Dinwiddie v. Lindamood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

PAUL WALLACE DINWIDDIE, )

)

Petitioner, )

)

v. ) No. 3:17-CV-166-HSM-DCP

)

TAMMY FORD, Warden, )

)

Respondent. )

MEMORANDUM OPINION

Petitioner Paul Wallace Dinwiddie, a Tennessee inmate proceeding pro se, has filed a

federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his Tennessee convictions for

two counts of aggravated rape and two counts of aggravated sexual battery and resulting 45-year

sentence. Having considered the submissions of the parties, the State-court record, and the law

applicable to Dinwiddie’s claims, the Court finds that the petition should be denied.

I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

On October 23, 2006, the victim, a personal trainer and physical therapist assistant, was

awakened in the bedroom of her ground-floor apartment to a man’s voice and a bath towel over

her face [Doc. 18-2 p. 33-39, 63]. The assailant called her by her name and held a knife to her

throat before digitally penetrating her vagina, performing oral sex on her, and kissing her breasts

[Id. at 40]. The assailant then masturbated and ejaculated onto a corner of the towel that was

covering her face [Id.]. After the assault, the assailant turned on the lights, stating that he had

dropped his lighter [Id.]. The victim was able to look beneath the towel a little, and she saw a

brown-haired, balding white man with a “beer belly” who weighed approximately 190 pounds [Id.

at 44, 55, 58]. The victim also noted that he wore denim jeans with a brown belt and had “not

small,” rough hands [Id.]. She otherwise recalled that he “reeked of cigarette smoke” and had a

distinctive southern accent [Id. at 46, 60].

The assailant eventually left, and the victim called the police [Id. at 41]. Law enforcement

collected a note from the victim’s apartment from an unknown author stating he or she wanted to

meet the victim, and some long and short hairs that the victim stated she found on her hand after

the attack [Id. at 64-66, 69-70]. A few days later, a hand towel and condom were found near a

dumpster at the victim’s apartment, and DNA testing of those items showed a male contributor

that was not Dinwiddie [Doc. 18-4 p. 9, 15, 28, 32, 51]. DNA collected from the victim’s breasts

did, however, match Dinwiddie [Id. at 47-48]. Dinwiddie was arrested inside his home, where

officers found ashtrays, lighters, and a pack of cigarettes [Id. at 68, 88].

Following a jury trial, Dinwiddie was convicted of two counts of aggravated rape and two

counts of aggravated sexual battery [See, e.g., Doc. 18-1 p. 107-110]. At sentencing, the trial court

determined that Dinwiddie had a significant criminal history that included incidents where he

stalked women and sentenced Dinwiddie to an effective 45 years in prison [Doc. 18-3 p. 43-50].

Dinwiddie appealed, and on July 23, 2010, the Tennessee Court of Criminal Appeals

(“TCCA”) affirmed the trial court’s judgment and sentence but remanded the case to the trial court

for merger of the two aggravated sexual battery jury verdicts into one judgment, and the two

aggravated rape verdicts into one judgment. State v. Dinwiddie, No. E2009-01752-CCA-R3-CD,

2010 WL 2889098, at *1-8 (Tenn. Crim. App. July 23, 2010) perm. app. denied (Tenn. Oct. 15,

2010) (“Dinwiddie I”). On October 15, 2010, the Tennessee Supreme Court denied Dinwiddie’s

application for permission to appeal. Id.

On April 26, 2011, Dinwiddie filed a petition for post-conviction relief that was later

amended by counsel, who incorporated Dinwiddie’s claims into the amendment [Doc. 18-13 p. 5-

31, 39-44]. Following an evidentiary hearing, the post-conviction court denied relief [Id. at 84-

87]. Aggrieved, Dinwiddie appealed, and the TCCA summarized the issues and evidence

presented at the evidentiary hearing as follows:

At the post-conviction hearing, only the Petitioner testified. He explained that he

had been represented by appointed counsel (“Trial Counsel”) and that they met

approximately six times. Their meetings lasted about thirty minutes each. He

explained to Trial Counsel that he had not committed the crimes against the victim,

that she had been an escort, and that she had come to his room at the InTown Suites

Apartments on Kingston Pike. Trial Counsel advised him against testifying because

of his criminal record.

At trial, the victim did not identify him as her assailant, and there were no other

eyewitness identifications. His defense to the DNA match, he testified, was “[t]hat

when she came to my hotel, I paid her for sex. And I did suck her breast at that

time.” This transaction occurred at about 11:00 p.m., before the victim was raped

at her apartment.

The Petitioner testified that Trial Counsel failed to challenge “properly” the State’s

evidence. Specifically, Trial Counsel did not have admitted into evidence a cast of

a footprint found outside the victim’s apartment window so that Trial Counsel could

demonstrate that the cast did not match the pair of boots recovered from the

Petitioner; Trial Counsel did not call sufficient witnesses to testify that the

Petitioner did not smoke but that others smoked at his residence; Trial Counsel did

not have cigarette butts tested for DNA to demonstrate that the Petitioner’s DNA

was not on them; Trial Counsel did not call sufficient witnesses to testify that the

Petitioner had “no hair”; and Trial Counsel did not adduce proof that the

handwriting and e-mail address contained in the note found on the victim’s door

were not the Petitioner’s. Trial Counsel also failed to establish the victim’s

profession as an escort.

On cross-examination, the Petitioner acknowledged that his sister had testified at

trial that the Petitioner had been living with her at the time of the crimes and that

the Petitioner could not have committed the crimes because she would have heard

him if he had left her house. The Petitioner explained that his sister was incorrect

about his location at the relevant time but acknowledged that she had provided him

with an alibi during her testimony at the trial. His sister also testified that he did not

smoke.

He did not recall stating during his interview with the police that he did not know

the victim. He maintained that he contacted the victim as an escort, that she came

to his room, and that she performed consensual oral sex, only. He recalled that there

had been photographs of him introduced at trial that showed him with hair. He

asserted that these photographs were “several years old” and that the hair in the

photographs was blonde, not brown.

After hearing this proof, the post-conviction court denied relief, concluding that

“the gravamen of petitioner's allegations are addressed to the sufficiency of the

evidence and he does not specifically point out how his counsel was ineffective.”

The Petitioner argues to this Court that the post-conviction court should have

granted him relief.

Dinwiddie v. State, E2013-01472-CCA-R3-PC, 2014 WL 869571, at *2-3 (Tenn. Crim. App.

March 4, 2014), perm. app. denied (Tenn. July 14, 2014) (“Dinwiddie II”). The TCCA affirmed

the post-conviction court’s decision on March 4, 2014. Id. On July 14, 2014, the Tennessee

Supreme Court denied Dinwiddie’s application for permission to appeal. Id.

On or about August 24, 2014, Dinwiddie filed the instant federal habeas petition in the

United States District Court for the Western District of Tennessee, raising the following grounds

for relief as paraphrased by this Court:

Ground One: Ineffective assistance of counsel

Ground Two: Insufficient evidence

Ground Three: Trial court error

Ground Four: Excessive sentences

[Doc. 1]. Thereafter, Respondent was ordered to respond to the petition and complied by filing an

answer on or about August 26, 2016 [Doc. 19]. On April 25, 2017, the petition was transferred to

this District [Doc. 15]. Dinwiddie subsequently sought and was granted permission to amend his

petition to include additional arguments and/or correct errors [See Docs. 25, 28, 39, 30, 21, 32].

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 his federal

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

exhaust all of his available State remedies, and the State court to which he 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 his 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 his actual and substantial

disadvantage, infecting his 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. GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL

In his first ground for federal habeas relief, Dinwiddie alleges the ineffective assistance of

trial, appellate, and post-conviction counsel [See Doc. 1 p. 15-21; Doc. 22; Doc. 29]. As

paraphrased by the Court, Dinwiddie alleges he received the ineffective assistance of counsel due

to the following:

1. Trial counsel’s failure to question victim or nurse practitioner regarding

lack of DNA found in victim’s vaginal area.

2a. Trial counsel’s failure to prepare Dinwiddie’s sister to testify.

2b. Trial counsel’s failure to call witnesses who would have testified Dinwiddie

was bald.

3. Trial counsel’s failure to object to the introduction of the knife from

Dinwiddie’s home.

4. Trial counsel’s coercion of Dinwiddie not to testify in his own defense.

5. Trial counsel’s failure to present evidence to disprove that Dinwiddie was a

smoker.

6. Trial counsel’s failure to conduct a pretrial investigation.

7. Trial counsel’s failure to have the State produce a cast of the boot print taken

from the crime scene.

8. Trial counsel’s failure to order independent DNA testing of the collected

hairs, swabs, and cigarettes butts.

9. Trial counsel’s failure to question the victim regarding whether the

perpetrator wore gloves.

10. Trial counsel’s failure to properly cross-examine the victim.

11. Trial counsel’s disregard of Dinwiddie’s request that the potential juror who

was an attorney known to trial counsel be dismissed.

12. Trial counsel’s failure to allow the jury to view and feel Dinwiddie’s hands

in order to disprove the victim’s description of them.

13. Trial counsel’s failure to have handwriting analysis done on the handwritten

note introduced at trial.

14. Trial counsel’s failure to object to the prosecution’s introduction of

Dinwiddie’s prior criminal convictions.

15. Appellate counsel’s failure to argue the sufficiency of the evidence to

establish the accused crimes.

16. Appellate counsel’s failure to timely file a Rule 11 motion.

17. Trial counsel’s failure to object to the fitness of the presiding judge, Judge

Baumgartner.

18. Post-conviction counsel’s failure to visit Dinwiddie or discuss witnesses

with him.

A. Procedurally Defaulted Claims

Dinwiddie has presented numerous ineffective assistance of counsel claims — Sub-claims

1, 2a, 4, 6, 9, 11, 14, and 15 — that were not presented to the TCCA on appeal from post-conviction

court’s denial of relief [See Doc. 18-15]. 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, Dinwiddie 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”). 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.”); see also Tenn. Code Ann. § 40-30-102(a) (one-year limitation

period) and § 40-30-102(c) (“one petition” rule). Dinwiddie has not argued that cause and

prejudice exist to excuse the default. Therefore, Dinwiddie has not provided grounds to excuse the

procedural default of these claims, and they must be dismissed.

B. Properly Exhausted Ineffective Assistance of Counsel Claims

Dinwiddie’s ineffective assistance sub-claims 2b, 3, 5-8, 10, 13, and 171 were exhausted

through appeal to the TCCA. These claims of ineffective assistance of counsel are 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: (1) he must

demonstrate constitutionally deficient performance, and (2) he 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

1 Although sub-claim 17 (regarding the presiding judge’s fitness) was raised on appeal to

the TCCA, it was abandoned by post-conviction counsel at the start of the evidentiary hearing,

and no evidence was presented in support of this claim [Doc. 18-14 p. 11-12; Doc. 18-15 p. 15].

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).

1. The State-court decision

Dinwiddie’s exhausted ineffective assistance of counsel claims were rejected in State court,

with the TCCA finding:

We agree with the post-conviction court that the Petitioner failed to establish by

clear and convincing evidence that Trial Counsel performed deficiently. The

primary thrust of the Petitioner’s proof consisted of allegations that Trial Counsel

failed to adduce evidence in support of the defense theory. However, the Petitioner

did not call at the post-conviction hearing any of the witnesses that he claimed could

have testified in his favor at trial, nor did he adduce the footprint proof, the DNA

proof, or the handwriting proof that he claimed Trial Counsel should have elicited

at trial. The Petitioner also did not adduce any proof other than his own testimony

that the victim had been a professional escort.

This Court has made clear that a claim of ineffective assistance of counsel arising

from the failure to call a witness must be supported by testimony from the witness

at the postconviction hearing. See, e.g., Denton v. State, 945 S.W.2d 793, 802–03

(Tenn.Crim.App.1996);Wade v. State, 914 S.W.2d 97, 102 (Tenn.Crim.App.1995);

Black v. State, 794 S.W.2d 752, 757–58 (Tenn.Crim.App.1990); see also Pylant,

263 S.W.3d at 869. Without the alleged witnesses’ testimony, there is no way for

the post-conviction court (or this Court) to evaluate whether the trial lawyer was

deficient in failing to adduce the alleged testimony, or to evaluate whether the

absence of the testimony from trial had a prejudicial effect on the outcome. The

same analysis applies to other proof that a petitioner claims should have been

adduced at trial but which he or she does not present at the post-conviction hearing.

Accordingly, we hold that the Petitioner failed to establish by clear and convincing

evidence that he is entitled to post-conviction relief on the basis of ineffective

assistance of counsel. Therefore, we affirm the post-conviction court’s denial of

post-conviction relief.

Dinwiddie II, 2014 WL 869571, at *4-5.

2. Analysis

A review of the record supports the determination that Dinwiddie offered no evidence,

other than his own testimony, regarding his allegations of ineffective assistance of counsel [See

Doc. 8-14]. His testimony was discredited by the post-conviction court, and the TCCA reasonably

determined that Dinwiddie failed to establish an entitlement to relief by clear and convincing

evidence. See, e.g., Stewart v. Wolfenbarger, 468 F.3d 338, 353 (6th Cir. 2006) (“The conclusion

of both the state trial court and the state court of appeals, that there was no proper evidence to

support Petitioner’s claim [regarding what the witness’ testimony would have been if the witness

testified], was not contrary to or an unreasonable application of clearly established law.”).

Therefore, the Court finds that Dinwiddie has not demonstrated that the TCCA’s decision

rejecting these claims was contrary to or involved an unreasonable application of Strickland, nor

has he demonstrated that the decision was based on an unreasonable determination of facts in light

of the evidence presented. Therefore, he is not entitled to federal habeas relief as to these sub-

claims.

C. NON-COGNIZABLE INEFFECTIVENESS CLAIMS

In sub-claim 16, Dinwiddie claims that he was denied the effective assistance of appellate

counsel due to appellate counsel’s failure to file a timely Rule 11 application for a writ of certiorari

to the Tennessee Supreme Court [Doc. 1 p. 18]. In sub-claim 18, Dinwiddie claims that he was

denied the effective assistance of post-conviction counsel due to post-conviction counsel’s failure

to meet with him or properly advise him regarding the post-conviction evidentiary hearing [Id. at

20]. Neither of these claims presents a basis for federal habeas relief.

First, as to sub-claim 16, there is no constitutional right to a discretionary appeal, either in

State court or to the United States Supreme Court. See, e.g., Ross v. Moffitt, 417 U.S. 600 (1974).

Therefore, a petitioner retains no right to counsel for those proceedings, and thus no extant right

to effective counsel. See, e.g., Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).

Second, as to sub-claim 18, a freestanding claim that post-conviction counsel was

ineffective is not a cognizable basis for federal habeas relief. See 28 U.S.C. § 2254(i) (stating

claims alleging ineffectiveness of collateral review counsel are not cognizable habeas

claims); Coleman, 501 U.S. at 752 (“There is no constitutional right to an attorney in state post-

conviction proceedings.”); Wallace v. Sexton, No. 13-5331, 2014 WL 2782009, at *11 (6th Cir.

June 20, 2014) (finding “[t]he Supreme Court has not recognized ineffective assistance of post-

conviction counsel as a free-standing constitutional claim”).

Accordingly, because these sub-claims do not affect a constitutional right, relief is

precluded by 28 U.S.C. § 2254(a).

IV. GROUND TWO: INSUFFICIENT EVIDENCE

In his second ground for relief, Dinwiddie argues that the evidence against him was

insufficient to sustain his convictions, as there was no physical evidence that placed him inside the

victim’s apartment [See, e.g., Doc. 1 p. 7, 21].

A challenge to the sufficiency of the evidence is governed by the standard set forth in

Jackson v. Virginia, 443 U.S. 307 (1979), which allows a reviewing court to set aside a verdict on

the basis of insufficient evidence only if, “after viewing the evidence in the light most favorable

to the prosecution,” no “rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The reviewing court must presume that

the trier of fact resolved conflicting inferences of fact in favor of the prosecution and must defer

to that resolution, because such a standard “gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id. Because both the AEDPA and the Jackson

standard apply to insufficiency claims, this Court’s review is doubly deferential. See Tucker v.

Palmer, 541 F.3d 652, 656 (6th Cir. 2008).

On direct appeal, the TCCA concluded that Dinwiddie’s convictions were supported by

sufficient evidence, noting:

The defendant argues primarily that inconsistencies between the victim’s

description of the assailant and [his sister]’s description of the defendant undermine

the State’s case. We disagree. The victim described a balding, 190-pound male who

“reeked” of cigarette smoke as her attacker. Detective Hall testified that the

defendant was 200 pounds and bald and that the defendant’s home contained

ashtrays filled with burned cigarettes. Further, the defendant’s boots retrieved from

his home matched the length of the muddy boot-print found in the victim’s guest

bedroom. The jury clearly did not credit [Dinwiddie’s sister]’s description of the

defendant and credited the State’s evidence.

Lastly, the victim testified that the assailant placed his mouth on her breasts. Swabs

taken from her breasts contained saliva with a DNA profile matching the defendant

to the exclusion of the world population. This direct evidence clearly places the

defendant at the scene of the crime and proves his identity as the rapist.

The defendant also claims that the fact that the DNA found on the towel recovered

from the dumpster of the apartment complex did not belong to him exonerates him.

However, aside from being found in a dumpster in the same apartment complex, no

evidence suggested that this towel was the one used to cover the victim’s face.

Further, the towel was found with a condom containing the same unknown DNA

profile, and the victim specifically testified that neither she nor the assailant

possessed a condom.

Dinwiddie I, 2010 WL 2889098, at *8-9.

The evidence presented by the State supported the victim’s description of her assailant, and

the DNA swabs taken from the victim’s breast matched Dinwiddie’s DNA. Given this evidence

and testimony, it is not unreasonable to conclude that a rational juror could find Dinwiddie guilty

of aggravated sexual battery and aggravated rape beyond a reasonable doubt. Therefore, the

decision rejecting this claim is not contrary to, nor is it an unreasonable application of, the Jackson

standard, nor is it based upon an unreasonable determination of facts in light of the evidence

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

V. GROUND THREE: TRIAL COURT ERROR

In his third ground for relief, Dinwiddie claims that the trial court erred in (1) instructing

the jurors on flight, (2) allowing a nurse practitioner to testify as an expert, and (3) failing to

instruct the jurors on lesser-included offenses.

A. Instruction on Flight

Dinwiddie argues that the jury was improperly instructed that it could infer his guilt from

the fact of his “flight,” when, in fact, he merely retreated to his bedroom upon seeing the police

enter his home to effectuate an arrest [Doc. 1 p. 22]. Dinwiddie’s jury was instructed:

The flight of a person accused of a crime is a circumstance which, when considered

with all the facts of the case, may justify an inference of guilt. Flight is the

voluntary withdrawal of oneself for the purpose of evading arrest or prosecution for

the crime charged. Whether the evidence presented proves beyond a reasonable

doubt that the defendant fled is a question for your determination.

The law makes no precise distinction as to the manner or method of flight; it may

be open, or it may be a hurried or concealed departure, or it may be a concealment

within the jurisdiction. However, it takes both leaving the scene of the difficulty

and a subsequent hiding out, evasion, or concealment in the community, or a

leaving of the community for parts unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find that the

defendant is guilty of the crime alleged. However, since flight by a defendant may

be caused by a consciousness of guilt, you may consider the fact of flight, if flight

is so proven, together with all of the other evidence when you decide the guilt or

innocence of the defendant. On the other hand, an entirely innocent person may

take flight and such flight may be explained by proof offered, or by the facts and

circumstances of the case.

Whether there was flight by the defendant, the reasons for it, and the weight to be

given to it, are questions for you to determine.

[Doc. 18-7 p. 139].

On direct appeal, the TCCA found that the trial court did not abuse its discretion by

instructing the jury on “flight,” noting that Dinwiddie ran from police when they came to arrest

him and “holed-up” in an area of his house while armed. Dinwiddie I, 2010 WL 2889098, at *9.

It otherwise determined that any error occasioned by the giving of the instruction was harmless

error “given the overwhelming proof” of Dinwiddie’s guilt. Id. at *11.

The Court notes that there is no general federal right to a properly instructed jury; jury

instructions are ordinarily a State-law issue. See Estelle v. McGuire, 502 U.S. 62, 70-72 (1991).

As such, errors in State-court’s jury instructions do not warrant federal habeas relief unless they

deprive a petitioner of a fundamentally fair trial. Id. at 72-73; Henderson v. Kibbe, 431 U.S. 145,

154 (1977). Therefore, a petitioner seeking federal habeas relief on the basis of an erroneous jury

instruction must establish that “the ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).

In this case, the flight instruction was permissive and did not create a mandatory

presumption of guilt that would violate due process, as it did not relieve the State of its burden of

prove Dinwiddie’s guilt of the crimes (or of his flight) beyond a reasonable doubt. See Francis v.

Franklin, 471 U.S. 307, 313 (1985) (holding due process “prohibits the State from using

evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden

of persuasion beyond a reasonable doubt of every essential element of a crime”); Estelle, 502 U.S.

at 78-79 (noting permissive inference does not violate due process because “the State still has the

burden of persuading the jury that the suggested conclusion should be inferred based on the

predicate facts proved”). Additionally, there is no suggestion that the jury was not otherwise

instructed properly and impartial. See Rivera v. Illinois, 556 U.S. 148, 162 (2009) (holding due

process requires “a fair trial before an impartial and properly instructed jury”). Therefore,

Dinwiddie has not demonstrated that the instruction by itself violated his due process rights. Thus,

he has failed to demonstrate that the decision rejecting this claim is contrary to, or that it involves

an unreasonable application of, the clearly established Supreme Court precedent, or that it is based

upon an unreasonable determination of facts in light of the evidence presented. Dinwiddie is not

entitled to federal habeas relief on this claim.

B. Expert Testimony

Dinwiddie next asserts that the trial court erred in allowing a nurse practitioner to testify

as an expert [Doc. 1 p. 22]. However, this claim is one alleging failure of a trial judge to comply

with State law, and therefore, it is not a cognizable federal habeas claim. See Estelle, 502 U.S. at

67-68 (holding “it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions”); Sinistaj v. Burt, 66 F.3d 804, 807 (6th Cir. 1995) (“Errors

of state law alone cannot form the basis of relief under federal habeas corpus.”). Additionally, as

Dinwiddie raised this issue on direct appeal solely on the basis of State law [see Doc. 18-8 p. 23-

36], he has procedurally defaulted his federal claim. See, e.g., McDougald v. Lockhart, 942 F.2d

508, 510 (8th Cir. 1991) (“Explicit citation to the Constitution or to a federal case is necessary for

fair presentation of a constitutional claim in state court.”). Accordingly, this claim is non-

cognizable and otherwise procedurally defaulted.

C. Lesser-Included Offenses

Dinwiddie also claims that the trial court erred by not telling the jury that they could convict

on lesser-included offenses [Doc. 1 p.22]. However, Dinwiddie has never presented a lesser-

included-offenses claim to the State courts, and therefore, such a claim is procedurally defaulted

and barred from federal habeas review. See O’Sullivan, 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”); Bagley, 696 F.3d at 483 (“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.”); see also Tenn. Code Ann. § 40-30-102(a) (one-year limitation period)

and § 40-30-102(c) (“one petition” rule). Dinwiddie has not argued that cause and prejudice exist

to excuse the default, and therefore, this claim must be dismissed.2

VI. GROUND FOUR: EXCESSIVE SENTENCES

In his final ground for relief, Dinwiddie claims that the trial court erred in imposing

excessive sentences [Doc. 1 p. 23]. However, Dinwiddie’s claim regarding the trial judge’s

imposition of sentences is based on an alleged misapplication of State law, and therefore, it is not

a cognizable federal habeas claim. See Estelle, 502 U.S. at 67-68 (holding “it is not the province

of a federal habeas court to reexamine state-court determinations on state-law questions”); Sinistaj,

66 F.3d at 807 (“Errors of state law alone cannot form the basis of relief under federal habeas

corpus.”). Additionally, because Dinwiddie raised this issue on direct appeal solely on the basis

of State law [see Doc. 18-8 p. 30-32], he has procedurally defaulted his federal claim. See, e.g.,

McDougald, 942 F.2d at 510 (“Explicit citation to the Constitution or to a federal case is necessary

for fair presentation of a constitutional claim in state court.”). Accordingly, this claim is non-

cognizable and otherwise procedurally defaulted.

VII. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability (“COA”) before he 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

2 The Court otherwise notes that the jury was instructed on lesser-included offenses [See

Doc. 18-7 p. 122-37].

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 a

COA should be denied in this case.

VIII. CONCLUSION

Dinwiddie has failed to demonstrate an entitlement to federal habeas relief. Therefore, his

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

PREJUDICE. A certificate of appealability from this decision will be DENIED.

Further, the Court will CERTIFY that any appeal from this action would not be taken in

good faith and would be totally frivolous. Fed. R. App. P. 24.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Harry S. Mattice, Jr._______

HARRY S. MATTICE, JR.

UNITED STATES DISTRICT JUDGE