                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0322n.06

                                           No. 09-6406

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                    May 16, 2011
WALDO WIGGINS,                                    )
                                                  )                           LEONARD GREEN, Clerk
       Petitioner-Appellee,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
TONY PARKER,                                      )   WESTERN DISTRICT OF TENNESSEE
                                                  )
       Respondent-Appellant.                      )
                                                  )



       Before: SUTTON and STRANCH, Circuit Judges; WELLS, District Judge.*


       SUTTON, Circuit Judge. A Tennessee jury found Waldo Wiggins guilty of murdering his

pregnant girlfriend. The state courts rejected his direct appeal and his request for post-conviction

relief. Wiggins filed a federal habeas petition, and the district court granted it based on a lack of

sufficient evidence and ineffective assistance of counsel. We reverse.


                                                 I.


       On April 13, 1999, 17-year-old Tatrina Terry arrived home from work around 10 p.m. She

was 20-weeks pregnant at the time. Terry told her mother she planned to go out again, and told her

friend Rodriquez Dean (by phone) that she intended to see “her baby’s father.” R.10-2 at 41. Terry

       *
        The Honorable Lesley B. Wells, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
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abruptly ended the call with Dean, saying she had to go, “as if somebody had paged her or called

her.” Id. At some point between 11:15 and 11:30 p.m., a neighbor heard Terry’s car leave her

house.


         Waldo Wiggins, also 17 years old at the time, lived in a trailer with his parents, about a

15–20 minute drive from Terry’s house. Wiggins and Terry had a romantic relationship, and he

believed he was the father of Terry’s baby. The two had previously discussed the possibility of an

abortion, though they decided against it. On the night of April 13, Wiggins told his mother that

Terry was coming to their house.


         According to Terry’s phone records, she called Wiggins several times from her cell phone

between 11:38 and 11:56 p.m. The first five calls went unanswered. Wiggins answered the sixth

call, at 12:02 a.m., and spoke to Terry for one to two minutes. Wiggins’ phone log suggests that he

subsequently spoke with another girlfriend, Jennifer Bonaparte, at 12:46 a.m. for two minutes, and

then again with Bonaparte for a much longer period of time, apparently from 1:05 a.m. to 4:46 a.m.


         Between 5:00 and 6:00 a.m. on April 14, Terry’s mom realized her daughter was missing.

By using the *69 feature on her home phone, she learned that the last phone call to their house had

come from the Wiggins’ house.


         Around 6:30 a.m. that morning, John Martin and his uncle, while driving to work, noticed

a car off the side of the road in a field, with a white object beside it. Thinking someone was

“stripping” the back seat of the car, they did not stop. R.10-2 at 53. On their way home from work

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at 11:30 a.m., they saw the same car again and pulled over. When they realized the white object was

a dead body, they called the police.


        Terry had died from three gunshot wounds to the head. The presence of soot inside the skin

suggested contact wounds, namely that the killer had fired the gun with the muzzle against her head.

The investigator at the scene, Ronnie Coleman, saw no signs of scrapes or bruises that would suggest

a struggle. The keys remained in the ignition, and the police found Terry’s cell phone and portable

CD player in the car. The police did not find tire tracks from any other car at the scene.


        According to the autopsy, Terry showed signs of smothering, as though someone had

forcefully covered her mouth and nostrils with his hand. The examiner also found vaginal abrasions,

suggesting either “nonconsensual sex” or “sex that wasn’t lubricated” at some point before her death.

R.10-4 at 21. Investigators later determined that Wiggins was not the father of the baby Terry had

been carrying, and the would-be father to this day remains unknown.


        When the police learned that Terry planned to go to Wiggins’ house on the night of her death,

they suspected Wiggins was involved, as the murder scene was a half mile away “as a crow flies”

from his house. R.10-4 at 44. That night (April 14), the police interviewed Wiggins and his parents,

who all claimed he was at home with his parents the night before and that Terry never showed up.

Both parents acknowledged that they could not have known if Wiggins had slipped out quietly

during the night because they were asleep and because Wiggins’ room was on the opposite end of

the trailer.


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       During the interview, Wiggins maintained he had spoken with Terry just once on the phone

the night before. The officers found Wiggins “deceptive,” R.10-5 at 117, and when they showed him

telephone records suggesting six phone calls between him and Terry, Wiggins recanted and admitted

to multiple conversations. At that point, he stopped cooperating and turned evasive, “couldn’t hardly

answer a question” and acted “down and out.” R.10-4 at 55. It turned out that the telephone records

demonstrated there were five attempted calls and only one connected call, as the phone records

showed Terry had completed only one call to Wiggins.


       When Investigator Jerry Dyson asked Wiggins’ father whether they kept any guns in the

house, the father denied that the family had any. But he later changed his answer and acknowledged

that they kept guns in the house and consented to a search of their home. On April 15, the mother

led police to a purse in her bedroom closet that contained four handguns. Investigator John Fletcher

said that one of the guns, a .22 caliber revolver, smelled like gunpowder, suggesting it had recently

been fired. He also noticed that “oil had been put on” the barrels of all four guns, as if someone had

tried to clean them. R.10-5 at 74. Wiggins knew the guns were hidden in the bedroom closet, was

“familiar with” the .22 caliber pistol, and had “fired it on occasion.” R.10-2 at 86. None of the

visitors who frequented the Wiggins’ home knew where the guns were hidden.


       The police sent the .22 caliber revolver and other evidence to a state crime lab. A few

months later, the crime lab concluded that the bullet fragments from Terry’s skull came from the .22

caliber pistol, and that traces of blood on the gun matched Terry’s DNA.



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       On October 25, after receiving the crime lab report, the police interviewed Wiggins again.

When they showed Wiggins the .22 caliber gun, he “kind of stood up in his seat and backed up

approximately two feet from the table, as if he was in shock.” R.10-5 at 38. Wiggins denied that

it could have been the murder weapon, stating that only he, his uncle and his father had ever fired

the gun before.


       In March 2000, a Tennessee grand jury indicted Wiggins for first-degree murder. A jury

convicted Wiggins, and the court sentenced him to life in prison. After losing his appeals in state

court, Wiggins filed a federal habeas petition. The district court granted the petition on two grounds:

(1) the State introduced insufficient evidence to convict Wiggins, in violation of the Due Process

Clause of the Fourteenth Amendment, and (2) defense counsel failed to object to a jury instruction

regarding evidence of an admission against interest, in violation of the right to effective assistance

of counsel under the Sixth and Fourteenth Amendments.


                                                  II.


       The Fourteenth Amendment requires the State to prove every element of a crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315–316 (1979). The constitutional inquiry,

once a jury has convicted a defendant, is whether “any rational trier of fact” could find the defendant

guilty “beyond a reasonable doubt” after construing the record “in the light most favorable to the

prosecution.” Id. at 319. Because the state courts resolved this sufficiency-of-the-evidence claim

on the merits, the Antiterrorism and Effective Death Penalty Act (AEDPA) applies, meaning that


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we may not grant the writ unless the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d). Only if the state court’s decision was “objectively

unreasonable,” Sanborn v. Parker, 629 F.3d 554, 577 (6th Cir. 2010), only if in other words no

“fairminded jurists” could resolve the case the way the state courts did, Harrington v. Richter, __

U.S. __, 131 S. Ct. 770, 786 (2011), may we grant the writ.


       The state courts reasonably rejected Wiggins’ sufficiency claim. When construed in favor

of the State, the evidence supports the conclusion that a “rational trier of fact” could find Wiggins

guilty beyond a reasonable doubt.


       The murder weapon. The evidence showed that the murder weapon was a .22 caliber pistol.

The Wiggins family owned the gun, and the police found it in the Wiggins trailer about a day after

the murder. Only the members of the Wiggins family, just three of whom were home that night,

knew where the family kept the guns, and only they had access to the closet where the .22 caliber

was hidden. Waldo Wiggins knew where the gun was, and he knew how to use it.


       Access to the murder weapon on the night of the murder. Wiggins and his parents were the

only people at their home on the night of April 13. Because Terry was on her way to the Wiggins

trailer that night and because the murder weapon was in the trailer, a rational jury could conclude

that this left three suspects: Wiggins, his mother and his father.




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       A jury reasonably could eliminate the parents as suspects. The mother went to bed at 11:00

p.m., after watching the same TV show she watched every night. She never owned or shot any of

the family’s guns, and she was the one who told the police where the .22 caliber pistol was.

Wiggins’ father went to bed at 10 p.m., having started the day drinking at 2:30 p.m. (considered late

for him; he usually started at 8:00 am). Having previously suffered three heart attacks, he also was

not physically fit to “run down the road,” let alone the half mile from the murder site to the home.

R.10-2 at 66. Neither parent had any reason to kill Terry. They hardly knew her, and both testified

that before the murder they did not know Terry was potentially carrying their son’s baby.


       Return of the murder weapon to the Wiggins’ home. Someone put the gun back in its hiding

spot in the Wiggins’ home, undetected, shortly after killing Terry. Someone also had the time to

clean that gun and the other three guns with which it was stored. Wiggins’ mom testified that

between the time of Terry’s murder and the time that the police confiscated the murder weapon about

a day later, various people, including relatives and Wiggins’ boxing teammates, went in and out of

the house. But none of these people knew Terry, none of them had access to the closet with the gun

and none of them knew where the family guns were hidden. None, that is, except Wiggins.


       Wiggins is the only person who had access to the murder weapon, had any connection to the

victim and could return the weapon to the closet before the police found it. Unlike his father,

Wiggins was in excellent physical shape and could easily run the half-mile distance from the murder

scene, across bean or cotton fields and over several fence rows, back to his house, and eventually put

the gun back in his parents’ closet. The evidence also suggests Terry knew the murderer because

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the police found no evidence of other tire tracks at the scene (suggesting Terry and the murderer were

in her car together) and Terry’s valuables remained in the car. Nor should it be forgotten that Terry’s

last phone call went to Wiggins’ house around midnight.


       In the light cast by this evidence, a reasonable jury (and reviewing state court) could decide

that Wiggins committed the crime. To think otherwise about the matter requires a remarkable

confluence of events—that a stranger snuck into the Wiggins’ trailer, located the .22 caliber hidden

in a purse in the bedroom closet, somehow met up with Terry that evening, killed her (without taking

her valuables), ran back to the trailer, then put the gun back in the parents’ bedroom—all while

escaping detection from every member of the Wiggins family. To suggest instead that the killer was

one of the Wiggins’ relatives or friends also requires a suspension of disbelief. Not one of these

people knew Terry or had any reason to kill her, and most of them did not have access to the murder

weapon or even know where it was. On this record, we cannot say that the state courts’ decision to

uphold the conviction was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,

131 S. Ct. at 786–87.


       No direct evidence, it is true, places Wiggins at the crime scene, whether that evidence comes

in the form of a fingerprint or DNA evidence. For reasons of their own, the local investigators did

not preserve Terry’s clothes or perform any DNA tests on them, apparently opting to focus their

efforts on testing the bullets and .22 revolver. But that does not change the sufficiency calculus.

Time after time the courts have held that “[c]ircumstantial evidence alone is sufficient to sustain a

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conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”

United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (quoted case omitted); see also Desert

Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[W]e have never questioned the sufficiency of

circumstantial evidence in support of a criminal conviction . . . .”); Holland v. United States, 348

U.S. 121, 140 (1954) (“Circumstantial evidence . . . is intrinsically no different from testimonial

evidence. . . . In both, the jury must use its experience with people and events in weighing the

probabilities.”); United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010) (“[P]hysical evidence

is not a prerequisite to sustaining a conviction.”).


       Newman v. Metrish, 543 F.3d 793 (6th Cir. 2008), does not lead to a different conclusion.

There, the victim, a well-known drug dealer, was killed at home in a robbery. The next day, two

people found a gym bag alongside a road containing weapons possibly linked to the crime. The

defendant previously owned one of the guns and was seen with it two weeks before the murder. Id.

at 794. But the State presented no evidence that the defendant (1) had possessed the gun on the day

of the murder, (2) planned to rob the victim or (3) had possessed the gun between the murder and

its discovery on the road. We granted the habeas petition due to the absence of evidence placing him

at the scene of the crime. Id. at 797. At the same time, however, we noted that “if the witness had

observed the gun in [defendant’s] house only a day before the homicide and had been more certain

that it was indeed the same gun as that used in the homicide, there would be a stronger inference that

[defendant] was present.” Id. at 797 n.4.




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        Newman’s caveat describes this case. Unlike Newman, the victim planned to see Wiggins

shortly before her death and spoke to him shortly before her death. That places Wiggins and the

victim together that night near the scene of the crime, only a half a mile from his house. Unlike

Newman, the Wiggins family owned the weapon immediately before and after the murder. And

unlike Newman, the police found the gun returned to its original hiding spot in the Wiggins’ house,

not abandoned on the side of the road. In view of this evidence, the jury could draw a much

“stronger inference that [Wiggins] was present” at the crime scene. Id.


        Wiggins persists that, when the ballistics expert testified about the match between the murder

weapon and the Wiggins’ gun, he identified the .22 caliber gun using a non-existent exhibit number.

But this contention “overlooks arguments that would otherwise justify the state court’s result,”

Harrington, 131 S. Ct. at 786, namely the likely (indeed far more likely) possibility that the expert

misspoke. The ballistics expert testified that he was “[a]bsolutely positive” that the bullet fragments

came from “that .22 revolver,” R.10-5 at 134, and only one “.22 revolver” was involved in this case:

the one from Wiggins’ house. A second expert, a serologist, testified that Terry’s blood “is the same

blood that [he] examined on that .22 revolver,” id. at 146–47, and this expert made no mistake with

regard to his exhibit numbers. It is difficult to fault a jury and reviewing court for dismissing what

appears to be a misstatement in favor of the clear testimony (not rebutted at trial) that the .22 caliber

from the Wiggins’ house was the murder weapon.


        Wiggins separately claims that the State failed to prove that he acted with premeditation. But

if Wiggins was the killer, as the above evidence establishes, it takes few additional inferences to

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conclude that Wiggins’ “intent to kill [was] formed prior to the act itself.” Tenn. Code. Ann. § 39-

13-202(d). Under Tennessee law, several factors may suggest premeditation: “declarations by the

defendant of an intent to kill, evidence of procurement of a weapon, the use of a deadly weapon upon

an unarmed victim, the particular cruelty of the killing, infliction of multiple wounds, preparation

before the killing for concealment of the crime, destruction or secretion of evidence of the murder,

and calmness immediately after the killing.” State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

The evidence permits the reasonable inference that several of these factors applied: Wiggins took

the gun from its hiding spot, shot Terry at point blank range, cleaned the gun and returned it, while

staying calm enough to participate in a boxing tournament two days later. A jury and reviewing

court reasonably could find that Wiggins acted with premeditation.


                                                III.


       Also unavailing is Wiggins’ claim that he received ineffective assistance of counsel. To

prevail, Wiggins must show that “counsel’s representation fell below an objective standard of

reasonableness” and that this “deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687–88 (1984). We apply “a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Id. at 689. Since the reviewing

court adjudicated this claim on the merits, AEDPA applies, and “the question is not whether

counsel’s actions were reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Harrington, 131 S. Ct. at 788.



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       Wiggins’ theory of ineffective assistance is that his counsel failed to object to the following

jury instruction:

       Evidence of an admission has been introduced in this case. An admission is an
       acknowledgment by the defendant of certain facts which tend, together with other
       facts, to establish his guilt. It must be corroborated by other independent evidence
       to warrant and support a conviction. The Court has permitted admission of this
       evidence, but it remains your duty to decide if in fact such statements were ever
       made. If you do not believe it was ever made you should not consider it. If you
       decide the statement was made, you must then judge the truth of the facts stated. . . .
       [Y]ou are the sole judge of the weight that you should give to it.

R.10-7 at 47–48. The instruction, as Wiggins sees it, improperly commented on the evidence.


       We cannot agree. This instruction is “virtually identical” to the instruction contained in

Tennessee’s 1995 Pattern Jury Instructions. State v. Litton, 161 S.W.3d 447, 458–59 (Tenn. Crim.

App. 2004). And it does not amount to a comment, let alone an impermissible one, on the evidence

by the trial judge. The instruction simply points out that the prosecution had introduced statements

admissible under the hearsay exception for admissions by party opponents, see Tenn. R. Evid.

803(1.2); cf. Fed. R. Evid. 801(d)(2), also sometimes known as “admissions against interest,” see

State v. Lewis, 235 S.W.3d 136, 145 (Tenn. 2007). Contrary to Wiggins’ argument on appeal, the

trial court did not suggest that Wiggins had confessed to the crime. See Litton, 161 S.W.3d at 457

(“An admission . . . is something less than a confession.”) (quoted case omitted).


       The trial court instead instructed the jury that it had admitted statements that contained “an

acknowledgment by [Wiggins] of certain fact[s] which tend, together with other facts, to establish

his guilt,” R.10-7 at 47, a statement that merely parrots the definition of an admission against


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interest, see Litton, 161 S.W.3d at 457 n.5. These pieces of evidence included Wiggins’ responses

when police showed him phone records and the murder weapon, and his reaction upon hearing about

Terry’s death from his mom, see R.10-3 at 57 (Wiggins started sucking his thumb and responded,

“They found her? Where she was? . . . Where they found her at?”). These statements suggest

Wiggins may have known more than he was letting on, and “tend[ed], together with other facts, to

establish his guilt.” That Wiggins feels otherwise about what he said is irrelevant. See Lewis, 235

S.W.3d at 145 (“Anything the opposing party said or wrote out of court is admissible in court against

that party. Whether the statement was disserving or self-serving when made is immaterial.” (quoted

source omitted)).


        More to the point, the trial court expressed no opinion about whether this evidence inculpated

Wiggins. To the contrary, it emphasized that “it remains your duty to decide if in fact such

statements were ever made” and that “you are the sole judge of the weight that you should give to

it.” R.10-7 at 47–48. All of this eliminated any chance the jury could misread the trial court’s

Pattern Instruction as lending any particular weight to the evidence.


        Wiggins argues otherwise, citing a non-AEDPA decision, United States v. Yates, 553 F.2d

518 (6th Cir. 1977), for support. In Yates, the prosecutor asked if he could read the defendant’s

written confession to the jury. The court responded, “The written statement of the admissions or

confession, or whatever you want to call it, as made by this Defendant is in evidence and the jury

will have an opportunity to read it, so it will not be read to or by the jury at this time. It is clear in

the record from the testimony of [investigators] that this Defendant did admit his participation in

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this bank robbery.” Id. at 520 n.1 (emphasis added). We held that this comment “struck directly at

the heart of [the defendant’s] defense; it negated [his] claim that he did not make the confession.”

Id. at 520.


        Yates involved a judicial comment on the evidence, not the delivery of a pattern jury

instruction. Today’s instruction did not suggest that a confession had “clear[ly]” been made. The

trial court, while mentioning the presence of evidentiary admissions, expressed no opinion on what

weight to lend them or whether they even had been made. A lawyer does not provide ineffective

assistance by failing to object to a valid jury instruction. Wiggins fails to carry his high burden to

show the state court’s application of the Strickland standard was unreasonable. Harrington, 131 S.

Ct. at 785.


                                                 IV.


        For these reasons, we reverse.




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