Smith v. Campbell
| Decision Date | 19 November 1991 |
| Docket Number | No. 1:88-0456.,1:88-0456. |
| Citation | 781 F. Supp. 521 |
| Parties | Jimmy Dale SMITH v. Donal CAMPBELL, Warden. |
| Court | U.S. District Court — Middle District of Tennessee |
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Deborah S. Swettenam, Federal Public Defender's Office, Nashville, Tenn., for petitioner.
Bettye Springfield-Carter, Office of the Atty. Gen., Nashville, Tenn., for respondent.
This case involves a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner's primary claim is that his guilty plea, entered near the conclusion of a jury trial in this matter, was involuntary and unintelligent insofar as his counsel's constitutionally deficient representation required him to enter the plea. The Court has received the Magistrate's Report and Recommendation in this matter, to which objections have been filed.1 The Magistrate concluded that petitioner's arguments have no merit and therefore recommended that the petition be dismissed. For the reasons stated below, the Court will adopt the Magistrate's Report and Recommendation, as modified by this Memorandum. Accordingly, the petition for habeas corpus will be dismissed.
On the evening of January 23, 1982, Jim Brooks and Ella Pittman were shot during a robbery attempt outside of the Brooks Cash Store. Mr. Brooks, with the daily receipts of the store, had just entered his truck in the parking lot when he was approached by a masked man with a gun. The gunman said, "damit Jimmy, throw that money out here, or I'll shoot you." Rather than comply with this request, Brooks attempted to start his truck and flee. At this point, the robber shot Brooks through the truck's door, hitting him in the leg. The door was then opened and Brooks was shot two more times at point blank range.
Meanwhile, Brooks' niece, Kendalle Pittman, saw the robbery in progress. After alerting her parents, Ella and Ken Pittman, and her aunt Betty Wright, and attempting to frighten the robber away to no avail, she rammed her jeep into the gunman, temporarily pinning him between the jeep and the truck and causing him to drop his gun. Ella Pittman arrived on the scene and, while struggling with the robber, pulled off his mask and observed his face from distance of approximately one foot. She later identified the defendant, Jimmy Dale Smith, as the robber.
According to the testimony, the defendant fled and Mrs. Pittman recovered the gun he had dropped. In an apparent effort to retrieve the money, the defendant returned and, drawing a second weapon, exchanged gunfire with Mrs. Pittman who was struck first in her lower body while a second shot was deflected by the frame of her eyeglasses. Mrs. Pittman managed to fire two shots at the defendant and she believed at least one had found its mark. The defendant then fled.
Ownership of the gun found at the scene of the crime was traced to the defendant. With this established, Agent David Ray of the Tennessee Bureau of Investigation TBI acquired a photograph of the defendant along with a "photo pack." A photo pack is a collection of photographs of various people to be used as part of a photo array. Three days after the robbery, Agent Ray visited Mrs. Pittman in the hospital and showed her an array of eight photographs, one of which was of the defendant. The testimony indicated that the photographs were of men possessing similar characteristics and that the defendant's photo was located fifth in the array. Mrs. Pittman, without hesitation, identified Jimmy Dale Smith as the robber. At the trial, Mrs. Pittman made a positive in-court identification of the defendant as the perpetrator of the crime. Smith was an acquaintance of Jim Brooks and so would have known to call him "Jimmy" during the robbery.
When Smith was arrested, it was discovered that he had a bullet wound in his back. A forensic pathologist testified at the trial that the wound was consistent with that caused by the weapon Mrs. Pittman fired and, from the appearance of the wound, he determined that it was inflicted on or about January 23, 1982 — the day of the crime. The defendant's ex-wife, Judy Smith Meadows, testified that on the evening of January 23, 1982, Mr. Smith returned home late and informed her that he had injured his back with a chain saw. Later, when he was arrested, he told the police this same story. The pathologist testified, however, that the wound on the defendant's back could not have been suffered from a chain saw accident.
Counsel for the defense made no pre-trial motion to suppress the photographic array testimony. The defendant did not take the stand until after the prosecution's rebuttal case when, out of the presence of the jury, the trial court heard Mr. Smith's proposed testimony. The court found that Mr. Smith's desire to testify came to late and that his testimony would not be proper in rebuttal. Accordingly, the court denied him the opportunity to testify before the jury.
At the close of all the evidence, the defendant informed the court of his desire to change his plea pursuant to an agreement with the State. After extensive questioning of Mr. Smith, the court accepted the plea, finding the defendant to be satisfied with his counsel's representation and competent to voluntarily waive his rights. Smith pleaded guilty to two counts of assault with attempt to commit murder and one count of armed robbery. Although the defendant faced the possibility of several life terms for his crime, the court abided by the plea agreement and sentenced Smith to three 60 year terms to be served concurrently.
On April 12, 1985, petitioner filed for state post conviction relief. Counsel was appointed to represent Smith and a hearing was held on September 9, 1986, at which time Smith fired his attorney. The Criminal Court for Fentress County determined that Smith did receive effective assistance of counsel and that his guilty plea was knowingly and intelligently made. This decision was upheld by the Court of Criminal Appeals on June 17, 1988. Application to appeal to the Supreme Court of Tennessee was denied on October 3, 1988.
Smith filed the current petition for habeas corpus on November 17, 1988.2 While it was and is evident from Smith's numerous and lengthy filings that he is quite literate, the rather disorganized fashion in which he presented his claims made it difficult to discern the precise nature of his serious allegations. Therefore, counsel was appointed to represent him.3
Petitioner's grounds for relief are essentially based upon ineffective assistance of counsel. Specifically, petitioner, through his appointed attorney, asserts that trial counsel rendered ineffective assistance by (1) failing to file and litigate any motion to suppress the out-of-court identification of the petitioner in a photographic line-up and the in-court identification of the petitioner by Ella Pittman; (2) failing to investigate and present evidence of the petitioner's history of medical problems with his leg to rebut the State's inference that the petitioner was the perpetrator because at the time of his arrest, the condition of his leg was consistent with having been pinned by an automobile as the perpetrator had been; (3) closing the defense proof at trial without presenting the petitioner as a witness on his own behalf; and (4) representing to the petitioner that counsel could arrange for an early release from prison if the petitioner pled guilty. Counsel argues that the third ground for relief includes the additional claim that petitioner was denied the right to testify on his own behalf.
The petitioner has supplemented his counsel's briefs with extensive handwritten filings and copies of his state appellate briefs. As best as the Court can make sense of these, he asserts in addition to the above claims, that (a) trial counsel was involved in a conspiracy dating to the mid-1970s to have petitioner incarcerated; (b) that he was not competent to plead guilty insofar as he had had little sleep, was suffering from an infected backwound, believed he was suffering from cancer or a heart condition, was under the influence of pills his trial counsel had given him, the jail conditions were poor, and the high cholesterol food he had been eating affected his judgment; (c) that he was not informed of the collateral consequences of his plea by the trial court; (d) that the both the trial transcript and the post conviction hearing transcript had been altered; (e) that the State knowingly used false evidence, namely, that the gun introduced at the trial was not owned by him as the State claimed; (f) that trial counsel should not have called petitioner's ex-wife to testify; and (g) that there was an undue delay in the state post-conviction proceedings. Present throughout his filings is the repeated assertion that he is innocent and that the initial description of the robber given by Mrs. Pittman the day of the crime is inconsistent with his actual appearance.4
At the outset, it must be noted that the writ of habeas corpus is not a tool for the redetermination of a prisoner's guilt or innocence. The writ exists only to safeguard the constitutional and federal rights of persons held in custody. 28 U.S.C. § 2254(a). Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (Holmes, J.). Whether or not the petitioner asserts his innocence is irrelevant to this proceeding and cannot be considered.5
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