March v. Sexton

PERRY A. MARCH, Petitioner,

v.DAVID SEXTON, Warden, Respondent.

Case No. 3:12-cv-272

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Dated: June 19, 2013

Judge Sharp

MEMORANDUM OPINION

Petitioner Perry A. March was convicted and sentenced by the Criminal Court for Davidson County, Tennessee in Nashville after a jury trial in 2006, and is presently an inmate at Northeast Correctional Complex in Mountain City, Tennessee. His pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus was initially filed in the United States District Court for the Eastern District of Tennessee, but was transferred to this district. This Court has jurisdiction. 28 U.S.C. § 2241(d).

For the reasons set forth herein, the Court finds that, under the demanding standard governing the review of a § 2254 habeas petition, the petitioner is not entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

A Davidson County jury found petitioner Perry March guilty of the offenses of second-degree murder, destruction of evidence, and abuse of a corpse, and judgment was entered against him on August 17, 2006. March was sentenced as a Range I, standard offender to twenty-five years' imprisonment for the murder conviction, five years for the destruction-of-evidence conviction, and two years for the abuse-of-a-corpse conviction. The trial court ordered the petitioner to serve his sentences for the latter two convictions consecutively to the murder sentence, and the sentence on the murder conviction was ordered to be served consecutively to a twenty-four year sentence entered in a different case for conviction of conspiracy to commit first-degree murder, for an effective sentence of fifty-six years. March was denied relief on direct appeal. State v. March, No. M2007-00053-CCA-R3-CD, 2011 WL332327 (Tenn. Ct. Crim. App. Jan. 27, 2011). The Tennessee Supreme Court denied March's request for permission to appeal on July 14, 2011. March did not seek post-conviction relief in the state courts.

On February 3, 2012, March filed his pro se petition for the writ of habeas corpus (ECF No. 1) in the United States District Court for the Eastern District of Tennessee. The case was transferred to this Court as the appropriate venue. Shortly thereafter, the Court conducted a preliminary examination of the habeas petition and determined that it stated colorable claims for relief. Accordingly, the Court entered an order (ECF No. 8) directing the respondent to answer, plead or otherwise respond to the petition. Rule 4, Rules Gov'g § 2254 Cases. The respondent filed his answer to the petition on July 10, 2012 (ECF No. 33), along with a copy of the underlying state-court record (ECF Nos. 34-41, 45). March filed a reply brief on January 7, 2013. (ECF No. 78.) He also submitted a motion to amend his petition (ECF No.77) to omit grounds 4, 5, and 6, as March now concedes that these claims challenged state evidentiary rulings that are not reviewable by this Court, and a sentence-enhancement that was not exhausted in the state courts. March also submitted a motion for judgment on the pleadings (ECF No. 79), in which he simply states that he does not seek an evidentiary hearing and asks the Court to render judgment in his favor on the strength of the written record.

Upon consideration of the petition, the answer, and the expanded record, the Court agrees with the petitioner that an evidentiary hearing is not needed in this matter. The Court will dispose of the petition as the law and justice require. Rule 8(a), Rules Gov'g § 2254 Cases.

II. FACTUAL BACKGROUND

The Tennessee Court of Criminal Appeals, in the opinion affirming the judgment of the trial court, summarized the factual history in the state courts as follows:¹

The murder victim in this case was Defendant's wife, Janet March. Carolyn Levine, the victim's mother, testified that Defendant and the victim met while they were both students at the University of Michigan. The couple married on June 14, 1987, and were married when the victim disappeared on August 15, 1996. Ms. Levine identified Defendant at trial as her daughter's husband. Ms. Levine said that the victim, who was thirty-three years old when she disappeared, was five feet, three or four inches tall andweighed approximately one hundred pounds. At trial, Ms. Levine identified the victim from a photograph.

After graduation, Defendant and the victim moved to Nashville so that Defendant could attend Vanderbilt Law School. The Levines paid Defendant's law school tuition and supported the couple for three years while Defendant was in school. After graduation, Defendant joined a Nashville law firm. In July 1995, the victim and Defendant moved into a newly built house located at 3 Blackberry Road in Forrest Hills.

Ms. Levine said that the victim's son, Samson March, was born on August 27, 1990, and her daughter, Tzipora March, was born on May 17, 1994. Ms. Levine described the victim as a "very attentive" and "very nurturing" mother. Ms. Levine and the victim talked on a daily basis, and the victim never left town without providing Ms. Levine her itinerary and other pertinent information concerning the children's care and schedules.

Ms. Levine stated that she first became aware that the victim and Defendant were undergoing marital problems in 1993, but she did not feel the problems were insurmountable. Ms. Levine said that she had a good relationship with Defendant, and both Defendant and the victim came to her individually for advice. The couple went to marriage counseling in 1991 or 1992, and Defendant began to see a psychiatrist. The victim joined Defendant during his individual counseling sessions in 1996.

Ms. Levine said that the couple's situation deteriorated further. Defendant told Ms. Levine in the spring of 1996 that he was afraid the victim was going to divorce him and take the children away from him. The victim and Defendant began arguing in front of the children, and Ms. Levine told Defendant that he needed to leave the residence because the children were upset by the couple's arguments. Defendant found a house to rent, but he did not immediately move out of the marital residence. Ms. Levine said, however, that Defendant stayed in a hotel for approximately six to eight nights before the victim disappeared.

Ms. Levine planned to accompany the victim to her appointment with a divorce attorney on Friday, August 16, 1996. However, around midnight on August 15, 1996, Defendant called the Levines and told them that the victim had left the house after an argument. Ms. Levine said that to her knowledge, the victim had never done that before. Ms. Levine told Defendant to call her when the victim returned.

Ms. Levine talked to Defendant several times by telephone on August 16, 1996. During one conversation, Defendant said that one of his son's schoolmates had arrived for a play date, and Ms. Levine instructed Defendant to let the child play with Samson. Defendant told Ms. Levine that he had explained to the children and the children's part-time babysitter that the victim had left early that morning to work on a large art project.

Defendant told Ms. Levine that the victim had taken two small shopping bags, a small, gray suitcase, her passport, and $1,500 with her when she left. The Levines drove to the airport to search for the victim's vehicle but were unsuccessful. Defendant initially said that the victim was wearing khaki shorts and a navy short-sleeved, collarless top when she left, but later told Ms. Levine that the victim had changed into blue jeans before leaving.

Defendant said that the victim had handed him a typewritten note entitled "Janet's 12-day vacation" when she left which contained a list of chores for Defendant to do while the victim was gone. Ms. Levine stated that the victim often made lists, but they were always hand-written. When she helped Defendant put the children to bed on August 16, 1996, Ms. Levine noticed a yellow-lined legal pad by Defendant's computer in his office which contained a handwritten list of similar chores. Ms. Levine said that the words "two weeks" in Defendant's handwriting were circled at the top of the list. Ms. Levine statedthat the victim never used capital letters in her notes, and she dated the notes at the top of the page. Ms. Levine stated that the typed note entitled "Janet's 12 day vacation" used capitalizations and was dated at the bottom.

Ms. Levine initially believed Defendant's explanation for the victim's absence. By Sunday night, however, she grew increasingly concerned because the victim had never left the children before without telling someone where she was going. The Levines wanted to contact the police, but Defendant and his brother, Ron March, convinced them to wait for twelve days. Ms. Levine agreed because she still believed the victim would return, and Ms. Levine did not want to embarrass her by getting the police involved.

The victim had planned a birthday party for her son for Sunday, August 25, 1996, and the invitations had been mailed before the victim's disappearance. Ms. Levine found it "unbelievable" that the victim would not return for her son's birthday party which went on as planned. Ms. Levine stated that Samson started school on the following Monday, August 26, 1996, and the victim had planned to take cupcakes to her son's classroom on his birthday on August 27, 1996. Ms. Levine found it "inconceivable" that the victim would miss these events in her child's life.

Ms. Levine said that Defendant's father, Arthur Marsh, who lived in Mexico, came to Nashville to attend Samson's birthday party, but he left the next day for Chicago. Defendant explained, "My dad has a big mouth, he tells everything." Ms. Levine said that around this time, Defendant also said, "[T]hat f—ing Janet has ruined my life." Ms. Levine was "shocked and horrified" because Defendant had never used this kind of language in front of her before.

The Levines told the police about the victim's

...