Smith v. Parker

• Decision Date: 25 September 2013
• Docket Number: No. 10-1158-JDB-egb,10-1158-JDB-egb
• Parties: GREGORY SMITH, Petitioner, v. TONY PARKER, Respondent.
• Court: U.S. District Court — Western District of Tennessee

GREGORY SMITH, Petitioner, v. TONY PARKER, Respondent.

No. 10-1158-JDB-egb

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

Dated: September 25, 2013

ORDER ON PENDING MOTIONS,

DENYING PETITION PURSUANT TO 28 U.S.C. § 2254,

DENYING CERTIFICATE OF APPEALABILITY,

CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,

AND

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition") filed by Petitioner, Gregory Smith, Tennessee Department of Correction prisoner number 267603, an inmate at the Northwest Correctional Complex ("NWCX") in Tiptonville, Tennessee (Docket Entry ("D.E.") 1), and the Motion to Construe Answer as Motion for Summary Judgment filed by Respondent, NWCX Warden Tony Parker (D.E. 16). For the reasons stated below, the inmate's Petition is DENIED and thus, the warden's motion is also DENIED as moot.

I. BACKGROUND

A. State Court Procedural History

Smith was indicted by a grand jury in Madison County, Tennessee, for the aggravated rape of L.C. (D.E. 9-1 at 7-8.) After a trial in the Madison County Circuit Court on May 16, 2006, the jury returned a guilty verdict on the lesser offense of aggravated sexual battery. (D.E. 9-3 at 47-48.) At a sentencing hearing on July 10, 2006, Smith was sentenced to a term of imprisonment of twelve years at 100%. (D.E. 9-5 at 19-20.) The Tennessee Court of Criminal Appeals affirmed. State v. Smith, No. W2006-01962-CCA-R3-CD, 2007 WL 3132938 (Tenn. Crim. App. Oct. 26, 2007), appeal denied (Tenn. Apr. 7, 2008).

On July 16, 2008, the inmate filed a pro se petition pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122, in the Madison County Circuit Court. (D.E. 9-6 at 5-17.) Counsel was appointed to represent Smith (id. at 21-22), and an amended petition was filed on August 15, 2008 (id. at 27-29). On September 8, 2008, a postconviction hearing was held, and the postconviction court denied the petition. (D.E. 9-6 at 30-31.) The Tennessee Court of Criminal Appeals affirmed. Smith v. State, No. W2008-02071-CCA-R3-PC, 2009 WL 3029666 (Tenn. Crim. App. Sept. 23, 2009), appeal denied (Tenn. Mar. 15, 2010).

The Tennessee Court of Criminal Appeals summarized the evidence introduced at trial:

The minor victim, L.C., will be referred to by her initials. L.C. testified that she was fourteen years old at the time of the incident and lived with her mother, Emma Smith; her stepfather, Defendant; and her uncle, Willie Clark. On July 2, 2005, L.C. was alone in the house with Defendant while Ms. Smith was at work, and Mr. Clark had gone to the store. Defendant came into the room where L.C. was lying on the couch and asked for the telephone. Defendant walked over to the couch when L.C. did not answer. L.C. said Defendant touched her in the vaginal area. L.C. asked Defendant what he was doing. Defendant did not respond and tried to unbutton L.C.'s blue jean shorts. L.C. said that she started kicking at Defendant and struck him in the face with her foot. Defendant removed L.C.'s clothes and threw her on the floor.

L.C. stated that Defendant "started shoving his penis" in her as she continued to fight. L.C. said Defendant's penis was not inside her vagina for a long time. Defendant told L.C. that he was not going to do anything to make L.C. pregnant. Defendant then removed his penis and began biting L.C. in the vaginal area which L.C. said was painful. L.C. said she tried to get away from Defendant, but every time she moved, Defendant moved with her, and then Defendant "just stopped." L.C. said that Defendant did not ejaculate during the incident.

L.C. went in the bathroom, removed her clothes, and took a bath. Defendant stood outside the bathroom door and told L.C. not to tell anyone. Before the incident, L.C. had arranged to go shopping with her cousin, Blondale DeMoss. L.C. heard Ms. DeMoss honk her car horn and went outside. L.C. was crying and told Ms. DeMoss that "it hurt." Ms. DeMoss led L.C. back into the house and examined L.C.'s vaginal area in L.C.'s bedroom. L.C. left with Ms. DeMoss, and the two women tried to find L.C.'s mother. When they could not locate Ms. Smith, Ms. DeMoss drove L.C. to the emergency room.

L.C. said that the hospital staff gave her medication which made her sleepy. The hospital staff also performed a rape kit. L.C. remembered talking with Sergeant Larry Brown at the hospital and telling him what she had been wearing when the incident occurred.

On cross-examination, L.C. said that her uncle and his friend, Roderick Diggens, returned to the residenceright after Ms. DeMoss arrived. L.C. said she did not tell Mr. Clark about the incident. L.C. acknowledged that she did not call 911 because her cousin had arrived. L.C. denied having any trouble with Defendant in the past but acknowledged that her brother, Lavonta Cook, had previously had physical altercations with Defendant.

Dr. Mike Ravelle was the attending physician at the Jackson-Madison County General Hospital's emergency room when L.C. arrived. Dr. Revelle testified that L.C. was very upset, and she did not want to be examined or questioned about the incident. Dr. Ravelle told L.C. that he needed to know what had happened in order to treat her properly. L.C. reported that Defendant began touching her inappropriately while she was sleeping on the couch, and then attempted to penetrate her vaginally with his penis. Dr. Ravelle said that L.C. told him that she tried to fight off Defendant, but that Defendant bit her in the vaginal area. L.C. said that she had taken a bath and changed clothes before coming to the emergency room.

Dr. Ravelle said that it was necessary to sedate L.C. in order to perform a rape kit. A blood sample and vaginal swab were taken. Dr. Ravelle said that there was almost no chance of finding any evidence because L.C. had bathed immediately after the incident, and Defendant had not ejaculated. Dr. Ravelle said that L.C.'s physical examination revealed a great deal of swelling in the vaginal area. Dr. Ravelle did not notice any teeth marks but stated that the redness and swelling were consistent with some type of pinching or biting.

Phyllis Taylor, a nurse with the hospital, testified that L.C. was very tearful and anxious when she arrived at the emergency room, and a sedative was administered in order for the doctor to perform an examination. Ms. Taylor examined L.C.'s external vaginal area. She described the area as very swollen and red, and she noted an abrasion. Ms. Taylor said the physical examination was consistent with L.C.'s description of the sexual assault.

Larry Brown testified that he was a sergeant with the Madison County Sheriff's Department at the time of the incident. Sergeant Brown spoke with L.C. briefly in the hospital but could not take her statement because L.C. had been sedated. Sergeant Brown took custody ofthe rape kit which was subsequently sent to the T.B.I. for analysis.

Sergeant Brown went to L.C.'s residence, but no one was home. He located Ms. Smith and accompanied her back to the residence. Ms. Smith gave her consent for Sergeant Brown to take the clothes that L .C. had been wearing at the time of the incident. Ms. Smith had not seen Defendant before she left for work that day, but she allowed Sergeant Brown to take the pair of blue jeans Defendant had been wearing the last time Ms. Smith saw him.

Sergeant Brown said that he could not locate Defendant that weekend. On Monday morning, July 5, 2005, Sergeant Brown received a telephone call from Defendant's sister informing him that she would be bringing Defendant to the sheriff's department. When he arrived, Sergeant Brown read Defendant his Miranda rights, and Defendant signed a waiver of those rights. The department's nurse took a sample of Defendant's blood. Sergeant Brown stated that Defendant had a laceration on the inside of his right upper lip, a scratch on his left check, and some ointment on a scratch on his right shoulder.

On cross-examination, Sergeant Brown acknowledged that Defendant was cooperative during the interview and offered no resistance to being examined or offering a blood sample. Defendant gave a statement denying that he had committed the offense.

Agent Donna Nelson, a forensic scientist with the T.B.I., performed a DNA analysis on the clothing samples provided by the sheriff's department. Agent Nelson said that no trace of semen was found on the victim's clothing. Agent Nelson detected blood on Defendant's blue jeans, but the sample was too small or too degraded for DNA testing. On cross-examination, Agent Nelson acknowledged that she did not test for the presence of saliva because the victim had bathed immediately after the offense.

Blondale DeMoss testified that she spoke with L.C. by telephone on July 2, 2005, and arranged to pick L.C. up for a shopping trip. Ms. DeMoss said that she stopped at a gasoline station and arrived at L.C.'s house about fifteen or twenty minutes after the call. Ms. DeMoss said that she did not have cell phone service while shewas at the gas station but noted that she had missed two calls from L.C.'s phone number during that twenty-minute interval.

When Ms. DeMoss arrived at L.C.'s house, L.C. was crying and upset. Ms. DeMoss repeatedly asked L.C. what was wrong. L.C. finally told Ms. DeMoss that "it hurt" and pointed to her vaginal area. Ms. DeMoss accompanied L.C. to her bedroom. Defendant was sitting at the kitchen table. L.C. laid down on her bed and removed her shorts and underwear. Ms. DeMoss said that L.C.'s vaginal area was swollen and she was bleeding. Ms. DeMoss and L.C. left the residence and tried unsuccessfully to find Ms. Smith. Ms. DeMoss then drove L.C. to the emergency room. Ms. DeMoss said that L.C. was very upset and had to be held down during the examination.

Ms. DeMoss said that she did not say anything to Defendant. Defendant, however, told Ms. DeMoss as she was leaving

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