1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0090P (6th Cir.)

File Name: 04a0090p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________

TOMMY RAY WARREN,

Petitioner-Appellee,

v.

VIRGINIA LEWIS, Warden,

Respondent-Appellant.

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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

Before: SILER, BATCHELDER, and COOK, Circuit

Judges.

_________________

COUNSEL

ARGUED: David H. Findley, OFFICE OF THE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellant. Charles E. Walker, Nashville, Tennessee, for

Appellee. ON BRIEF: David H. Findley, OFFICE OF

THE ATTORNEY GENERAL, Nashville, Tennessee, for

2 Warren v. Lewis No. 02-5983

Appellant. Charles E. Walker, Nashville, Tennessee, for

Appellee. 

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OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Virginia Lewis

(“Lewis”) appeals the decision of the district court granting

habeas corpus to Petitioner Tommy Ray Warren (“Warren”).

Because we find that the state court proceedings in question

did not result in a decision that is contrary to, or involve an

unreasonable application of clearly established federal law as

determined by the United States Supreme Court, we reverse.

I.

On April 12, 1993, Tommy Ray Warren pled guilty to two

counts of first degree murder and was sentenced to two

consecutive life terms. At the guilty plea hearing, the State

advised that, if the case went to trial, the State would prove

that on March 24, 1992, while driving his truck, Mr. Warren

struck Della May Richter and Patricia Weaver, killing

Weaver. Warren then kidnaped Richter and stabbed her to

death. Mr. Warren specifically agreed that these facts were

correct.

At his post-conviction hearing, Mr. Warren gave 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. Following the

consumption of what he estimated to have been 3 or 4 sixpacks of beer, he hit a pothole, which caused him to lose

control of his truck and to strike two women who were

walking along the road. He claimed that the impact caused

his pocket knife to slide off the seat, that he reached down and

picked the knife up, and only then did he realize that he had

hit the women. Warren testified that these were “good size
No. 02-5983 Warren v. Lewis 3

1

In his statement to the police, Warren described in some detail how

he had struggled with Ms. Richter before he stabbed her; how, after

determining that she was dead, he first put her body in the woods but,

deciding that “that wouldn’t work,” he put her on the floor of his truck,

covered the body with a brown coat, went to a friend’s home where

Warren’s wife was and got her to take him back to his truck and tow it to

their home. He then took his wife back to the friend’s home, returned

women” and he is a small man, and that when he went to give

assistance to one of the women, she responded by “slinging

[him] around like a rag doll.” When—open-bladed knife in

his hand—he attempted to help the woman (identified as

Della May Richter), she said “okay” and got into his truck,

Warren said, and only then did he see the blood on her and

realized that he had stabbed her.

Warren’s recitation of the events is substantially

undermined by the evidence collected at the time. Warren

gave a detailed four-page statement to the police several hours

after the incident. In that statement, he made no mention of

a pothole, but said 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 had been smoking marijuana, and although the

statement certainly said that he had been drinking beer, the

quantity described did not approach the 3 to 4 six-packs that

he claimed in the post-conviction hearing. The evidence is

inconclusive as to how intoxicated Warren actually was at the

time of the incident. Blood and urine tests taken several

hours later—shortly before he made his statement to the

police—showed low levels of alcohol and no traces of

marijuana in his system. Furthermore, the state had a witness

who was prepared to testify at trial that Warren drove past the

women slowly, stopped, turned around, and drove back

toward them. It was the State’s theory that Warren had been

stalking the women, and after intentionally running into Ms.

Weaver, he abducted and murdered Ms. Richter. Warren was

eventually charged with two counts of first degree murder and

“especially aggravated kidnaping.”1

4 Warren v. Lewis No. 02-5983

home in his wife’s truck, put Ms. Richter’s body into his wife’s truck,

took the body up the road some distance and, after removing the clothes,

dumped the body, and returned home with the clothes. Once back at

home, Warren set his truck on fire, and put Ms. Richter’s clothes as well

as those he had been wearing, including his brown work boots, his jeans

and his blue pullover shirt, into the wood burner in the living room of

their home. He then went to the friend’s home and had supper with his

wife and children. Returning home after supper, Warren and his wife saw

the truck blazing. They summoned help, including the fire department,

and after the police came and looked at the truck, they read Warren his

Miranda rights, and soon thereafter took him to the place where he had

hit the two women with his truck.

Warren was first charged with vehicular homicide, first degree

murder, arson and aggravated kidnaping. The vehicular homicide charge

was later changed to a second count of first degree murder.

While Warren was in custody, Dr. Gillian Blair, at the

instance of Warren’s counsel, performed a psychological

evaluation of him and prepared a preliminary report for the

court. Dr. Blair determined that Warren’s overall I.Q. was 71,

one point over the upper limit for mental retardation for

purposes of imposition of the death penalty under Tennessee

law. See TENN. CODE ANN. § 39-13-203(a). Dr. Blair

concluded that “Mr. Warren functions within the upper limits

of mental retardation and the lower limits of borderline

intellectual level”; that he understood the charges against him,

appreciated the likely outcome of trial if he were found guilty,

and was able to work with his attorneys and understand his

options if those options were explained in “concrete terms.”

Dr. Blair concluded that Warren was therefore competent to

stand trial.

At Warren’s counsel’s request, the trial court scheduled a

competency hearing to consider Warren’s competency and

mental retardation. In order to avoid the death penalty,

Warren needed to show not only that he was sub-average in

his intellectual functioning, that is, he had an I.Q. of 70 or

below, but that he also had deficits in adaptive behavior, and

that this mental retardation had manifested during the

developmental period or by the time he reached age eighteen.
No. 02-5983 Warren v. Lewis 5

Id. Warren’s counsel did not believe that he would be able to

demonstrate both the sub-average I.Q. and deficits in adaptive

behavior, as required by Tennessee law, because in addition

to Dr. Blair’s report showing an I.Q. of 71 and competency to

stand trial, the record established that Warren had been

employed for many years, had a wife of nearly twenty years

and children, whom he supported, had a driver’s license, and

had served in the military for a short time before being

discharged for physical—not mental—reasons. Warren’s

counsel therefore did not believe that he would be able to

demonstrate that Warren was not eligible for the death penalty

under Tennessee law.

A month prior to the scheduled competency hearing,

Warren’s counsel began serious plea negotiations with the

State in attempt to obtain a plea deal that would protect

Warren from a death sentence on either or both counts of

murder. He met with Warren, both during and following

these negotiations, to explain the best- and worst-case

scenarios, and Warren’s options—including the option of

entering a guilty plea premised on the State’s agreement not

to seek the death penalty. Warren eventually discussed the

matter with his wife and daughters, and opted to enter a guilty

plea to each count of murder in order to avoid the death

penalty. His counsel testified that the decision was entirely

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 degree murder (and agreeing to the dismissal of the arson

and kidnapping charges), the trial court questioned Warren at

length to determine whether he understood the charges

against him, his rights, the possibility that he might face the

death penalty, and the effect 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 life imprisonment. Warren v.

Tennessee, No. M1999-1319-CCA-R3-PC, 2000 WL

1133558 (Tenn. Crim. App., Aug. 10, 2000).

6 Warren v. Lewis No. 02-5983

On January 23, 1996, Warren filed a motion for postconviction relief in state court, raising two claims: 1) That his

guilty pleas were not knowing and voluntary because his

decision was “heavily influenced” by the death penalty, which

he did not know would not be an option if he were found to

be mentally retarded; and 2) that his counsel was ineffective

for failing to further pursue a hearing concerning mental

retardation. After an evidentiary hearing, the trial court

denied relief. The Tennessee Court of Criminal Appeals

affirmed the denial, and the Tennessee Supreme Court denied

review.

On February 4, 2002, Warren, acting pro se with the

assistance of Inmate Legal Aide, mailed his 28 U.S.C. § 2254

petition for a writ of habeas corpus to the United States

District Court for the Middle District of Tennessee. The

cover letter included a handwritten note:

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

forthcoming. A form must be processed through the

Inmate Trust Fund account/Business Office–who will

forward a check to the Clerk’s Office. This may take

upwards of 7-10 days.

But Warren did not even initiate the request for withdrawal

from his inmate account until February 13, 2002–one day

after the one-year statute of limitations had run. The

withdrawal was approved on February 14, 2002, and the clerk

received the filing fee on February 28, 2002. On February 28,

2002, the court returned Warren’s § 2254 petition for failure

either to pay the filing fee or to submit an application to

proceed in forma pauperis. Warren re-filed his petition with

proof of payment on March 5, 2002.

The district court then granted Warren’s request for

appointed counsel, and ordered supplemental briefing

concerning the issues of equitable tolling of the statute of

limitations under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
No. 02-5983 Warren v. Lewis 7

2While we do not reach this question, we express grave doubt as to

whether equitable tolling was appropriate in this case. It is wellestablished that where a party sits on his rights, fails to take timely steps

to complete the filing, and suggests that equitable tolling is justified solely

because of ignorance of the law, equitable tolling is not appropriate. “It

is well-settled that ignorance of the law alone is not sufficient to warrant

equitable tolling.” Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991).

Stat. 1214 (1996), and Warren’s claim that his guilty plea

was not knowing and voluntary. Following briefing, the

district court found that Warren was entitled to equitable

tolling,2 and granted a writ of habeas corpus, holding that the

state trial court’s failure to hold a pre-plea competency

hearing violated the Fifth and Fourteenth Amendment Due

Process requirements that the guilty plea be knowing and

voluntary. Lewis filed a request to alter or amend judgment,

which was denied. This timely appeal followed.

II.

Warren filed his federal petition for writ of habeas corpus

after the effective date of AEDPA, the statute governing this

court’s inquiry. Lindh v. Murphy, 521 U.S. 320, 326-27

(1997). A federal court may not grant a writ of habeas corpus

with respect to any claim adjudicated on the merits in state

court unless such state adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) and (2).

8 Warren v. Lewis No. 02-5983

A state court adjudication is “contrary to” Supreme Court

precedent under § 2254(d)(1), “if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court

on a question of law,” or “if the state court confronts facts that

are materially indistinguishable from a relevant Supreme

Court precedent” and arrives at a different result. Williams v.

Taylor, 529 U.S. 362, 405 (2000). A state court adjudication

involves “an unreasonable application of” Supreme Court

precedent under § 2254(d)(2), “if the state court identifies the

correct governing legal rule from [the Supreme] Court's cases

but unreasonably applies it to the facts of the particular . . .

case,” or if the court unreasonably refuses to extend, or

unreasonably extends, existing legal principles from the

Court's precedents to a new context. Williams, 529 U.S. at

407. The state court’s application must be more than

incorrect or erroneous; it must be “objectively unreasonable.”

Williams, 529 U.S. at 409. This court 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 Warren a writ of habeas corpus

based upon Pate v. Robinson, 383 U.S. 375 (1966), which it

cited for the proposition that where evidence of a defendant’s

mental deficiencies raise doubt as to his competence, due

process requires a competency hearing. Relying upon the

report proffered by Dr. Blair, which stated that Warren

functions “within the upper limits of mental retardation and

the lower limits of borderline intellectual level,” the district

court found that the state court was on notice of Warren’s

mental deficiencies, and thatPate therefore required the court

to hold a pre-guilty plea competency hearing.

Contrary to its characterization by the district court, the

standard established in Pate for requiring competency

hearings prior to trial or the entry of a guilty plea is not

merely whether extant evidence raises “doubt” as to the

defendant’s capacity to stand trial, but rather whether

evidence raises a “‘bona fide doubt’ as to a defendant’s

competence.” Drope v. Missouri, 420 U.S. 162, 173 (1975)
No. 02-5983 Warren v. Lewis 9

3

The competency standard to stand trial is identical to the standard

to plead guilty. See Godinez v. Moran, 509 U.S. 389, 397 (1993).

(quoting Pate, 383 U.S. at 385). In Warren’s case, the

Tennessee court had before it a single piece of expert

testimony regarding Mr. Warren’s competence: the findings

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

nonetheless explicitly concluded that he was competent to

stand trial.3 This expert testimony was bolstered by evidence

in the record, which established that Warren had been

employed for many years, lived with his wife of nearly twenty

years and his children, had a driver’s license, and had served

in the military for a short time before being discharged for

physical—not mental—reasons. Accordingly, all the

evidence available to the district court suggested that despite

functioning at the upper-end of mental retardation, Warren

was in fact competent to stand trial or enter a guilty plea.

Given this evidence, we must conclude that the state court

applied Pate in an objectively reasonable manner when it

failed sua sponte to grant a pre-guilty plea competency

hearing. The district court erred in concluding to the

contrary.

The district court noted with sympathy, but did not

specifically reach, Warren’s claim that his guilty plea was

neither knowing nor voluntary because he entered it out of

fear that he might otherwise receive the death penalty, a fear

that he now claims was groundless because his mental

retardation made him ineligible for the death penalty. It is

worth noting in this context that the district court denied

Warren’s petition for habeas relief premised on his claim that

his trial counsel was ineffective for failing to pursue the

scheduled hearing on mental retardation and for counseling

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 Warren v. Lewis No. 02-5983

Strickland v. Washington, 466 U.S. 668 (1984), “to the

properly developed facts was reasonable.” The state court

had held that Warren had not even attempted to show any

prejudice from his counsel’s allegedly inadequate

performance, and the district court explicitly held that

Warren’s trial counsel had reviewed the facts that militated

against a finding of mental retardation and had reasonably

counseled Warren that he risked the imposition of the death

penalty if he continued to trial. We think that this record

amply supports the district court’s finding. That being the

case, we think Warren cannot demonstrate that his guilty plea,

based on this reasonable advice of counsel, was not knowing

and voluntary because he would not have been eligible for the

death penalty as a matter of law.

For the foregoing reasons, we REVERSE the judgment of

the district court granting the petition for a writ of habeas

corpus.