Medina v. Genovese

• Decision Date: 25 August 2016
• Docket Number: No. 2:16-cv-00019,2:16-cv-00019
• Parties: MICHAEL G. MEDINA #332874, Petitioner, v. KEVIN GENOVESE, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

MICHAEL G. MEDINA #332874, Petitioner, v. KEVIN GENOVESE, Respondent.

No. 2:16-cv-00019

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

August 25, 2016

Chief Judge Sharp

MEMORANDUM

Petitioner Michael Medina, a state prisoner serving a sentence of life with the possibility of parole for the first degree murder of his estranged wife, has filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas corpus. (ECF No. 1.) Respondent has filed an answer, along with a copy of portions of the state court record. (ECF Nos. 15, 19, 20.) For the reasons set forth below, the petition will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

A Smith County jury convicted Petitioner on April 12, 2001, of premeditated first degree murder. (ECF No. 15-1, at 15.). The trial court imposed a life sentence. (ECF No. 15-1, at 15.) Petitioner appealed, challenging the sufficiency of the evidence of premeditation and a ruling by the trial court that allegedly forced him to make a premature election about whether to testify at trial. (ECF No. 15-8, at 2.) The Tennessee Court of Criminal Appeals (TCCA) affirmed, and the Tennessee Supreme Court denied permission to appeal. State v. Medina, No. M2001-02412-CCA-R3-CD, 2002 WL 31188186 (Tenn. Ct. Crim. App. Oct. 2, 2002), app. denied (Tenn. Jan. 27, 2003).

On September 29, 2003, Petitioner filed a pro se petition for post-conviction relief, which was followed by the appointment of counsel and the filing of two amended petitions, the last of which was filed on October 16, 2013.¹ (ECF No. 15-14, at 5, 54, 57.) The post-conviction court held a hearing on January 10, 2014, and entered an order denying relief on February 12, 2014. (ECF No. 15-14, at 97.) Petitioner limited his appeal to several claims of ineffective-assistance of trial counsel. (ECF No. 15-18, at 14-17.) The TCCA affirmed the denial of relief, and the Tennessee Supreme Court denied permission to appeal on December 11, 2015. Medina v. State, No. M2014-00561-CCA-R3-PC, 2015 WL 5169318 (Tenn. Ct. Crim. App. Sept. 2, 2015), app. denied (Tenn. Dec. 11, 2015).

Petitioner filed his pro se habeas corpus petition in this Court by delivering it to the prison mail room on March 9, 2016. (ECF No. 1, at 64.) Respondent does not dispute that the petition was timely. (ECF No. 20, at 2.) Respondent filed an answer to the petition on June 13, 2016, and has filed portions of the state court record. (ECF Nos. 15, 19, 20.)

II. MOTION TO EXPAND THE RECORD

Petitioner has also filed a motion to expand the record in this matter (ECF No. 23), which Respondent opposes. (ECF No. 28.) With his motion, Petitioner has submitted 220 pages of correspondence with his trial and post-conviction counsel. (ECF No. 23-1-23-6.) He also asks that dozens of additional documents be added to the record by Respondent, including investigative records, subpoenas, and court records related to appointment and withdrawal of previous counsel and his efforts to compel counsel to take certain actions during post-conviction proceedings. (ECF No. 23, at 8-10.)

Petitioner does not identify specific claims to which these documents relate, but states generally that they pertain to "issues that are allegedly waived or considered defaulted," and that they "will substantiate Petitioner['s] claim that he diligently and specifically requested each and every Post Conviction Attorney to subpoena numerous witnesses needed for the PostConviction Hearing in order to have them present to in [sic] court to have them testify regarding the issues raised." (ECF No. 23, at 3, 4.) However, evidence in a federal habeas proceeding of ineffective assistance of post-conviction counsel is only relevant in one very limited circumstance: to establish cause to excuse the default at the post-conviction initial review stage of a claim for ineffective assistance of trial counsel. Martinez v. Ryan, 132 S.Ct. 1309 (2012). Petitioner has not alleged that any of his claims were defaulted at post-conviction initial review - as opposed to post-conviction appeal - and Martinez does not authorize the retrial with new evidence of claims that were rejected on the merits by the post-conviction trial court.

As fully addressed below, each of the claims Petitioner raised in the post-conviction trial court was denied on the merits and either went on to be fully exhausted or was defaulted on appeal. For the exhausted claims, consideration of any evidence beyond the state court record is prohibited. Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011). And for claims defaulted on post-conviction appeal, admission of new evidence would be futile, because Petitioner has not demonstrated cause for default at that stage. Even where a petitioner alleges that attorney error caused a claim to be denied on initial collateral review, Martinez does not apply because "[e]ven if the post-conviction trial court had ruled erroneously, and its error were traceable directly to counsel's deficient advocacy, the . . . claim would not have been procedurally defaulted at the post-conviction trial proceeding because [Petitioner] retained the right to preserve the claim by appealing." West v. Carpenter, 790 F.3d at 699 (emphasis in original). Under such circumstances, allegations that post-conviction appellate counsel was ineffective in failing to raise claims on appeal are also to no avail: "Ineffective assistance of counsel at this stage of the case cannot constitute cause to excuse the procedural default because it is not an initial-review collateral proceeding." Wallace v. Sexton, 570 F. App'x 443, 453 (6th Cir. 2014) (emphasis in original).

Accordingly, Petitioner's motion to expand the record will be denied. To the extent therecord filed by Respondent has omitted any evidence that was properly part of the state court record and relevant to Petitioner's surviving claims, those omissions are addressed in the analysis below.

III. STATEMENT OF FACTS

The TCCA summarized the facts of the case as follows:

On September 26, 1999, Jennifer Medina was found in the home she had shared with the Appellant, lying in a pool of blood with a fatal gunshot wound to the head. The autopsy report and physical evidence established that death was produced by a 9 mm gunshot wound, with the gun's barrel touching her head when the gun was fired. The Appellant, the estranged husband of the victim and present at the scene, was charged with the homicide.

The parties were married in 1991 and had one child, who was two years old. The child, Austin, had been diagnosed with cancer and, during this time, was undergoing chemotherapy treatments at Vanderbilt Hospital in Nashville, in addition to receiving intravenous medication at home. By 1999, the marriage had seriously deteriorated, and the Appellant had filed for divorce. After the divorce was filed, the victim resided with her best friend and next-door neighbor, Ellen Newman. The Appellant continued to reside in the marital residence with his minor children from a prior marriage. The parties agreed to a temporary order, which provided for shared custody of Austin. The divorce action was characterized as hostile and bitter, as were the ensuing temporary custody battles.

On August 20, 1999, an order of protection was issued against the Appellant, based upon a finding of domestic abuse after the Appellant refused to comply with the terms of the temporary custody agreement. On this occasion, the victim was thrown against a wall by the Appellant and sustained bruises and a knot on her head.

Also in August 1999, the victim contacted Crime Stoppers in Franklin, Tennessee, and reported that the Appellant had stolen a "bobcat" loader in June 1997. She provided details of how the theft occurred, how the Appellant had repainted it and removed the serial numbers, and to whom it was sold. The Appellant was contacted by a detective, and he claimed that the victim was manufacturing the charges because he had been given custody of their child. The details provided by the victim were subsequently verified by the police, and the Appellant was arrested on August 26th for the theft. The victim would have been a material witness in the case.

After the arrangements under two joint custody orders had failed, temporary custody of the minor child and child support were awarded to the victim on September 10, 1999. The order provided the Appellant visitation on Monday through Thursday from 5:00 p.m. to 6:30 p.m. and every other weekend from Friday at 5:00 p.m. to Sunday at 5:00 p .m. The Appellant was permitted to retain possession of the marital residence, and the victim was responsible for deliveringthe child to and from the residence during the Appellant's visitation periods. FN1

Footnote 1

The order also set aside a quitclaim deed the victim had executed conveying her interest in the marital property, the court finding the deed had been executed under duress.

At approximately 5:00 p.m. on the day of her death, FN2 the victim left the Newman residence on foot to go and retrieve Austin from his father following visitation. It was the victim's normal practice to remain outside the residence when picking up her son. Before leaving, the victim told Ellen Newman that she would be back in five minutes. She carried no purse or bags with her.

Footnote 2

This date was a Sunday and was also the victim's twenty-seventh birthday.

Approximately two and one-half hours later, a 911 call was made from the marital residence. When officers responded to the call, they found the Appellant outside with Austin in his arms. Upon entering the residence, deputies found the victim lying on the floor with a gunshot wound to the head. A .38 caliber revolver was found near her head and a 9mm semi-automatic handgun was found near her knee. The serial number on the .38 revolver was removed and no identifiable fingerprints were found on either weapon. The .38 caliber revolver was fully loaded and had not been fired. A 9 mm shell casing was found on

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