Hammer v. Bowlen

• Decision Date: 06 June 1996
• Docket Number: No. 3:95-0145.,3:95-0145.
• Citation: 934 F. Supp. 911
• Parties: Rondol HAMMER v. James A. BOWLEN.
• Court: U.S. District Court — Middle District of Tennessee

934 F. Supp. 911

Rondol HAMMER v. James A. BOWLEN.

No. 3:95-0145.

United States District Court, M.D. Tennessee, Nashville Division.

June 6, 1996.

COPYRIGHT MATERIAL OMITTED

Rondol Hammer, Pro Se.

Gordon W. Smith, Amy L. Tarkington, Nashville, Tennessee, for respondent.

MEMORANDUM

CAMPBELL, District Judge.

The petitioner, proceeding pro se, is an inmate at the Southeastern Tennessee State Regional Correctional Facility in Pikeville, Tennessee. He brings this action pursuant to 28 U.S.C. § 2254 against James Bowlen, Warden of the prison, seeking a writ of habeas corpus. The petition for writ of habeas corpus lacks merit and is DISMISSED.

On September 27, 1987, a jury in Rutherford County found the petitioner guilty of first degree murder, armed robbery and joyriding. For these crimes, he received consecutive sentences of life imprisonment (murder) and thirty five (35) years (armed robbery) with a concurrent three year sentence for joyriding.

On appeal, the Tennessee Court of Criminal Appeals affirmed the convictions (Docket Entry No. 9; Addendum No. 2). State v. Kyger, 787 S.W.2d 13 (Tenn.Cr.App.1989). The Tennessee Supreme Court later rejected petitioner's application for further review (Docket Entry No. 9; Addendum No. 6).

A petition for post-conviction relief was then filed in the Circuit Court of Rutherford County. Following the appointment of counsel and an evidentiary hearing, the state trial court dismissed the petition. The Tennessee Court of Criminal Appeals upheld the denial of post-conviction relief (Docket Entry No. 9; Addendum No. 8). The Tennessee Supreme Court decided not to grant the petitioner's second application for further review (Docket Entry No. 9; Addendum No. 10).

On February 16, 1995, the petitioner filed the instant petition for federal habeas corpus relief (Docket Entry No. 1). The petition raises several claims attacking the legality of the murder and armed robbery convictions. Specifically, the petitioner questions the sufficiency of the evidence to support the convictions, the effectiveness of his trial and appellate counsel, and the failure to grant his motion to suppress, motion for a change of venue and motion for a severance. In addition, the petitioner takes issue with some of the jury instructions, he claims that the prosecutor and trial judge acted improperly, and he complains that the jury forms did not include a hung jury as a permissible alternative to a verdict.

After examining the petition, the Court determined that the petitioner had stated a claim which could potentially require the issuance of the writ. Accordingly, by an order entered March 27, 1995 (Docket Entry No. 4), the respondent was directed to file an answer, plead or otherwise respond to the petition.

Presently before the Court is the respondent's Answer to the petition (filed May 4, 1995; Docket Entry No. 8), petitioner's Traverse to the Answer (filed November 29, 1995; Docket Entry No. 19), petitioner's Response to the Answer on Ineffective Assistance of Counsel Issues (filed December 4, 1995; Docket Entry No. 23) and respondent's Supplemental Answer (filed February 29, 1996; Docket Entry No. 26). Upon consideration of the petition, the pleadings and the expanded record, it appears that an evidentiary hearing is not needed in this matter. Consequently, the Court shall dispose of the petition as the law and justice require. Rule 8(a), Rules — § 2254 Cases.

A petition for writ of habeas corpus may not be considered unless the petitioner has first exhausted all available state court remedies for each claim in his petition. Cohen v. Tate, 779 F.2d 1181, 1184 (6th Cir. 1985). The exhaustion requirement springs from considerations of comity between the states and federal government and is designed to give the state an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). This means that as a condition precedent to seeking federal relief, the petitioner's claims must have been fairly presented to the state courts. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Once the petitioner's claims have been raised in the state's highest court, the exhaustion requirement is satisfied, even if that court refused to hear the claims. Manning v. Alexander, 912 F.2d 878, 883 (6th Cir.1990).

Among his many claims, the petitioner alleges that he was denied the effective assistance of counsel because his attorney failed to interview and subpoena certain witnesses. The Tennessee Court of Criminal Appeals found that the petitioner had waived this issue by failing to present it in his petition for post-conviction relief. See Docket Entry No. 9; Addendum No. 8 at pg. 4. Therefore, by his procedural default, the petitioner has technically satisfied the exhaustion requirement with respect to this claim.

Nevertheless, to prevent a federal habeas petitioner from circumventing the intent of the exhaustion requirement in such a manner, the Supreme Court has held that a petitioner who fails to comply with state rules of procedure governing the timely presentation of federal constitutional claims forfeits the right to federal habeas corpus review of those claims, absent a showing of cause for non-compliance and some showing of prejudice arising from the alleged constitutional violations. Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977).

The state appellate courts would not review the merits of this ineffective assistance claim because of petitioner's procedural default. There is nothing in the petition or the record which would satisfy the cause and prejudice analysis set forth in Wainwright. Consequently, the unexcused procedural default bars the petitioner from federal habeas corpus review of this claim.

The petitioner challenges the sufficiency of the evidence to support his convictions for murder and armed robbery. The right to due process guaranteed by the Constitution insures that no person will be made to suffer the onus of a criminal conviction except upon sufficient proof. Sufficient proof has been defined as the "evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). When weighing the sufficiency of the evidence to support a criminal conviction, the Court must view the evidence in a light most favorable to the prosecution. Id., 443 U.S. at 319, 99 S.Ct. at 2789.

On November 14, 1986, two men wearing ski masks were seen following the owner of a grocery store to his place of business. These men approached the victim and demanded money. When the victim resisted, one of the men murdered him. The pair robbed the victim and sped from the scene in a stolen red truck. The truck was later found abandoned by the police.

The petitioner and a co-defendant stood trial and were found guilty of the robbery and killing. Because the assailants wore ski masks, the prosecution was unable to produce a witness who could identify the petitioner as one of the killers. Without direct testimony identifying the petitioner as one of the perpetrators, the petitioner believes that the evidence was wholly circumstantial and insufficient as a matter of law to support his convictions.

However, circumstantial evidence alone may be sufficient to sustain a criminal conviction. York v. Tate, 858 F.2d 322 (6th Cir.1988); Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir.), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990); United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986). In this case, a police scanner belonging to the petitioner was found in the vehicle abandoned by the killers. His fingerprints were found on the police scanner and on an ashtray in the truck. Several witnesses gave physical descriptions of the two men which, apparently, the jury felt matched the physical makeup of the defendants. While the petitioner offered an alibi defense and an explanation for the fingerprints, the jury obviously did not find this evidence credible. Viewing the evidence in a light most favorable to the prosecution, the Court finds that there was sufficient circumstantial evidence from which a rational trier of fact could find beyond a reasonable doubt that the petitioner was guilty of these crimes. Therefore, this claim has no merit.

The petitioner also presents five claims related to the jury instructions. Specifically, he alleges that the trial judge improperly instructed the jury on an inference of guilt from flight, an inference of guilt from admissions against interest, aiding and abetting, consideration of fingerprint evidence, and the use of language in the instructions that connected the petitioner with his co-defendant.

In the petition, it is argued that either the evidence did not justify the given instruction or that the instruction was a misapplication of state law.¹ A petition for federal habeas corpus relief may only be granted when it is found that a citizen is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984). Because federal habeas corpus relief is available only to correct errors of a federal nature, a claim that a conviction is the result of a state court's misapplication of state law is not cognizable unless the petitioner can establish that the error deprived him of a fundamentally fair trial. Porter v. Estelle, 709 F.2d 944, 957 (5th Cir.1983), cert. denied sub nom, Porter v. McKaskle, 466 U.S. 984, 104 S.Ct. 2367, 80 L.Ed.2d 838 (1984).

The petitioner's jury instruction claims are based upon the perceived misapplication of state law by the trial judge. A review of the record shows that the petitioner was not denied a fundamentally fair trial. Thus, ...