1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2004 FED App . 0090P (6th C ir.) File Name: 04a00 90p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

________________
T OMMY RAY W ARREN ,

Petitioner-Appellee,

v.

V IRGI NIA L EWIS , Warden, Responde nt-Appel lant. X - - - -
> , - - N No. 02-5983

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 02-00228—John T. Nixon, District Judge. Argued: September 16, 2003
Decided and Filed: March 30, 2004

Befor e: SIL ER, BATCH

ELDER, and COO K, Circui t Judges.

_________________ COUNSEL

ARGUED: David H . F indley, OFF ICE OF THE ATTORN EY GENERAL, Nashville, Tennessee , fo r A ppellant

. Charles E . Walker, Nashville , Tennes se e, fo r Appel lee. ON BRI EF: David H. Findley , OFFICE OF THE ATTORNEY GENERAL, Nashville, Te nnessee, for 2 Warre n v. Lewis No. 02-5983

Appellan t. Charles E. Walker, Nashvi lle, T ennessee, for Appellee.

_________________

OPINION

_________________ ALICE M. BATCHEL

DER, Circuit Judge. Virg inia L ewis (“Lewis”)appeals

the deci s ion of the district court granting habeas corpus to Petitioner Tommy Ray Warren (“Warren”). Becau se we find that the state court proceedings in question did not result in a decision

that is contrary to, or involve a n unreasonableapplica

tion of cle arly

established

federal law as determined

by the United

States Supreme Court, we reverse.

I.

OnApril 12, 1993, Tommy Ray Warren pled

guilty to two counts of first degree murder and was sentenced to two consecutive life ter

ms. At the g

uilt y plea hearing , the State advised that, i f the case went to trial, the State would prove that on March

24, 1992, w

hile drivi ng his truck, Mr. Warren stru c k Della May Richter

and Patricia Weaver, killing W e aver. Warren then kidnap ed Richte r and sta bbed her to death. Mr. Warre

n specif icall y ag reed that these facts were
correct.
At his post-conviction hearing, Mr. Warren ga v e a more colorful recitation of

the facts. On March 24, 1992, he said, he got off work early

and spent the day

driving around in

his truck, drinking beer and smoking marijuana. F ollowing the consumption of wh at he

estimated

to ha ve be en 3 o r 4 sixpacks of beer, he hit a pothole, wh ich caus ed him to los e c ontrol of his truck and to strike two women who wer e walking along the road. H e claime d that th e impac t caused his pocket knife to slide off the seat, that he reached down and picked the knife up, and only then did he re alize that he had hit the women. Warren testified that these

were “go od sizeNo. 02-5983 Warre n v. Lewis 3

1 In his stateme nt to the p olice, W arren desc ribed in some det ail how he had struggled wit

h Ms. Richter befo re he st abbed her; how, aft er determining that she w as de ad, he first put her bod y in the wo ods but, deciding t hat “that

wouldn’t work,” he put her on t he floor of his truck, covered the bo dy with a bro wn co at, went t o a friend’s home where W arren ’s wife was and got he r to take him back to his truc k and tow it to their home. He then took his wife back to t he fri end’s h ome, ret urned women” and he isa small man, and that when he went to give assistance to one of the women, she respon de d b y “slinging [him] around like a rag doll.” When—open-bladed kn ife i n his hand—he attempted to help the woman (identified as Della May Richter) , she said

“oka y” and got into his truck, Warren said, and only then did he

see th e bloo d on her and realized that he had stabbed her.

Warren’s recit atio n of the e vents is su

bstantial ly underm ined b y the evidenc e collected at the time. Warren gave a detailed four-page statement to the police sever al hours af ter the incident. In that statement, he made no me ntion o f
a pothole, butsaid that immediately before hitting the women, he had spilled his beer and had looked down for a second. His statement made no mention of a knife sliding off the seat,
or that he ha

d been smokin g marij uana, and although the st atement certainly sa

id that he had been drinking beer, the quantity described did not approach the 3 to 4 six-packs that he claimed in the post- convicti on heari ng. The evidenc e is inconclusive as to how intoxicated Warren actually was at the time of the incident. Blood and uri n e tests taken several hours later—shortly bef

ore he made his statement to the police—showed

low levels of alcohol and no traces of marijuana in his system. Fur

thermore , the state

had a witness who was prepared to testify at trial that Warren drove past the
womenslowly, stopped, turned around, a n d drove back toward them. It was the State’s theory that Warr en had been stalking the women, and afte r intentionally

running into Ms. Weaver, he abducted

and murde

red Ms. Richter. Warren was eventua lly charged with two counts of first deg ree murder and “especially

aggravated kidnaping .” 1 4 Warre n v. Lewis No. 02-5983

home in his wife’s truc k, put Ms. Richter’s body into his wife’s truck, took the bod y up the road some d istance and, after remo ving the clothes, dumped the body, and returned home with the cl othes . Once back at home, Warren set h is t

ruck on f ire, and p ut M s. Richte r’s clothe s as well

as those he had been wearing, includ ing his br own work boo ts, his jeans and his blue pull over s hir t, int o the wood burn er i n th e li vin g room of thei r hom e. He then we nt to the frie nd’s ho me a nd ha d sup per w ith his wife and chil dren. Ret

urnin g home aft er supper, Warren and his wif e saw the truck blazin g. They s ummoned help, includ ing the fire d epa rtmen t, and a fter th e po lice cam e and look ed at th e truck , they read W arren his Miranda right s, and s oon thereaf ter t ook him to t

he place wh ere he had hit t he two women with his tr uck. W arren was first charged wi th v ehicul ar homici de, fi rst degree murder, arson and aggravated kidnaping. The vehicular homicide charge was later changed to a second count of fi rst degree murder. While Warren was in custody , Dr. Gi llian Blair, at the in stance of Warre

n’s couns el, perf

ormed a p syc

hologic a l evaluation

of him and prepared a preliminary report for the court. Dr. Blair determined that Warren’s overa ll I.Q. was 71,
one point over the up per limit for mental retardation for purposes of imposition of the deat h penalty under Tennessee law. See T ENN

. C ODE ANN . § 39-13- 203(a). Dr. Bla ir concluded

that “Mr. Warren f

unctions w

ithin the up

per limits of me ntal r etardation and the lower limits of borderline intellectual level ”; tha t he un derst ood t he char ge s again st him, appreciated

th e l ik el y ou tc om e o f t ri al if he we re fo un d g ui lt y, an d was able to work with his attorne ys a nd under stand his options if those opti ons were

explained

in “conc reteterms.” Dr. Blair concluded

that Warren was therefore compete nt to stand tria l.

At Warren’s counsel’s request, t he trial court scheduled a competency

he ari ng to consider Warren’s competency and

m ental retardation. In orde r to avoid the death penal ty , Warren needed to show not

only that he wa s sub-ave

rage i n his intellectual function ing, that is, he had an I.Q . of 70 or below, butthat he a

lso had de ficits in

adaptive behavior, and that this mental retardation had ma nifested during the developmental period or by the time he reached

age eighteen.No. 02-5983 Warre n v. Lewis 5

Id

. Warren’ s counsel

did not bel ieve tha

t he would

be able t o demonstr ate both the sub-a verag e I. Q. and de ficits in adaptive beh a vior, as required by

Tennessee law, because in addition to Dr. Blair’s report showing an I .Q. of 71 and compe tency to stand trial, the record established that Warren had b ee n employed for many y

ears, had a wife of n ea rly twenty years and children, whom he supported, had a driver’s license, and had served i n the mi litary fo r a short time before being discharged for

physical—not mental—rea sons. Warren’s counsel theref

ore did not believe

that he wo

uld be abl e to demonstr ate that Warren was noteligible for the d eath penalty under Tennessee law.

A month prior to th e sched uled c ompet ency heari ng, Warr en’s counsel began serious plea neg otiations with t h e State in attempt to obtain a plea deal tha t would protect Warren from a de ath se nt ence on either or both counts of murder. He me t with Warren, both during and following th ese negotiations, to explain the best- and worst-cas e scenar ios, and Warren’s options—including the opt ion of enteringa guilty

plea premised

on the State’s agreement not to seek the death penal ty. Warren eventually discussed the matter with his wif

e and da ughters, and opted

to enter a guilty p lea to each c ount of mur der in or der to avoid the de ath pe na lt y. His couns el testif ied th at the decis ion was e ntirely Warren’ s, and that

his lawyers did not

coerce him to enter the plea.

Prior to accepting Warren’s plea of guilty to two counts of first degre e murder

(and ag reeing to the dismissal of the arson and kidnapping charges), the trial court questioned Warren at length to determine whether he und ersto od the charges againsthim, his r

ights, the possibility that he might face the death penalty, and the e ffect of the guilty pleas. Satisfied that Warren’s pleas were both knowing and voluntary , the trial court accepted them and

thereafter sentenced

Warren to two consecutive terms of l ife impri s onment

. Warren v. Tennessee , No. M1 999- 1319- CCA-R 3-PC, 2000 W

L 1133558 (Tenn. Crim. App., Aug. 10, 2000). 6 Warre n v. Lewis No. 02-5983

On January 23, 1996, Warren filed a motion fo r post

convictionrelief

in state court, raising two claims: 1) That his guilty pl ea s w er e n ot kn ow in g a nd vo lu nt ar y bec ause his d eci sion was “heavily

influenced” by

the death penalty , which h e did not know would not be an option if he were found t o be mentally reta

rded; and 2) that his counsel was ineffective for failing to further pursue a hearing concerning mental retardation. After a

n evident iary hea ring, the trial court denied relief. The Tennessee Co urt of Cri

min al Appe als affirmed the denial, and the Tennessee Supreme Court denied review.

OnFeb ruary 4, 2002, Warren, acting pro se with the assistance of In

mate L egal Aide, maile d his 28 U.S. C. § 2254 petition for a wr

it of habe as corpu s to the Uni te d States District Court for the Middle Distri ct of T ennessee. The cover letter included a handwritten note:

The five dollar ($5.00) filing fee for a § 2254 Pe

tition is forth co ming. A form must be processed through the Inma te Tru st Fund a

ccount/B usiness Of

fice–wh o will forward a check to the Clerk’ s O ffice. This may take upwards of 7-10 da

ys.
But Warren did

not even initiate the request for withdrawal fromhis inmate

accoun t unti l February

13, 2002–one day after th e o ne -ye ar statu

te of limitations had run. The withdrawal was approved onFebruary

14, 2002, and the clerk received the filing fee on February 28, 2002. OnFebruary

28, 2002, the court returned Warren’s § 2254 petition for failure either to pay the filing fe e or to submit an app lication t o proceed in forma pauperis . Warren re-file d his petiti on with proof of pay

ment on March 5, 2002.

The district court then granted Warren’s reque st for appointed counsel, and ordered supplemental briefing concerning the i ssues of equitable tolling of the statute of limitations under the Antite rrorism a nd Effec tive Dea th Penalty A ct of 1996 (“AEDPA”), Pub. L. No. 104- 132, 110No. 02-5983 Warre n v. Lewis 7

2 W hile we do not re ach th is ques tion, we expr ess gra ve do ubt as to whether equi tabl e tol li ng was app r opr iate in this ca se. It is wellestabl ished that whe re a p arty sits on his rig hts, fails to tak e ti mely st eps to complete the fil ing, and suggest s that equit able tolli ng is j usti fiedsolely becaus e of i gnora nce of the law, equit able tolli ng is not appropriate. “ It is well -sett led that i gnorance of the law alone is not suff icient t o warrant equita ble tol lin g.” Ro se v. D ole , 945 F.2d 13 31, 1335 (6th Cir. 1991). Stat. 1214 (1996), and Warren’s clai m that h is guilty plea
wa s not knowing and voluntary . Following briefing, t h e districtcourt fo

und that Wa

rren wa s entitled

to equita

ble toll ing, 2 and gr

anted a w rit of habeas corpus, holding that the statetrial cou

rt’s fai lure to hold a pre-plea competency hearing violated the Fifth and Fourteenth Amendment Due Process requirements that the g

ui lt y p lea be knowing and
vo lu nt ar y. Lewis filed a

request to alter or amend j udgmen t, which was denied. This timely a ppeal followed.

II.

Warren filed his federalpetition for writ of habeas corpus after the eff ective d ate of AE DPA, the st

atute g overning

this court’s inquiry. Lindh v . Mu rphy , 521 U.S. 320, 326-27 (1997). A feder

al court may not gra nt a writ of habeas corpus with respect to any

claim adj udicate d on the me rits in state court unless such state adjudication: (1) resulted in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Feder al law, a s determi

ned by the Supre

me Court of the United States; or (2) resulted in a decision that was based on an
unreasonabledetermination of the facts in light of the evide nce pre sente d in t he St ate cou rt pro ceedin g. 28 U.S.C. § 2254(d)(1) and (2). 8 Warre n v. Lewis No. 02-5983

A state co

urt adj udication is “contrary to” Supreme Court precedent under § 2254(d)(1), “if the state co urt arri ves at a conclusionopposite t o tha t reached by [the Supreme] Court
ona question of law,” or “if the statecourt confronts facts that
are materia

lly i ndisting uishable from a re levant Supr eme Courtprecedent” and

arrive s at a

different result. Williams v. Taylor , 529 U.S. 362, 405 (2000). A state court adjudication in volves “an unreasonable application of” Supreme Cour t precedent under § 2 254(d)(2), “if the state court identifies the correct governing legal

rule from [the Supreme] Court's cases butunreasonably

applie s it t o the facts of the particular . . . case,” or if the c ourt unre asonably refuse s to extend, or
unreasonably

exte nd s, existing legal principles from the Court 's precedents to a new context. Williams , 529 U.S. at 4 07. The state court’s application must be moretha n incorrect or erroneous; it must be “objectively unre asonable.” Williams , 529 U.S. a

t 409. This c o urt reviews a district court’s disposition of a habeas corpus petition de novo

. Bronaugh v

. Ohio , 235 F.3d 280, 282 (6th Cir. 2000).

The district court granted W arren a writ of habeas corpus based upon Pate v. Robinson , 383 U.S. 375 (1966), which it cited for the propositionthat where evidence of a defendant’s mental deficie

ncies ra ise doubt a s to his comp e tence, due process require s a compe

tency hearing . Re lyi ng upon the report proffe red by Dr. Bla ir, which stated th at Warr en functions “within the upper limits of mental retarda tio n and t he low er limits of borderline intellectual level,” the district court found tha

t the state court wa s on notice of Warren’s mental deficiencies, and that Pate therefore required the

court to ho ld a pr e-guil ty plea co mpete ncy hearin g.
Co ntrary to its char

acteriza tion by the distri ct court , th e standard established in Pate

for requi r ing competency hearin gs p r ior to trial or the entry of a guilty plea

is not

m erel y whether extant evidence raises “doubt” as to the defendant’s capacity

to stand trial, but rather w hether
e vide nce raises a “‘bona fide doubt’ as to a defe ndant’s competence.” Drope v. Missouri , 420 U.S. 162, 173 (1975)No. 02-5983 Warre n v. Lewis 9

3 The com peten cy stand ard to sta nd tria l is i dentical to t he standard to ple ad gu ilty. See Godinez v. Moran , 509 U.S. 389 , 397 (1993 ). ( quotin g Pat e , 383 U.S. at 385). In Warren’s ca se, the Tennessee court had be fore i t a single piece of expert testimony regarding Mr. Warren’ s compete nce: the fi ndin gs of Dr. Blair, Warren’s own doctor. While Dr. Blair found that Warren possessed

poor judgment and

an I.Q. one point above the state-established upper limit of retardation, she
no nethele ss explicitly

conclude d that he was compe tent t o stand trial. 3 This expert testimony was bolstered by evidence inthe reco rd, which established that Warren had been employed for many y

ears, lived with his wife of nearly

twenty years and his children, had a

driver’s license, and had served inthe military for a short time bef ore being di scharg ed for physical—not

mental—reasons. Acc ordingly, a ll the evidence availab le to the distri ct court sugge sted that d

espite functioning at the upper-end of mental retardation, Warre n was in fact competent to stand t rial or e nter a guilty

plea. Giventhis evide

nce, we must conc lude that

the st ate court applied Pate

in an obj e ctively

reasona ble manne

r when it failed sua s ponte to grant a pre-guilty plea competency h e aring. The district court erred in concluding to the
co nt ra ry.
The district court noted with sympathy , but did not specific ally

reach, Warren’ s claim tha t his guil ty p lea was neither knowing nor voluntary

beca use he entered it out of fear that he might otherwise receive the dea th penalty, a

fear that he now claims was groundless because his mental retardation

made him ineligib le for the d eath penalty . It is worth noting in

this c onte xt that the district court denied Warren’s petition for habeas relief premised on his claim that his trial couns el was ineff ectiv e for fa ilin g t o pursu e the scheduled hearing on mental retardation and f or c ounseling Warren to plead guilty to avoid the death penalty . The district court held that the state court

had adequately

considered and developed

the facts, and that the state court’s application of 10 Warre n v. Lewis No. 02-5983

Strickland

v. Washington , 466 U.S. 668 (1 984), “to the properl y developed facts was reasona bl e.” The state court had held that Warren had not even attempted t o show any prejudice from hi s counsel’s allegedly inadequat e performance, and the district court explicitly he ld th at Warren’s trial counsel had reviewed the facts th at militated againsta find ing o f mental re tardation and had

reasona bly counseled Warren that he risked the impo sition of the death penalty if he continued to trial. We think that th is record amply supports t

he distric t court’s finding. That being the case, we think Warren cannot demonstrate that his guilty plea , based on this re asonable

advice of counsel, was not knowing and voluntary beca

use he would not have been eligible for the death penalty a s a matter of law.

For the f orego ing rea sons, we RE

VERSE the judgment of the district court gra

n ting the petition for a writ of habeas corpus.