Turner v. State of Tenn.

• Decision Date: 12 June 1987
• Docket Number: No. 3-87-0152.,3-87-0152.
• Citation: 664 F. Supp. 1113
• Parties: James Howard TURNER v. The STATE OF TENNESSEE.
• Court: U.S. District Court — Middle District of Tennessee

664 F. Supp. 1113

James Howard TURNER v. The STATE OF TENNESSEE.

No. 3-87-0152.

United States District Court, M.D. Tennessee, Nashville Division.

June 12, 1987.

Edward M. Yarbrough, J. Russell Heldman, Hollins, Wagster & Yarbrough, Nashville, Tenn., for plaintiff.

Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Tenn., for defendant.

MEMORANDUM

WISEMAN, Chief Judge.

Petitioner James Howard Turner, awaiting retrial in a state criminal court on charges of murder and kidnapping, seeks issuance of the writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(c)(3) and 2254(a). Petitioner asserts that his impending retrial will deprive him of his Sixth Amendment right to the effective assistance of counsel and his Fourteenth Amendment right to due process of law free of vindictive prosecution. For the reasons and pursuant to the conditions stated below, the Court concludes that the writ should issue.

I. Factual Background¹

Petitioner was convicted by a jury on February 9, 1983 of first degree (felony) murder and two counts of aggravated kidnapping. Before and during this trial, he was represented by local counsel, Thomas C. Binkley,² and by an attorney from Socorro, New Mexico, named Lance Bailey.

The charges against Turner stemmed from an incident in 1980 in which several men kidnapped and murdered a man named Monty Hudson and kidnapped Hudson's wife, Elizabeth. According to testimony in the transcript and to other materials in the record, Hudson apparently sold bogus silver to at least one of Turner's codefendants, Earl Carroll, to whom Turner had loaned some $6,000 for the purchase. Carroll and a third codefendant, Sam John Passarella, were accused of abducting Hudson from the parking lot of a Nashville hotel. Hudson later was murdered.

Carroll received a plea-bargained sentence of two years for simple kidnapping in exchange for his testimony and other cooperation. Passarella was convicted by a jury of two counts of aggravated kidnapping in a trial separate from Turner's³; he was sentenced to 70 years' imprisonment.

Turner, who allegedly abducted Mrs. Hudson from the same hotel parking lot in a separate car and later released her unharmed, was charged with two counts of aggravated kidnapping and one count of felony murder. Passarella's trial, at which both Carroll and Mrs. Hudson testified, took place in 1982 after Turner requested severance.

Turner received several plea offers before his trial commenced. Before and after he was indicted, prosecutors made offers of two-to-ten years and four-to-ten years in an attempt to gain Turner's cooperation in the effort to find Hudson's body. These offers were rejected. In the week preceding trial, the prosecutors⁴ offered Turner a plea bargain of a two-year unsuspended sentence in return for a plea of guilty to a felony—essentially the same offer that Carroll earlier had accepted. This offer⁵ remained open until noon on February 4, 1983, three days before trial, a deadline for settlements imposed by order of the court; the offer was never withdrawn.

Turner had rejected the earlier plea offers requiring longer sentences. In the final week, Binkley discussed the two-year offer in a conference call with Bailey and the petitioner; he "recommended strongly" that Turner accept it. Turner, however, relying upon the advice of Bailey as to his prospects in trial, made a counteroffer to the prosecutors of one year, which was refused. Despite a repeated recommendation from Binkley that the continuing two-year offer be accepted, Turner continued to rely on the advice of Bailey⁶ and let the deadline for settlement expire.

At trial, Turner was convicted on all three counts and sentenced to life imprisonment for murder plus 40 years on each kidnapping count, to be served concurrently. Turner I Memorandum at 3, 14.

About six months after trial, Judge Kurtz, after holding the evidentiary hearing, granted Turner's motion for a new trial based on the grounds that he had received ineffective assistance of counsel in making the decision to reject the two-year plea offer and to go to trial. Turner I Memorandum. The Court of Criminal Appeals affirmed in an unpublished opinion, and the Tennessee Supreme Court denied permission to appeal, concurring "in result only." State v. Turner, No. 83-287-III, slip op. (Tenn.Crim.App. Aug. 7, 1984), perm. app. denied, (Tenn. Dec. 17, 1984) (hereinafter Turner I).

During the pendency of appeals of Turner I, petitioner was detained pursuant to order of Judge Kurtz; he apparently has served more than two years already.

Upon remand to the trial court, petitioner and the State engaged in further plea negotiations in which the State offered 20 years in return for a plea to aggravated kidnapping and petitioner counteroffered a plea to simple kidnapping, which carries a maximum sentence of 10 years. After plea negotiations terminated, petitioner filed in the trial court a motion to reinstate the plea offer of two years, or in the alternative to dismiss the indictment.

Reasoning that granting the motion was the "only ... remedy which will neutralize the constitutional violation," Judge Kurtz ordered the State to reinstate the two-year offer within 15 days or face dismissal of the case (apparently with prejudice). He noted that the State had "offered no real explanation as to why the offer is now twenty" instead of two years, and observed that reinstatement of the offer represented "the opportunity lost by the ineffective assistance provided to the defendant." State v. Turner, No. C-8536, Memorandum and Order of February 28, 1985 (hereinafter Turner II).

The State received permission to apply for extraordinary appeal of this order.⁷ The Tennessee Court of Criminal Appeals reversed, relying (1) upon state authorities for the proposition that a court cannot "require the state to make a particular plea offer"; (2) upon Tenn.R.Crim.P. 11(e)(1) for the proposition that a trial judge "shall not participate" in plea negotiations;⁸ (3) upon state authorities and upon Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) for the proposition that any plea agreement is revocable and unenforceable until it is accepted by the court; and (4) upon United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) for the proposition that although remedies for constitutional deprivations "should be tailored to the injury suffered," they should not unnecessarily infringe on competing interests and only "rarely" result in dismissal of an indictment. Turner II, 713 S.W.2d at 329-30. The appeals court concluded that the appropriate remedy in the case was "remand for a new trial." Id. at 330. On further appeal, the Tennessee Supreme Court denied petitioner's application for permission to appeal, and the United States Supreme Court denied certiorari. See supra note 1 for full citations.

Petitioner's new trial date before Judge Kurtz is June 15, 1987. He filed his habeas petition in this Court on February 25, 1987.

II. Preliminary Issues

Before proceeding to the merits of this petition, the Court must deal with three arguments, two procedural and one substantive, made by the State, any one of which would preclude consideration of the ultimate issue that Turner seeks to raise: that the Constitution requires reinstatement of the lost two-year plea offer. The three preliminary questions are: (1) Is petitioner "in custody" for purposes of the habeas corpus statutes? (2) Has he exhausted his state remedies? (3) On de novo review by this Court, was he denied effective assistance of counsel guaranteed by the Sixth Amendment? The Court will dispose of the two procedural issues in this part of the Memorandum and deal with the ineffectiveness question in part IIIA.

A. Custody

Petitioner is currently on bond awaiting retrial. While the statutory language requires that a petitioner for habeas corpus be "in custody," the Supreme Court generally has construed this language to include, besides actual incarceration, "other constraints on a man's liberty, restraints not shared by the public generally." Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963). Persons on bond awaiting trial generally are considered "in custody" for purposes of 28 U.S.C. § 2241. Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir.1981); see Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984); Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

Treating pretrial detainees subject only to bond as "in custody" works no violence to state-federal comity because these petitioners nonetheless are still subject to the doctrine of exhaustion of remedies. See Hensley, supra, at 353, 93 S.Ct. at 1576; Lydon, supra, 466 U.S. at 301-02, 104 S.Ct. at 1809-10. The respondent's argument that Turner is not "in custody" is without merit.⁹

B. Exhaustion of Remedies

The State further argues that, although Turner has satisfied the exhaustion requirement for his claim of entitlement under the Sixth Amendment to reinstatement of the plea offer, he has not exhausted state remedies on the issue of prosecutorial vindictiveness. The respondent thus does not challenge, but the Court treats on its own initiative,¹⁰ the question of exhaustion of the issue of ineffectiveness of counsel. In order to decide fully what remedy is constitutionally mandated in this case, both issues must be exhausted.

The doctrine mandating exhaustion of remedies in state courts before they ordinarily will be considered by a federal court arises from considerations of federal-state comity and requires a petitioner to:

provide the state courts with a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim. It is not enough that all the facts necessary to support the federal claims were before the state courts or that a somewhat similar state-law claim was made. In addition, the

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