failing

to “present at trial any evidence or testimony regarding Petitioner’s medical history;” for failing

to “properly prepare, communicate with, and subpoena medical health experts” concerning

Petitioner’s hand surgeries; for failing to move for a continuance “to investigate the circumstances

surrounding the State’s obtaining a partially recorded phone conversation between the Petitioner

and Betsy Doran;” for failing to “fully investigate and obtain expert testimony that would have

contradicted the State’s expert witness’ testimony regarding “blood spatter” evidence;” and for

failing to “assert any of the foregoing grounds for relief” on appeal [Id. at 45-49]. Post-conviction

counsel also claimed that evidence obtained after Whaley’s trial that Whaley’s son had committed

perjury would, if introduced at a new trial, likely produce a different verdict [Id. at 49-50].

An evidentiary hearing was held on Whaley’s post-conviction claims. At the hearing, post-

conviction counsel chose not to build a record as to the perjury-related claim after the trial court

preliminarily concluded that such a statement would be hearsay [See id. at 15-20; see also Doc. 9-

18 p. 94]. However, extensive evidence was offered regarding Whaley’s ineffective assistance of

counsel claims. Whaley’s Social Security Disability records were introduced at the hearing and

demonstrated that she had been declared disabled prior to the murder based, in part, on “bilateral

carpal tunnel syndrome” [See, e.g., Doc. 9-19 p. 25-28, 115]. Trial counsel testified that he had

obtained Whaley’s medical records and was aware of her history of osteoarthritis and Carpal

Tunnel Syndrome [Doc. 9-18 p. 45; Doc. 9-19 p. 25-27, 29]. He testified that he consulted with

the pathologist performing the victim’s autopsy regarding whether Whaley’s hand conditions

would render her unable to commit the murder [Doc. 9-19 p. 38]. Counsel stated the doctor advised

him that “it wouldn’t take much to hold onto a knife” [Id.]. Counsel also testified that “if a doctor

said somebody with two carpal tunnel surgeries couldn’t hold a knife period then I would have

pursued it, but nobody said that” [Id. at 40]. Finally, trial counsel expressed his doubts regarding

the extent of Whaley’s hand difficulties, stating that he saw her daily carrying drinks and driving

herself to his office, and that he did not see “anything from the autopsy that would make [him]

want to think there’s no way she could have” stabbed the victim [Id. at 39].

Other witnesses also testified, including Whaley, who acknowledged that that she could

drive short distances, hold a soda can, and eat with a fork [Id. at 108]. Witness Tracy Harris

testified that she had been friends with Whaley for 25 years and stated that while Whaley

complained of arthritis in her hands if she performed routine activities for too long, she could

shower herself, dress herself, feed herself, and that she did not complain of pain when she ate or

drank [Id. at 96-104]. Whaley’s daughter confirmed that Whaley could feed and dress herself,

brush her hair, and use a cell phone [Id. at 125-32].

Following the evidentiary hearing, the post-conviction trial court produced a written order

failing to credit Whaley’s testimony that she was physically incapable of committing the murder,

noting, in part, that Whaley did not “say anything” about her medical conditions in her pro se

petition for post-conviction relief, nor did she inform investigating officers of her disability in the

nine different accounts of the murder she gave to law enforcement [Doc. 9-18 p. 100-102, 107].

The Court denied post-conviction relief, finding trial counsel performed a reasonable investigation

and did not render ineffective assistance [Id. at 72-109]. The TCCA affirmed the denial, and the

Tennessee Supreme Court denied discretionary review [Doc. 9-24; Doc. 9-27]. See Whaley v.

State, No. E2014-02378-CCA-R3-PC, 2016 WL 2901997, at *2 (Tenn. Crim. App. May 13, 2016)

perm. app. denied (Tenn. Sept. 23, 2016) (“Whaley II”).

On or about September 11, 2017, Whaley filed the instant petition for federal habeas relief,

raising the following claims, as paraphrased by the Court:

Claim 1: Ineffective assistance of counsel due to counsel’s failure to:

1. Present evidence of Whaley’s medical history of osteoarthritis and

“carpal tunnel issues;”

2. “[P]repare, communicate with, and subpoena medical health experts

who would have provided testimony about Petitioner’s medical

condition(s) and the surgeries to her hands;”

3. “[M]ove the Court for a continuance” to investigate the

“circumstances surrounding the State’s obtaining a partially

recorded phone conversation between Petitioner and [witness] Betsy

Doran;”

4. “[F]ully investigate and obtain expert testimony that would have

contradicted the State’s expert witness’ testimony regarding ‘blood

spatter’”; and

5. Assert any of the ineffective assistance of counsel claims on appeal.

Claim 2: Whaley possesses newly discovered evidence that casts doubt on the

credibility of a State witness.

II. LEGAL STANDARD

The Court’s review of the instant petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any

claim adjudicated on the merits in a State court unless that adjudication (1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established United States

Supreme Court precedent; or (2) resulted in a decision based on an unreasonable determination of

facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan,

550 U.S. 465, 473 (2007).

Federal habeas relief may be granted under the “contrary to” clause where the State court

(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2)

decides a case differently than the Supreme Court on a set of materially indistinguishable facts.

See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application”

clause, a federal court may grant relief where the State court applies the correct legal principle to

the facts in an unreasonable manner. See id. at 407-08; Brown v. Payton, 544 U.S. 133, 141 (2005).

Whether a decision is “unreasonable” is an objective inquiry; it does not turn on whether the

decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under AEDPA is not

whether a federal court believes the state court’s determination was incorrect but whether that

determination was unreasonable ̶ a substantially higher threshold.”); Williams, 529 U.S. at 410-

11. This standard will allow relief on a federal claim decided on its merits in State court only

where the petitioner demonstrates that the State ruling “was so lacking in justification that there

was an error understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating the evidence

presented in State court, a federal habeas court presumes the correctness of the State-court’s factual

findings unless the petitioner rebuts the presumption by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1).

The doctrine of procedural default also limits federal habeas review. See O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner’s procedural default forfeits her federal

habeas claim). A procedural default exists in two circumstances: (1) where the petitioner fails to

exhaust all of her available State remedies, and the State court to which she would be required to

litigate the matter would now find the claims procedurally barred, and (2) where a State court

clearly and expressly bases its dismissal of a claim on a State procedural rule, and that rule provides

an independent and adequate basis for the dismissal. See, e.g., Coleman v. Thompson, 501 U.S.

722, 731-32, 735 n.1 (1991). A procedural default may be circumvented, allowing federal habeas

review of the claim, only where the prisoner can show cause and actual prejudice for the default,

or that a failure to address the merits of the claim would result in a fundamental miscarriage of

justice. Id. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). “Cause” is

established where a petitioner can show some objective external factor impeded defense counsel’s

ability to comply with the State’s procedural rules, or that her trial counsel rendered ineffective

assistance. See id. at 753. Additionally, the prejudice demonstrated to overcome the default must

be actual, not merely a possibility of prejudice. See Maupin v. Smith, 785 F.2d 135, 139 (6th Cir.

1986) (citations omitted); see also United States v. Frady, 456 U.S. 152, 170 (1982) (holding

prejudice showing requires petitioner to bear “the burden of showing, not merely that errors [in

the proceeding] created a possibility of prejudice, but that they worked to h[er] actual and

substantial disadvantage, infecting h[er] entire [proceeding] with error of constitutional

dimension”) (emphasis in original). A fundamental miscarriage of justice of occurs “where a

constitutional violation has probably resulted in the conviction of one who is actually innocent.”

Murray v. Carrier, 477 U.S. 478, 496 (1986).

III. DISCUSSION

A. PROCEDURALLY DEFAULTED CLAIMS

Whaley presented Claim 1(2)-(5) to the trial court on post-conviction review [Doc. 9-18 p.

44-52]. She did not, however, present these claims to the TCCA on either direct appeal or post-

conviction appellate review [See Doc. 9-12 and Doc. 9-22]. A claim must be presented to the

TCCA in order to be exhausted under 28 U.S.C. § 2254(b). See Adams v. Holland, 330 F.3d 398

(6th Cir. 2003); see also Tenn. S. Ct. R. 39 (establishing presentation of claim to TCCA is

sufficient to exhaust State remedies). Therefore, by failing to pursue these claims to the TCCA,

Whaley failed to fully exhaust these claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)

(holding that proper exhaustion requires petitioner to pursue claim through “one complete round

of the State’s established appellate review process”).

Whaley could not now return to State court and exhaust these claims due to Tennessee’s

procedural rules. See Tenn. Code Ann. § 40-30-102(a) (one-year limitation period); § 40-30-

102(c) (“one petition” rule). Accordingly, these claims are technically exhausted but procedurally

defaulted. See Jones v. Bagley, 696 F.3d 475, 483 (6th Cir. 2012) (“When a petitioner has failed

to present a legal issue to the state courts and no state remedy remains available, the issue is

procedurally defaulted.”). Whaley has not argued that cause and prejudice exist to overcome the

default.

While Whaley has not argued the ineffective assistance of post-conviction counsel as

“cause” for her default, the Court addresses the issue out of an abundance of caution. The Court

notes that, generally, the ineffective assistance of post-conviction counsel cannot serve as cause

for a procedural default. Coleman, 501 U.S. at 754. The Supreme Court altered that general rule

in Martinez v. Ryan, holding that “inadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective

assistance at trial.” Martinez, 566 U.S. 1, 9 (2012). However, the rule in Martinez “does not

concern attorney errors in other kinds of proceedings, including appeals from initial-review

collateral proceedings[.]” Id. at 16. Thus, Martinez does not apply to a claim of ineffective

assistance of trial counsel raised in the initial-review collateral stages but defaulted on appeal, as

is the case here. See Middlebrooks v. Carpenter, 843 F.3d 1127, 1136 (6th Cir. 2016) (stating that

Martinez did not apply “because those claims were raised and rejected on the merits by the initial

postconviction court, and ineffective assistance of counsel on post-conviction appeal cannot

establish ‘cause’ to excuse [petitioner]’s procedural default, which occurred only in the Tennessee

Court of Criminal Appeals”); West v. Carpenter, 790 F.3d 693, 698 (6th Cir. 2015) (stating that

Martinez does not apply to a claim the petitioner raised in the initial review post-conviction

proceeding but failed to preserve on appeal).

Therefore, any alleged ineffectiveness of post-conviction counsel cannot serve as cause to

excuse the default of Claim 1(2)–(4), as these claims were raised before the post-conviction trial

court and denied. Additionally, as to Whaley’s Claim 1(5), the Supreme Court has rejected an

argument that Martinez applies to excuse the default of ineffective assistance of appellate counsel

claims. See Davila v. Davis, 137 S. Ct. 2058, 2062-63 (2017). Therefore, Whaley has not

established the requisite cause and prejudice, or that a fundamental miscarriage of justice would

result from failure to review these claims on their merits. Accordingly, Whaley has not provided

grounds to excuse the procedural default of these claims, and they must be dismissed.

B. PROPERLY EXHAUSTED CLAIM (CLAIM 1(1))

Whaley’s Claim 1(1) – that trial counsel was ineffective in failing to present at trial

evidence of her osteoarthritis and Carpal Tunnel Syndrome – was presented to the TCCA on post-

conviction appellate review, and is, thus, properly exhausted [Doc. 9-22 p. 27-30]. This Court’s

review of that claim is governed by the standard set forth in Strickland v. Washington, 466 U.S.

668 (1984), which requires a habeas petitioner to satisfy a two-prong test to warrant federal habeas

corpus relief on a claim of ineffective assistance of counsel: (1) she must demonstrate

constitutionally deficient performance by counsel, and (2) she must demonstrate actual prejudice

as a result of such ineffective assistance. Strickland, 466 U.S. 668 (1984). Deficiency is

established when a petitioner can demonstrate that counsel’s performance falls below an objective

standard of reasonableness as measured by professional norms, such that counsel was not

functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. A reviewing

court’s scrutiny is to be highly deferential of counsel’s performance, with an effort to “eliminate

the distorting effects of hindsight.” Id. at 689. In fact, counsel is to be afforded a presumption

that his actions were the product of “sound trial strategy” and undertaken with the exercise of

reasonable professional judgment. Id.

Prejudice is established when the petitioner can demonstrate to a reasonable probability

that the result of the proceedings would have been different but for the challenged conduct, thereby

undermining confidence in the reliability of the outcome. Id. at 694. However, an error, even if

professionally unreasonable, does not warrant setting aside the judgment if it had no effect on the

judgment. Id. at 691.

On habeas review, the issue for the district court is not whether the Strickland standard is

met, but rather, whether the State-court’s decision that Strickland was not met warrants relief under

AEDPA standards. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When 2254(d) applies,

the question is not whether counsel’s actions were reasonable. The question is whether there is

any reasonable argument that counsel satisfied Strickland’s deferential standard.”). Accordingly,

when a Strickland claim has been rejected on its merits by a State court, a petitioner “must

demonstrate that it was necessarily unreasonable” for the State court to rule as it did in order to

obtain federal habeas relief. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

Trial counsel testified he had reviewed Whaley’s medical records and consulted with the

State’s expert regarding whether her impediments would make it physically impossible for her to

stab Campbell to death [Doc. 9-19 p. 38]. Trial counsel stated that the pathologist did not confirm

this possible theory of defense, and that he would have pursued any expert opinion that would have

supported a theory that someone with two carpal tunnel surgeries could not have held a knife [Id.

at 40]. Moreover, counsel personally observed Whaley daily and determined that his observation

and the absence of supporting facts in the autopsy would not sustain an inference that Whaley

could not have committed the murder [Id.]. Whaley herself confirmed that she could drive, hold

drinks, and eat with a fork, while a close friend and her daughter testified that she could shower,

dress herself, feed herself, use a cell phone, and brush her hair [Id. at 96-104, 108, 125-32].

The record in this case shows that trial counsel reasonably investigated Whaley’s medical

issues and determined further investigation would not yield more favorable results. See Strickland,

466 U.S. at 690-91 (“Strategic choices made after thorough investigation of the law and facts

relevant to plausible options are virtually unchallengeable”). Therefore, the Court concludes, the

decision rejecting this claim is not contrary to, nor does it involve an unreasonable application of,

Strickland or its progeny, nor is it based on an unreasonable determination of facts in light of the

evidence presented. Whaley is not entitled to federal habeas relief on this claim.

C. NEWLY DISCOVERED EVIDENCE (CLAIM 2)

In Claim 2, Whaley alleges a claim of “newly discovered evidence” [Doc. 2 p. 7-8]. She

contends that a witness, Ms. Rosenbaum, would testify that she spoke with Whaley’s son after the

trial and allegedly learned that Whaley’s son committed perjury [Id.].

Courts have held that the existence of newly-discovered evidence relevant to guilt is not a

ground for federal habeas relief absent some indication that the newly-discovered evidence

pertains to a federal constitutional violation. See, e.g., Dickey v. Dutton, 595 F. Supp. 1, 2 (M.D.

Tenn. 1983) (citing Townsend v. Sain, 372 U.S. 293, 317 (1963), overruled on other grounds by

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)). Here, Claim 2 alleges newly-discovered evidence

that challenges Whaley’s confinement based on potential perjury, which does not allege a federal

constitutional violation, but rather, calls into question the credibility of a witness. See Dickey, 595

F. Supp. 2d at 2; Townsend, 372 U.S. at 317; see also 28 U.S.C. § 2254(a) (application for writ of

habeas corpus may be granted only on the ground that the State prisoner is in custody in violation

of the Constitution). Accordingly, Claim 2 does not plead a federal constitutional violation and is

non-cognizable in this proceeding.

IV. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability (“COA”) before she may appeal this

Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue

unless a petitioner makes “a substantial showing of the denial of a constitutional right” of any

claim rejected on its merits, which a petitioner may do by demonstrating that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.” 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim

that has been rejected on procedural grounds, a petitioner must demonstrate “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack, 529 U.S. at 484. Applying this standard, the Court concludes that

Whaley will be GRANTED a COA on Claim 1(1) – that counsel rendered ineffective assistance

in failing to present evidence of her medical history of osteoarthritis and carpal tunnel issues. A

COA will be DENIED as to the remaining issues.

V. CONCLUSION

Whaley has failed to demonstrate an entitlement to federal habeas relief. Therefore, her

petition for a writ of habeas corpus will be DENIED, and this action will be DISMISSED WITH

PREJUDICE. A COA from this decision will be GRANTED solely as to Whaley’s claim that

her attorney rendered ineffective assistance in failing to present evidence at trial of her medical

history of osteoarthritis and carpal tunnel disease. A COA is DENIED as to all other claims.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Harry S. Mattice, Jr.________

HARRY S. MATTICE, JR.

UNITED STATES DISTRICT JUDGE