Maddux v. Rose, CIV-1-79-99.

CourtUnited States District Courts. 6th Circuit. Eastern District of Tennessee
Citation483 F. Supp. 661
Docket NumberNo. CIV-1-79-99.,CIV-1-79-99.
PartiesRonald Lloyd MADDUX v. Jim ROSE, Warden, Tennessee State Penitentiary; Attorney General, State of Tennessee.
Decision Date22 January 1980

COPYRIGHT MATERIAL OMITTED

Leroy Phillips, Jr., Chattanooga, Tenn., for petitioner.

Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondent.

MEMORANDUM

FRANK W. WILSON, Chief Judge.

This is a habeas corpus proceeding pursuant to 28 U.S.C. § 2254. The case is presently before the Court upon the respondent's motion to dismiss, or alternatively, for summary judgment, and upon the petitioner's motion to strike the said respondent's motions. By his amended petition, the petitioner seeks to have his conviction and sentence set aside in the criminal case entitled "State of Tennessee v. Ronald Lloyd Maddux," Docket No. 7280 in the Criminal Court for McMinn County, Tennessee. The petitioner and his wife were jointly indicted, tried and convicted for the murder of his four year old step-daughter, Melisha Morganna Gibson. They each received a sentence of 99 years and one day. The present petition is filed upon behalf of the husband only.

In his original pro se petition the petitioner alleged four grounds for relief and requested the appointment of his criminal court trial counsel as his counsel in these proceedings. The Court having made the appointment of counsel as requested, an amended petition was filed on behalf of the petitioner. The amended petition incorporated each of the grounds alleged in the original pro se petition except one, namely the allegation that the petitioner's due process rights were violated by denial of access to records of the Department of Public Welfare. Incorporating this allegation into the allegations in the amended complaint, the petitioner asserts as grounds for federal habeas corpus relief that his rights under the Fifth (self-incrimination), Sixth (impartial jury; assistance of counsel), and Fourteenth (due process) Amendments to the Constitution were violated in that the trial court: (1) refused to change the venue of the trial to a county free from undue excitement and prejudicial pretrial publicity; (2) improperly allowed into evidence an alleged confession of the petitioner and improperly charged the jury with regard to the alleged confession; (3) permitted improper cross-examination of the petitioner; (4) denied the petitioner a severance when the defenses of petitioner's co-defendant were totally antagonistic; (5) improperly permitted the introduction of evidence of prior assaults allegedly committed by the petitioner upon his co-defendant; (6) improperly instructed the jury as to the law of aiding and abetting; (7) refused to declare a mistrial when the State made improper final arguments to the jury and (8) denied access to Department of Public Welfare records. The petitioner also seeks relief in these proceedings upon the allegation that (9) the conditions of his imprisonment violate his Eighth Amendment rights in that they constitute cruel and unusual punishment. It is alleged that the petitioner has exhausted his state court remedies with respect to each of the foregoing grounds.

In his answer the respondent denies that the petitioner is entitled to habeas corpus relief and denies each ground asserted for such relief. Along with his answer, the respondent has filed portions of the state trial transcript (Ex. # 1), the opinion of the Tennessee Court of Criminal Appeals affirming the petitioner's conviction (Ex. # 2), the order of the Tennessee Supreme Court denying his petition for a writ of certiorari (Ex. # 3), together with copies of the petitioner's briefs in the Tennessee Court of Criminal Appeals (Ex. # 4A), and the Tennessee Supreme Court (Ex. # 4B). Upon the basis of his answer and this record the respondent has filed a motion seeking to have the petition dismissed or in the alternative, seeking a summary judgment of dismissal.

In response to the answer and motion to dismiss or for summary judgment, the petitioner has filed a complete transcript of the state trial court proceedings (Ex. # 5) along with a transcript of proceedings held on November 5, 1976 with regard to the issue of venue (Ex. # 6).

From the record now before the Court, the following facts appear undisputed in that record. Upon October 20, 1976 the Bradley County, Tennessee Grand Jury returned an indictment jointly charging the petitioner and his wife with the murder of Melisha Morganna Gibson. On November 4, 1976 the petitioner's counsel filed a motion alleging prejudicial publicity and public excitement against the petitioner and seeking a change of venue. Following a hearing upon this motion upon November 4 (Ex. # 5, p. 17-42) and upon November 5 (Ex. # 6, p. 1-11), the venue of the lawsuit was transferred to McMinn County, Tennessee, a county adjoining Bradley County. A further hearing upon various pretrial motions was held upon February 21, 1977 (Ex. 5, p. 42-267). At that time the State, because of an intervening state Supreme Court decision holding the Tennessee Death Penalty Statute unconstitutional, elected to waive the charge of first degree murder and proceed to trial upon the lesser included charge of murder in the second degree (Ex. # 5, p. 62). Included within the motions heard upon this date were (1) the petitioner's motion for access to Department of Public Welfare records, which motion was denied (Ex. # 5, p. 63-68); (2) the petitioner's motion for a severance of his trial from the trial of his co-defendant which motion was denied (Ex. # 5, p. 73-84); and (3) the petitioner's motion to suppress his alleged confession, which motion was denied after a substantial evidentiary hearing (Ex. # 5, p. 119-259).

Thereafter the case came on for trial upon February 28, 1977. Following extensive voir dire by the court and counsel, a jury was selected (Ex. # 5, p. 279-451). Prior to the jury being sworn an additional motion for change of venue was filed on behalf of the petitioner. After a further hearing, and in light of the voir dire of the jury, the additional motion for change of venue was denied (Ex. # 5, p. 453-457). The jury was thereupon sworn and sequestered and the case proceeded to trial (Ex. # 5, p. 463-973). The State presented nine witnesses, including two ambulance attendants, four investigative officers, two of the petitioner's stepchildren and a pathologist (Ex. # 5, p. 466-656). The petitioner and his mother were the only witnesses to testify upon behalf of the petitioner. The petitioner's co-defendant, Mrs. Maddux, likewise testified in her own defense, along with her two sisters, three neighbors and a former landlord (Ex. # 5, p. 759-936).

Following his conviction and sentence, the petitioner appealed to the Tennessee Court of Criminal Appeals. Included within his assignments of error in that court were each of the grounds now asserted in these proceedings as being grounds for habeas corpus relief other than the petitioner's ninth contention, wherein he asserts that the condition of his confinement constitutes cruel and unusual punishment (Ex. # 4A). The Tennessee Court of Criminal Appeals, in an extensive opinion, overruled each of the petitioner's assignments of error and affirmed his conviction (Ex. # 2). The petitioner filed a petition for a writ of certiorari with the Tennessee Supreme Court. The only errors cited in that petition and which are now relied upon as grounds for habeas corpus relief were the ones having reference to venue and having reference to the petitioner's confession (Ex. # 4B). No assignments were made in the Tennessee Supreme Court with regard to six of the nine matters now cited as grounds for federal habeas corpus relief. The Tennessee Supreme Court denied the petitioner's application for a writ of certiorari (Ex. # 3).

On the basis of the foregoing record, the respondent concedes that no state court remedies are presently available to the petitioner with regard to the matters herein complained of and acknowledges that the petitioner has accordingly exhausted his state court remedies. It is contended by the respondent, however, that the petitioner's failure to assert in his petition for certiorari to the Tennessee Supreme Court six of the nine errors now complained of constitutes a state court procedural default under T.C.A. § 40-3812, thereby barring federal habeas corpus review as to those issues so omitted. Presumably the respondent relies in this regard upon the recent United States Supreme Court case of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) wherein the Court modified the "knowing waiver" and "deliberate by-pass" rule laid down in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The issue involved in the Wainwright case was whether federal habeas corpus was available to review an alleged error in the admission of a confession in a state criminal trial when the petitioner's attorney had failed to assert an objection to the admission of the confession in the course of the criminal trial as required by the state contemporaneous objection rule, thereby barring any state appellate court review of the alleged error. The United States Supreme Court concluded that "review of the claim should be barred on habeas, as on direct appeal, absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation". Although Wainwright is not altogether clear on the subject, this Court reads that case as limiting the "cause" and "prejudice" rule to procedural defaults in the state trial courts, and leaving in effect the Fay v. Noia "knowing waiver" and "deliberate by-pass" rule where the procedural defaults occur on the state appellate court level. Accordingly, this Court will consider each of the nine complaints of error asserted by the petitioner in this habeas corpus proceeding. In the course of that...

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