Sparrow v. Leibach

• Decision Date: 12 September 2018
• Docket Number: No. 3:17-cv-00717,3:17-cv-00717
• Parties: TIMOTHY W. SPARROW #358416, Petitioner, v. BLAIR LEIBACH, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

TIMOTHY W. SPARROW #358416, Petitioner, v. BLAIR LEIBACH, Respondent.

No. 3:17-cv-00717

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

September 12, 2018

JUDGE TRAUGER

MEMORANDUM OPINION

Petitioner Timothy Sparrow, a state prisoner incarcerated in the Trousdale Turner Correctional Center in Hartsville, Tennessee, has filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254, and has been permitted to proceed in forma pauperis. (Doc. Nos. 1, 4.) The court will deny the petition for the reasons explained below.

I. FACTS AND PROCEDURAL HISTORY

The Tennessee Court of Criminal Appeals summarized the relevant trial testimony. (Doc. No. 8-22 at 2-16.) In the early morning hours of August 18, 2008, the victim, Jose Arias, was in the living room of his friends Thomas Davenport and Kimberly Bennett, with whom he occasionally spent the night. (Doc. No. 8-22 at 2.) Bennett and Davenport, whose nickname is Bubba, were in their bedroom when they heard a loud vehicle in the driveway. (Id. at 2, 4.) A few minutes later, Arias and the petitioner entered the bedroom, where the petitioner tried to sell Davenport a gun and a CD player, which Davenport declined. (Id.) Both Bennett and Davenport recognized the petitioner, because he had been to the house several times before to buy drugs from Davenport and their other roommate, Marilyn Holt, but they knew him by his alias Larry. (Id. at 3, 4.) He was wearing shorts and a dark shirt. (Id. at 4, 5.)

After Davenport refused to purchase the gun or CD player from the petitioner, Arias turned to leave the bedroom, and the petitioner shot him with the gun he had tried to sell Davenport. (Id. at 2.) Arias continued down the hallway, and the petitioner shot him multiple times. (Id.) Bennett got out of bed to shut the bedroom door and saw Arias and the petitioner down the hall in the kitchen, where the petitioner stood over Arias and shot him in the face. (Id.) Bennett closed the bedroom door, got back into bed and covered her head. She heard the petitioner come back into the bedroom and say "[G]ive me everything you've got, Bubba." (Id.) Davenport said that he did not have anything, and Davenport heard the gun click. (Id. at 2, 5.) Davenport testified that the petitioner clicked the gun in his face, and he saw a shell casing sticking up from the gun, jamming it. (Id. at 5.) The petitioner then ran out of the house, pushing past Holt, who had been awakened by the sound of the gunshots. (Id. at 6-7.) Holt did not recognize the man, and asked who it was. (Id. at 7.) Bennett told her it was Larry. (Id.) Davenport followed the petitioner and saw that his car was white with a "custom grill" and dark-tinted windows. (Id. at 5.)

A sheriff's deputy arrived at the scene at 3:01 a.m. and found Arias to have a pulse, with blood inside his mouth and covering his face, and making gurgling sounds. (Id. at 9.) But by the time EMS arrived, Arias had no pulse, was not breathing, and was unresponsive. (Id.) The medical examiner later determined that Arias had died at the scene. (Id.)

At around 5 a.m., the petitioner called Brandy Ray and asked her to pick him up and let him spend the night at her house because he had argued with his girlfriend. (Id. at 9.) When Ray picked him up at a gas station in Shelbyville, he was wearing shorts and a tank top undershirt. (Id.)

Also that morning, a Shelbyville police officer received a "BOLO" alert for the white sedan involved in the murder and reported that he saw the sedan and a subject who ran awayfrom it. (Id. at 10.) The white Crown Victoria belonged to the petitioner's sister and was in the parking lot of Davis Estates, an apartment complex that backed up to the apartment shared by the petitioner, his girlfriend, and his sister. (Id. at 11, 14.) When officers started the car they noticed that it was very loud and seemed to have a muffler that increased the noise, and Davenport and Bennett both said it sounded the same as the car they heard at the time of the shooting. (Id. at 11, 13.)

A police dog used to search for the subject in the area around the car alerted to a black t-shirt on the ground near a fence line, which the officers collected. (Id. at 10-11.) Experts later testified that the t-shirt bore a mixture of DNA, with the major contributor being consistent with the petitioner's DNA, and tested positive for gunshot residue. (Id. at 13-14.) The police dog lost the scent of the subject 1.8 miles from where Ray picked up the petitioner that morning.

The petitioner's sister testified that the night before the murder, the petitioner and Tommie Cannon were together in and out of the apartment and traveling in Cannon's car. (Doc. No. 8-22 at 14.) She testified that the petitioner knocked on her window around 2 or 2:30 a.m. and that she let him in the back door of the apartment. (Id. at 14.) Thirty to sixty minutes later, the petitioner called her and said that he was going to park her white Crown Victoria at Davis Estates, because the police were "after him," and he did not have a driver's license. (Id. at 14-15.) The police arrived at the apartment around twenty minutes later. (Id. at 14.) The petitioner's sister told police that she had not talked to him. (Id. at 15.)

Tommie Cannon testified that he was with the petitioner "the night before they said it was supposed to happen or something like that. . . . Might have been the same night." (Doc. No. 8-22 at 15.) He said they were together in various locations until around 2:30 a.m., and Lakisa Adams testified the two men did visit her apartment together at midnight or 1 a.m. the nightbefore the petitioner was arrested and stayed over an hour. (Id.)

Berry Odem testified that he and Arias went to the residence where the shooting occurred, looking for crack cocaine, around 4 p.m. the previous day and that Arias seemed nervous. Odem left the house at 5:30 or 6:00 p.m. (Doc. No. 8-22 at 15.)

A firearms expert testified for the defense about the possibility of cross-contamination by transfer of gunshot residue to a weapon holster or fabric that comes into contact with a weapon after it is fired. (Doc. No. 8-22 at 16.)

On September 21, 2011, a Williamson County jury found the petitioner guilty of two counts of second degree murder (lesser-included offenses of first degree premeditated murder and felony murder), one count of attempted first degree murder, and one count of attempted aggravated robbery. (Doc. No. 8-2 at 58-62, 64.) On January 6, 2012, the trial court merged the second degree murder convictions and sentenced the petitioner to 20 years in prison for that crime, 20 years for the attempted murder conviction, and 8 years for attempted aggravated robbery. (Id. at 104-06.) The sentences for second degree murder and attempted murder were ordered to run consecutively, for a total effective sentence of 40 years. (Id.) The Tennessee Court of Criminal Appeals affirmed the petitioner's convictions and sentences on March 14, 2013 (Doc. No. 8-22), and the Tennessee Supreme Court denied discretionary review on August 26, 2013. (Doc. No. 8-25.)

The petitioner filed a pro se post-conviction petition in state court on March 14, 2014. (Doc. No. 8-26 at 55-68.) The court appointed counsel, who filed an amended petition on June 30, 2014. (Doc. No. 8-26 at 74-75, 79-85.) The court held an evidentiary hearing on October 28, 2015, and denied the petition on December 7, 2015. (Doc. No. 28-6 at 102-22.) The Tennessee Court of Criminal Appeals affirmed the denial of post-conviction relief on September19, 2016, and the Tennessee Supreme Court again denied review on January 19, 2017. (Doc. Nos. 8-31, 8-34.)

The petitioner's petition for writ of habeas corpus pursuant to Section 2254 is deemed filed in this court on March 20, 2017 (Doc. No. 1 at 14), and the respondent acknowledges that it is timely. (Doc. No. 9 at 2.)

II. ISSUES PRESENTED FOR REVIEW

The petition raises the following claims for relief:

1. The indictment was defective because it did not adequately inform the petitioner of the state's theory of attempted first degree murder. (Doc. No. 1 at 5.)

2. The petitioner's jury did not fairly represent the community. (Doc. No. 1 at 6.)

3. The petitioner was unfairly prejudiced by the trial court's evidentiary rulings. (Doc. No. 1 at 8.)

4. The trial judge engaged in improper communication with the jury. (Doc. No. 1 at 10.)

5. There was insufficient evidence to support the petitioner's conviction. (Doc. No. 1 at 15.)

6. The petitioner's sentence was improperly enhanced and is excessive. (Doc. No. 1 at 17.)

7. The petitioner's right to due process was violated by the cumulative effect of various errors of the trial court and trial counsel, and by prosecutorial misconduct. (Doc. No. 1 at 19.)

8. The petitioner received ineffective assistance of trial counsel, appellate counsel, and post-conviction counsel. (Doc. No. 1 at 21.)

9. The petitioner's multiple indictments and convictions for various theories of murder violated his right to due process and the prohibition against double jeopardy. (Doc. No. 1 at 23.)

III. STANDARD OF REVIEW

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective DeathPenalty 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). Upon finding a constitutional error on habeas corpus review, a federal court may only grant relief if it finds that the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v. Warren, 311 F. App'x 798, 803-04 (6th Cir. 2009).

AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases . . . and 'to...