Payne v. Bell

• Decision Date: 25 March 2002
• Docket Number: No. 98-2963-D/BRE.,98-2963-D/BRE.
• Citation: 194 F.Supp.2d 739
• Parties: Pervis T. PAYNE, Petitioner, v. Ricky BELL, Warden, Respondent.
• Court: U.S. District Court — Western District of Tennessee

194 F.Supp.2d 739

Pervis T. PAYNE, Petitioner, v. Ricky BELL, Warden, Respondent.

No. 98-2963-D/BRE.

United States District Court, W.D. Tennessee, Western Division.

March 25, 2002.

J. Brook Lathram, Esq., W. Les Jones, Jr., Esq., Les Jones, Burch Porter & Johnson, Memphis, TN, Todd Alan Rose, Burch Porter & Johnson, Paris, TN, Christopher M. Minton, Esq., Post Conviction Defender, Nashville, TN, for Petitioner.

Erik Daab, Office of the Attorney General, Nashville, TN, Glenn R. Pruden Esq., Office of the Attorney General, Criminal Justice Division, Nashville, TN, John W. Campbell, Esq., District Attorney General's Office, Memphis, TN, for Respondent.

Pervis T. Payne, Unit II, Nashville, TN, Pro se.

ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT ORDER OF DISMISSAL AND ORDER TO FILE BRIEFS CONCERNING A CERTIFICATE OF APPEALABILITY

DONALD, District Judge.

This Court's May 31, 2001 order dismissed every claim in the petition except for Claims 4, 6, 13 (Petition at ¶ 176), 16, and 17. The Court directed the parties to submit additional briefs with respect to the remaining claims and further directed respondent to submit a copy of a videotape introduced by the State during Payne's sentencing hearing. Briefing has now concluded, and the Court will proceed to address the merits of the remaining claims.

A. The Tennessee state courts should have granted a hearing on the petition for writ of error coram nobis (Claim 4)

Petitioner's fourth claim for relief alleges that his Fourteenth Amendment rights were violated by the failure of the Tennessee courts to conduct an evidentiary hearing on the petition for writ of error coram nobis, which asserted the existence of certain newly discovered evidence tending to show Payne's actual innocence of the crimes. Petition at ¶¶ 63-76. Payne asks this Court to reinstate his coram nobis petition and to direct the Tennessee state courts to afford him a full and fair evidentiary hearing on that petition. Id. at ¶ 76.

The parties had filed cross-motions on this claim, and the Court, in its May 31, 2001 order, denied those motions. The Court set forth a number of concerns it had about the substance of this claim. As a preliminary matter, the Court was concerned that the remedy sought by Paynean evidentiary hearing in state court-is not an appropriate subject for a petition pursuant to 28 U.S.C. § 2254.¹

The leading Sixth Circuit case in this area is Kirby v. Dutton, 794 F.2d 245 (6th Cir.1986), in which a habeas petitioner complained that he was denied the effective assistance of counsel in his state post-conviction proceeding. Kirby raised both equal protection and due process claims:

On appeal, Kirby indicates that he claims in his petition that he was denied due process and equal protection when the court refused to replace his counsel and forced him to continue with unwanted counsel. Kirby argues that once the trial court determined that Kirby was entitled to representation in the collateral attack proceeding because he was an indigent, then Kirby was entitled to effective and meaningful representation in order to satisfy the requirements of fundamental fairness guaranteed by the due process clause of the fifth and fourteenth amendments of the United States Constitution. Kirby further argues that he is entitled to effective and meaningful representation pursuant to the equal protection clause of the fourteenth amendment and was denied this because a solvent petitioner could have replaced his counsel immediately with counsel willing to zealously and competently represent his interests.

Id. at 246.²

The Sixth Circuit held that "Kirby's claims cannot be brought under the federal habeas corpus provision." 794 F.2d at 246. In so holding, the Sixth Circuit relied on language in the Supreme Court's decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), to the effect that

[i]t is clear, not only from the language of ... § 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.

Kirby, 794 F.2d at 246 (quoting Preiser, 411 U.S. at 484, 93 S.Ct. 1827) (ellipses in original). According to the Sixth Circuit, Kirby's claim fell outside the mainstream of federal habeas claims because it did not raise an issue directly pertaining to the fact or duration of his confinement:

Kirby claims a denial of the sixth amendment right to effective assistance of counsel, a denial of due process, and a denial of equal protection in the State post-conviction proceedings-claims unrelated to his detention.... If we were to allow Kirby to proceed on his petition and if we were to hold in favor of Kirby, the results would not be release or a reduction in Kirby's time to be served or in any other way affect his detention because we would not be reviewing any matter directly pertaining to his detention.

Id. at 247 (emphasis in original). After surveying decisions from other circuits, id., the Sixth Circuit concluded that the relief sought by Kirby was not available in a habeas proceeding:

We believe that the result of the habeas petition need not necessarily be reversal of the conviction. However, the petition must directly dispute the fact or duration of the confinement.... Though the ultimate goal in this case ... is release from confinement, the result of habeas review of the specific issues before us is not in any way related to the confinement. We decline to allow the scope of the writ to reach this second tier of complaints about deficiencies in state post-conviction proceedings. We find the Williams stance persuasive in light of the history of the scope of the writ as discussed in Preiser and our own hesitancy to enlarge the scope of the writ of habeas corpus without specific Supreme Court guidance.

Id. at 248 (emphasis in original) (citing Williams v. Missouri, 640 F.2d 140, 144 (8th Cir.1981)).³

The Sixth Circuit's decision in Kirby v. Dutton is binding on this Court. Accordingly, the Court holds that Payne's claim that the Tennessee courts violated Tennessee law in failing to hold a hearing on his petition for a writ of error coram nobis does not state a cognizable habeas claim.⁴

Petitioner also attempts to argue that "Tennessee's complete denial of an evidentiary hearing on a matter bearing directly on Payne's actual innocence is such a fundamental miscarriage of justice that it is also a deprivation of a right that is derived directly from federal due process." P. Supp. Br. at 67 n. 61 (citing Herrera v. Collins, 506 U.S. 390, 411, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). However, this claim was not exhausted in state court and has, therefore, been procedurally defaulted.⁵

For all the foregoing reasons, the Court GRANTS respondent's motion for summary judgment with respect to Claim 4.

B. Petitioner Received Ineffective Assistance of Counsel at the Sentencing Stage of His Trial (Claim 6)

In his sixth claim for relief, Payne alleges that his rights under the Sixth and Fourteenth Amendments were violated by the failure of his trial counsel to investigate and present sufficient mitigation evidence at his capital sentencing hearing. In particular, Payne complains about the failure of his trial counsel to interview and present the testimony of numerous character witnesses concerning his character and reputation in the community.

After reviewing Payne's additional submission, the Court is unable to conclude that the decision of the Tennessee Court of Criminal Appeals with respect to this claim was contrary to, or an unreasonable application of, clearly established federal law. In particular, Payne has not satisfied his burden of demonstrating prejudice. The character evidence adduced at the postconviction hearing suggests that Payne was a normal high school student who was interested in music and helpful at his father's church.⁶ In light of the horrific nature of the crimes of which Payne was convicted and the fact that one of his victims was a very young child, the Court is not persuaded that a reasonable probability exists that, had the jury only heard more evidence from more witnesses concerning Payne's reputation in the community, the outcome of his sentencing hearing would have been different. See Scott v. Mitchell, 209 F.3d 854, 880-81 (6th Cir.) ("it is impossible to say for certain that one juror would not have been swayed by this evidence, but certainty is not required here; we must ask only whether Scott has met his burden of demonstrating a reasonable probability that this would happen"), cert. denied, 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000). Indeed, this Court is unable to speculate about the effect the omitted evidence may have had on the jury. Although evidence that a capital defendant came from a seriously deprived background may create sympathy and put his acts of violence in context, evidence of Payne's stable background may well have had the opposite effect than that intended by defense counsel.⁷

Although Payne's failure to demonstrate prejudice provides a sufficient basis for dismissing this claim, the Court is unable to conclude that trial counsel's performance was deficient. In each of the Sixth Circuit cases holding that an inmate received ineffective assistance during the penalty stage of a capital trial, trial counsel did virtually no investigation, presented no evidence, and made no arguments on the defendant's behalf. Cone v. Bell, 243 F.3d 961, 975-79 (6th Cir.), cert. granted, ___ U.S. ___, 122 S.Ct. 663, 151 L.Ed.2d 578 (2001); Carter v. Bell, 218 F.3d 581, 600 (6th Cir.2000) ("It is not just that the defense presented on Carter's behalf was ineffective; rather, Carter's attorneys did not even attempt to present a defense at the sentencing phase."); Austin v. Bell, 126 F.3d 843, 849 (6th Cir.1997) (...