Donald Wallace v. David Sexton

570 F. App'x 443
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 20, 2014
Docket13-5331
StatusUnpublished
Cited by35 cases

This text of 570 F. App'x 443 (Donald Wallace v. David Sexton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donald Wallace v. David Sexton, 570 F. App'x 443 (6th Cir. 2014).

Opinions

OPINION

KAREN NELSON MOORE, Circuit Judge.

Donald Wallace was convicted of second-degree murder for the death of his girlfriend, Melinda Sue Perrin. Witnesses observed Wallace and Perrin fighting in his car, and soon after they heard a shotgun blast and saw bullets strike Perrin in the neck and head. At trial, Wallace’s counsel rejected Wallace’s preferred theory of defense, that the shotgun discharged accidentally when he struggled with Perrin over control of the gun, and'instead argued that Perrin had inadvertently shot herself. Wallace was sentenced to the statutory maximum twenty-five years of imprisonment. He now petitions for a writ of habeas corpus, claiming that his trial counsel rendered constitutionally ineffective assistance by (1) failing to present witnesses and seek jury instructions to support his “accident” theory, (2) failing to object to the prosecutor’s improper remarks during closing argument, and (3) failing to object to errors in his presentence report, which the judge relied upon in sentencing him to the statutory maximum.

We conclude that Wallace procedurally defaulted the majority of his claims because he failed properly to raise them before the Tennessee Court of Criminal Appeals during his post-conviction proceedings. However, Wallace fairly presented his improper-remarks claim to the Tennessee courts, which denied on the merits his petition for post-conviction relief. We cannot conclude that the Tennessee Court of Criminal Appeals’s decision was contrary to or an unreasonable application of federal law. Accordingly, we AFFIRM the district court’s denial of Wallace’s petition for a writ of habeas corpus.

I. BACKGROUND

On June 8, 1996, Donald Wallace and his girlfriend, Melinda Sue Perrin, drove to [445]*445the home of Wallace’s friend, Charles Morgan. While there, Wallace purchased a “sawed-off’ shotgun from Morgan, asserting that “he needed the shotgun for protection because somebody was threatening to kill him.” State v. Wallace, No. 01C01-9711-CC-00526, 1998 WL 670627, at *1 (Tenn.Crim.App. Sept. 30, 1998). Wallace believed his life was in danger because he owed money to a man named “Red,” who had made threats against Perrin and Wallace’s mother. Later that afternoon, he took the shotgun with him when he approached Red to attempt to settle the debt.

Shortly after 7:00 p.m., a vehicle pulled into the parking lot of J.T.’s Bait Shop. Several customers observed that the driver appeared to be holding a shotgun, and that he slapped a female passenger in the car. The bystanders then heard a loud boom coming from the car and observed smoke leaking from the windows. Some saw the female passenger’s head “exploding.” Id. at *2. The driver backed the car out of the parking lot and drove away. As he did so, three witnesses heard a second shot.

The bystanders later identified Wallace as the driver and Perrin as the passenger. Perrin’s body was recovered from a secluded area in the same county the next day. After the autopsy of Perrin’s body, the medical examiner determined that Per-rin had died from “a near shotgun wound” to the left side of her neck, and that, “based on the distance and angle of the gunshot wound, it would have been very difficult for the wound to have been self-inflicted.” Id. at *3. Neither Wallace’s vehicle nor the shotgun was ever recovered. On June 26, 1996, Wallace turned himself in to the authorities.

A. Trial and Direct Appeal

Wallace was charged with premeditated, first-degree murder. He pleaded not guilty and stood trial. The state called as its first witness Charles Morgan, the man from whom Wallace purchased the shotgun. Before trial, Wallace had informed his counsel that Morgan told him that the shotgun had a “hair trigger.” R. 17-14 (Post-conviction (“PC”) Hr’g Tr. at 7) (Page ID # 1767). To Wallace’s knowledge, his counsel never contacted Morgan before trial to investigate the issue. Id. When Wallace’s counsel asked Morgan on cross-examination whether the trigger mechanism was a hair trigger, Morgan responded that the shotgun did not have a hair trigger, but instead had a “normal pull,” and that he had never told anyone that it had a hair trigger. R. 17-3 (Trial Tr. at 50-51) (Page ID # 323-24). However, in a letter Morgan wrote to Wallace after trial, he recalled two incidents where he had inadvertently fired the shotgun when he “couldn’t swear [that he] even pulled the trigger,” or, indeed, “even touched the trigger.” R. 17-13 (Morgan Ltr.) (Page ID # 1684). In the letter, Morgan stated that he “wouldn’t get back on a witness stand [and] swear it [the shotgun] didn’t have a hair trigger on it.” Id.

During closing arguments, the prosecution commented that, in its view, the case was straightforward and the jury should have no trouble coming to a guilty verdict. See R. 17-7 (Trial Tr. at 633) (Page ID # 953) (commenting that it “will probably take [the jury] less time to come back with a verdict in this case than [counsel] took in his opening statement” because this “is clearly a smoking gun case”); id. at 642 (Page ID # 962) (characterizing the case as “a prosecutor’s dream”). In doing so, he denigrated the defense’s theory that Perrin accidentally fired the gun and killed herself, opining “that’s a bunch of bull.” Id. at 608 (Page ID # 928). If the de[446]*446fense’s theory were true, he argued, this would be a “littering case” in which Wallace “had a panic attack and just dumped the body in the wrong place.” Id. at 633 (Page ID # 953). The prosecution characterized the defense’s arguments as “ridiculous,” concluding that “that dog won’t hunt.” Id.

The prosecutor also made several arguments regarding Wallace’s character for violence. He argued that Wallace intended to shoot and kill somebody on the day that Perrin died, whether Perrin or somebody else. Id. at 579-81 (Page ID # 899-901) (suggesting that Wallace went in search of Red to settle their differences with violence); id. at 608 (Page ID # 928) (“Common sense will tell you he was out to shoot somebody on this day, ready, willing and able to do it.”). Specifically, the prosecutor argued that Wallace’s conduct on the day of the murder, both purchasing the shotgun and going in search of Red, “starts to give you an idea of Donald Wallace and how Donald Wallace takes care of problems, how he resolves conflicts, how he resolves the problems in his life.... You folks know that you don’t go talk to a man with a pump shotgun, sawed off shotgun, to resolve your differences. He wasn’t going there to talk.” Id. at 580-81 (Page ID # 900-01). The prosecutor also argued that “[sjeveral witnesses” were afraid of Wallace, id. at 584 (Page ID # 904), although no witness testified that he or she feared Wallace. See R. 17-13 (P.C. Trial Ct. Op. at 33) (Page ID # 1724).

Finally, the prosecutor also argued to the jury that Wallace’s conduct immediately following the shooting demonstrated his guilt. He speculated that Wallace attempted to shoot Perrin a second time, although he missed, because “he was tired of trying to listen to her breathe through that blood, listening to that rasping sound.... He probably wanted to go ahead and finish her off.” Id. at 597 (Page ID # 917). He also argued that “the manner in which [Wallace] fled, ... [and] how he acted” support a finding of premeditation. Id. at 607 (Page ID # 927).

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Bluebook (online)
570 F. App'x 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donald-wallace-v-david-sexton-ca6-2014.