Barrett v. Genovese

• Court: U.S. District Court — Middle District of Tennessee
• Writing for the Court: WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
• Decision Date: 24 January 2020
• Docket Number: NO. 3:17-cv-00062,3:17-cv-00062
• Citation: Barrett v. Genovese, NO. 3:17-cv-00062 (M.D. Tenn. Jan 24, 2020)
• Parties: JEROME SIDNEY BARRETT, Petitioner, v. KEVIN GENOVESE, Warden, Respondent.

JEROME SIDNEY BARRETT, Petitioner, v. KEVIN GENOVESE, Warden, Respondent.

NO. 3:17-cv-00062

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

January 24, 2020

MEMORANDUM OPINION

Jerome Sidney Barrett, a state prisoner, filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. No. 1) and an amended habeas petition (Doc. No. 3) (collectively, the "Petition"). Respondent filed an answer (Doc. No. 23) and Petitioner filed a reply (Doc. No. 33). In the reply, Petitioner requests discovery and an evidentiary hearing. (Doc. No. 33 at 45-48.) For the following reasons, these requests will be denied, Petitioner is not entitled to relief on any of his claims, and this action will be dismissed.

I. Procedural Background

In June 2008, a Davidson County grand jury indicted Petitioner for first-degree murder and felony murder. (Doc. No. 22-1 at 5-7.) In July 2009, a jury found Petitioner guilty of second-degree murder, a lesser included offense, on both counts. (Doc. No. 22-2 at 63.) "The jury sentenced him to forty-four years for each conviction. The trial court merged the convictions and ordered that the sentence be served consecutively to a life sentence for a previous conviction." State v. Barrett, No. M2009-02636-CCA-R3-CD, 2012 WL 2870571, at *25 (Tenn. Crim. App. July 13, 2012). The Tennessee Court of Criminal Appeals ("TCCA") affirmed the judgment. Id. at *46. Petitioner filed an application for permission to appeal to the Tennessee Supreme Court (Doc. No. 22-27), and the Supreme Court denied it on December 12, 2012 (Doc. No. 22-28).

In November 2013, the trial court received Petitioner's pro se petition for post-conviction relief. (Doc. No. 22-29 at 66-110.) The court appointed counsel (id. at 111), and Petitioner filed a pro se amended petition¹ (id. at 112-30). The court held an evidentiary hearing (Doc. No. 22-31) and denied relief (Doc. No. 22-29 at 134-42). The TCCA affirmed. Barrett v. State, No. M2015-01161-CCA-R3-PC, 2016 WL 4410649 (Tenn. Crim. App. Aug. 18, 2016). Petitioner then filed two applications for permission to appeal: one prepared by counsel (Doc. No. 22-36), and another prepared by Petitioner himself (Doc. No. 22-37). On December 14, 2016, the Tennessee Supreme Court denied discretionary review and dismissed Petitioner's pro se application because he was "represented by counsel who filed a timely application for permission to appeal." (Doc. No. 22-38.)

Petitioner filed a habeas corpus petition (Doc. No. 1) and an amended petition (Doc. No. 3) in this Court, and Respondent concedes that the Petition is timely (Doc. No. 23 at 2).

II. Factual Background

On direct appeal, the TCCA provided a comprehensive account of the evidence at trial. Barrett, 2012 WL 2870571, at *1-25. The Court will refer to specific evidence as necessary in the analysis below. Here, to provide a basic context for Petitioner's claims, the Court relies on the TCCA's summary of the underlying facts on post-conviction appeal:

In 2009, the Petitioner was convicted of second degree murder for the February 1975 murder of nine-year-old Marcia Trimble. . . . [O]n the evening of February 25, 1975, the victim left her Nashville home to deliver Girl Scout cookies to a neighbor who lived across the street. When the victim's mother called for herapproximately twenty-five minutes later, the victim did not respond and did not return home.

Following an extensive search, the victim's body was found on March 30, 1975, in a neighbor's garage. The garage where she was found was open-ended without doors, and her body was well-hidden. An autopsy showed that the victim's cause of death was asphyxia caused by manual strangulation. The forensic examiner who performed the autopsy opined that based upon decomposition, livor mortis, and the victim's stomach contents, she died at or near the time of her disappearance and was likely in the garage almost from the time of death.

The medical examiner took vaginal swabs from the victim's vagina, and that evidence was preserved by rolling the swabs onto slides. Subsequent analysis showed the presence of sperm, but DNA testing was not available in 1975. The slides prepared were preserved by the medical examiner's office. The Federal Bureau of Investigation ("FBI") conducted serology testing on the victim's underwear, pants, and blouse. Those tests revealed no blood or semen on the underwear but did show the presence of semen on the pants and blood on the blouse.

The case remained unsolved, but the Metro Nashville Police Department continued to investigate the murder, and in 1990 the victim's case file was reviewed in an attempt to locate evidence that could be submitted for DNA testing. Between 1990 and 2004, the victim's pants, blouse, and the slides created from the vaginal swabs were tested multiple times by various laboratories. A DNA profile from this evidence was created in March 1992. That DNA was compared to samples from over one hundred individuals, including samples from almost everyone in the victim's neighborhood, but there were no matches.

The Petitioner was eventually developed as a suspect, and police obtained a search warrant for his DNA in 2007. The Petitioner's DNA matched a profile developed from the victim's blouse. A DNA expert opined that the probability of a random match was one in six trillion. The Petitioner was subsequently arrested and indicted. In 2008, two jailhouse informants informed authorities that while he was in jail, the Petitioner made statements admitting that he had killed the victim but denying that he had raped her.

Barrett, 2016 WL 4410649, at *1-2 (internal citations and quotation marks omitted).

III. Asserted Claims

Petitioner asserts several claims in the original petition and amended petition. Because many of the bare assertions in the original petition overlap with arguments raised in the more expansive amended petition, the Court considers the original and amended petitions collectively.In doing so, the Court has liberally construed the Petition to the fullest extent to identify the following claims. For clarity, the Court has grouped these claims by type, and listed them in roughly chronological order.

1. The indictment was not issued by a grand jury with a foreman. (Doc. No. 1 at 25; Doc. No. 3 at 33.)

2. The trial court erred in the following eighteen ways:

2.A. Denying the motion to dismiss for excessive pre-indictment delay (Doc. No. 1 at 12; Doc. No. 3 at 16);

2.B. Failing to minimize the effect of prejudicial pretrial publicity (Doc. No. 3 at 26-27);

2.C. Failing to dismiss the indictment based on prejudicial pretrial publicity (id.);

2.D. Denying the motion to continue trial to allow independent DNA analysis (id. at 10);

2.E. Denying the motion for a bill of particulars (id. at 20);

2.F. Denying the motion to suppress (Doc. No. 1 at 10; Doc. No. 3 at 15);

2.G. Allowing the person who performed the autopsy of the victim to testify as a DNA expert for the prosecution (Doc. No. 1 at 18);

2.H. Being influenced by media coverage to admit evidence (Doc. No. 3 at 27);

2.I. Allowing the testimony of "two jailhouse liars" (Doc. No. 3 at 13-14, 23-24);

2.J. Admitting testimony of Petitioner's statement that he "had killed before" (Doc. No. 1 at 14);

2.K. Admitting photographs of the victim (Doc. No. 3 at 32-33);

2.L. Admitting a video recording of a jail altercation involving Petitioner and fellow inmate Frank White, and allowing Sheldon Anter to testify about what White said to Petitioner (Doc. No. 1 at 27; Doc. No. 3 at 14, 28);

2.M. Failing to tell the jury the court's opinion of who the aggressor was in the jail altercation (Doc. No. 3 at 28);2.N. Allowing the prosecution to ask a defense witness if he was arrested, suspended, and resigned from the police force in 1978 (Doc. No. 1 at 15; Doc. No. 3 at 16);

2.O. Allowing the prosecution to impeach a defense witness with a prior misdemeanor conviction (Doc. No. 1 at 20; Doc. No. 3 at 16);

2.P. Failing to give a jury instruction on criminal and professional informants (Doc. No. 3 at 17, 23);

2.Q. Failing to instruct the jury that it must find Petitioner guilty of an underlying felony to find him guilty of felony murder (Doc. No. 3 at 19-21); and

2.R. Imposing an improper consecutive sentence above the maximum (Doc. No. 1 at 22; Doc. No. 3 at 34).

3. The state committed prosecutorial misconduct through comments during closing argument. (Doc. No. 1 at 24; Doc. No. 3 at 6, 14, 30-31.)

4. There is insufficient evidence to support Petitioner's convictions. (Doc. No. 1 at 8; Doc. No. 3 at 14, 22.)

5. Trial counsel was ineffective in the following fourteen ways:

5.A. Failing to file a motion to dismiss the indictment due to prejudicial pretrial publicity (Doc. No. 3 at 26);

5.B. Failing to adequately question potential jurors regarding media coverage (id. at 27);

5.C. Failing to ask constitutionally required questions during voir dire (id. at 33);

5.D. Retaining DNA expert Ronald Acklen (Doc. No. 3 at 3-4, 6-8);

5.E. Failing to assess the constitutionality of the collection, testing, and custody of DNA evidence (id. at 3-4, 7);

5.F. Failing to have a DNA expert conduct an independent DNA test (id. at 4, 9);

5.G. Failing to request a Dunaway hearing of a second DNA search (id. at 9, 16);

5.H. Failing to object and move to suppress evidence obtained as a result of a second warrantless DNA search (id. at 15-16);

5.I. Failing to investigate the backgrounds of state witnesses Sheldon Anter and Andrew Napper (id. at 13);5.J. Failing to object to the admission of photographs of the victim from around the time of her death (id. at 33);

5.K. Failing to object to the prosecutor's playing and narrating a video recording of the jail altercation (id. at 28);

5.L. Advising Petitioner not to call any alibi witnesses, including an individual named Cicero (id. at 17);

5.M. Failing to request a jury instruction on criminal and professional informants regarding Anter and Napper (id. at 13-14, 17, 23); and

5.N. Failing to request

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