Tommy Ray Warren v. VIRGINIA LEWIS, Warden

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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.
_________________
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 six-
packs 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

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No. 02-5983 Warren v. Lewis 3
1In his statement to the p olice, W arren described in some detail how
he had struggled with Ms. Richter befo re he stabbed her; how, after
determining that she was dead, he first put her bod y in the woods but,
deciding that “that wouldn’t work,” he put her on the floor of his truck,
covered the bo dy with a brown co at, went to a friend’s home where
W arren’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 d istance and, after remo ving the clothes,
dumped the body, and returned home with the clothes. Once back at
home, Warren set his truck on fire, and p ut M s. Richter’s clothes as well
as those he had been wearing, including his brown work boo ts, 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 ho me 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 d epartment,
and after the police cam e and looked at the truck, they read W arren his
Miranda rights, and soon thereafter took him to the place where he had
hit the two women with his truck.
W arren 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.

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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 post-
conviction 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

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No. 02-5983 Warren v. Lewis 7
2W hile we do not reach this question, we express grave do ubt as to
whether equitable tolling was appropriate in this case. It is well-
established 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. D ole, 945 F.2d 13 31, 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).
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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 that Pate 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)

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No. 02-5983 Warren v. Lewis 9
3The 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.

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