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Law bars any 2nd effort to toss Tarvin conviction

Tennessee prisoner Cory Tarvin, right, has a life sentence for murder, and has exhausted his appeals. He has two sons. (Photo David Tulis)
Vesteree and Annie Barnes talk about my investigation whether Mrs. Barnes’ son, Cory, might get his conviction overturned on grounds of grand jury unconstitutionality. (Photo David Tulis)

CHATTANOOGA, Tenn., April 26, 2022 — Cory Tarvin is in state prison under a life term for having killed a man, and no relief is possible under the post-conviction relief law even though he may have been indicted by an unconstitutionally organized grand jury.

By David Tulis / NoogaRadio 96.9 FM

He was convicted following an indictment by a grand jury in Hamilton County, the foreman of which is customarily named by the three Hamilton County criminal court judges. This judicial control of the grand jury makes its indictments suspect. The U.S. supreme court has condemned Tennessee’s grand jury system twice, once in a case about a Tennessee inmate. 

Justice’s demand for impartiality requires that the 13 members who voted on Mr. Tarvin’s indictment come from the venire — the randomly selected body of grand jurors. That likely didn’t happen. Given the state’s grand jury system, rigged in favor of the state, his grand jury was 1/13th unconstitutional because one of those voting for indictment was not randomly selected, but a judge-picked favored party.

I examined the case file of the Tarvan trial from the Hamilton County criminal court. The foreman signing the indictment is Edith Blackwell.

Was Mrs. Blackwell a judicial assignee to the grand jury, and not from the randomly selected venire? Or was she, by accident or a temporal necessity, brought forth as foreman as one of those randomly selected people — and thus was she a constitutional foreman?

Inmate Cory Tarvin says a doctor’s visit March 4 was long overdue. His eyesight is declining, and he is being kept in solitary confinement for no clear reason. (Photo David Tulis)

Optimism and hope for prisoner

By phone, Mr. Tarvin was excited about the possibilities when we discussed his likely rigged indictment leading to his conviction. His mother, Annie Banes, was uplifted in her spirit when I raised the possibility of a legal basis for a possible overthrow of the conviction.

This reporter has visited Mrs. Barnes, and Mr. Tarvin’s stepfather, Vesteree, several times, and reviewed all available filings about his situation in Tiptonville. I have talked and corresponded with the department of corrections spokeswoman Dr. Dorinda L. Carter about Mr. Tarvin’s solitary confinement, claims he is being physically threatened and his medical distress. 

He suffers untreated macular degeneration and is legally blind. A petition for relief in U.S. district court about denial of access to the courts was rebuffed.

My review of the case to see whether foreman Mrs. Blackwell was, indeed, a judicial appointee is cut short by a review of the controlling law in reopening an appealed conviction.

Mrs. Blackwell, in other words, is irrelevant — given the way of Tennessee law is written.

The law makes appeal after conviction increasingly difficult with each step. That is to guarantee the stability of the judicial system, and bring finality to the proceedings.

Can case be reopened?

The main reason Mr. Tarvin will get no relief under the “grand jury is crooked” analysis is that the court of appeals shut the door on his petition under the post-conviction law by considering a timely filed post-conviction motion.

The 26-page ruling Jan. 22, 2014, says Mr. Tarvin was properly served by his attorney Dan Ripper, assigned by the court to as his public defender. Mr. Ripper is not named in the order, but is identified simply as “counsel.” Said the court: “The Petitioner contends that he received the ineffective assistance of counsel *** [but] [w]e affirm the judgment of the trial court.”

A petitioner may file a motion in the trial court to reopen the first post-conviction petition only if the following applies:

(1) The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. *** ; or

(2) The claim in the motion is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; ***

Tenn. Code Ann. § 40-30-117

Two other provisions exist, even more remote from Mr. Tarvin narrative.

In sum, there exists no newly court-recognized constitutional right with a retroactive interpretation, there is no new scientific evidence of actual innocence nor is there evidence of an improperly enhanced sentence.

The standard for challenging a conviction rise progressively to protect state’s interest in maintaining the finality of judgments 

Defendants petitioning for post-conviction relief are held to more stringent standards as they proceed further along in the process, in that they must present only a “colorable claim” to relief in an original petition, but in a motion to reopen a post-conviction proceeding, they must present facts which would establish by clear and convincing evidence that they are entitled to relief; these progressively higher standards attempt to balance the state’s interest in maintaining the finality of judgments with a petitioner’s interest in attacking a possibly unconstitutional conviction or sentence.

The Tennessee prison system’s special facility or sick or aged inmates is the DeBerry facility in Nashville. (Photo department of correction)

Howell v. State, 151 S.W.3d 450 (Tenn. 2004)

If the state’s illegal grand juries are to be fixed, it will have to be in some other case.

Tarvin moved to special facility

Mr. Tarvin was moved from the prison in Tiptonville to the DeBerry special needs facility in Nashville at 7575 Cockrill Bend Boulevard. The facility cares for prisoners who are sick, mentally disturbed or in need of senior care services. Corrections staff moved Mr. Tarvin on Friday, says Dr. Carter, spokeswoman.

Cory Tarvin has complained to federal court that he is being denied access to the courts, and is not being accommodated by the department of correction for reason of his near blindness. Here is a prescription for his macular degeneration. (Photo David Tulis)

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