        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    Warren v. Lewis                              No. 02-5983
    ELECTRONIC CITATION: 2004 FED App. 0090P (6th Cir.)
                File Name: 04a0090p.06                    Appellant. Charles E. Walker, Nashville, Tennessee, for
                                                          Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
               FOR THE SIXTH CIRCUIT                                              OPINION
                  ________________                                            _________________

 TOMMY RAY WARREN,               X                          ALICE M. BATCHELDER, Circuit Judge. Virginia Lewis
                                                          (“Lewis”) appeals the decision of the district court granting
           Petitioner-Appellee, -                         habeas corpus to Petitioner Tommy Ray Warren (“Warren”).
                                  -
                                  -   No. 02-5983         Because we find that the state court proceedings in question
            v.                    -                       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.
 VIRGINIA LEWIS , Warden,         -
        Respondent-Appellant. -                                                          I.
                                 N
      Appeal from the United States District Court           On April 12, 1993, Tommy Ray Warren pled guilty to two
    for the Middle District of Tennessee at Nashville.    counts of first degree murder and was sentenced to two
     No. 02-00228—John T. Nixon, District Judge.          consecutive life terms. At the guilty plea hearing, the State
                                                          advised that, if the case went to trial, the State would prove
              Argued: September 16, 2003                  that on March 24, 1992, while driving his truck, Mr. Warren
                                                          struck Della May Richter and Patricia Weaver, killing
           Decided and Filed: March 30, 2004              Weaver. Warren then kidnaped Richter and stabbed her to
                                                          death. Mr. Warren specifically agreed that these facts were
  Before: SILER, BATCHELDER, and COOK, Circuit            correct.
                     Judges.
                                                             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
                       COUNSEL                            truck, drinking beer and smoking marijuana. Following the
                                                          consumption of what he estimated to have been 3 or 4 six-
ARGUED:      David H. Findley, OFFICE OF THE              packs of beer, he hit a pothole, which caused him to lose
ATTORNEY GENERAL, Nashville, Tennessee, for               control of his truck and to strike two women who were
Appellant. Charles E. Walker, Nashville, Tennessee, for   walking along the road. He claimed that the impact caused
Appellee. ON BRIEF: David H. Findley, OFFICE OF           his pocket knife to slide off the seat, that he reached down and
THE ATTORNEY GENERAL, Nashville, Tennessee, for           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    4      Warren v. Lewis                                     No. 02-5983

women” and he is a small man, and that when he went to give                      While Warren was in custody, Dr. Gillian Blair, at the
assistance to one of the women, she responded by “slinging                     instance of Warren’s counsel, performed a psychological
[him] around like a rag doll.” When—open-bladed knife in                       evaluation of him and prepared a preliminary report for the
his hand—he attempted to help the woman (identified as                         court. Dr. Blair determined that Warren’s overall I.Q. was 71,
Della May Richter), she said “okay” and got into his truck,                    one point over the upper limit for mental retardation for
Warren said, and only then did he see the blood on her and                     purposes of imposition of the death penalty under Tennessee
realized that he had stabbed her.                                              law. See TENN. CODE ANN . § 39-13-203(a). Dr. Blair
                                                                               concluded that “Mr. Warren functions within the upper limits
   Warren’s recitation of the events is substantially                          of mental retardation and the lower limits of borderline
undermined by the evidence collected at the time. Warren                       intellectual level”; that he understood the charges against him,
gave a detailed four-page statement to the police several hours                appreciated the likely outcome of trial if he were found guilty,
after the incident. In that statement, he made no mention of                   and was able to work with his attorneys and understand his
a pothole, but said that immediately before hitting the women,                 options if those options were explained in “concrete terms.”
he had spilled his beer and had looked down for a second.                      Dr. Blair concluded that Warren was therefore competent to
His statement made no mention of a knife sliding off the seat,                 stand trial.
or that he had been smoking marijuana, and although the
statement certainly said that he had been drinking beer, the                     At Warren’s counsel’s request, the trial court scheduled a
quantity described did not approach the 3 to 4 six-packs that                  competency hearing to consider Warren’s competency and
he claimed in the post-conviction hearing. The evidence is                     mental retardation. In order to avoid the death penalty,
inconclusive as to how intoxicated Warren actually was at the                  Warren needed to show not only that he was sub-average in
time of the incident. Blood and urine tests taken several                      his intellectual functioning, that is, he had an I.Q. of 70 or
hours later—shortly before he made his statement to the                        below, but that he also had deficits in adaptive behavior, and
police—showed low levels of alcohol and no traces of                           that this mental retardation had manifested during the
marijuana in his system. Furthermore, the state had a witness                  developmental period or by the time he reached age eighteen.
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.                   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,
Weaver, he abducted and murdered Ms. Richter. Warren was                       dumped the body, and returned home with the clothes. Once back at
eventually charged with two counts of first degree murder and                  home, Warren set his truck on fire, and p ut M s. Richter’s clothes as well
“especially aggravated kidnaping.”1                                            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 sup per with his
    1
                                                                               wife and children. Returning home after supper, Warren and his wife saw
      In his stateme nt to the p olice, W arren described in some detail how   the truck blazing. They summoned help, including the fire d epartment,
he had struggled with Ms. Richter befo re he stabbed her; how, after           and after the police cam e and looked at the truck, they read W arren his
determining that she was dead, he first put her bod y in the wo ods but,       Miranda rights, and soon thereafter took him to the place where he had
deciding that “that wouldn’t work,” he put her on the floor of his truck,      hit the two women with his truck.
covered the bo dy with a brown co at, went to a friend’s home where                 W arren was first charged with vehicular homicide, first degree
W arren’s wife was and got her to take him back to his truck and tow it to     murder, arson and aggravated kidnaping. The vehicular homicide charge
their home. He then took his wife back to the friend’s home, returned          was later changed to a second count of first degree murder.
No. 02-5983                              Warren v. Lewis       5    6      Warren v. Lewis                             No. 02-5983

Id. Warren’s counsel did not believe that he would be able to         On January 23, 1996, Warren filed a motion for post-
demonstrate both the sub-average I.Q. and deficits in adaptive      conviction relief in state court, raising two claims: 1) That his
behavior, as required by Tennessee law, because in addition         guilty pleas were not knowing and voluntary because his
to Dr. Blair’s report showing an I.Q. of 71 and competency to       decision was “heavily influenced” by the death penalty, which
stand trial, the record established that Warren had been            he did not know would not be an option if he were found to
employed for many years, had a wife of nearly twenty years          be mentally retarded; and 2) that his counsel was ineffective
and children, whom he supported, had a driver’s license, and        for failing to further pursue a hearing concerning mental
had served in the military for a short time before being            retardation. After an evidentiary hearing, the trial court
discharged for physical—not mental—reasons. Warren’s                denied relief. The Tennessee Court of Criminal Appeals
counsel therefore did not believe that he would be able to          affirmed the denial, and the Tennessee Supreme Court denied
demonstrate that Warren was not eligible for the death penalty      review.
under Tennessee law.
                                                                      On February 4, 2002, Warren, acting pro se with the
  A month prior to the scheduled competency hearing,                assistance of Inmate Legal Aide, mailed his 28 U.S.C. § 2254
Warren’s counsel began serious plea negotiations with the           petition for a writ of habeas corpus to the United States
State in attempt to obtain a plea deal that would protect           District Court for the Middle District of Tennessee. The
Warren from a death sentence on either or both counts of            cover letter included a handwritten note:
murder. He met with Warren, both during and following
these negotiations, to explain the best- and worst-case                 The five dollar ($5.00) filing fee for a § 2254 Petition is
scenarios, and Warren’s options—including the option of                 forthcoming. A form must be processed through the
entering a guilty plea premised on the State’s agreement not            Inmate Trust Fund account/Business Office–who will
to seek the death penalty. Warren eventually discussed the              forward a check to the Clerk’s Office. This may take
matter with his wife and daughters, and opted to enter a guilty         upwards of 7-10 days.
plea to each count of murder in order to avoid the death
penalty. His counsel testified that the decision was entirely       But Warren did not even initiate the request for withdrawal
Warren’s, and that his lawyers did not coerce him to enter the      from his inmate account until February 13, 2002–one day
plea.                                                               after the one-year statute of limitations had run. The
                                                                    withdrawal was approved on February 14, 2002, and the clerk
   Prior to accepting Warren’s plea of guilty to two counts of      received the filing fee on February 28, 2002. On February 28,
first degree murder (and agreeing to the dismissal of the arson     2002, the court returned Warren’s § 2254 petition for failure
and kidnapping charges), the trial court questioned Warren at       either to pay the filing fee or to submit an application to
length to determine whether he understood the charges               proceed in forma pauperis. Warren re-filed his petition with
against him, his rights, the possibility that he might face the     proof of payment on March 5, 2002.
death penalty, and the effect of the guilty pleas. Satisfied that
Warren’s pleas were both knowing and voluntary, the trial             The district court then granted Warren’s request for
court accepted them and thereafter sentenced Warren to two          appointed counsel, and ordered supplemental briefing
consecutive terms of life imprisonment.             Warren v.       concerning the issues of equitable tolling of the statute of
Tennessee, No. M1999-1319-CCA-R3-PC, 2000 WL                        limitations under the Antiterrorism and Effective Death
1133558 (Tenn. Crim. App., Aug. 10, 2000).                          Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
No. 02-5983                                       Warren v. Lewis            7    8     Warren v. Lewis                               No. 02-5983

Stat. 1214 (1996), and Warren’s claim that his guilty plea                          A state court adjudication is “contrary to” Supreme Court
was not knowing and voluntary. Following briefing, the                            precedent under § 2254(d)(1), “if the state court arrives at a
district court found that Warren was entitled to equitable                        conclusion opposite to that reached by [the Supreme] Court
tolling,2 and granted a writ of habeas corpus, holding that the                   on a question of law,” or “if the state court confronts facts that
state trial court’s failure to hold a pre-plea competency                         are materially indistinguishable from a relevant Supreme
hearing violated the Fifth and Fourteenth Amendment Due                           Court precedent” and arrives at a different result. Williams v.
Process requirements that the guilty plea be knowing and                          Taylor, 529 U.S. 362, 405 (2000). A state court adjudication
voluntary. Lewis filed a request to alter or amend judgment,                      involves “an unreasonable application of” Supreme Court
which was denied. This timely appeal followed.                                    precedent under § 2254(d)(2), “if the state court identifies the
                                                                                  correct governing legal rule from [the Supreme] Court's cases
                                     II.                                          but unreasonably applies it to the facts of the particular . . .
                                                                                  case,” or if the court unreasonably refuses to extend, or
  Warren filed his federal petition for writ of habeas corpus                     unreasonably extends, existing legal principles from the
after the effective date of AEDPA, the statute governing this                     Court's precedents to a new context. Williams, 529 U.S. at
court’s inquiry. Lindh v. Murphy, 521 U.S. 320, 326-27                            407. The state court’s application must be more than
(1997). A federal court may not grant a writ of habeas corpus                     incorrect or erroneous; it must be “objectively unreasonable.”
with respect to any claim adjudicated on the merits in state                      Williams, 529 U.S. at 409. This court reviews a district
court unless such state adjudication:                                             court’s disposition of a habeas corpus petition de novo.
                                                                                  Bronaugh v. Ohio, 235 F.3d 280, 282 (6th Cir. 2000).
  (1) resulted in a decision that was contrary to, or
  involved an unreasonable application of, clearly                                   The district court granted Warren a writ of habeas corpus
  established Federal law, as determined by the Supreme                           based upon Pate v. Robinson, 383 U.S. 375 (1966), which it
  Court of the United States; or                                                  cited for the proposition that where evidence of a defendant’s
                                                                                  mental deficiencies raise doubt as to his competence, due
  (2) resulted in a decision that was based on an                                 process requires a competency hearing. Relying upon the
  unreasonable determination of the facts in light of the                         report proffered by Dr. Blair, which stated that Warren
  evidence presented in the State court proceeding.                               functions “within the upper limits of mental retardation and
                                                                                  the lower limits of borderline intellectual level,” the district
28 U.S.C. § 2254(d)(1) and (2).                                                   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
    2
      W hile we do not reach this question, we express grave do ubt as to
                                                                                  standard established in Pate for requiring competency
whether equitable tolling was appropriate in this case. It is well-               hearings prior to trial or the entry of a guilty plea is not
established that where a party sits on his rights, fails to take timely steps     merely whether extant evidence raises “doubt” as to the
to complete the filing, and suggests that equitable tolling is justified solely   defendant’s capacity to stand trial, but rather whether
because of ignorance of the law, equitable tolling is not appropriate. “It        evidence raises a “‘bona fide doubt’ as to a defendant’s
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).
                                                                                  competence.” Drope v. Missouri, 420 U.S. 162, 173 (1975)
No. 02-5983                                     Warren v. Lewis           9    10   Warren v. Lewis                            No. 02-5983

(quoting Pate, 383 U.S. at 385). In Warren’s case, the                         Strickland v. Washington, 466 U.S. 668 (1984), “to the
Tennessee court had before it a single piece of expert                         properly developed facts was reasonable.” The state court
testimony regarding Mr. Warren’s competence: the findings                      had held that Warren had not even attempted to show any
of Dr. Blair, Warren’s own doctor. While Dr. Blair found that                  prejudice from his counsel’s allegedly inadequate
Warren possessed poor judgment and an I.Q. one point above                     performance, and the district court explicitly held that
the state-established upper limit of retardation, she                          Warren’s trial counsel had reviewed the facts that militated
nonetheless explicitly concluded that he was competent to                      against a finding of mental retardation and had reasonably
stand trial.3 This expert testimony was bolstered by evidence                  counseled Warren that he risked the imposition of the death
in the record, which established that Warren had been                          penalty if he continued to trial. We think that this record
employed for many years, lived with his wife of nearly twenty                  amply supports the district court’s finding. That being the
years and his children, had a driver’s license, and had served                 case, we think Warren cannot demonstrate that his guilty plea,
in the military for a short time before being discharged for                   based on this reasonable advice of counsel, was not knowing
physical—not mental—reasons.           Accordingly, all the                    and voluntary because he would not have been eligible for the
evidence available to the district court suggested that despite                death penalty as a matter of law.
functioning at the upper-end of mental retardation, Warren
was in fact competent to stand trial or enter a guilty plea.                     For the foregoing reasons, we REVERSE the judgment of
Given this evidence, we must conclude that the state court                     the district court granting the petition for a writ of habeas
applied Pate in an objectively reasonable manner when it                       corpus.
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


    3
      The com peten cy stand ard to stand trial is identical to the standard
to plead guilty. See Godinez v. Moran, 509 U.S. 389 , 397 (1993 ).
