Groseclose v. Bell, 3:89-0662.

Decision Date28 July 1995
Docket NumberNo. 3:89-0662.,3:89-0662.
Citation895 F. Supp. 935
PartiesWilliam E. GROSECLOSE v. Ricky BELL, Warden.
CourtU.S. District Court — Middle District of Tennessee

Larry D. Woods, Woods & Woods, Nashville, TN, for petitioner.

Glenn Richard Pruden, Nashville, TN, for respondent.

MEMORANDUM

JOHN T. NIXON, Chief Judge.

In this habeas corpus proceeding under 28 U.S.C. § 2254, Petitioner William Edward Groseclose challenges the constitutionality of his 1978 conviction and sentence of death by electrocution imposed by the Criminal Court of Shelby County, Tennessee. Mr. Groseclose was tried and convicted in February of 1978 for murder in the first degree for the murder of his wife, Deborah Lee Groseclose. Commencing at 10:00 a.m. on April 10, 1995, the Court conducted an evidentiary hearing on Mr. Groseclose's claims challenging the constitutionality of his conviction for first-degree murder. Based upon the evidence in the record, the Court makes the following findings of fact and conclusions of law, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT
A. Procedural History

1. In late February of 1978, Petitioner Groseclose was tried and convicted for murder in the first degree for the death of his wife.1 After Groseclose was convicted and sentenced to death he appealed to the Tennessee Supreme Court, the court affirmed Groseclose's conviction and sentence on February 17, 1981. State v. Groseclose & Rickman, 615 S.W.2d 142, 150 (Tenn.1981). On February 27, 1981, the Tennessee Supreme Court denied a petition for rehearing. Id. at 142. Mr. Groseclose then filed a petition for certiorari to the United States Supreme Court which was denied on October 5, 1981. Groseclose v. Tennessee, 454 U.S. 882, 102 S.Ct. 366, 70 L.Ed.2d 193 (1981).

2. Petitioner Groseclose filed his first petition for post-conviction relief in the Criminal Court of Shelby County, Tennessee in January of 1982. The trial court conducted an evidentiary hearing on March 25-26, 1982, and denied his petition on December 5, 1982. Petitioner sought an appeal, and on February 16, 1984, the Court of Criminal Appeals affirmed the judgment of the trial court. Groseclose then filed a petition for rehearing. On July 2, 1984, the Tennessee Supreme Court denied Petitioner's application for permission to appeal. On November 26, 1984, the United States Supreme Court denied Groseclose's petition for the writ of certiorari. Groseclose v. Tennessee, 469 U.S. 1066, 105 S.Ct. 549, 83 L.Ed.2d 436 (1984).

3. On March 31, 1986, Petitioner filed his second petition for post-conviction relief. On May 23, 1986, the trial court granted the State's motion to dismiss the petition. On February 25, 1987, the Court of Criminal Appeals entered an opinion affirming the dismissal of the petition without an evidentiary hearing. The Tennessee Supreme Court subsequently denied Petitioner's application for permission to appeal that judgment.

4. In June 1989, Petitioner filed his third petition for post-conviction relief, which the trial court dismissed. On March 6, 1991, the Court of Criminal Appeals entered an opinion affirming the dismissal of the petition. On September 9, 1991, the Supreme Court of Tennessee denied Petitioner's application for permission to appeal that judgment.

5. In September 1992, Petitioner filed a petition for a state writ of habeas corpus. On January 24, 1994, the Criminal Court of Tennessee, Thirteenth Judicial District, denied the petition.

6. Petitioner filed the instant petition for writ of habeas corpus on August 15, 1989, under 28 U.S.C. § 2254, challenging the legality of his confinement and death sentence. (Pet. Habeas Corpus, Doc. No. 2.) Petitioner's execution was scheduled for August 23, 1989. By Order entered on August 23, 1989, this Court granted a stay of execution of Groseclose's death sentence. (Ord., Doc. No. 8.)

7. Respondent filed two motions for judgment on the pleadings with respect to procedural default issues. By Order entered November 8, 1994, the Court denied respondent's motions for judgment on the pleadings. (Ord., Doc. No. 128.)

8. On January 13, 1995, Petitioner filed a motion for summary judgment as to several of his claims. By Order entered April 5, 1995, the Court granted in part, denied in part, and dismissed in part Petitioner's motion for summary judgment. (Ord., Doc. No. 184.) However, the Court, at that time, reserved judgment as to issuing a writ of habeas corpus because Petitioner had other claims to be heard at an evidentiary hearing.

9. On April 10, 1995, the Court conducted an evidentiary hearing on the remainder of Petitioner's claims. Petitioner challenges the constitutionality of his conviction for firstdegree murder on the basis of the following claims:

(1) Trial attorney Fernand Brackstone rendered inadequate and ineffective assistance of counsel to the prejudice of Petitioner Groseclose, in violation of the Sixth, Eighth, and Fourteenth Amendments;
(2) Violation of due process because grand jury foreman which indicted Petitioner did not represent a cross-section of the community in that blacks and women were systematically under represented, which constitutes a violation of the Fifth, Sixth, and Fourteenth Amendments.
(3) Totality of errors and cumulative effect of those errors at Petitioner's trial merit granting habeas relief.

10. Petitioner has not raised, and has therefore waived, the following claims alleged in his habeas corpus petition to challenge the constitutionality of his conviction:

(1) Prejudicial admission of photographs of decomposed body.
(2) Violation of Petitioner's right to confront and cross-examine co-defendant Britt.
(3) Right to fair trial violated because of outside influence and information on jurors.
(4) Unconstitutional jury instructions concerning mitigating circumstances.
B. Facts Relevant To Claims2 (1) Ineffective Assistance of Counsel

1. This was a case of a murder indictment against four defendants that resulted in the conviction of three and the severance of co-defendant Mount. All the other defendants gave statements implicating Petitioner Groseclose. Mr. Groseclose made no statement except to protest his innocence and consistently advised his trial attorney that he was innocent and did not do it. (PC Tr. 255). Mr. Groseclose was willing to testify at the guilt phase of his trial as to his innocence. (PC Tr. 256-257). Based upon his trial attorney's advice, Mr. Groseclose did not testify at the guilt phase. (PC Tr. 259-260).

2. The trial attorney that represented Mr. Groseclose was Fernand D. Brackstone who was employed by Mr. Groseclose's mother. (PC Tr. at 199-200). Attorney Brackstone paid one-third of his fee in the matter to attorney Pickens, who had referred Groseclose's mother to him. (PC Tr. 409). Trial attorney Brackstone first met Mr. Groseclose in the Shelby County jail some time after his arrest. (PC Tr. 199-200). At that first meeting, attorney Brackstone told Mr. Groseclose that he was going to investigate the case. (PC Tr. 200). The next time attorney Brackstone and subsequent times that attorney Brackstone saw Mr. Groseclose he never said and never reported what he investigated or what his results were. (PC Tr. 200-201). Attorney Brackstone frequently told Mr. Groseclose that he should just plead guilty and throw himself on the mercy of the court. (PC Tr. 201-202).

3. Petitioner Groseclose spent a total of twelve years in the United States Navy. (PC Tr. 197). He had an excellent disciplinary record in the Navy except for a Captain's mast for a rule violation which was a nonjudicial proceeding resulting in an oral reprimand. (PC Tr. 198) (EH Exh. 20). His family lives in Tennessee and Virginia and he is very close to them. (PC Tr. 197). Mr. Groseclose had no prior criminal record before this charge. (PC Tr. 198).

4. Attorney Brackstone never asked Mr. Groseclose about defenses he might have to the charges against him. (PC Tr. 203). When Mr. Groseclose had suggestions about a defense, attorney Brackstone always had some reason why it should not be raised. (PC Tr. 203, 204). Mr. Groseclose specifically asked that members of his family be called to testify, but attorney Brackstone didn't think that was a wise idea. (PC Tr. 203). Attorney Brackstone admitted that he never saw family members and couldn't answer whether they were available or not. (PC Tr. 389).

5. Three experts testified at the evidentiary hearing about whether attorney Brackstone met the Sixth and Fourteenth Amendment requirements concerning effective assistance of counsel. Petitioner Groseclose called attorney William J. Marett and attorney Charles W. Fels and counsel for Groseclose cross-examined attorney Thomas Pera, a witness for the respondent, on this issue. Attorney Pera, who represented the co-defendant Britt in the Groseclose trial, was asked whether attorney Brackstone was reasonably effective in representing Mr. Groseclose at trial and answered, "No, he was not effective." (EH Tr. 289). Mr. Pera elaborated his answer by noting that he would have done things that attorney Brackstone did not do, primarily in putting together something to mitigate in case his client was convicted. (EH Tr. 289). In fact, attorney Pera, who had organized and investigated the mitigation evidence for co-defendant Britt who received life imprisonment, testified that attorney Brackstone could have done the exact same thing he did in terms of investigation and preparing for the mitigation stage. (EH Tr. 290). Attorney Pera prepared for mitigation by contacting local experts at Memphis State University to testify. (EH Tr. 290). Attorney Brackstone failed to so prepare and never even asked attorney Pera where he found his expert witnesses. (EH Tr. 291). Attorney Pera could not recall attorney Brackstone in their defense lawyer conferences at trial ever saying anything to the effect that he was working on mitigation evidence, or had a plan for mitigation...

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