Weaver v. Eller

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

HARRY C. WEAVER, JR., )

)

Petitioner, ) Case No. 3:23-cv-394

)

v. ) Judge Atchley

)

BRIAN ELLER, ) Magistrate Judge McCook

)

Respondent. )

)

MEMORANDUM OPINION AND ORDER

Petitioner Harry C. Weaver, Jr., is a Tennessee inmate proceeding pro se on a federal

habeas petition under 28 U.S.C. § 2254 in which he challenges the constitutionality of his

confinement under Sullivan County judgments of conviction for first-degree murder, felony

murder, three counts of aggravated assault, reckless endangerment, and aggravated domestic

assault [Doc. 2].1 Having considered the submissions of the parties, the state-court record, and the

law applicable to Petitioner’s claims, the Court finds an evidentiary hearing is not warranted,2 the

petition will be DENIED, and this action will be DISMISSED.

1 Petitioner’s felony-murder and aggravated-domestic-assault convictions were merged

into his first-degree murder conviction [Doc. 9-1 at 49, 63].

2 “If the petition is not dismissed, the judge must review the answer, any transcripts and

records of state-court proceedings, and any materials submitted under Rule 7 to determine whether

an evidentiary hearing is warranted.” Rule 8(a), Rules Governing Section 2254 Cases in the United

States District Courts (“§ 2254 Rules”); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007)

(providing an evidentiary hearing not required where record refutes the petitioner’s allegations or

otherwise precludes habeas relief).

I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

On February 13, 2019, Petitioner entered the dental office of Dr. David Guy, where his

estranged wife (“the victim”) was employed and shot her multiple times [Doc. 9-5 at 3]. Petitioner

also pointed the gun at Dr. Guy, employee Sabrina Steele, and patient Larry Seagroves [Id.]. Mr.

Seagroves was armed and shot Petitioner multiple times [Id.]. Petitioner was seriously wounded

but survived [Id.]. The victim died [Id.].

A July 19, 2019, presentment charged Petitioner with nine separate counts related to the

incident: first-degree murder, felony murder, especially aggravated kidnapping, attempted second-

degree murder, three counts of aggravated assault, reckless endangerment, and aggravated

domestic assault [Doc. 9-1 at 3–7]. Petitioner subsequently entered into a plea agreement with the

State, the provisions of which were considered at a guilty-plea hearing held on October 29, 2019

[Doc. 9-1 at 13; Doc. 9-3].

At the guilty-plea hearing, the trial court questioned Petitioner regarding the rights he was

waiving by pleading guilty, including his right to a jury trial, cross-examination of witnesses, and

appeal rights [Doc. 9-3 at 12–13]. Petitioner acknowledged that he was pleading guilty and

waiving his rights both freely and voluntarily [Id. at 14]. When asked on two separate occasions

whether he was satisfied with the performance of court-appointed counsel Andrew Gibbons and

Dustin Franklin, Petitioner stated, “I think they have done their best” [Id. at 4, 7; see also Doc. 9-2

at 9]. The trial court accepted the plea, sentenced Petitioner to life in prison, and entered the

judgments of conviction on October 29, 2019 [Doc. 9-3 at 16, 23–40].

On September 15, 2020, Petitioner filed a pro se petition for post-conviction relief alleging

that his guilty plea was involuntary, and trial counsel rendered ineffective assistance for various

alleged deficiencies, including a failure to seek further mental evaluations and failure to consider

mitigating evidence [Doc. 9-1 at 34–43]. Petitioner was appointed post-conviction counsel, who

filed a supplemental petition alleging that Mr. Gibbons rendered ineffective assistance due to the

following circumstances: his failure to properly consider Petitioner’s “advanced age” and “fragile

health” in discussing Petitioner’s plea; his failure to explain the different levels of culpability for

homicide; his conflict of interest due to his relationship with Petitioner’s son-in-law; and his

coercion of the guilty plea by stressing that Petitioner should not put his family through a trial [Id.

at 80–88].

On December 7, 2021, the post-conviction court held an evidentiary hearing [Doc. 9-2].

At the beginning of the hearing, the trial court ruled, over Petitioner’s objection, that trial counsel

would be permitted to remain in the courtroom during the presentation of Petitioner’s case [Id. at

5]. The Tennessee Court of Criminal Appeals (“TCCA”) recounted the evidence presented at that

hearing (and the post-conviction court’s subsequent findings) as follows:

[T]he petitioner testified that at the time of the shooting, a divorce was pending

between himself and the victim. He was critically injured by the gunshot wounds

that he received after his shooting the victim, and while in jail following his

hospitalization, he was confined to a wheelchair until approximately May 2019.

When trial counsel informed him that he would be convicted of offenses stemming

from the shooting, the petitioner became “frustrated” and “distraught.” He stated

that he experienced “enormous pressure . . . devastating pressure” when trial

counsel told him that the petitioner’s son-in-law had said that the family wanted the

petitioner to plead to a life sentence. The petitioner said that trial counsel failed to

discuss the lesser degrees of homicide with him, but the petitioner acknowledged

that he was evaluated by a mental health professional.

Eventually, the petitioner discussed a possible guilty plea with trial counsel. The

petitioner posed two objections to pleading guilty. First, he referenced a collection

of 12 to 15 guns that the police had taken from his home, and he wanted the guns

returned to his son. Second, he did not want to plead to the kidnapping charges.

When informed that the State had returned the guns to his son and had agreed to

dismiss the kidnapping charges, the petitioner agreed to plead guilty to first degree

murder and a sentence of life in prison. The petitioner acknowledged that he signed

the written plea agreement and initialed the areas explaining his rights but

maintained that he did so “to end my frustration.”

During the evidentiary hearing, trial counsel testified that he and co-counsel were

members of the public defender’s office who were appointed to represent the

petitioner on the charges. Trial counsel learned that one of his friends was the

employee of the petitioner’s son-in-law. Trial counsel spoke to the petitioner’s son-

in-law at a wedding and later at a cookout, and the petitioner’s son-in-law informed

him that the family did not want the State to seek the death penalty. Trial counsel

informed the petitioner of the connection with his son-in-law, and the petitioner

declined to ask trial counsel to withdraw. Trial counsel said the situation posed no

ethical issue.

Trial counsel testified that he and the petitioner discussed the number of years that

the petitioner would be required to serve if convicted and his age when he would

be eligible for parole. Trial counsel told the petitioner that he would not live long

enough to be released from prison, but the petitioner still wanted a sentence that

included parole eligibility. Trial counsel stated that he informed the petitioner that

there was no issue in the case regarding identity since the petitioner shot his wife

in front of multiple witnesses. Trial counsel said that he and the petitioner discussed

the different levels of culpability related to homicides, including “heat of passion.”

Trial counsel informed the petitioner that he did not believe any argument that the

petitioner killed his wife in the “heat of passion” would be successful because the

petitioner gave a statement to the police in which he admitted that he planned the

shooting.

Trial counsel testified that the petitioner was interested in a defense that sullied the

victim. Trial counsel advised against such a tactic because it would not be effective

and would only serve to cause the family distress upon hearing evidence of the

victim’s bad character. Trial counsel denied telling the petitioner that he should

avoid putting his family through a trial in general, only that the petitioner’s family

should not necessarily have to hear the petitioner’s blaming the victim.

Trial counsel hired Dr. Eric Engum to examine the petitioner and to determine

whether a defense of mental incapacity could be supported. Dr. Engum met with

the petitioner for three days and informed trial counsel that no such defense could

be supported. Dr. Engum described the petitioner as an extreme narcissist. When

informed that the defense could not use Dr. Engum, the petitioner insisted on

finding a doctor who would help him at trial. Trial counsel declined to seek another

expert because, in part, he did not believe a defense of mental incapacity existed,

and he stated that a search for another expert would have been a waste of time.

Trial counsel testified that the petitioner declined to enter into a plea agreement

unless the guns belonging to his son that the police officers had seized from the

petitioner’s home were returned to his son and the kidnapping charge and the

charges involving Ms. Steele were dismissed. The State returned the guns to the

petitioner’s son and agreed to dismiss the kidnapping charge and a charge involving

Ms. Steele. Trial counsel said that when reviewing the plea agreement, the

petitioner exhibited no hesitation or frustration; however, trial counsel had to

disabuse the petitioner of the notion that, once in prison, the petitioner would be

able to persuade the warden to shorten his sentence. The petitioner signed and

initialed the plea agreement, indicating that he understood the terms of the

agreement.

At the conclusion of the hearing, the post-conviction court took the matter under

advisement, and on February 2, 2022, the court entered an order denying post-

conviction relief. The court credited trial counsel’s testimony concerning his

preparations for trial and the report submitted to him by Dr. Engum, and the court

found that trial counsel informed the petitioner that a “heat of passion” defense

would be inapt because the petitioner had told the police that he “had planned the

whole thing out.” The court characterized trial counsel and co-counsel as very

competent and found that trial counsel was “extremely credible as opposed to the

petitioner.” The court also found that trial counsel “very competently discussed [the

plea] with the petitioner and that [the petitioner] fully understood its consequences,

and made his plea voluntarily.”

See Weaver v. State, No. E2022-00228-CCA-R3-PC, 2023 WL 3221913, at *1 (Tenn. Crim. App.

May 3, 2023), perm. app. denied (Tenn. Sept. 11, 2023). On appeal, the TCCA affirmed the trial

court’s judgment. Id. at *1. On September 11, 2023, the Tennessee Supreme Court denied

discretionary review [Doc. 9-6 at 2].

Petitioner subsequently filed a timely federal habeas petition [Doc. 2] and memorandum in

support [Doc. 3], raising the following two claims, as paraphrased by the Court: (1) trial counsel

performed ineffectively in failing to properly advise Petitioner regarding the plea agreement, and

(2) the post-conviction court erred in failing to sequester former trial counsel during Petitioner’s

testimony at the post-conviction hearing [Docs. 2, 3]. This Court ordered Respondent to file a

response to the petition and the state-court record [Doc. 5]. Respondent subsequently filed the

state-court record [Doc. 9] and his response to the petition [Doc. 10], to which Petitioner replied

[Doc. 11]. This matter is now ripe for review.

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 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). Review under § 2254(d) is limited to the record that was presented to

the state court. Cullen v. Pinholster, 563 U.S. 170, 181–83 (2011). And 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).

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. Williams, 529 U.S. at 407–08; Brown v. Payton, 544 U.S.

133, 141 (2005). But even an incorrect state court decision is not necessarily unreasonable. 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. Rather, this Court may grant relief

for a claim decided on its merits in state court only where the petitioner demonstrates that the state

court 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). Therefore, “so long as ‘fairminded jurists could disagree’ on the correctness

of the state’ court’s decision[,]” federal habeas relief is not available. Id. at 101 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). With these standards in mind, the Court turns

to a consideration of Petitioner’s claims.

III. ANALYSIS

A. Ineffective Assistance of Counsel

Petitioner maintains that trial counsel rendered ineffective assistance by failing to properly

advise Petitioner regarding his plea deal [Doc. 2 at 4]. Specifically, he claims that counsel did not

properly advise him of his charges, the consequences he faced, or any possible defenses, nor did

he investigate or prepare a defense [Doc. 3 at 6]. Petitioner also notes that he was heavily

medicated, “voiced significant discontent with counsel’s performance” at the guilty plea hearing,

and, at the age of sixty-three, gained nothing by pleading guilty and receiving a life sentence [Id.

at 5–6].

“[G]uilty pleas must be entered knowingly, voluntarily, and intelligently in order to be

constitutionally effective.” Fitzpatrick v. Robinson, 723 F.3d 624, 639 (6th Cir. 2013) (citing

Brady v. United States, 397 U.S. 742, 748 (1970)). “The longstanding test for determining the

validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985)

(citation and internal quotation marks omitted). Thus, for a guilty plea to be valid, a defendant

must “understand the nature of the charges against him and the consequences of pleading guilty,

including the possible punishments and loss of other rights.” Fitzpatrick, 723 F.3d at 639 (citation

omitted).

The standard set forth in Strickland v. Washington, which governs ineffective-assistance

claims generally, also governs challenges “to guilty pleas based on ineffective assistance of

counsel.” Lockhart, 474 U.S. at 58. And under Strickland, a petitioner must satisfy a conjunctive,

two-pronged test to establish he received constitutionally ineffective assistance: (1) he must

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

prejudice as a result of such ineffective assistance. 466 U.S. at 687. 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. But 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 687, 694. Specifically, in a guilty-

plea context, a Petitioner establishes prejudice by establishing “a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Lockhart, 474 U.S. at 59. And “where the alleged error of counsel is a failure to advise the

defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’

inquiry will depend largely on whether the affirmative defense likely would have succeeded at

trial.” Id.

Petitioner presented this claim to the TCCA, which rejected it on its merits, finding as

follows:

We . . . conclude that the petitioner failed to establish that trial counsel was

ineffective. Trial counsel testified that he discussed with the petitioner the

practicable effect of a sentence of imprisonment due to the petitioner’s age, the

different levels of culpability related to homicides, and any possible defenses. Trial

counsel concluded that “heat of passion” was not a viable defense due to the

petitioner’s admission to the police that the shooting was planned. The petitioner

was evaluated by a mental health expert, who determined that a defense of mental

incapacity could not be supported. Trial counsel testified that he reviewed the terms

of the plea agreement with the petitioner, that the petitioner exhibited no hesitation

or frustration, and that the petitioner signed and initialed the plea agreement,

indicating that he understood the terms of the agreement. Trial counsel testified that

he did not tell the petitioner that he should avoid putting his family through a trial.

During the plea hearing, the petitioner affirmed that he understood the terms of the

plea agreement and that he was waiving his rights freely and voluntarily. The post-

conviction court credited trial counsel’s testimony and found that trial counsel

“very competently discussed [the plea] with the petitioner and that [the petitioner]

fully understood its consequences, and made his plea voluntarily.” The evidence

does not preponderate against the post-conviction court’s findings. We conclude

that trial counsel’s performance was not deficient and that the petitioner knowingly

and voluntarily entered the plea agreement. Accordingly, the petitioner is not

entitled to relief.

Weaver, 2023 WL 3221913, at *4.

Petitioner has not established that the rejection of this claim was unreasonable, nor has he

demonstrated a reasonable likelihood that he would have chosen to go to trial if counsel had

handled the case any differently. The post-conviction court credited trial counsel’s testimony that

he discussed the terms of the plea with Petitioner, offered sound advice in the face of

overwhelming evidence against Petitioner, and that Petitioner subsequently entered a valid guilty

plea [See Doc. 9-1 at 98]. And “federal habeas courts do not have license, under § 2254(d), to

redetermine witness credibility, whose demeanor is observed exclusively by the state court.”

Givens v. Yukins, 238 F.3d 420, 2000 WL 1828484, at *10 (6th Cir. Dec. 5, 2000) (citing Marshall

v. Lonberger, 459 U.S. 422, 434 (1983)).

And, as noted by the state courts, trial counsel retrained an expert to explore a mental

incapacity defense for Petitioner, but the expert found Petitioner did not qualify for any such

defense [Id. at 40–41]. Trial counsel also reasonably advised Petitioner that a “heat of passion”

defense would be unsuccessful considering Petitioner’s statement to police that he planned the

crime [Id. at 40]. Petitioner testified on three different occasions during the plea hearing that he

understood the life-sentence term of his plea deal [Doc. 9-3 at 8, 10, 12]. The record also confirms

that Petitioner pleaded guilty in exchange for certain concessions; namely, that 12–15 firearms

seized from Petitioner’s home were returned to Petitioner’s son, and the State dropped two charges

against him [Id. at 43–44, 45]. And at the guilty plea hearing, Petitioner stated “I think they’ve

done their best” when the trial court asked if Petitioner was satisfied with this representation [Doc.

9-2 at 7].

Thus, the TCCA reasonably found that trial counsel was not deficient, and that the

evidence supported the post-conviction court’s finding that Petitioner suffered no prejudice.

Accordingly, the decision rejecting this claim is not contrary to, nor does it involve an

unreasonable application of, Strickland and its progeny, nor is it based on an unreasonable

determination of facts in light of the evidence presented.

B. Failure to Sequester Trial Counsel

Next, Petitioner asserts that the post-conviction court erred by ignoring Petitioner’s

invocation of Rule 615 of the Tennessee Rules of Evidence and allowing his trial counsel to remain

in the courtroom for Petitioner’s post-conviction hearing testimony, which occurred before trial

counsel’s [Doc. 2 at 6–7; Doc. 3 at 2–3]. The TCCA denied this claim on appeal. Weaver, 2023

WL 3221913, at *4.

However, a claim alleging error in a post-conviction proceeding is not a cognizable basis

for federal habeas relief. Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (“[T]he Sixth Circuit

has consistently held that errors in post-conviction proceedings are outside the scope of federal

habeas corpus review.” (citations omitted)). And habeas relief is only available for claims that a

petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2254(a). Here, Petitioner alleges that his post-conviction proceedings violated an

evidentiary rule under Tennessee law, but a claim of state-law error is an insufficient basis on

which to support a habeas claim. Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) (holding “that

[an evidentiary ruling] was allegedly incorrect under state law is not a basis for habeas relief”).

Finally, “the Supreme Court has never held that the failure to exclude witnesses can violate due

process.” Thorne v. Hollway, No. 3:14-cv-0695, 2014 WL 4411680, at *27 (M.D. Tenn. Sept. 8,

2014) (citing Larson v. Palmateer, 515 F.3d 1057, 1065 (9th Cir. 2008)). Therefore, this claim is

not cognizable and otherwise fails to state a claim warranting federal habeas relief.

IV. 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). And 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 (emphasis added). Applying this standard,

the Court concludes that a COA should be denied in this case.

V. CONCLUSION

For the reasons set forth above, Petitioner has failed to demonstrate an entitlement to

federal habeas relief. Therefore, the instant petition will be DENIED, and this action is

DISMISSED WITH PREJUDICE. A certificate of appealability from this decision will be

DENIED. Further, the Court CERTIFIES 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.

SO ORDERED.

/s/ Charles E. Atchley, Jr. c

CHARLES E. ATCHLEY, JR.

UNITED STATES DISTRICT JUDGE