Pinchon v. Myers

• Decision Date: 04 August 2010
• Docket Number: No. 07-6496.,07-6496.
• Citation: 615 F.3d 631
• Parties: Edward PINCHON, Petitioner-Appellant, v. Kevin MYERS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

615 F.3d 631

Edward PINCHON, Petitioner-Appellant,

v.Kevin MYERS, Warden, Respondent-Appellee.

No. 07-6496.

United States Court of Appeals,Sixth Circuit.

Argued: March 10, 2010.

Decided and Filed: Aug. 4, 2010.

Rehearing and Rehearing En Banc Denied Sept. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

ARGUED: Caryll S. Alpert, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Frank R. Borger-Gilligan, Office of the Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Caryll S. Alpert, Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Frank R. Borger-Gilligan, Office of the Attorney General, Nashville, Tennessee, for Appellee.

Before: COLE, GILMAN, and WHITE, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which COLE and WHITE, JJ., joined. COLE, J. (pp. 644-46), delivered a separate concurring opinion, in which WHITE, J., also joined.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Edward Pinchon was convicted of first-degree murder and sentenced to life in prison for the killing of his adult male lover. Pinchon, who was 17-years old at the time of his arrest, was transferred from juvenile court to a state criminal court to be tried as an adult. After exhausting his direct appeals without success, he returned to the state trial court with a petition for postconviction relief. The state trial court dismissed Pinchon's petition because it was filed after the expiration of Tennessee's one-year statute of limitations for such claims.

Prior to this dismissal, Pinchon had also filed a petition for a writ of habeas corpus in the federal district court, asserting insufficiency of the evidence and faulty jury instructions as grounds for relief. He later filed an amended petition that added two ineffective-assistance-of-counsel claims after the state courts ruled against him. The district court dismissed Pinchon's ineffective-assistance-of-counsel claims as untimely and procedurally defaulted, and it further concluded that Pinchon's insufficiency-of-the-evidence and jury-instruction claims, which were pursued on direct appeal in state court, had no merit.

On appeal, Pinchon limits his challenges to the district court's rulings regarding his ineffective-assistance-of-counsel and insufficiency-of-the-evidence claims. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

The parties do not dispute the underlying facts in this case. They are set forth in the opinion of the Tennessee Court of Criminal Appeals as follows:

... The defendant was seventeen years old on April 21, 1997, and he had been spending time, including overnight visits with the victim, Leslie Handy, a 42 or 43 year-old homosexual male. Although the defendant slept in the victim's bed when he stayed overnight, he testified that their sexual activity was limited to the victim fellating him. The victim occasionally purchased clothes for the defendant, and at the victim's request, the defendant kept these clothes at the victim's residence.

Much of the evidence inculpating the defendant came from the testimony of Mary Jones, who was the victim's neighbor and had known him since he was a young boy when he had gone to school with her children. She had known about the victim's relationship with the minor defendant for “six months to a year.” She testified the defendant would stay at the victim's house for about five nights a week and that they got along “pretty good.” However, three or four days before April 21, she was in her lawn talking to the victim, who was a few feet away inside his kitchen, when she heard a slap. The victim said the defendant had slapped him, and the victim threatened to hit the defendant with a skillet. The defendant spent the night of April 20-21 at the victim's residence, and the victim took him to school on the morning of April 21.

On the evening of April 21, Jones was visiting with the victim in his house when the defendant arrived in the company of three other boys. At one point, the defendant playfully wrestled with the victim, who was wearing a “moo-moo” style dress and was seated [o]n the living room floor. Jones testified that the defendant then went to the back of the house, returned to the living room with a shotgun, and ordered everyone to leave “because they was fixing to make love.” The victim, who was not taking the defendant seriously, told him to stop acting the fool and to put away the shotgun. At some point, the defendant said he would “bust[ ] [the victim's] head to the fat.” However, the defendant put away the shotgun, and he and his three companions left.

A few minutes later, the victim's phone rang, and Jones answered to find the defendant on the line. The defendant said he wanted to speak to the victim and that he was “going to kill that bitch.” She gave the phone to the victim, who conversed with the defendant. Approximately fifteen minutes later, the defendant and his three companions returned to the victim's house. Jones was still present and quoted the defendant as saying, “How much you bet I won't kill that g-d_____ bitch?” The defendant then told Jones that if she didn't want to see what happened she had better leave.

When the defendant pulled a .22 pistol out of his jogging pants, Jones retreated to her apartment next door. Ten seconds later, as she reached her steps, she heard a shot. As she stepped inside the door, she heard four or five more shots. She heard footsteps on the gravel outside and looked out to see the defendant and two of the boys running along the driveway. A neighbor who was outdoors a few houses away testified that he heard shots and then saw five or six young men run to a dark car and drive away.

Jones called the police, who arrived and found the victim's eyeglasses on the porch and his slippers between the storm door and the closed, wooden front door of the house. There were bullet holes in the door frame that indicated that bullets had struck the frame from the outside of the house. Inside, they found the victim [o]n the floor, clutching the telephone, dead from a .22 bullet wound to the heart.

The theory of the defense was posited by the testimony of the defendant and two of the other young men, Vernon Grigsby and Jeffrey Pinchon [Edward's cousin], who visited the victim's home that night. Although their stories conflicted in several respects, Grigsby, Jeffrey Pinchon, and the defendant testified that they and Josh Graham went in Graham's car to the victim's house twice on the evening of April 21, because the defendant wanted to get his clothes. During the first visit, the defendant playfully wrestled with the victim and procured the shotgun; however, they denied that the defendant made the love-making comment and denied that he threatened the victim in any way. The defendant retrieved a couple of items of clothing, and they left. In an hour or two, after the defendant decided that he wanted the rest of his clothes, they returned. The defendant put his clothes in a bag, and the defendant, Jeffrey Pinchon, and Grigsby went down the driveway and left Josh Graham behind. The defendant and Jeffrey Pinchon said that they raced to Graham's car in order to claim the front seat. Grigsby testified that Graham and the victim were having words on the victim's porch. The trio heard shots. Grigsby saw the victim falling through the front door and the door closing. They testified that Graham, with .22 pistol in hand, fled to the car.

All four got into the car, and Graham drove away. Grigsby testified that Graham threatened “to hurt us if we said anything.” Jeffrey Pinchon testified that no one mentioned the shooting. Graham let the three boys out and left. None of the boys called the police.

On July 31 or August 1, 1998, the defendant was arrested. On April 15, 1999, Josh Graham was murdered. The parties entered a stipulation of fact which indicated that a person had been charged with Graham's murder, that the case was apparently unrelated to the case on trial, and that the defendant had given the state notice of its defense that Graham was the perpetrator sometime in the weeks before Graham was killed.

State v. Pinchon, No. M1999-00994-CCA-R3-CD, 2000 WL 284071, at * 1-*3 (Tenn.Crim.App. Mar.17, 2000) (alterations in original) (footnotes omitted).

B. Procedural background

Because he was 17-years old at the time of his arrest, Pinchon initially faced charges in juvenile court. Following a hearing to determine whether Pinchon should be tried as an adult, the juvenile court concluded in the affirmative and exercised its discretion to transfer Pinchon to the Davidson County Criminal Court.

Pinchon was convicted by a jury of first-degree murder and sentenced to life imprisonment. On direct appeal, the Tennessee Court of Criminal Appeals affirmed Pinchon's conviction and sentence, rejecting his arguments that there was insufficient evidence to support his conviction and that one of the jury instructions violated his due process rights. Pinchon then filed a pro se application for permission to appeal with the Tennessee Supreme Court, which was denied on December 11, 2000. Pinchon v. State, No. M2003-00816-CCA-R3-PC, 2004 WL 193055, at *1 (Tenn.Crim.App. Jan.28, 2004). Although Pinchon's current counsel maintains that Pinchon never received notice of this denial, Pinchon testified at his state postconviction proceeding that he did in fact receive a letter from the Tennessee Supreme Court notifying him of its refusal to hear his appeal. In addition, in Pinchon's petition for postconviction relief, signed by him on December 28, 2001, Pinchon stated that the Tennessee Supreme Court denied his request for permission to appeal on December 11, 2000, demonstrating that he knew about the denial and the date it was issued. There is no evidence in the record indicating that this notice was untimely or inadequate in any way.

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