Penner v. Easterling

• Court: U.S. District Court — Western District of Tennessee
• Writing for the Court: J. DANIEL BREEN
• Decision Date: 27 September 2012
• Docket Number: No. 11-1182-JDB-egb,11-1182-JDB-egb
• Citation: Penner v. Easterling, No. 11-1182-JDB-egb (W.D. Tenn. Sep 27, 2012)
• Parties: DARRELL JOHN PENNER, Petitioner, v. JOE EASTERLING, Respondent.

DARRELL JOHN PENNER, Petitioner,

v.JOE EASTERLING, Respondent.

No. 11-1182-JDB-egb

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

Dated: September 27, 2012

ORDER OF DISMISSAL

ORDER DENYING PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING

ORDER DENYING CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

AND

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On April 28, 2011, Petitioner, Darrell John Penner, Tennessee Department of Correction ("TDOC") prisoner number 370325, who was at the time an inmate at the Hardeman County Correctional Facility ("HCCF") in Whiteville, Tennessee, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Tennessee. (Docket Entry ("D.E.") 1.)¹ Penner paid the habeas filing fee on June 17, 2011. (D.E. 10.) On June 21, 2011, United States District Judge Todd J. Campbell transferred the case to thisdistrict, where the convicting court is located. (D.E. 12.) The Court issued an order on July 8, 2011, directing the respondent, HCCF Warden Joe Easterling, to file the state-court record and a response to the petition. (D.E. 14.)

On August 31, 2011, Respondent filed his answer to petition and the state-court record. (D.E. 18 & 19.) On September 23, 2011, Petitioner filed his traverse in opposition to the Respondent's answer and request for an evidentiary hearing. (D.E. 20.)

I. STATE COURT PROCEDURAL HISTORY

On January 27, 2003, Penner was indicted in the Circuit Court for Perry County, Tennessee, on two counts of rape of a child. The victim was his four-year-old daughter. On December 12, 2003, Penner signed a petition for waiver of trial by jury and request for acceptance of plea of guilty and a negotiated plea agreement, which required him to plead guilty to a single count of aggravated sexual battery in exchange of a sentence of ten years, to be served as a violent offender at 100 percent. (Pet. for Waiver of Trial by Jury and Request for Acceptance of Plea of Guilty, State v. Penner, Case No. 751 (Perry Cnty. Circuit Court), D.E. 19-3 at 8; Negotiated Plea Agreement, id., D.E. 19-3 at 9.) After a plea colloquy, the trial court accepted the guilty plea and imposed sentence. (Order Authorizing Waiver of Trial and Accepting Plea of Guilty, id., D.E. 19-3 at 10; Tr. of the Guilty Plea Hr'g, id.,D.E. 19-3 at 13-25.) Judgment was entered on December 12, 2003. (J., id., D.E. 19-3 at 11 & 12.) Penner did not appeal.

On September 21, 2007, the Clerk of the Perry County Circuit Court docketed a pro se petition for post-conviction relief submitted by the inmate. (Pet. for Post-Conviction Relief, Penner v. State, PCR No. 1009, D.E. 19-1 at 5-18.)² Counsel was appointed to represent Penner (Order, id., D.E. 19-1 at 28-29), and an amended petition was filed on February 25, 2008 (Am. Pet. for Post-Conviction Relief, id., D.E. 19-1 at 31-32). A post-conviction hearing was held on November 21, 2008 (Tr. of Post-Conviction Relief Hr'g, id., D.E. 19-2) and, on February 17, 2009, the post-conviction court denied the petition (Mem. of Law and Order, id., D.E. 19-1 at 56-62). The Tennessee Court of Criminal Appeals affirmed. Penner v. State, No. M2009-00670-CCA-R3-PC, 2010 WL 3516201 (Tenn. Crim. App. Sept. 9, 2010), app. denied (Tenn. Jan. 18, 2011).

At the change of plea hearing, the State summarized the evidence it was prepared to offer had the case gone to trial:

[I]n September 2002, Mr. Penner had unlawful sexual contact with one of his children, a child under the age of thirteen years old, who had a date of birth of May 12th of 1998. During counseling for the treatment with the counselor, Mr. Penner informed that counselor, and then who was required by law to notify the authorities of the admission, the Department of Children Services, along with Investigator Barry Carroll with the district attorney's office, began an investigation of the matter. And after being advised of his Miranda warning, Mr. Penner gave a confession to both the DCS representative and Investigator Carroll admitting that he had had unlawful sexual contact with this child under thirteen years of age.

Also, had the case gone to trial, Mrs. Penner also would have been a witness that would have testified against Mr. Penner, also.

(Tr. of the Guilty Plea Hr'g at 10, State v. Penner, Case No. 751B (Perry Cnty. Circuit Ct. Dec. 12, 2003), D.E. 19-3.) Penner admitted that those facts were correct. (Id.)

II. PETITIONER'S FEDERAL HABEAS CLAIMS

The issues presented in this § 2254 petition are not clearly enumerated.³ Petitioner appears to complain that (1) his trial counsel allowed the State to violate his religious beliefs and practices; (2) counsel coerced him into a guilty plea that was not intelligent and voluntary; (3) trial counsel failed to conduct anadequate pretrial investigation and to interview potential defense witnesses; (4) counsel failed to have Penner's mental competence evaluated; and (5) trial counsel insisted that Penner enter into the plea agreement. (D.E. 1 at 6; see also id. at 5-6, 7-8.)

III. THE LEGAL STANDARD

The statutory authority for federal courts to grant habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

A. Waiver and Procedural Default

Twenty-eight U.S.C. §§ 2254(b) and (c) provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has exhausted available state remedies by presenting the same claim sought to be redressed in a federal habeas court to the state courts. Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388, 1398, 79 L. Ed. 2d 557 (2011), reh'g denied, ___ U.S. ___, 131 S. Ct. 2951, 180 L. Ed. 2d 239 (May 31, 2011). The petitioner must "fairly present"⁴ each claim to all levels of state court review,up to and including the state's highest court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349, 158 L. Ed. 2d 64 (2004), except where the state has explicitly disavowed state supreme court review as an available state remedy, O'Sullivan v. Boerckel, 526 U.S. 838, 847-48, 119 S. Ct. 1728, 1733-34, 144 L. Ed. 2d 1 (1999). Tennessee Supreme Court Rule 39 eliminated the need to seek review in the Tennessee Supreme Court in order to "be deemed to have exhausted all available state remedies." Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (emphasis omitted), cert. denied, 541 U.S. 956, 124 S. Ct. 1654, 158 L. Ed. 2d 392 (2004); see Smith v. Morgan, 371 F. App'x 575, 579 (6th Cir. 2010) (the Adams holding promotes comity by requiring that state courts have the first opportunity to review and evaluate claims and by mandating that federal courts respect the duly promulgated rule of the Tennessee Supreme Court that recognizes that court's law and policy-making function and its desire not to be entangled in the business of simple error correction).

The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine).If the state court decides a claim on an independent and adequate state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S. Ct. 2497, 2506-07, 52 L. Ed. 2d 594 (1977), reh'g denied, 434 U.S. 880, 98 S. Ct. 241, 54 L. Ed. 2d 163 (Oct. 3, 1977); see Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553, 115 L. Ed. 2d 640 (1991) (a federal habeas court will not review a claim rejected by a state court "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment"), reh'g denied, 501 U.S. 1277, 112 S. Ct. 27, 115 L. Ed. 2d 1109 (Sept. 13, 1991). If a claim has never been presented to the state courts, but a state court remedy is no longer available (e.g., when an applicable statute of limitations bars a claim), the claim is technically exhausted, but procedurally barred. Coleman, 501 U.S. at 732, 111 S. Ct. at 2555; see Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004) (the procedural default doctrine prevents circumvention of the exhaustion doctrine), cert. denied, 544 U.S. 928, 125 S. Ct. 1653, 161 L. Ed. 2d 490 (2005).

Under either scenario, a petitioner must show "cause" to excuse his failure to present the claim fairly and "actual prejudice" stemming from the constitutional violation or, alternatively, that a failure to review the claim will result in afundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 318-22, 115 S. Ct. 851, 862-64, 130 L. Ed. 2d 808 (1995); Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. The latter showing requires a petitioner to establish that a constitutional error has probably resulted in the conviction of a person who is actually innocent of the crime. Schlup, 513 U.S. at 321-22, 115 S. Ct. at 864; see House v. Bell, 547 U.S. 518, 536-39, 126 S. Ct. 2064, 2076-78, 165 L. Ed. 2d 1 (2006) (restating the ways to overcome procedural default and further explaining the actual innocence exception).

B. Merits Review

Section 2254(d) establishes the standard for addressing claims that have been adjudicated in state courts on the merits:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in

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