Tenny v. Cockrell

• Decision Date: 05 April 2004
• Docket Number: No. A-01-CA-409-SS.,A-01-CA-409-SS.
• Parties: James B. TENNY, Petitioner, v. Janie COCKRELL, Director, Texas Department of Criminal Justice-Institutional Division, Respondent.
• Court: U.S. District Court — Western District of Texas

Page 617

420 F.Supp.2d 617

James B. TENNY, Petitioner, v. Janie COCKRELL, Director, Texas Department of Criminal Justice-Institutional Division, Respondent.

No. A-01-CA-409-SS.

United States District Court, W.D. Texas, Austin Division.

April 5, 2004.

COPYRIGHT MATERIAL OMITTED

Christopher V. Ryan, David B. Weaver, Willem G. Schuurman, Vinson & Elkins, LLP, Austin, TX, for Petitioner.

James R. Smith, Attorney at Law, Elizabeth A. Goettert, Linda E. Garza, Office of Attorney General, Assistant Attorney General, Dana L. Mills, Attorney at Law, Austin, TX, for Respondent.

ORDER

SPARKS, District Judge.

Before this Court are Petitioner James B. Tenny's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254[# 1], and the Report and Recommendation of the United States Magistrate Judge [# 42]. All matters in this case were referred to the Honorable Stephen H. Capelle, United States Magistrate Judge, for Report and Recommendation pursuant to 28 U.S.C. § 636(b), and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges, as amended, effective December 1, 2002. On August 8, 2003, the Magistrate Judge issued his Report and Recommendation that Tenny's Petition for Writ of Habeas Corpus be granted, and that Tenny be released unless the State provides Tenny with a new trial within 60 days of the final judgment in this case. Tenny filed written objections to the Magistrate's Report and Recommendation on September 16, 2003[# 45]. On September 16, 2003, Respondent filed written objections to the Magistrate's Report and Recommendation [# 47]. Having considered the petition, the case file as a whole, the state court records, and the applicable law, the Court enters the following opinion and orders.

Procedural Background

According to Respondent, the Director has lawful and valid custody of Tenny pursuant to a judgment and sentence of the 33rd Judicial District Court of Blanco County, Texas, styled The State of Texas v. James Bernard Tenny. On July 30, 1997, Tenny was indicted on one count of murder with a deadly weapon. Tenny pleaded not guilty to the charge and on May 14, 1999, he was convicted by a jury and sentenced to 65 years imprisonment.

Tenny appealed his conviction, alleging through appellate counsel, that a shower scrubber had been improperly admitted into evidence. Tenny also sent a pro se supplemental brief to the appellate court, alleging his counsel at trial and on appeal rendered ineffective assistance, the evidence was insufficient to support his conviction, and the prosecutor made improper, prejudicial arguments to the jury. The court of appeals received Tenny's brief but did not file it. On August 31, 2000, the court of appeals affirmed Tenny's conviction in an unpublished opinion. Tenny did not file a petition for discretionary review.

On December 18, 2000, Tenny filed a pro se state application for habeas corpus relief, raising the same claims raised in his unfiled supplemental appellate brief. Ex parte Tenny, Appl. No. 48,704-01, at 3-38. On April 11, 2001, the Texas Court of Criminal Appeals denied Tenny's application—without an opinion and without a hearing, the opportunity to conduct discovery, or otherwise expand the record by the state district court. Id. at cover.

Although it is not clear from the record, the trial court apparently ordered the State to file affidavits in response to Tenny's state application for habeas corpus relief. Id. The affidavits relied upon by the state court were from Sam Oatman, District Attorney for the 33rd Judicial District of Texas, and Tom Cloudt, First Assistant District Attorney for that district. Id. at 99-102. The only issue discussed in the affidavits was whether Tenny's trial counsel, John Bennett, had a conflict of interest at the time of trial as he was hired by the Blanco County District Attorney's Office shortly after Tenny's trial concluded. Id. The only finding made by the trial court was no offer of employment or prospective employment nor any conversation inducing any hope of employment, were made to Bennett prior to the conclusion of the trial. Id. at 104. The trial court concluded Tenny's allegation of a conflict did not form the basis for a claim of ineffective assistance of counsel, for unexplained reasons, and thereafter ignored the remainder of Tenny's claims. On June 22, 2001, Tenny filed a pro se petition for a federal writ of habeas corpus with this Court. After reviewing the petition and the State's answer, the Magistrate Judge concluded, on February 27, 2002, that an evidentiary hearing, regarding the issues of ineffective assistance of counsel at trial and sentencing, should be held and Tenny was indigent. The Magistrate Judge appointed counsel to represent Tenny and the evidentiary hearing was held on November 13, 2002.

Trial Testimony

On the night of her death, May 12, 1997, Joyce Mulvey and Jim Tenny had an argument over Tenny moving out of their house so he could have his son come live with him. May 10-14, 1999 Trial Transcript ("Tr. Trans."), vol. 6, p. 53, ln. 16—p. 55, ln. 23. Tenny testified he left the room to allow things to "cool down" and upon returning to the kitchen, Mulvey attacked him with a gas can. Tr. Trans., vol. 6, p. 56, ln. 13—p. 59, ln. 9. Mulvey sloshed gasoline into Tenny's eyes and all over his body. Tr. Trans., vol. 6, p. 59, ln. 17-24. Tenny further testified he could hear the clicking of a lighter and saw Mulvey approaching with a lighter. Tr. Trans., vol. 6, p. 60, ln. 2-21. The fight escalated from there with Tenny punching Mulvey to keep her away. Tr. Trans., vol. 6, p. 62, ln. 13-23.

Tenny called 911 at 9:28 p.m. requesting help because "[his] old lady [wa]s trying, trying to burn down the house." Tr. Trans., vol. 6, p. 64, ln. 8-10. According to Tenny, Mulvey then smashed a platter over his head, thereby ending the emergency call. Tr. Trans., vol. 6, p. 64, ln. 13-25. Mulvey continued her attack on Tenny with a butcher knife and they engaged in a violent struggle for the knife in which Tenny sustained several injuries, including a stab wound to his chest, which collapsed his lung. Tr. Trans., vol. 6, p. 67, ln. 2-25. Tenny then stabbed Mulvey believing it necessary to defend his own life and caused the death of Mulvey. Tr. Trans., vol. 6, p. 103, ln. 14-21.

There was no independent eyewitness to the fight that night and the physical evidence presented by the State and by Bennett did not establish, and at best was inconclusive, as to the identity of the initial aggressor. Tr. Trans., vol. 5, p. 109, ln. 11-21; p. 159, ln. 13-19. Therefore, evidence establishing Mulvey was the initial aggressor and Tenny possessed a reasonable apprehension of imminent death or serious bodily injury is the only evidence which could have persuaded the jury to accept Tenny's defense of self-defense, and to persuade the sentencing judge to accept Tenny's defense of sudden passion. November 13, 2002, Hearing Transcript ("Hearing Trans."), p. 55, ln. 11-17; Tr. Trans., vol. 5, p. 109, ln. 11-21; p. 159, ln. 13-19.

Testimony Not Presented

In the days immediately preceding Mulvey's death, from May 9 to May 12, 1997, Mulvey's behavior spiraled out of control. Mulvey repeatedly told a number of different persons she intended to kill, or otherwise harm, Tenny. June 29, 2000, Dr. William Penn Affidavit ("Dr. Penn Aff.") at 2; June 17, 2000, Florence Dente Parker Affidavit ("Parker Aff.") at 2; June 17, 2000, Father Benedict Affidavit, ("Father Benedict Aff.") at 3; July 10, 2000, Father Jeremiah Affidavit ("Father Jeremiah Aff.") at 3. Mulvey repeatedly threatened to burn down their house. Parker Aff. at 2; Father Jeremiah Aff. at 3; June 19, 2000, Joseph Swift Affidavit ("Swift Aff.") at 1. Mulvey also threatened to burn down the Christ of the Hills Monastery where she worked. June 17, 2000, Mother Seraphima Affidavit ("Mother Seraphima Aff.") at 2; Father Jeremiah Aff. at 3. Mulvey was distraught over her financial circumstances, yet she quit her job, her only source of income, on Monday, May 12th, the day of her death. Father Jeremiah Aff. at 2-4. On the day of her death, Mulvey approached a virtual stranger requesting he co-sign a $100,000 loan on her behalf. Swift Aff. at 1.

Tenny was aware Mulvey's behavior was becoming increasingly irrational and violent. Three days prior to Mulvey's death, Mulvey threw a chair at Tenny, poked him in the chest with a knife, and continued her violent behavior by destroying their property. Dr. Penn Aff. at 2; Father Benedict Aff. at 3. On the evening of Mulvey's death, while Tenny was packing his belongings to move out, Tenny received two specific warnings to leave the house from concerned friends, because Mulvey had told them that day, she was going to kill Tenny, burn down the house, and then bury Tenny in the yard. Father Benedict Aff. at 4-5; Father Jeremiah Aff. at 4. Tenny was also aware Mulvey bragged that she had stabbed her previous husband. Tenny argues none of this evidence was ever presented to the jury, who found Tenny guilty of murder, or to the trial court that eventually sentenced Tenny to 65 years in prison.

Analysis

I. Grounds for Relief

In his habeas petition, Tenny presents the following grounds for relief:

(1) His counsel at trial was ineffective for failing to explore a valid defense, giving erroneous advice at sentencing, failing to make proper objections, and having a conflict of interest;

(2) The evidence was insufficient to support his conviction;

(3) The prosecutor at trial made an improper, highly prejudicial argument to the jury; and

(4) His appellate counsel rendered ineffective assistance because she failed to raise his grounds for error on appeal.

II. Exhaustion

Respondent does not argue Tenny has not exhausted his state court remedies regarding the claims brought in this application. A review of the ...