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Winkler v. Parris

United States Court of Appeals, Sixth Circuit

June 18, 2019

Perley Winkler, Petitioner-Appellant,
v.
Mike Parris, Warden, Respondent-Appellee.

          Argued: May 8, 2019

          Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:14-cv-00509-Pamela Lynn Reeves, District Judge.

         ARGUED:

          Jennifer L. Dollard-Smith, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio, for Appellant.

          T. Austin Watkins, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

         ON BRIEF:

          Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio, Nathan L. Colvin, VORYS, SATER, SEYMOUR, AND PEASE LLP, Cincinnati, Ohio, for Appellant.

          T. Austin Watkins, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

          Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.

          OPINION

          SUHRHEINRICH, CIRCUIT JUDGE

         Perley Winkler, Jr. was convicted in Tennessee state court of two counts of attempted first-degree murder and one count of attempted aggravated arson. He now petitions for habeas relief, alleging his appellate counsel was constitutionally ineffective for failing to submit a small portion of his trial court record on appeal. He asserts that under Entsminger v. Iowa, 386 U.S. 748 (1967), the failure to file a portion of the record entitles him to presumed prejudice in the ineffective-assistance analysis. We reject Winkler's argument, AFFIRM the district court, and DENY the habeas petition.

         I. FACTS

         The prosecution's case against Winkler primarily was based on the testimony of two witnesses: John Senn, and his girlfriend (now wife) Sherri Turpin Senn. John Senn testified that on the morning of April 17, 2007, one of his pit bull dogs woke him up. As he got up to let the dog outside, he looked out the small window in his back door and saw Winkler and Michael Aaron Jenkins in his yard. Senn testified that Jenkins was holding a gasoline jug, but that he dropped it and ran into the woods with Winkler. Senn testified that he woke up Sherri and told her to call the police. Senn testified that, in the meantime, he grabbed his gun, walked onto the back porch, and fired eight shots into the woods. As he walked outside, Senn smelled gasoline and saw that it had been poured in his jacuzzi, on his back porch, on the side of his house, and on both of his cars.

         Sherri Turpin Senn corroborated most of John Senn's story. She also testified that her brother, Steve Abercrombie, had been in a long-running feud with Winkler, and that Mr. Abercrombie lived approximately 100 yards from her house. She testified that, one week before the incident, her sister-in-law, Lisa Abercrombie, played for her a voicemail message that Winkler had left on Mrs. Abercrombie's cellular telephone. According to Sherri Turpin Senn, Winkler said, "You are going to die, you are going to burn." She ...


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