Eady v. Morgan

• Decision Date: 13 February 2008
• Docket Number: No. 06-5731.,06-5731.
• Citation: 515 F.3d 587
• Parties: Ernest B. EADY, Petitioner-Appellant, v. Jack MORGAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

515 F.3d 587

Ernest B. EADY, Petitioner-Appellant, v. Jack MORGAN, Respondent-Appellee.

No. 06-5731.

United States Court of Appeals, Sixth Circuit.

Argued: November 29, 2007.

Decided and Filed: February 13, 2008.

ARGUED: Christopher R. Pudelski, Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for Appellant. David H. Findley, Office of the Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Christopher. R. Pudelski, Steven C. Wu, Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for Appellant. David H. Findley, Office of the Attorney General, Nashville, Tennessee, for Appellee.

Before: KENNEDY, MARTIN, and CLAY, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

Mr. Ernest B. Eady appeals the judgment of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Eady was convicted of second degree murder in Tennessee state court. He argues that he was entitled to a writ of habeas corpus because there was insufficient evidence to support his conviction and because his counsel had provided ineffective assistance on direct appeal. Both his claims are based on the fact that, subsequent to' his conviction, Tennessee law regarding the scienter required for second degree murder was clarified. Prior to `his conviction, Tennessee state law allowed a person to be convicted for second degree murder if that person was aware of the nature of his conduct or if that person was aware that his conduct was reasonably certain to cause death. Mr. Eady's jury was instructed consistent with this definition. It is now clear that, to be convicted of second degree murder under Tennessee law, a person must be aware that the nature of his conduct is reasonably certain to result in death. Mr. Eady asserts that there was insufficient evidence to prove this scienter, and that, on direct appeal, his appellate counsel should have argued for a new trial on the basis that his trial jury had been improperly instructed. The Tennessee Court of Criminal Appeals ruled against Mr. Eady on both issues on state post-conviction review. The district court similarly found Mr. Eady's arguments unpersuasive, and accordingly denied Mr. Eady's petition. Upon review, we conclude that the district court was correct, and we accordingly affirm the district court's judgment and deny Mr. Eady's petition.

BACKGROUND

I. Mr. Eady's State Trial

Mr. Ernest B. Eady was convicted of second degree murder for the killing of Robert Fletcher. On November 21, 1998, the night of the killing, Mr. Eady was drinking in a club owned by James Cannon.¹ Prior to that night, Mr. Eady had on occasion been kicked out of the club because "he had a habit of just pouring drinks on the floor and saying, `This is for my dead homey,'...." When Mr. Eady would be kicked out, he would verbally abuse and threaten James Cannon, although he would not become physically violent and he "would always come back and apologize later when he calmed down...."

At 3:30 AM that night, Mr. Eady again poured his drink on the floor and was acting "loud and boisterous." James Cannon, therefore, asked Mr. Eady to leave. Mr. Eady "started at [James Cannon], and his friends held him back." As Mr. Eady's friends took him out of the club, Mr. Eady "went by the tables and chairs, [and] he picked them up and threw them on the floor." He also threatened James Cannon, saying things like, "`I am going to get you.'" At the point Mr. Eady left the club, there were about thirty-five people still inside.

James Cannon followed Mr. Eady and his friends outside to ensure that he did in fact leave. James Cannon witnessed Mr. Eady's friends take him away. He then reentered the club.

About forty-five minutes after Mr. Eady left the club, roughly around 5:00 AM, he returned and signaled at the door. Mark Cannon, the proprietor's son who was working the door that night, saw Mr. Eady through the peephole. His father told him not to open the door for Mr. Eady. Mark Cannon refused Mr. Eady entrance, but a patron wanted to leave the club and Mark Cannon had to open the door. When Mark Cannon opened the door, Mr. Eady started to climb the steps to enter the club, and Mark Cannon told him that he was not permitted to enter.

Mark Cannon then observed that Mr. Eady was holding a gun in his hand. It appeared to be a black, semi-automatic .9 millimeter. Another patron also observed Mr. Eady at the door holding a gun.

Mark Cannon partially closed the door, but it remained open about a foot and Mark Cannon talked with Mr. Eady, who was standing about six feet from the door. Mr. Eady wanted to enter the club, and he asked Mark Cannon "several times," "`Where is he at?'" as he looked inside the club from the steps. At this point there were anywhere from twenty-five to forty people inside the club and the parking lot was full of cars. Mark Cannon asked Mr. Eady to "`Make the gun back to the car,' [and told Mr. Eady] that, `It is not worth it.'"

Mark Cannon then tried to pull the door shut but Mr. Eady was pulling on the outside knob. Mr. Eady then released the knob and Mark Cannon heard him cock the gun. Mark Cannon then successfully closed the door.

Witnesses estimated that it was anywhere from a few to forty seconds and up to a few minutes after the door was shut that four shots were fired at the front of the club. The front of the building was brick, had a steel door, and had two windows covered with particle board. Two shots were fired at the steel door. Two shots were then fired at the building. One of those shots hit the brick building and the other penetrated the particle board covering the window and struck and killed Robert Fletcher, who was standing in the back of the club.

Cathey Siler, who was sitting in her car across the street from the club while the shots were being fired, saw a black man wearing all black clothing shooting at the building. She saw the man fire two shots at the door, and then back up to a car that was waiting for him while firing two more shots, one of which was fired just before he entered the car.

Marlon Fletcher ran outside of the club to see if he could see Mr. Eady outside a minute or two after the shooting ended. While he did not see Mr. Eady, he did see Mr. Eady's vehicle, a beige 1998 Buick, about five or ten yards down the street being driven away from the club. Marlon Fletcher recognized Mr. Eady's vehicle because he had known it since Mr. Eady had purchased it.

After the police assessed the scene, they went to Mr. Eady's apartment to interview him. When asked where he had been that night, Mr. Eady responded, "`I haven't been out of the apartment all night. I have been right here in the apartment.' He said, `I c[a]me in at 10:00, 10:30[PM], and I have sat right here on the couch watching TV ever since.'"

Approximately eleven months after the shooting, Mr. Eady had a conversation with the sister of the victim who had been in the club that night. After Ms. Fletcher told him how her brother's killing made her feel, Mr. Eady "went down to his knees, and [] he was crying."

Mr. Eady also had several conversations with Marlon Fletcher, the cousin of the victim. Marlon Fletcher recalled their interaction as follows:

Well, a couple of times I had seen [Mr. Eady]—he wouldn't say nothing to me. One time I had seen him—we had seen him, and he was talking like, "I didn't mean to do that to your cousin. I love you-all like a family." And I was like, "Yeah," you know what I am saying, "I was giving you a place to stay when you had nowhere to stay," and he was just telling me how much—you know what I am saying, he didn't—that he cared about us, and that he didn't mean to do that....

I mean, first couple of times I seen him, he didn't say nothing to me; but then, after a while, he had seen me a couple of times, and he said he didn't mean to do that, and you know, that he loved us like a family. . . [Mr. Eady volunteered this statement], I didn't ask him.

J.A. 64, 71.

The jury was provided the following instructions regarding the scienter required to establish second degree murder.

Knowingly means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result. A defendant acts knowingly when he or she is aware of the conduct, or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur.

The requirement of knowingly is also established if it is shown that the defendant acted intentionally. Intentionally means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.

J.A. at 108. Under this instruction, the jury convicted Mr. Eady of second degree murder based on all the evidence.

II. Procedural History

A. Direct Appeal

Mr. Eady took several steps to challenge his conviction. First, his trial lawyer, Mr. Haas, filed a direct appeal on Mr. Eady's behalf. He filed his notice of appeal to the Tennessee Court of Criminal Appeals on March 29, 2000, and then filed his brief on September 18, 2000. Mr. Haas made three primary arguments in his brief, one of which was a sufficiency-of-the-evidence argument where he contended that there was insufficient evidence to find that Mr. Eady knowingly committed murder, as required for second degree murder. He argued that the evidence at most only supported recklessness or negligence.

The Tennessee Court of Criminal Appeals filed its opinion rejecting Mr. Eady's arguments on February 13, 2001. It held that the evidence supported a second degree murder conviction because it could have convinced a rational juror that...