SMITH v. MORROW

Citation Codes

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Docket Number

No. 1:09-cv-188 Collier.

Motions

Motion to exclude : In Part

Motion for summary judgment : Denied

Motion for summary judgment : Granted Defendant

Acts

Railroads — Liability For Injuries To Employees — Liability Of Common Carriers By Railroad, In Interstate Or Foreign Commerce, For Injuries To Employees From Negligence; Employee Defined
Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — Appeal

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ALFRED WILLIAM SMITH, Petitioner, v. JIM MORROW, Warden, Respondent.

OPINION AND ORDER

RONALD ELLIS, Magistrate Judge I. INTRODUCTION

On February 28, 2007, Patrick E. Peters, Sr., brought an action under the Federal Employers Liability Act ("FELA") against Metro-North Commuter Railroad Company ("Metro-North") for cumulative trauma injuries, allegedly caused by unsafe and inadequate working conditions over a period of twenty-one years of employment. (Compl. ¶¶ 8, 9.) Peters submitted a report by Mark A. Heidebrecht, an expert in the field of ergonomics, in support of his claim. (Notice of Mot. to Preclude Plaintiff's Proposed Expert and for Summ. J., ("Mot. to Preclude") Ex. E ("Heidebrecht Report"), Nov. 30, 2009.) Metro-North seeks to preclude Heidebrecht's report, and moves for summary judgment on the grounds that Peters's claims are time-barred and that he has failed to show that Metro-North was negligent and caused his injuries. (Mot. to Preclude at 1-2.) For the reasons which follow, Metro-North's Motion to Preclude Heidebrecht's Report is GRANTED, in part, and DENIED, in part, and Metro-North's Motion for Summary Judgment is DENIED.

II. BACKGROUND

Peters was employed by Metro-North from August 1983 until July 2, 2004. (Mot. to Preclude, Ex. C ("Peters Dep.") at 6: 8-19.) During that period, he worked as a machinist in various capacities, including on a heavy repair gang, as a technician, and as an inspector. ( Id. at 13:2-7, 19:18-25, 20:2-15.) As a machinist, his responsibilities included engine work, drop table work, and air brake work. ( Id. at 13:2-7) Among other things, Peters's tasks involved manually manipulating and lifting heavy valves and blocking, tearing down and repairing engines, and pulling apart power assemblies. ( Id. at 68:12-23, 72:11-25, 79:2-9.) He testified that he repeatedly complained to Metro-North, as early as 2000, that automatic tools were available for several of the above tasks, which he alleges caused his injury. ( Id. at 87:1-25, 88:1-15, 91:4-18, 72:11-25, 78:3-11, 86:13-22.) For approximately the final year of his employment with Metro-North, Peters left the heavy repair gangs and became a "60 day line inspector," ( Id. at 23:17-23) where he was responsible for testing, troubleshooting and changing air brake equipment. ( Id. at 24:5-13.)

Peters first experienced lower back pain in 2003, while he was working as an inspector. ( Id. at 39:1-12.) He went to a hospital to have X-rays, and was told that his back was injured and that he should see a doctor for treatment. ( Id. at 31: 5-18, 33:19-25.) Later in 2003, Peters started having trouble walking and began experiencing severe pain in his legs. ( Id. at 35: 9-25, 36:1-5.) In early 2004, he started seeing Dr. Peretz, who referred him to see Dr. Avitzur, a neurologist, and to a hospital to get a myelogram. (Mem. of Law in Opp'n to Def.'s Mot. to Preclude and for Summ. J. ("Opp'n Mem.") at 7, Jan. 11, 2010; Peters Dep. at 34:7-17.) After the myelogram, Dr. Peretz informed Peters that his back problem was severe but advised against surgery, telling Peters that surgery would likely exacerbate his injury. (Peters Dep. at 41:10-17.) In July 2004, Peters entered disability retirement for back pains. ( Id. at 47:5-13.) In 2005, Peters collapsed in his bedroom, was unable to get up, and was taken to a hospital. ( Id. at 43:22-25, 45:3-11.) He was diagnosed with severe spinal stenosis, for which he had surgery on April 20, 2005. ( Id. at 45:11-25, 46:5-19.) Peters claims that conditions in the repair shop precipitated his surgery to have three vertebrae fused, his spine drilled out, and the nerve damage he suffered because of that surgery. ( Id. at 29:14-25.) The parties agree that "there was no single traumatic event" that caused the injuries that led to Peters's surgery (Opp'n Mem. at 7), but they dispute (1) when Peters came to believe that his pain was caused by his job at Metro-North, and (2) whether his work was actually the source of his injuries. Peters argues that "the only way" he could have become aware of the cause of his injuries was through "professional advice." ( Id.) He testified that none of the doctors he visited about his back problems in 2003 and 2004 mentioned that the conditions he suffered were caused by anything work-related. ( Id. at 106:14-21.) Thus, Peters maintains that "[r]ight up through his surgery in April 2005, [he] was still unaware of the underlying cause of his back injury." (Opp'n Mem. at 7.) In contrast, Metro-North argues that Peters knew or should have known whether his injuries were work-related as early as 2003, when they first manifested. (Reply Aff. in Supp. of Mot. to Preclude and for Summ. J. ("Def.'s Reply Aff.") ¶ 6.)

Ronald D. Schiable, an expert for Metro-North, prepared a report on December 3, 2008, investigating the ergonomic hazards in Metro-North's workplace as well as the claims by Peters that his workplace was not reasonably safe. (Mot. to Preclude, Ex. D ("Schiable Report").) Schiable found that Peters claims were "unsubstantiated and without technical merit," in large part because Peters had not documented information relating to various stressors that could cause injury and because Peters had not considered "nonwork-related factors" when claiming that his injury was due exclusively to workplace risk factors. ( Id. at 4.) Heidebrecht, an expert for Peters, submitted a report claiming that causal links existed between the injuries suffered by Peters and the ergonomic hazards of the workplace. (Heidebrecht Report at 30.) Metro-North does not dispute Heidebrecht's qualifications as an expert in the field of ergonomics; instead, they dispute whether or not the conclusions drawn are properly within his area of expertise and whether or not his methodology in this case was proper. (Mem. of Law in Support of Mot. to Preclude Plaintiff's Proposed Expert and for Summ. J. ("Metro-North Mem.") at 8, November 30, 2009.)

III. DISCUSSION A. Dr. Heidebrecht's Report is Admissible, in Part, and Precluded, in Part

There is no dispute that Peters has satisfied his burden of showing that Heidebrecht is an expert in his field of specialized knowledge, ergonomics. Heidebrecht's qualifications include his Board Certification in Ergonomist/Human Factors, and his seventeen years of experience working and teaching in the fields of biomechanics, physiology, and ergonomics. (Opp'n Mem., Aff. at 1.) He has written a number of peer-reviewed articles on the subject of repetitive work tasks and their relation to permanent injury. ( Id.) Accordingly, Heidebrecht's report appropriately discusses the history of ergonomic risk factors and musculoskeletal disorders, and the particular work-related tasks that generally contain risk factors. (Heidebrecht Report at 3-6.)

Metro-North argues, however, that the three opinions Heidebrecht offers in his report should be precluded. First, it argues that his opinion regarding what Metro-North knew or should have known is not a matter of expert or scientific analysis that is reducible to a reasonable degree of scientific certainty. (Metro-North Mem. at 7.) Second, it argues that Heidebrecht's opinion regarding the existence of ergonomic risk factors in the locomotive shop should be precluded because it is not based on any objectively measured evidence. ( Id. at 8). Finally, Metro-North argues that his opinion regarding the cause of Peters's injury should be precluded because it is a medical opinion outside of Heidebrecht's expertise. ( Id.) For the reasons which follow, Heidebrecht's opinions regarding the existence of ergonomic risk factors and how those risk factors contributed to Peters's injuries are admissible, but his opinion regarding what Metro-North should have known is precluded.

1. The Daubert Standard for Admissibility of Expert Testimony

Expert testimony is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods to the case." Fed.R.Evid. 702. To determine admissibility, the court must decide if the proffered testimony is relevant and reliable. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993). In assessing reliability, the court must determine whether the testimony (1) relates to "scientific knowledge" and (2) will "assist the trier of fact to understand or determine a fact in issue." Id. at 592. To determine if scientific knowledge will assist the trier of fact, a court must assess an expert's methodology to determine if it is scientifically valid and can properly be applied to the facts in issue. Id. at 592-93. In determining reliability, factors to be considered include whether a theory or technique can be and has been tested; if it has been subject to peer review and publication; the known or potential rate of error; and whether the theory or technique has been generally accepted. Id. at 593-94. Ultimately, the court's inquiry is a flexible one and its overarching subject is the scientific validity and evidentiary relevance and reliability of the principles that underlie a proposed submission. Id. at 594-95. The focus is solely on the principles and methodology, not on the conclusions they generate. Id. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional means of attacking shaky but admissible evidence." Id. at 596.

2. Heidebrecht's opinion regarding what Metro-North knew or should have known is precluded

In his report, Heidebrecht opines "to a reasonable degree of scientific certainty" that Metro-North "knew or should have known of the ergonomic risk factors at the Croton-Harmon locomotive shop and the development of musculoskeletal disorders during Mr. Peters' employment and prior to his injuries." (Heidebrecht Report at 30.) This opinion is based upon Heidebrecht's knowledge of a number of publications and trainings about work-related cumulative trauma disorders that have been available to the American Association of Railroads ("AAR"), an organization of which Metro-North is a member. ( Id. at 5-6). According to Heidebrecht, these documents show that the AAR and Metro-North had knowledge of, or should have had knowledge of, the development and prevention of cumulative trauma disorders in the workplace. ( Id. at 5.) Metro-North argues this opinion is not a matter of expert or scientific analysis that is reducible to a reasonable degree of scientific certainty. (Metro-North Mem. at 7.) The availability of information to Metro-North about ergonomic risk factors in the workplace is relevant evidence for a jury to consider when evaluating whether Metro-North knew about the risks associated with the tasks Peters performed. However, the connection between the availability of information and Metro-North's awareness of that information is not an opinion based upon specialized knowledge and is not reducible to a reasonable degree of scientific certainty. It is a conclusion that a jury may draw on its own, without the need of expert assistance. Thus, Heidebrecht's ultimate opinion regarding what Metro-North knew or should have known is PRECLUDED.

3. Heidebrecht's opinion regarding the ergonomic risk factors Peters was exposed to while working at Metro-North is admissible

Heidebrecht's second opinion is that the job tasks performed by Peters at Metro-North contained "ergonomic risk factors which were known, prior to and during [his] employment, to contribute to the development of musculoskeletal disorders." (Heidebrecht Report at 32.) Metro-North argues that this opinion should be precluded because it is not based on any objectively measured evidence. (Metro-North Mem. at 8). According to Metro-North, Heidebrecht "chose only to rely on impressions and extrapolations derived from his brief and casual visual inspection," and his opinion suffers from "imprecise methodology and inadequate investigation." ( Id.) After reviewing the scientific basis and methodology for Heidebrecht's opinion, this Court finds that his opinion regarding Peters's exposure to ergonomic risk factors at work is admissible.

Heidebrecht's opinion about the existence of ergonomic risk factors is within his expertise in the field of ergonomics, and it helps a trier of fact understand the evidence and determine a material fact in issue between the parties. Furthermore, his opinion was not, as Metro-North contends, based solely on brief and casual visual inspections; rather, his conclusion was informed by his discussions with Peters, a tour of the facility where Peters worked, literature in the field, and computer modeling of the tasks Peters performed. (Opp'n Mem., Aff. at 1-4.) Specifically, Heidebrecht reviewed with Peters "the postures he used, the weights he lifted, the duration of his work, the repetition of his work and the equipment involved." ( Id. at 2.) He then spent time touring Peters's workplace, studying the tasks Peters had to perform. ( Id.) He then used "The University of Michigan #D Static Strength Prediction Program, Version 6.0.2, to perform the biomechanical analysis and quantify ergonomic risks" associated with Peters's job at Metro-North. ( Id.) Accordingly, Heidebrecht's opinion is not only within the scope of his expertise and relevant, but the methodology he relies upon in reaching his conclusion is reliable and rooted in scientific knowledge. As a result, Heidebrecht's opinion regarding the existence of ergonomic risk factors is ADMISSIBLE.

4. Heidebrecht's opinion that the ergonomic risk factors Peters was exposed to caused to Peters's injury is admissible

Heidebrecht also offers the opinion that Peters's injuries "were caused, in whole or in part, by his exposure to ergonomic risk factors" while working for Metro-North. (Heidebrecht Rep. at 30.) Metro-North argues that this opinion should be precluded because it is outside of Peters's expertise and based on unreliable scientific methods. (Metro-North Mem. at 7.) According to Metro-North, Heidebrecht's opinion on causation "is a medical opinion which does not contain a differential diagnosis" and does not "take into consideration non-occupational risk factors." ( Id.) Furthermore, Metro-North argues that his methodology lacks scientific or technical reliability because, among other things, it "provides no basis for determining that his hypothesis can be tested." ( Id.) Ultimately, Metro-North's notion of what expertise and evidence must be relied upon for an expert to offer an opinion on causation is too narrow. A medical doctor is not the only expert qualified to offer such an opinion. Heidebrecht has shown, through scientifically reliable epidemiological evidence, that the ergonomic risk factors he identified are a likely contributing cause to the injuries Peters suffered.

Heidebrecht's report appropriately relies upon epidemiological evidence to show that the risk factors he identified contributed to the injuries Peters suffered. There is extensive literature within the field of ergonomics that establish a strong causal connection between exposure to certain ergonomic risk factors and the development of low back disorders. (Opp'n Mem, Aff. at 4.) As discussed previously, Heidebrecht's report identified a number of ergonomic risk factors that Peters was exposed to at work. These risk factors included "(1) heavy physical work, (2) lifting and forceful movements, (3) bending and twisting (awkward postures), (4) whole-body vibration, and (5) static work postures." (Heidebrecht Report at 28.) Heidebrecht also identified over forty articles that provided evidence between the relationship between those risk factors and low back disorders. ( Id.) It is not beyond Heidebrecht's expertise to rely upon epidemiological evidence showing the link between those risk factors and lower back injuries to conclude that Peters's specific injuries were likely work-related. This is the type of opinion that Heidebrecht is qualified to give as an expert in the field of ergonomics, and is based on scientifically reliable epidemiological evidence. Therefore, Heidebrecht's opinion on causation is ADMISSIBLE.

B. Summary Judgment

Metro-North moves for summary judgment on two grounds. First, it argues that Peters's FELA claim is time-barred as a matter of law. Second, it argues that Peters has failed to introduce sufficient evidence to prove negligence or causation. This Court has determined that there is a genuine issue of material fact as to both issues.

1. Standard of Review for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment if it determines that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this standard, summary judgment is proper if "viewing the record in the light most favorable to the nonmoving party, the evidence offered demonstrates that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law." Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir. 1989) (internal quotations omitted), rev'd on other grounds, 496 U.S. 633 (1990). In making this determination, the court does not resolve disputed factual issues, but reaches a conclusion as to whether there exists "a genuine and material issue for trial." Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1175 (2d Cir. 1993). An issue of fact is "genuine" if it provides a basis for "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where no reasonable trier of fact could find in favor of the nonmoving party, H. L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989), thereby "dispos[ing] of meritless claims before becoming entrenched in a frivolous and costly trial." Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987).

The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568 (2d Cir. 1993) ( citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). This burden may be met by demonstrating that there is a lack of evidence to support the nonmoving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party satisfies this initial burden, the nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a Motion for Summary Judgment." Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985); see also Anderson, 477 U.S. at 247-48.

2. The Timeliness of the FELA Claim

FELA's three-year limitations period begins to run "when the plaintiff in the exercise of reasonable diligence knows both the existence and the cause of his injuries." Mix v. Delaware Hudson Ry. Co., 345 F.3d 82, 86 (2d Cir. 2003). "[U]nder this `discovery rule,' the plaintiff is considered to be on notice when he `knows or should know that his injury is merely work-related,' regardless of whether he knows the specific cause of the injury." Maloney v. CSX Transp., Inc., 2010 WL 681332, at *4 (N.D.N.Y 2010) ( quoting Bruno v. Metro. Transp. Auth., 544 F.Supp.2d 393, 397 (S.D.N.Y. 2008)). Peters brought this action on February 28, 2007. To prevail, Metro-North must show that there is no genuine issue of material fact as to whether Peters knew of his injuries and knew, or should have known, that they were work-related before February 28, 2004.

a. Peters knew of his injuries more than three years before commencing this action

In 2003, Peters was experiencing pain in his lower back and legs and underwent X-rays of his back, after which he was informed that he had a back injury for which he should consult a doctor. (Peters Dep. at 33:19-25.) Although the "continuing violation" doctrine does not apply to FELA claims, "a plaintiff can recover for injuries that are `sufficiently distinct from those previously suffered,' or for `aggravation to existing injuries . . . caused by a distinct act of negligence whose existence and relationship to the injury was unknown prior to the three-year period preceding the suit." Maloney, 2010 WL 681332, at *4 ( quoting Mix, 345 F.3d at 90). Additionally, "a plaintiff may maintain a claim for `accumulation' if he can demonstrate that his initial symptoms were temporary and only became permanent upon their accumulation during the three-year period." Id. ( citing Mix, 345 F.3d at 88-91).

In this case, the parties agree that "there was no single traumatic event" that caused Peters's injuries (Opp'n Mem. at 7), and there is no evidence of a distinct act of negligence that came to light after February 28, 2004. Peters has produced no evidence suggesting that the symptoms of back and leg pain that he began experiencing in 2003 were initially temporary and became permanent only through the accumulation of trauma experienced after February 28, 2004. Nor does he suggest that his initial lower back problem, which he began experiencing in 2003, is distinct from the "cumulative trauma" upon which his claim is predicated. ( Id.) Thus, Peters knew of the injuries to his lower back and legs prior to February 28, 2004, more than three years before he commenced this action.

b. There is a genuine issue of material fact as to whether Peters knew or should have known his injuries were work-related outside the limitations period

Metro-North argues that regardless of whether Peters actually knew his injuries were work-related, a reasonable person should have known whether his back pain was work-related shortly after he started experiencing pain in 2003. (Mot. to Preclude, at 2.) In response, Peters argues that he diligently sought medical assistance to understand the cause of his injuries, and that he did not actually know that his injuries were work-related until after his surgery in 2005. (Opp'n Mem., at 7.) Viewing the facts in the light most favorable to Peters, there is a genuine dispute about when he should have known that his injuries were related to his job with Metro-North.

After he began experiencing back pain in 2003, Peters had a responsibility to investigate whether his injuries were work-related. At that point in time, Peters was aware that the tasks he performed at work were strenuous. This is evidenced by his periodic complaints to Metro-North about having to complete heavy jobs manually instead of with more appropriate automatic tools. (Peters Dep. at 87:17-22, 91:4-8.) However, there is a genuine issue of material fact regarding whether the causal connection between his work and his injuries was so obvious that a reasonable person should have known immediately that his injuries were work-related.

Peters took a number of steps to ascertain the nature and cause of his pain shortly after he began experiencing it. He initially went to a hospital for X-Rays and was told to consult with a doctor. ( Id. at 33:8-25.) He was later evaluated by Dr. Peretz, who did not tell Peters that his injury was caused by work-related activities. ( Id. at 106:14-21.) Following this consultation, Peters got a myelogram and was evaluated by Dr. Avitzur, a neurologist. ( Id. at 34:12-25, 35:1-5.) Dr. Avitzur also did not tell Peters that his injury was caused by work-related activities. ( Id. at 106:14-21.) Metro-North presents no evidence that either of these health care providers were unaware of Peters's work. Yet, neither made the connection between the work and the injury. There is no evidence that a reasonable lay person would independently draw such a conclusion. While there is evidence that Peters's work involved some physical stress, a rational trier of fact could conclude that it was reasonable that Peters did not know that his injuries were work-related prior to February 28, 2004. Because there is a genuine issue of material fact, Metro North's Motion to Dismiss Peters's Complaint as time-barred is DENIED.

3. There is a genuine issue of material fact regarding Metro-North's negligence and whether Metro-North's negligence caused Peters's injuries

FELA provides that a railroad is "liable in damages to any person suffering injury while he is employed by [the railroad] . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. . . ." 45 U.S.C. § 51. The Supreme Court has construed this statute liberally to promote the remedial goal of allowing for recovery for injuries and deaths of railroad workers in recognition of the physical dangers of such work. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). For the purposes of FELA, negligence is a federal question, governed by the statutory provisions and federal common law. Morant v. Long Island Railroad, 66 F.3d 518, 522 (2d Cir. 1995). A plaintiff in a FELA case is required to prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation. Sinclair v. Long Island Railroad, 985 F.2d 74, 77 (2d Cir. 1993). However, "[i]t is well established that the role of the jury is significantly greater in Jones Act and FELA cases than in common law negligence actions. The right of the jury to pass upon the question of fault and causation must be most liberally viewed." Johannessen v. Gulf Trading Transp. Co., 633 F.2d 653, 656 (2d Cir. 1980).

Heidebrecht's report is more than sufficient to create a genuine issue of material fact with regard to Metro-North's negligence and whether that negligence ultimately caused Peters's injuries. As discussed previously, Heidebrecht's report provides evidence that the tasks performed by Peters contained ergonomic risks, and that those risks contributed to Peters's back injury. Furthermore, although Heidebrecht's opinion regarding whether Metro-North should have known about those risks has been precluded, there is still sufficient evidence of the information available to Metro-North, in the form of reports and trainings about those risks, for a jury to conclude that Metro-North had constructive notice of the problem and that Peters's injury was foreseeable. Therefore, Peters has produced evidence in admissible form to create a genuine issue of material fact concerning Metro-North's alleged negligence and the relationship of the negligence to Peters's injury. Metro-North's Motion for Summary Judgment is DENIED.

IV. CONCLUSION

Heidebrecht's report offers opinions on matters within his expertise as an ergonomic's expert, and Metro-North's Motion to Preclude Heidebrecht's report is GRANTED, in part, and DENIED, in part.

There is a genuine issue of material fact as to whether Peters should have known the cause of his injuries more than three years before commencing this action and as to whether Metro-North was negligent and caused Peters's injuries. As a result, Metro-North's Motion for Summary Judgment is DENIED. SO ORDERED this 28^th day of September 2010

New York, New York

s, and breaking a hip. Thus, the killing was particularly cruel. Also, it may reasonably be inferred that, subsequent to the homicide, the defendant returned to his residence, attempted to wipe the car door, removed and hid the blood-soaked floor mat, and went to sleep. When questioned later on Sunday, he evinced a calm demeanor and expressed no emotion when informed that the victim had been killed.

On balance, we hold that these facts support the jury's finding of premeditation.

Id. at **5-6 (internal citations omitted).

This court has reviewed the transcript of Smith's trial [Addendum I, vol. 2-5, Transcript of Evidence, Vol. I-IV, pp. 112-430] and finds the decision by the Tennessee Court of Criminal Appeals is supported in the record. The evidence was clearly sufficient to prove that Smith was guilty of the murder. He and the victim were seen together only a few hours before her body was found; the car in which they were seen was found at Smith's home and Smith unlocked the car with his keys at the request of the investigating officers; the victim's blood and hair were found in the passenger floor board and under the car, as was an earring that matched an earring found on the victim; a floor mat from the car with the victim's blood on it was found in Smith's home; and the victim's blood was found on Smith's shoes.

The evidence was likewise sufficient to prove premeditation. The victim was stabbed by a knife, slashed by a machete, and run over then dragged by a car; Smith and the victim had a contentious relationship and he had previously acted aggressively toward the victim; the victim had apparently decided to end the relationship; and Smith took steps to hide evidence of the murder.

The decision of the Tennessee Court of Appeals that the evidence was sufficient to support Smith's conviction for first degree premeditated murder was neither contrary to, nor did it involve an unreasonable application of, federal law as established in Jackson v. Virginia. Smith is not entitled to habeas relief on this claim.

Smith also claims that he is actually innocent of the crime for which he stands convicted and for that reason is entitled to habeas corpus relief. "Briefly stated, a fundamental miscarriage of justice occurs when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Mitchell v. Rees, 114 F.3d 571, 579 n. 12 (6th Cir. 1997) (citations omitted). Smith has failed to demonstrate, however, his innocence and thus is not entitled to relief on that basis.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668 (1984) the United States Supreme Court established a two-part standard for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687.

To establish that his attorney was not performing "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970), Smith must demonstrate that the attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's conduct, a court should consider all the circumstances and facts of the particular case. Id. at 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). A finding of serious attorney incompetence will not justify setting aside a conviction, however, absent prejudice to the defendant so as to render the conviction unreliable. Id. at 691-92.

Smith alleges three instances of ineffective assistance of counsel: (1) counsel failed to object to the conclusion of Dr. Toolsie that the victim's injury was an "overkill type injury;" (2) counsel failed to ensure that Smith voluntarily and knowingly waived his right to testify; and (3) counsel opened the door to the admission into evidence of Smith's prior bad acts. These were the same claims raised in Smith's post-conviction proceedings and on appeal to the Tennessee Court of Criminal Appeals.

The Petitioner filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective for: (1) failing to object to expert medical testimony that the victim's injury was an "overkill type injury"; (2) failing to ensure that the Petitioner properly waived his right to testify; and (3) opening the door to the introduction of the Petitioner's prior bad acts.

Smith v. State, 2009 WL 112569 at *3.

The appellate court first summarized the evidence at the post-conviction hearing:

At the hearing on the petition for post-conviction relief, the following evidence was presented: The Petitioner testified that he hired his trial counsel ("Counsel") approximately one year before his trial. The Petitioner said that he was incarcerated between the time of his arrest and his trial, and he estimated that Counsel came to visit him three or four times for about fifteen to twenty minutes each visit.

The Petitioner said that he wanted to testify at his trial, and he and Counsel agreed that he would do so. In that regard, Counsel filed a motion to suppress some of the Petitioner's prior bad acts. In the motion, Counsel acknowledged that it was the Petitioner's intention to testify. The motion sought to exclude prior acts of domestic violence, and the trial court ruled that those would be inadmissible if the Petitioner testified. The Petitioner said that Counsel also filed a Notice of Alibi motion in which he acknowledged that the Petitioner may testify on his own behalf. The Petitioner asserted that, before trial, he and Counsel always understood that he would testify at trial. Then, Counsel asked a witness whether the Petitioner was violent by nature. The trial judge ruled that Counsel had opened the door to the introduction of the Petitioner's prior bad acts, and Counsel advised him not to testify. In a meeting during the trial with Counsel, the Assistant District Attorney, and the trial judge, the Assistant District Attorney agreed that he would not mention the Petitioner's prior voluntary manslaughter conviction from Texas if the Petitioner did not testify. The Petitioner said that Counsel's actions opening the door resulted in the State being able to introduce multiple warrants that had been taken out against him. Further, because the Petitioner could not testify, he could not explain the circumstances of those warrants.

On cross-examination, the Petitioner testified that, at the time of his trial in this case, he had a prior criminal history, which included a voluntary manslaughter conviction. He also had other convictions, one of which was the result of a jury trial. The Petitioner agreed that Counsel told him that he would not make a "very good witness" and would likely do his case "more harm than good," but the Petitioner said that this was because Counsel had opened the door to the Petitioner's prior bad acts. The Petitioner agreed that Counsel successfully sought to exclude some witness testimony about the victim telling a witness that the Petitioner had acted violently toward her on previous occasions. The Petitioner said that he had no complaints about the graphic nature of Dr. Toolsie's testimony; rather, he posited that he did not inflict those injuries.

On redirect examination, the Petitioner testified that he had testified on his own behalf in two previous trials, the only two trials in which he had ever been a defendant before the current matter. The Petitioner said that, at the time he chose not to testify in this case, Counsel had advised him that his prior voluntary manslaughter conviction would be admitted if he testified. The State then pointed out to the Petitioner that the transcript showed that the State's attorney told the Petitioner that he would not mention the Petitioner's Texas conviction if the Petitioner testified and that this occurred before the Petitioner chose not to testify. The Petitioner claimed, however, that he understood the State's attorney to be saying that he would not bring up the conviction only if the Petitioner did not testify.

Counsel testified that the Petitioner retained him in this case. Counsel testified that, after the Petitioner retained him, he filed multiple motions on behalf of the Petitioner, including a motion to suppress the search of the Petitioner's house and car. The police found a large amount of the victim's blood on the undercarriage of the car and some of the victim's blood in the car. The police also found the Petitioner in possession of the keys to the car and found that he had some of the victim's blood on his tennis shoes. Counsel recalled that a floor mat from the car was found behind a refrigerator at the Petitioner's house, and it contained the victim's blood. Counsel said that a witness testified that she saw the victim and the Petitioner together at 3 or 4 a.m. in an area known for drug activity, and the victim's body was discovered later that morning at 7 a.m.

Counsel said that he and the Petitioner developed a strategy that the Petitioner was not present at the killing and did not commit this crime. They relied in part on the statement that the Petitioner gave to police in which he explained he was asleep during the time of the murder. This statement was read into the record, and Counsel said that the statement being admitted into evidence factored into their decision about whether the Petitioner should testify. From interviewing the Petitioner, Counsel never felt the Petitioner would make a "great witness." Counsel noted that the victim was someone that the Petitioner had dated for a long time, and he did not show any type of emotion at her death. The Petitioner told Counsel that he was not an emotional man, but Counsel did not feel this would come across well to the jury.

Also with regard to the Petitioner testifying, Counsel said that he told the Petitioner before trial that the State would not be able to ask him about his prior conviction from Texas. During the trial, the judge changed that ruling. Counsel stated that he asked the Petitioner's daughter, who testified on the Petitioner's behalf if her father was a violent man. She said "no." He then asked her if she would "reference [her] father as a gentle man," and she responded affirmatively. The judge ruled that this question opened the door to the Petitioner's prior voluntary manslaughter conviction. Counsel prepared a brief to have the judge reconsider, but the State agreed not to use the conviction whether or not the Petitioner testified. Counsel said he explained this to the Petitioner. Counsel said the Texas conviction did not affect his advising the Petitioner not to testify. That advice, rather, was based upon the facts of the case, the performance of the State's attorney, and the Petitioner's prior domestic violence issues.

Counsel testified he successfully sought to exclude as hearsay some witness testimony about the Petitioner's prior acts of violence toward the victim. There was, however, other evidence from eyewitnesses who witnessed the Petitioner acting violently toward the victim. This evidence was admitted, and Counsel believed it was properly admitted.

Counsel testified that, because their strategy was that the Petitioner did not commit the crime, he did not object to Dr. Toolsie's testimony that this was an "overkill type injury." Counsel offered different suspects who could have committed this crime, one of whom was the Petitioner's ex-wife. Counsel said their strategy was to prove the Defendant did not commit the crime, as opposed to arguing he should be convicted of a lesser-included offense.

On cross-examination, Counsel testified Dr. Toolsie was the medical examiner who performed the autopsy. Counsel admitted he did not know before trial that Dr. Toolsie planned to opine to the jury that the victim's injuries were "overkill" type injuries, which were "usually but not always" perpetrated by someone who knew the victim. Counsel conceded that he was unaware at trial that the Tennessee Supreme Court had ruled that this type of testimony was inadmissible. Counsel said he would have objected to this portion of Dr. Toolsie's testimony had he known about the Tennessee Supreme Court ruling. Counsel said he did not think this testimony was damaging to the Petitioner, however, because their theory was that the Petitioner did not commit the crime. Further, they presented evidence that someone else who had known the victim killed her. Counsel agreed that evidence of domestic violence committed by the Petitioner was presented at the Petitioner's trial.

About the Petitioner testifying, Counsel said he and the Petitioner left that decision open up to and during the trial. They agreed that the Petitioner's testimony would be substantially similar to the statement that he gave to the police. Counsel said when the trial court ruled that Counsel opened the door to the Petitioner's prior bad acts, the State questioned the Petitioner's daughter about two different instances of specific acts of violence by the Petitioner toward her. Counsel did not object to the Petitioner's daughter's testimony about those specific acts of violence, and he said it was not a strategic decision to not object. He said, however, that he understood the trial judge's previous ruling to be that the Petitioner's prior acts of domestic violence were admissible, which was, in part, why he did not object to this testimony.

Counsel acknowledged that he called the Petitioner's ex-wife to testify. He explained it was his attempt to show that other people may have wanted the victim killed. He did not object to the State questioning the Petitioner's ex-wife about her volatile and violent relationship with the Petitioner because he thought that evidence would show that there was a love triangle between the Petitioner, his ex-wife, and the victim that could have gone wrong, resulting in the Petitioner's ex-wife killing the victim.

On redirect examination, Counsel agreed that the Petitioner's ex-wife testified:

We got a divorce in 2002, and I hated him and I hated her, and I wanted both of them dead, and I went to Hiwassee Mental Health and tried to get some help because I was going to kill myself and I was going to kill them, and I told them.

The Petitioner's ex-wife also testified that she went to the Petitioner's house one night to kill the Petitioner and the victim. Counsel felt this favorable testimony was worth the trade-off for the domestic violence testimony. Counsel further testified his theory at trial was that, considering the number and type of wounds to the victim, this murder had to be perpetrated by more than one person.

After hearing argument, the post-conviction court entered a written order finding the Petitioner failed to prove he was entitled to post-conviction relief and denied the petition for post-conviction relief. It is from this decision that the Petitioner now appeals.

Id. at **3-6 (footnote omitted).

In analyzing Smith's claims of ineffective assistance of counsel, the Tennessee Court of Criminal Appeals first noted the two-part standard of review set forth in Strickland. Id. at *7 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

The appellate court then rejected Smith's arguments, with specific reference to the trial court's findings in denying post-conviction relief. This court has reviewed the transcript of Smith's post-conviction hearing [Addendum III, vol. 2, Transcript of Evidence, vol. I, pp. 1-86] and finds the conclusions by the trial court and by the Tennessee Court of Criminal Appeals are supported in the record.

With respect to Smith's claim that counsel should have objected to Dr. Toolsie's testimony, the court found as follows:

The Petitioner contends Counsel was ineffective for failing to object to Dr. Toolsie's testimony that this killing was an "overkill type injury," which was usually, but not always, committed by someone the victim knew. The Petitioner asserts this was beyond Dr. Toolsie's area of expertise and is not admissible pursuant to the Tennessee Supreme Court decision in State v. Stevens, 78 S. W.3d 817 (Tenn. 2002). Counsel's failure to object, the Petitioner asserts, was ineffective and prejudiced him. The State notes in its response that Counsel explained his failure to object by stating that his theory of the case was that someone whom the victim had known killed her, namely the Petitioner's ex-wife. Further, it contends that the Petitioner did not prove that the failure to object prejudiced him.

The post-conviction court found:

While petitioner's trial counsel might have handled the testimony of Dr. Toolsie . . . more effectively, this court is satisfied the testimony complained of did not alter the outcome of the trial. At trial, there was evidence that on Saturday, January 11, 2003, . . . Ms. White was attempting to terminate her relationship with the petitioner. In response, he was calling and coming to her residence and later that evening, he and Ms. White were together in the defendant's room at his daughter, Katrina Cullom's residence. On two occasions thereafter, petitioner and Ms. White were observed at a drug trafficking location where the petitioner appeared to purchase drugs. They were last observed at that location between 3:00 and 4:00 a.m. Ms. White's body was found only a few hours later. She had been stabbed, hacked and slashed. The car in which they were observed was found the same day her body was discovered at the petitioner's residence. It contained large amounts of blood in the passenger floor board, and the undercarriage of the car bore blood and a swatch of hair. The blood and hair were identified as being that of Ms. White. A floor mat from the vehicle containing Ms. White's blood was later found behind an abandoned refrigerator in the residence where the petitioner lived. Ms. White's blood was found on a pair of petitioner's shoes. The petitioner's DNA was found in Ms. White's vagina, indicating they recently had sexual intercourse. This evidence so strongly leads to the conclusion that petitioner killed Ms. White that the testimony complained of was not a significant factor in his conviction. The admission of this testimony does not undermine this court's confidence in the outcome of the trial.

We conclude that the evidence does not preponderate against the post-conviction court's findings. The testimony presented comported with Counsel's theory of the case, i.e. that the Petitioner's ex-wife, who had admittedly threatened the victim's life in the past, had committed this killing. The fact that this strategy or theory failed does not prove that Counsel was ineffective. Further, the Petitioner has not proven he was prejudiced by Counsel's failure to object to this testimony.

Smith v. State, 2009 WL 112569 at **8-9.

As the Tennessee Court of Criminal Appeals noted, the defense theory was someone else was guilty of the murder and the defense attempted to portray Smith's ex-wife, Mary Smith, as the perpetrator. The defense called Ms. Smith as a witness. [Addendum 1, vol. 5, Transcript of Evidence, Vol. IV, p. 410]. Ms. Smith admitted when she first learned of the affair between her husband and the victim, she "tried to beat the crap out of her, and the police was called, and he called 911 on me because I shot at them." [ Id. at 412]. She also admitted on several occasions she beat and shot at the victim, [ id.]; that the last time she caught the victim in her house "I beat her, I beat her," [ id. at 413]; that after her divorce from her husband, Ms. Smith "hated him and [] hated her, and [] wanted both of them dead, [ id. at 415]; and that "I beat the crap out of her every time I would see her and catch her in my house and in my bed." [ Id. at 416].

Dr. Toolsie's testimony the murder was "an overkill type injury" could be used to support the theory Mary Smith killed the victim because she hated her so much. Accordingly, Smith's counsel was not ineffective in failing to object to the testimony.

With respect to Smith's waiver of his right to testify, the Tennessee Court of Criminal Appeals found as follows:

The Petitioner next contends Counsel was ineffective for failing to ensure that the Petitioner properly waived his right to testify. He asserts that he always wanted to testify and did not knowingly and voluntarily refuse his right to testify. The Petitioner notes that the colloquy between he and the trial court regarding his right to testify was inadequate, citing Momon v. State, 18 S.W.3d 152 (Tenn. 1999). The State counters that a failure to follow the Momon guidelines does not in and of itself support the Petitioner's claim and that the Petitioner knowingly waived his right to testify. When deciding this issue, the post-conviction court found:

While the questions asked petitioner by the trial judge concerning this issue were perhaps not sufficient to establish he voluntarily and personally waived his right to testify in his own behalf as required by Momon, supra, this court is satisfied from the evidence presented that the petitioner personally made the decision not to testify and that this decision was voluntarily made. Had his counsel asked the appropriate questions or encouraged the court to do so, in this court's opinion, [there is] no reasonable probability it would have resulted in his testifying during the trial.

We conclude that the evidence does not preponderate against the trial court's findings. The Petitioner clearly understood that he had a right to testify, as he so stated at the post-conviction hearing. He said that at the time he chose not to testify he was under the mistaken impression that his conviction from Texas for voluntary manslaughter would only come into evidence if he testified. Further, he said that the only reason he did not testify was that this conviction would potentially be admitted into evidence. However, the record clearly indicates and the Petitioner acknowledges that the record shows that the prosecutor said that he would not mention the Texas conviction regardless of the Petitioner's decision to testify. The post-conviction court found that "the petitioner [did not] fail [] to testify because of a fear of the Texas conviction being used against him." We agree, and we fail to see how further questioning of the Petitioner about his waiving his right to testify would have changed the Petitioner's decision to testify or have changed the outcome of the trial.

Smith v. State, 2009 WL 112569 at **9-10.

To the extent Smith contends the trial court failed to comply with the procedure mandated by the Tennessee Supreme Court in Momon, his claim "is not cognizable in a federal habeas corpus proceeding." Spalla v. Foltz, 788 F.2d 400, 405 (6th Cir. 1986); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions"); Lewis v. Jeffers, 497 U.S. 764, 779 (1990) ("federal habeas corpus relief does not lie for errors of state law"); Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law."); Sinistaj v. Burt, 66 F.3d 804, 807 (6th Cir. 1995) ("Errors of state law alone cannot form the basis of relief under federal habeas corpus."); Houston v. Dutton, 50 F.3d 381, 385 (6th Cir. 1995) ("When and how state law applies to a particular case is a matter on which the state supreme court has the last word. No federal issues are implicated and no federal question is presented in determining whether a change in state law is to be applied retroactively.") (citation omitted).

The trial transcript reflects the prosecutor stated he would not attempt to use Smith's Texas conviction for manslaughter, whether Smith testified or not. [Addendum 1, vol. 5, Transcript of Evidence, Vol. IV, pp. 424-25]. The transcript also reflects that Smith was placed under oath, stated his understanding of his right to testify and, after discussing the matter with his attorney, decided not to testify. [ Id. at 426-27]. Counsel was not ineffective in this regard.

With respect to Smith's claim his attorney opened the door to the introduction of Smith's prior bad acts, the Tennessee Court of Criminal Appeals found as follows:

The Petitioner contends that Counsel was ineffective by opening the door to the introduction of the Petitioner's prior bad acts. Specifically, the Petitioner complains that Counsel, when questioning Shandra Bivens, opened the door to testimony about the Petitioner's violent acts towards the victim. The record indicates that Counsel asked Shandra Bivens if she had ever seen the Petitioner threaten the victim. Bivens responded negatively. The State requested a jury out hearing where it suggested that Counsel had opened the door to questions about the Petitioner's violent acts toward the victim. The State then questioned the victim's son about a specific instance where he saw the Petitioner holding a knife to the victim's throat. The post-conviction court found that the victim's son's testimony was properly admissible as a means of allowing the State the opportunity to establish intent. State v. Smith, 868 S.W.2d 561, [575] (Tenn. 1993). Therefore, the post-conviction court held that Counsel's actions did not warrant the Petitioner post-conviction relief. We agree. As this evidence was admissible pursuant to Smith, we cannot conclude that the Petitioner was prejudiced by its admission.

The Petitioner also complains that Counsel opened the door to the Petitioner's violent acts toward other victims, namely Katrina Cullom, his daughter, and Mary Smith, his ex-wife. Counsel asked Cullom if her father was a violent person, to which she responded negatively, and if her father was a gentle man, to which she responded affirmatively. The State again suggested that this opened the door to specific instances of violent conduct by the Petitioner. The trial court agreed, and the State questioned Cullom about an incident during the week of the murder when her father got a gun, clip, and bullets out of a cardboard box. She asked what he was doing, and he laughed. Cullom said that she could tell that the Petitioner was "high" and that he was a different person when he was "high." The State also questioned Cullom about a time when the Petitioner acted violently toward her. The trial court also allowed the State to ask Mary Smith about the Petitioner's previous domestic abuse against her and his threats to kill her. The admission of this testimony, the Petitioner contends, prejudiced him. The State counters that the weight of the convicting evidence was so great that confidence in the validity of the verdict is not undermined by the admission of this testimony.

With regard to this argument, the post-conviction court concluded, "While petitioner's trial counsel might have handled the testimony of . . . Ms. Cullum and Ms. Smith more effectively, this court is satisfied the testimony complained of did not alter the outcome of the trial." We agree. As previously outlined in this opinion, and in our opinion on the Peititoner's [sic] first direct appeal, the weight of the convicting evidence "not only supports the conviction beyond a reasonable doubt but also excludes every other reasonable doubt that the defendant killed the victim." Smith, 2005 WL 1812830, at *4. The Petitioner simply has not shown that the outcome of his trial would have been different had this testimony not been admitted. He has not therefore carried his burden of proof with regard to prejudice. He is not entitled to relief on this issue.

Smith v. State, 2009 WL 112569 at **10-11.

As noted previously, the evidence of Smith's guilt was overwhelming. Any alleged error on the part of counsel in opening the door to evidence of Smith's prior bad acts did not affect the results of the trial. That being so, Smith has failed to demonstrate he was prejudiced by his attorney's alleged ineffective assistance in this regard. See Austin v. Bell, 126 F.3d 843, 847 (6th Cir. 1997) ("Ineffective assistance of counsel occurs when an attorney's deficient performance prejudices the defense and renders the trial unfair and the result unreliable."). As the Supreme Court has stressed, the focus must be on "whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). "To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Id. at 369-70.

The findings of the state courts are supported in the record and are neither contrary to, nor do they involve an unreasonable application of, federal law as established in Strickland v. Washington. Smith's attorney presented a spirited defense on behalf of Smith. Unfortunately for Smith, the evidence of guilt was more than sufficient to support Smith's convictions. Based upon the foregoing, Smith has failed to demonstrate he received ineffective assistance of counsel under the Strickland standard. He is not entitled to relief on this claim.

V. Conclusion

The respondent's motion for summary judgment will be GRANTED, the petition for habeas corpus relief will be DENIED, and this action will be DISMISSED WITH PREJUDICE. Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts. Smith having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253(c); Rule 22(b) of the Federal Rules of Appellate Procedure. The court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure. The court will further DENY Smith leave to proceed in forma pauperis on appeal.

An appropriate order will enter.

ALFRED WILLIAM SMITH, Petitioner, v. JIM MORROW, Warden, Respondent.

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