March v. Sexton

• Decision Date: 18 June 2013
• Docket Number: Case No. 3:12-cv-270
• Parties: PERRY A. MARCH, Petitioner, v. DAVID SEXTON, Warden, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

PERRY A. MARCH, Petitioner,

v.DAVID SEXTON, Warden, Respondent.

Case No. 3:12-cv-270

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Dated: June 18, 2013

Judge Sharp

MEMORANDUM OPINION

Petitioner Perry A. March was convicted and sentenced by the Criminal Court for Davidson County, Tennessee in Nashville after a jury trial in 2006, and is presently an inmate at Northeast Correctional Complex in Mountain City, Tennessee. His pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus was initially filed in the United States District Court for the Eastern District of Tennessee, but was transferred to this district. This Court has jurisdiction. 28 U.S.C. § 2241(d).

I. BACKGROUND AND PROCEDURAL HISTORY

A Davidson County jury found petitioner Perry March guilty on one count of conspiracy to commit first-degree murder and two counts of solicitation to commit first-degree murder on June 8, 2006. At sentencing on September 6, 2006, the trial court merged the solicitation convictions into the conviction for conspiracy to commit first-degree murder, and sentenced March as a Range I, standard offender, to twenty-four years' imprisonment. The trial court ordered the petitioner to serve his sentence consecutively to sentences meted out the same day on the petitioner's convictions for second-degree murder, abuse of a corpse, and destruction of evidence, for a total effective sentence of fifty-six years' imprisonment. March was denied relief on direct appeal. State v. March, No. M2007-00701-CCA-R3-CD, 2010 WL 2219419 (Tenn. Ct. Crim. App. June 2, 2010). The Tennessee Supreme Court denied March's request for permission to appeal on November 17, 2010. March did not seek post-conviction relief in the state courts.

On November 16, 2011, March filed his pro se petition for the writ of habeas corpus (ECF No. 2) in the United States District Court for the Eastern District of Tennessee. The case was transferred to this Court as the appropriate venue. Shortly thereafter, the Court conducted a preliminary examination of thepetition and determined that it stated colorable claims for relief. Accordingly, the Court entered an order (ECF No. 22) directing the respondent to answer, plead or otherwise respond to the petition. Rule 4, Rules Gov'g § 2254 Cases. The respondent filed its answer to the petition on July 20, 2012 (ECF No. 43), along with copies of the underlying state-court record (ECF Nos. 44-47, 51).

The issues raised in March's petition are as follows:

1. Whether there was a fatal variance between the proof adduced at trial and the allegations made in Count One of the indictment, resulting in a violation of the petitioner's right to a fair trial and due process of law as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

2. Whether the jury instructions allowed the jury to convict the petitioner of conspiracy to commit first-degree murder based on an agreement with a government agent, violating the petitioner's right to a fair trial and due process of law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.

3. Whether the trial court erred in refusing to grant a mistrial after Lawrence Levine repeatedly told the jury that the petitioner had previously attempted to kill Levine and his wife, thereby violating the petitioner's right to a fair trial and due process of law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.

4. Whether the cumulative effect of the errors at trial rendered the petitioner's trial fundamentally unfair, in violation of the petitioner's right to a fair trial and due process of law, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.

(ECF No. 2, at 4-6, 11-22.)¹

Upon consideration of the petition, the answer, and the expanded record, the Court finds that an evidentiary hearing is not needed in this matter. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (an evidentiary hearing is not required when the record conclusively shows that the petitioner is not entitled to relief). The Court will dispose of the petition as the law and justice require. Rule 8(a), Rules Gov'g § 2254 Cases.

II. FACTUAL BACKGROUND

The Tennessee Court of Criminal Appeals, in the opinion affirming the judgment of the trial court, summarized the factual history in the state courts as follows:²

Carolyn Levine testified that she had been the wife of Lawrence Levine for forty-five years. They had two children, Mark Levine and Janet March. Mrs. Levine was the grandmother of Sammy and Tzipi March, the children of Janet March and the defendant. Mrs. Levine stated that she first met the defendant in the early 1980s at the University of Michigan, where he and Janet were students. After they graduated, Janet and the defendant married in 1987. Mrs. Levine testified that she and her husband provided financial support to Mrs. March and the defendant, including paying his law school tuition, giving them a house, helping in the finance of a new home, and a yearly $10,000 gift to each of them. Mrs. Levine further testified that she and her husband had financially assisted the defendant's father, Colonel Arthur March. She stated that they purchased his home, which was in foreclosure, and allowed him to continue to live in it. After he moved to Nashville, they also allowed Colonel March to stay in their home until he could find an apartment. Mrs. Levine said that Colonel March moved from Nashville to Ajijic, Mexico in 1993.

Mrs. Levine testified that on August 15, 1996, Mrs. March "suddenly disappeared, and [they] never heard from her again." According to Mrs. Levine, Mrs. March and the defendant "were having severe marital problems, and Janet had planned to see a divorce attorney" the day before her disappearance. No one has found Mrs. March's body. Mrs. Levine said that the defendant and his children went to Chicago after Mrs. March's disappearance. Eventually the defendant moved to Mexico and remarried.

Mrs. Levine said that before Mrs. March's disappearance, she "cared about [the defendant] a lot" and "treated him like [her] own son." Their relationship "deteriorated" after Mrs. March's disappearance. After the defendant went to Chicago, the Levines filed for grandparents' visitation in Illinois because the defendant did not allow them to see their grandchildren. The defendant and the Levines were involved in litigation concerning visitation rights, custody of the children, Mrs. March's estate, and Mrs. March's disappearance. Mrs. Levine testified that the court granted her and her husband temporary custody of their grandchildren in August 2005.

Mrs. Levine recalled when authorities arrested the defendant for Mrs. March's murder and stated that she was listed as a witness on the indictment. She also stated that she assisted authorities during the conspiracy investigation. According to Mrs. Levine, the authorities told the Levines "not to answer the phone because someone may be checking to see if [they] were alive."

On cross-examination, Mrs. Levine testified that she and her husband had been living in Nashville, [Tennessee] since 1961. Her husband was a successful attorney who had been practicing in Nashville since they moved there. She said that the home that Mrs. March and the defendant built after they were married was in Mrs. March's name only. Mrs. Levine testified that at the time of Mrs. March's disappearance, she and the defendant would visit each other's homes, and she and her husband would spend timewith their grandchildren. She said that it was "about two weeks" before her husband and the defendant reported Mrs. March missing.

Vickie Renee Farris testified that Russell Nathaniel Farris is her oldest child. Mr. Farris was an inmate at the Criminal Justice Center in Davidson County. She stated that when she visited him in September 2005, she became concerned about something he told her and called Lawrence Levine. She stated that she did not know Mr. Levine, but she "was concerned that . . . something could happen. . . ." Ms. Farris "felt like . . . someone needed to go see her son." She stated that she called Mr. Levine instead of the police because she "didn't trust the police." She further stated that she called Mr. Levine on her own, and no one instructed her to call him.

Lawrence Levine testified that he was married to Carolyn Levine. He identified the defendant and stated that the defendant and his daughter were married. He further stated that they got married while the defendant was attending Vanderbilt Law School, and he and his wife "paid for his room, board, tuition and books" while he was there. Mr. Levine said that the defendant worked at his law firm from 1991 to 1996, and the defendant was working at his law firm when Mrs. March disappeared. Mr. Levine and his wife were both witnesses against the defendant in his second-degree murder case.

Mr. Levine stated that he reviewed transcripts of recorded conversations between the defendant and Nathaniel Farris. He further stated that the information contained in the transcripts concerning where he and his family lived and the location of his office was accurate. Mr. Levine said that the transcripts also contained information about their temporary residence. According to Mr. Levine, he "received a phone call from a woman, who at first was reluctant to identify herself to [him]." He said that "she explained that she had some information about Perry March in jail and that she was afraid to go to the police, because she didn't trust the police." Mr. Levine could not recall whether she gave her son's name because he received many phone calls concerning his daughter after her disappearance. Mr. Levine said that he called the district attorney's office and told them that the woman had "important information about Perry March." The district attorney's office did not immediately inform him about the content of the information, and he did not find out about the plot to kill

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