Scribner v. Donahue

• Decision Date: 18 May 2017
• Docket Number: No. 3:13-cv-01423,3:13-cv-01423
• Parties: ROBERT DEE SCRIBNER, II, Petitioner, v. MICHAEL DONAHUE, Warden, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

ROBERT DEE SCRIBNER, II, Petitioner, v. MICHAEL DONAHUE, Warden, Respondent.

No. 3:13-cv-01423

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

May 18, 2017

Judge Trauger

MEMORANDUM

The petitioner, Robert Dee Scribner, II, a state inmate, filed this pro se action under 28 U.S.C. § 2254, seeking the writ of habeas corpus to set aside his state conviction for raping a child under the age of thirteen. (Docket Entry No. 1). The court appointed the Federal Public Defender to represent the petitioner and permitted the filing of an amended petition. (Docket Entry Nos. 28, 47). The court later granted appointed counsel the opportunity to obtain discovery. (Docket Entry No. 59). The petitioner then filed a Second Amended Petition (Docket Entry No. 79), in which the petitioner asserts the following claims: (1) the evidence at his trial was insufficient to support a conviction; (2) trial counsel was ineffective for failing to present any evidence regarding the petitioner's subjective awareness of the child's age, including failing to object to the State's motion in limine that precluded counsel from presenting or eliciting testimony about the petitioner's lack of knowledge of the child's age; (3) state post-conviction counsel was ineffective for failing to assert that trial counsel was ineffective for failing to present any evidence regarding the petitioner's subjective awareness of the child's age; and (4) the State withheld material, exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Id. at 14, 15, 18. The petitioner also asserts that the Second Amended Petition incorporates all other claims raised in the petitioner's pro se petition by reference and supplements, but does not supersede, the initial petition. Id. at 23.¹, ²

Before the court is the respondent's Motion to Dismiss (Docket Entry No. 84) and proposed findings of fact and conclusions of law (Docket Entry No. 104). The respondent contends that the petitioner's claims are time-barred and that he has failed to show good cause for equitable tolling or that he is actually innocent. (Docket Entry No. 85, at 1). As to the Brady claim, the respondent also contends that the petitioner's Brady claim fails because the petitioner cannot show that the evidence was suppressed, exculpatory or impeaching, or that he suffered prejudice. (Docket Entry No. 104, at 1, 21). In his response (Docket Entry No. 88) and proposed findings of fact and conclusions of law (Docket Entry No. 105), the petitioner contends: (1) that the respondent waived the statute of limitations defense for his non-Brady claims, and the court should consider this claim in the interests of justice; (2) that the evidence was insufficient for his conviction for the rape of a child; (3) that trial counsel rendered ineffective assistance of counsel for failing to object to the State's motion in limine precluding him from presenting or eliciting testimony about the petitioner'slack of knowledge as to the child's age and that post-conviction counsel was ineffective for failing to raise this issue before the state courts; and (4) that the petitioner has established the elements of a Brady violation. (Docket Entry No. 105, at 26, 30, 13-15, 19-23).

I. PROCEDURAL HISTORY

On August 29, 2007, a Davidson County Criminal Court jury convicted the petitioner of rape of a child, for which the petitioner was sentenced to sixteen (16) years of imprisonment to be served at 100 percent. (Docket Entry No. 31-1 at 65-66, 72).³ The Tennessee Court of Criminal Appeals affirmed the petitioner's conviction and sentence. State v. Turner, No. M200800253CCAR3CD, 2009 WL 648963, at *1 (Tenn. Crim. App. Mar. 12, 2009). On August 17, 2009, the Tennessee Supreme Court denied the petitioner's application for permission to appeal. Scribner v. State, No. M2011-00229-CCA-R3-PC, LEXIS 485, at *2 (Tenn. Crim. App. June 19, 2012).

On January 11, 2010, the petitioner filed a pro se post-conviction petition in the Criminal Court for Davidson County, followed by appointment of post-conviction counsel and the filing of an amended petition on June 16, 2010. Id. at *4. The state trial court conducted an evidentiary hearing and, on December 2, 2010, it denied the petitioner's petition for post-conviction relief. Id. at *4-6. On June 19, 2012, the Tennessee Court of Criminal Appeals affirmed the trial court's denial of post-conviction relief. Id. at *1. On October 17, 2012, the Tennessee Supreme Court denied the petitioner's application for permission to appeal. Id.

On October 16, 2013, the petitioner filed his pro se federal habeas petition. (Docket Entry No. 1, at 47). On July 28, 2014, the petitioner's court appointed counsel filed an Amended Petition(Docket Entry No. 47). On January 16, 2015, the court granted appointed counsel permission to seek discovery from the Metropolitan Nashville Police Department ("MNPD") and the Tennessee Department of Children's Services ("DCS"). (Docket Entry No. 59). The respondent produced requested documents to the petitioner on or around April 15, 2015. (Docket Entry No. 94, at ¶ 5). On July 24, 2015, the court granted the petitioner's motion to file a Second Amended Petition, which was accompanied by trial counsel's sealed declaration and six attachments, five of which the petitioner alleges were withheld in violation of Brady. (Docket Entry No. 79). On August 28, 2015, the respondent filed a Motion to Dismiss (Docket Entry No. 84) and, after being granted an extension of time to respond, on September 18, 2015, the petitioner filed his response. (Docket Entry Nos. 87 and 88).

On January 15, 2016, the court ordered an evidentiary hearing on the petitioner's "Brady claim that may toll the applicable statute of limitations." (Docket Entry No. 89). On March 15, 2016, the court conducted the evidentiary hearing. (Docket Entry No. 96). The parties filed their proposed findings of fact and conclusions of law on July 11, 2016. (Docket Entry Nos. 103-105). Due to the retirement of Judge Haynes on January 16, 2017, and pursuant to Administrative Order No. 138, this action was transferred to the undersigned. (Docket Entry No. 106).

II. REVIEW OF THE STATE COURT RECORD

On the petitioner's direct appeal, the Tennessee Court of Criminal Appeals found the following facts⁴:

The defendants, Eric D. Turner and Robert Dee Scribner, II, were indicted by the Davidson County Grand Jury in a three-count indictment for rape of a child, a Class A felony, with Scribner charged with two counts and Turner charged with one count.

. . . .

This case arises out of the defendants' January 24, 2006, sexual encounter with the twelve year-old victim, A. D. According to the State's proof at trial, the victim became acquainted with twenty-three-year-old Turner and his twenty-two-year-old cousin, Scribner, through an adult chat line. On January 24, 2006, by prearrangement with the victim, the men picked up the victim from the street near her home and took her to Turner's house. Both men engaged in sexual activity with the victim at Turner's house and then took her back to her own home. Confronted by her mother that evening, the victim initially admitted to penile-vaginal intercourse with Scribner. A criminal investigation ensued, and she eventually admitted that she had engaged in sexual intercourse with both defendants during the January 24, 2006, episode at Turner's home.

At the defendants' August 27-28, 2007, joint trial, Metro Police Sex Crimes Detective Heather Baltz testified that she went to the victim's home on January 24, 2006, in response to a patrol officer's report of a child that might have been involved in a criminal sexual situation. After speaking with the victim and her mother, she accompanied the victim to the hospital, where a physical examination was performed and evidence collected for a rape kit. Detective Baltz stated that she took custody of the rape kit evidence and followed the standard practice of booking it into the Metro Police Property Room, where it was assigned a case number that was on all the paperwork connected with the evidence. She then transported the evidence to the Tennessee Bureau of Investigation ("TBI") laboratory for analysis, where the TBI assigned its own internal reference numbers to it.

Detective Baltz testified that the victim provided her with the nicknames, "Kelondo" and "Little Daddy," later identified as Turner and Scribner, respectively. The victim initially mentioned only that she had engaged in penile-vaginal intercourse with Scribner but, during the course of her subsequent interviews, which occurred on February 10, February 14, and April 13, stated that she had sexual intercourse with both men. Detective Baltz testified that she interviewed each defendant, using a casual, non-confrontational approach designed to get them to open up about the incident. She laid out the victim's allegations to Turner, "present[ing] it as if they did have sex." He did not deny it, and when she asked Turner if he had used a condom, he replied that he did not remember. She took the same approach with Scribner, who ultimately acknowledged that he had oral sex with the victim but continued to deny that he had engaged in vaginal sex with her. Detective Baltz stated that she collected cheek swabs from each defendant, which she submitted for DNAanalysis. The tape recording of both interviews was played aloud for the jury and admitted into evidence.

On cross-examination, Detective Baltz acknowledged that each man expressed surprise, with Scribner appearing "extremely surprised," when she revealed the victim's age. She further acknowledged that the victim initially told her that she first met Turner at a convenience store, called Scribner to come pick her up, and had vaginal intercourse with Scribner. She confirmed that the victim did not tell her that she had sexual intercourse with Turner until the February 10 interview and did not admit to having met him on a chat line, rather

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