Tennessee Supreme Court Excuses Prisoner's Failure to Meet Post-Conviction Deadline

By Stevie Phillips

In 2003, prisoner Artis Whitehead tried to rob BB King's Blues Club on Beale Street in downtown Memphis.  He was convicted of a variety of offenses surrounding the incident.  The TN appellate courts affirmed his convictions, and the US Supreme Court declined to hear his case.  Up to that point, he had an attorney.

Afterwards and without a lawyer, Mr. Whitehead filed a petition for post-conviction relief in the trial court.  That court dismissed the petition because it was filed late.  The Court of Criminal Appeals remanded the case for a hearing, but the trial court again declined to excuse Mr. Whitehead's late filing.  This time on appeal, the TN Supreme Court issued a divided opinion.

Both the majority and dissent analyzed this case under Holland v. Florida, 130 S. Ct. 2549 (2010) and Maples v. Thomas, 132 S. Ct. 912 (2012), two US Supreme Court cases holding, essentially, that a prisoner's late filing should be excused if 1) he was diligently pursing his rights and some extraordinary circumstance prevented him from filing his petition on time and 2) the prisoner’s attorney abandoned the prisoner or acted against the prisoner’s interests.

J. Koch, writing for the majority, held that Mr. Whitehead's attorney effectively abandoned him, which created an exceptional circumstance that prevented him from filing his petition on time. Specifically, Mr. Whitehead's lawyer delayed in informing him that the US Supreme Court had declined to hear his case and in forwarding his case files and also gave Mr. Whitehead an incorrect filing deadline.

J. Holder authored a dissent in which she distinguished these facts from Holland and Maples:

"The petitioners in Holland and Maples were not only the victims of attorney mistakes and communication failures, but each petitioner also erroneously believed his attorney was pursuing his legal matter on his behalf."  In J. Holder's view, the evidence did not preponderate against the trial court's finding that "Mr. Whitehead never operated under the misconception that the pursuit of post-conviction relief was not his responsibility or that his former appellate attorney was pursuing his post-conviction claim." 

Read J. Koch's majority opinion and J. Holder's dissent.

CCA Judge Thomas Dissent on failure to advise state of defendant's acceptance of plea

In State v. Pye, Judge Kelly Thomas disagrees "with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision."

As a general rule, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, --- U.S. ---, 132 S. Ct. 1399, 1408 (2012). By allowing a plea agreement offer “to expire without advising the defendant or allowing him to consider it,” defense counsel renders constitutionally ineffective assistance to the defendant. Id. The converse had also been held to be true, “that defense counsel does have a duty to communicate an accepted plea to the State in a timely manner, i.e., before the plea offer expires.” Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); see also United States v. Gonzalez-Vazquez, 219 F.3d 37, 41-42 (1st Cir. 2000) (finding that the defendant likely had a claim for ineffective assistance of counsel where his defense counsel failed to accept a plea offer as instructed, allowing the offer to lapse); cf. Nichols v. State, 683 S.E.2d 610, 613 (Ga. 2009) (concluding that defense counsel was not ineffective in failing to communicate the defendant’s decision to accept a plea agreement where defendant did not make decision until after the offer had lapsed). To hold otherwise would mean that defense counsel’s duty to communicate plea offers to the defendant “would have no point if the duty to communicate the acceptance of the plea offer to the State is not also in place.”

U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at NYTimes.com.

Court of Criminal Appeals Reverses Child Rape Conviction Due to Ineffective Assistance of Counsel

A Tennessee defendant, Joel Ernest Blanton, was convicted of one count of rape of a child and two counts of aggravated sexual battery and sentenced to 24 years in prison. Blanton appealed the conviction, citing several instances of ineffective assistance of counsel, particularly, that his attorney was ineffective for failing to obtain visitor logs from the Tennessee Department of Correction that could have been used to impeach the primary witness against him. The Court of Criminal Appeals heard the case and in an unusual decision, ultimately agreed with Blanton, reversing and remanding his case for a new trial.

By way of background, a 12-year-old girl said that Blanton was a friend of her family whom she had known for years. After having to spend the night at his house one day she says she awoke to find Blanton fondling her until she told him to stop and said that “it hurt.” The defendant remained in bed with the girl until the morning when he told her to be quiet about the incident. The girl’s sisters also later admitted to their mother that they too had inappropriate contact with Blanton after Blanton had crawled into bed with them on a previous occasion that same weekend.

Blanton, who was 20 year old at the time of the incident, always vehemently denied touching the girls, though he did admit that they were in the same house on the night in question.

The Court of Criminal Appeals held that the case turned solely on the issue of the witnesses’ credibility. One of the victims testified that her mother was snowed in overnight while visiting their father in prison. On cross-examination, the girl said she was “certain” her mother was away. However, in the videotaped interview with DCS, she said that her mother was at home when the incidents occurred. The other two victims testified that their mother was away from home on the night in question. The mother also said that she was away at the time of the incident. The Court said that whether the mother was home during the alleged incidents was a pivotal fact used by the children and their mother in establishing the time frame relied upon by the State.

The Court of Criminal Appeals found that this case turned completely on the credibility of the State’s witnesses versus the defendant’s witnesses. The evidence of prison visitation records would have irrefutably impeached the mother and her daughter’s credibility regarding where the mother purported to be the night of the incident.

Because the conviction in this case rested solely on the credibility of witnesses, defendant’s counsel should have obtained the available impeachment evidence for use at trial. The Court could not clearly say that the attorney’s failure to do so did not affect the outcome. Given that, Blanton suffered prejudice as a result of his attorney’s failure to request the prison visitation logs.

To read the full opinion, click here.
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Man on Death Row Gets New Trial in Kingsport Killing

The Tennessee Court of Criminal Appeals recently ruled that Steven James Rollins, a former death row inmate involved in the fatal stabbing of an elderly East Tennessee bait shop owner, ought to receive a new trial.

Rollins was convicted of first-degree murder and robbery in the killing of 81-year-old James T. Bussell inside Bussell’s Fisherman’s Paradise bait shop near Kingsport, TN in August of 2001. Rollins was originally sentenced to death, but the sentence was overturned in 2010 and a new sentencing hearing was ordered. The decision was then appealed to the Tennessee Court of Criminal Appeals which decided to reverse his conviction.

The Court of Criminal Appeals ruled that Rollins had received ineffective assistance of counsel and that the trial was also defective due to a “biased juror.” The two issues were related given that the Court found that Rollins’ attorney failed to properly question prospective jurors to help with weeding out those with biases.

The problematic juror was identified as “Juror 9.” In a 2008 affidavit, the juror admitted to knowing Bussell and having bought bait from him once a week before he was killed. The juror said that he had made up his mind about Rollins the moment they seated the jury. He said he could tell just by looking at him that he was guilty. The juror sealed the deal about his own bias by admitting that, in his opinion, “death is the only appropriate punishment” for someone who is convicted of murder.

The Court of Criminal Appeals said that Juror 9’s failure to admit his friendship with Bussell amounted to a presumption of bias. Given this bias, the Court found that Rollins was denied his right to a fair and impartial jury. The Court went on to highlight how Rollins’ attorney failed to ask jurors if they knew the victim, something the Court found to be “objectively unreasonable” and amounting to a “deficient performance.”

To read the full opinion, click here.

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Tennessee Court of Criminal Appeals Discusses Factors for Determining Whether a Plea was Voluntary and Intelligent

by Lee Davis

• Jonathan Lawrence v. State of Tennessee

Jonathan Lawrence appealed Davidson County Criminal Court’s rejection of his petition for relief from his convictions on two counts of especially aggravated kidnaping, one count of aggravated kidnapping and three counts of aggravated robbery which resulted in a sentence of 25 years. Lawrence contends he did not plead guilty knowingly, intelligently or voluntarily. 

In 2008 Lawrence was indicted on the above-mentioned charges following one incident in June of that year where he and a friend robbed a man at gunpoint and then forced him into his apartment while they fled. Just a few days later Lawrence robbed another man, robbing him at gunpoint and then demanding he drive him to an ATM to withdraw money. His partner in crime stayed behind, forcing his way into the man’s apartment and repeatedly raping his girlfriend. In 2009 he pled guilty and was sentenced to 25 years to be served at 100 percent. 

The Court of Criminal Appeals said that for a plea to comply with the Constitution it must be both voluntary and intelligent. A defendant must be advised of the consequences of a guilty please and must understand those consequences. The court says that in answering this question it looks at the following factors: 1) the relative intelligence of the defendant; 2) the degree of familiarity with criminal proceedings; 3) whether he was represented by competent counsel; 4) extent of advice from counsel; and 5) the reasons for his decision to plead guilty.

The Court concluded that the lower court was correct in denying Lawrence’s petition for post-conviction relief. The Petitioner was informed by the court of his right to a jury trial and of the consequences of a guilty plea. The court then asked if Lawrence understood and he said “Yes.” Lawrence had a credible attorney advise him of the plea arrangement before entering into it and Lawrence made the choice to accept on his own. Thus, his guilty plea was knowing, intelligent and voluntary. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test

Tennessee Court of Criminal Appeals Says that Post-Conviction Petitions Must Contain Specific Facts, Defendants Can’t Simply Check Boxes

by Lee Davis

• MICHAEL DESHAY PEOPLES, JR. v. STATE OF TENNESSEE

The Petitioner in this case, Michael Deshay Peoples, Jr., was indicted for first-degree felony murder, especially aggravated robbery and one count of aggravated kidnapping. A jury found Peoples guilty as charged and sentenced him to life in prison for felony murder. Other charges were given varying sentences determined at a sentencing hearing. Petitioner filed for post-conviction relief. 

Post conviction is little known outside of criminal law circles, this is the process by which a defendant challenges a conviction.  A defendant may challenge the validity of a conviction on constitutional or the effectiveness of his trial counsel--two common challenges. Post conviction challenges are made after exhausting the well known direct appeals process and may be made sometimes several years after the original conviction. Here the Court of Criminal Appeals found no error and affirmed the dismissal of Peoples’ petition. The discussion below concerns Peoples' post conviction challenge.

Peoples filed his petition for post-conviction relief and alleged, merely by checking boxes on a form--not by specifically detailing facts--that his convictions were based on evidence gained by an unconstitutional search and seizure and that he was denied effective assistance of counsel. The form required that he attach a separate sheet of paper containing facts support his petition, Peoples failed to attach such a document and gave no facts in support of the grounds he alleged.  It is not uncommon for individuals to start with this form an the courts allow it as many petitioners are incarcerated and are proceeding without counsel (pro se) at this late stage in their case.

This petition for post-conviction relief was dismissed because it failed to present a full disclosure of factual grounds in which relief would be appropriate. Tennessee law allows for the dismissal of such complaints when the necessary facts have not been specifically alleged. That’s precisely what took place in this case.

People’s claims he should have been allowed to amend his petition to bring it into compliance. The Court of Criminal Appeals said that Peoples made no attempt to comply with the statutory requirements for his post-conviction relief petition. Merely checking the boxes contained on the form does not comply with the requirement that specific facts be alleged in support of a petitioner’s claims. The Court of Appeals concluded that while lower courts should be more lenient in construing pro se filings, no courts should be required to ignore a failure to provide factual support for claims raised. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test

Tennessee cases on appeal are handled by the lawyers at Davis & Hoss, PC