Strickland v. Qualls
MEMORANDUM OPINION. Signed by District Judge R Leon Jordan on 9/6/17. (copy mailed to Tina Strickland) (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
TINA GAIL STRICKLAND,
This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Doc. 2]. Respondent filed a response in opposition thereto, as well as a copy of the state record
[Docs. 8 and 9]. Petitioner has not filed a reply to Respondent’s response and the time for doing
so has passed. See E.D. Tenn. L.R. 7.1. For the reasons set forth below, Petitioner’s § 2254
petition [Doc. 2] will be DENIED and this action will be DISMISSED.
On June 21, 2010, Petitioner pleaded guilty to vehicular homicide without a sentencing
agreement. The trial court sentenced Petitioner to twelve years in the Tennessee Department of
Corrections on September 24, 2010. No appeal was taken by Petitioner. On May 23, 2011,
Petitioner filed a petition for state post-conviction relief arguing that that the trial court erred by
finding that her guilty plea was knowingly, voluntarily, and intelligently entered because she
received the ineffective assistance of counsel. On December 19, 2011, Petitioner filed an amended
post-conviction petition with the assistance of counsel. Following an evidentiary hearing, the postconviction court denied the petition on April 4, 2013. On May 6, 2013, Petitioner filed a timely
notice of appeal; however, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the post-
conviction court’s denial of relief. On June 23, 2014, the Tennessee Supreme Court denied
Petitioner’s application for permission to appeal.
The following factual background is taken from the TCCA’s opinion on appeal of
Petitioner’s petition for post-conviction relief:
The record shows that at the guilty plea hearing on June 21, 2010,
the trial court reviewed with the Petitioner the charges against her
and confirmed that she was pleading guilty to vehicular homicide
without a sentencing agreement. The court stated that she faced
possible punishment of eight to twelve years. The Petitioner
responded that she understood the plea agreement. She told the court
that counsel reviewed the plea agreement with her and that she
signed the agreement because she was guilty of vehicular homicide.
She denied consuming alcohol, narcotics, drugs, medications, or
mind-altering substances that might affect her ability to understand
what was happening in court. She admitted, though, that she took
muscle relaxers, vitamins, and iron supplements and used a
breathing inhaler. The Petitioner passed routine drug screens when
she was released on bond. The court advised the Petitioner that by
pleading guilty she gave up the rights to have a jury trial, to crossexamine witnesses, to subpoena witnesses to testify on her behalf,
and to testify on her own behalf. She denied that she was forced,
threatened, or promised anything in exchange for her pleading guilty
and said that her plea was voluntary and of her own free will. She
said she was pleased with counsel’s representation.
The trial court requested that the Petitioner state how the offense
occurred. She said, “I really don’t remember the accident, but I
know I was drinking [.]” The last thing she remembered was
standing on Connie Whitehead’s porch. Although she had no
memory of the accident, she agreed she killed someone while
driving her car. The victim was ninety-one years old at the time of
the accident. The Petitioner did not appeal her sentence but now
seeks post-conviction relief.
At the post-conviction hearing, the Petitioner testified that counsel
failed to advise her properly about the possible sentence she faced.
She said counsel told her that the maximum sentence was eight
years, although the trial court sentenced her to twelve years. She said
that counsel advised her that pleading guilty was in her best interest
but that after she pleaded guilty, counsel wrote her a letter stating
that the maximum sentence was twelve years. A copy of the July 10,
2010 letter was received as an exhibit. In the letter, counsel stated,
I am writing to review our discussion on sentencing
and to correct one thing we discussed. When we were
talking about the maximum amount of jail time Judge
Cupp could give you, I told you 8 years. I was using
the bottom of the range, which is our usual agreement
with the State. In your case, as you recall, we don’t
have such an agreement. Therefore, Judge Cupp
could give you any sentence within the range, which
is 8–12 years.
Counsel also discussed in the letter the possibility of probation if the
trial court sentenced her to ten years or less. Counsel also advised
that at least one enhancement factor applied, which provided the
court with the authority to increase her sentence from the minimum
The Petitioner testified that she and counsel never discussed a
sentence higher than eight years. She admitted, though, that the trial
court questioned her at the guilty plea hearing about her knowledge
of the sentencing range. She said that she understood the sentencing
range and that she faced a maximum sentence of twelve years after
the court told her at the guilty plea hearing.
The Petitioner testified that she would not have pleaded guilty had
she known she would receive more than eight years. She said that
although she learned at the guilty plea hearing that she faced a
twelve-year sentence, she entered a guilty plea because she had
“already signed the paper before court started.” She denied knowing
she could have told the trial court that she did not know she might
receive a sentence above eight years. She believed she could not
change her mind about entering a guilty plea after she signed the
On cross-examination, the Petitioner testified that she met with
counsel at least twice before entering her guilty plea but that she did
not recall scheduling appointments. She said her fiancé and her
mother attended some of the meetings. She agreed counsel told her
the blood analysis showed that her blood alcohol content was 0.22
at the time of the accident. She said she did not recall much about
the accident and did not think she drank alcohol that day. She said
she pleaded guilty because she was told it was in her best interest to
plead guilty and because she did not understand “any of this.” She
agreed she told the trial court at the guilty plea hearing that she was
pleading guilty because she was guilty of vehicular homicide.
The Petitioner testified that although counsel told her the maximum
sentence was eight years, the trial court told her at the guilty plea
hearing that no agreement existed regarding the sentence and that
the court would determine the sentence after a sentencing hearing.
She agreed the court advised her of her rights and said she
understood those rights. She agreed that the court told her to
interrupt if she did not understand something and that she did not
The Petitioner testified that she did not know “anything about the . .
. legal situation” when asked if she wanted a trial. She agreed she
did not have a guaranteed sentence but said counsel told her the
sentence would be eight years or less.
Upon questioning by the trial court, the Petitioner testified that she
did not recall if she met with counsel or if she told counsel that she
did not understand she could be sentenced to twelve years. She
agreed, though, she told counsel after she pleaded guilty that she was
upset about an article in the newspaper that falsely stated marijuana
use was involved in the accident.
Counsel testified that she had practiced law for almost twenty-nine
years and that her representation of the Petitioner began at the
arraignment in criminal court. She said the Petitioner always
claimed that she had little memory of the day of the accident and
that she was not drinking alcohol, although she recalled drinking
water from a mason jar. She said the Petitioner recalled arguing with
a woman whose house she had left at the time of the accident.
Counsel interviewed people who were with the Petitioner just before
the accident. They told her that the Petitioner arrived at Connie
Whitehead’s house earlier that day and had been drinking before she
arrived. Counsel learned that the Petitioner wanted to leave the
house to run a few errands and that an argument began between the
Petitioner and Ms. Whitehead. They attempted to prevent the
Petitioner from driving because she was “clearly intoxicated” by
that time, but the Petitioner refused to stay and hit a mailbox with
her car as she drove away. Counsel thought the evidence against the
Petitioner was overwhelming.
Counsel testified that she reviewed the eight-to-twelve year
sentencing range with the Petitioner on June 18, 2010, before the
guilty plea hearing. She said she wrote the letter previously received
as an exhibit because when she met with the Petitioner and her
family, she emphasized eight years. She said she believed eight
years was probably the maximum sentence the trial court would
impose based on her experience. She denied telling the Petitioner
that eight years was the maximum sentence she might receive. She
said she discussed with the Petitioner and her family at the meeting
the potential sentencing outcomes, including probation, community
corrections, and split confinement. She admitted that she did not
think the court would impose the maximum sentence and that she
did not discuss a possible twelve-year sentence as much as she
should have. She said she wrote the letter to ensure the Petitioner
understood the possible sentence was eight to twelve years. She
denied that the Petitioner contacted her after receiving the letter to
express her misunderstanding of the possible punishment. She said
that had the Petitioner contacted her, she would have requested that
the court set aside the guilty plea.
Counsel testified that the State did not offer to negotiate a plea
agreement and that the Petitioner’s case was the first open-ended
guilty plea in which she had participated. She and the Petitioner
discussed the significance of the trial court’s determining the
sentence. She told the Petitioner that it was the Petitioner’s decision
whether to plead guilty, that the evidence against her was
overwhelming, and that counsel thought she would be convicted at
a trial. She said the Petitioner decided to plead guilty after discussing
it with her family. She said the Petitioner did not want a trial.
Counsel testified that the Petitioner pleaded guilty on June 21, 2010,
and that after the Petitioner entered her guilty plea but before the
sentencing hearing, an article appeared in the local newspaper
reporting that the Petitioner was under the influence of marijuana at
the time of the accident. She said the Petitioner left a message asking
her to request a retraction from the newspaper. She called the
newspaper, and a retraction was printed. She said the Petitioner was
drunk and angry when she left the message. She said the Petitioner
called a few days afterward and apologized for the message. She
denied that the Petitioner addressed the possible twelve-year
sentence in the message.
On cross-examination, counsel testified that she always talked to her
clients “in terms of ranges” because of the nature of the sentencing
statutes and that it was unproductive to tell a client the maximum
sentence. She knew she discussed the sentencing range with the
Petitioner. She said she noted on the indictment that the sentencing
range was eight to twelve years for a Range I, standard offender.
Counsel testified that she believed the trial court would sentence the
Petitioner from eight to ten years based on the Petitioner’s lack of
previous felony convictions, “life issues,” health problems,
admission of guilt, and the lack of significant enhancement factors.
She said that although she discussed the sentencing range, she
probably overemphasized eight years.
The trial court denied relief. The court credited counsel’s testimony
that she did not advise the Petitioner that she would receive the
minimum, eight-year sentence after pleading guilty. The court found
that counsel and the Petitioner discussed the possible sentencing
outcomes and that counsel’s letter was “nothing more than a review”
of the previous discussion to ensure the Petitioner understood. The
court found that the Petitioner was not misled into pleading guilty
and that the Petitioner never told counsel she did not understand the
possible sentencing outcomes after the court sentenced her to twelve
The trial court noted the exchange between the Petitioner and the
court during the guilty plea hearing. It found the Petitioner was told
that the court would determine her sentence, that the sentence would
be between eight and twelve years, and that the court provided the
Petitioner opportunities to ask questions about things she did not
understand. The court discredited the Petitioner’s testimony that she
did not think she could change her mind because she had already
signed the plea agreement. The court found that the Petitioner failed
to establish that counsel provided deficient performance or that she
was prejudiced. . .
Strickland v. State, No. E2013-01118-CCA-R3-PC, 2014 WL at 605442 *1–4 (Tenn. Crim. App.
Feb. 14, 2012), perm App. Denied (Tenn. June 23, 2014).
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28
U.S.C. § 2254, et. seq., a court considering a habeas claim must defer to any decision by a state
court concerning the claim, unless the state court’s judgment: (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1)–(2).
The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (noting that “§ 2254(d), as amended by AEDPA, is a purposefully demanding
standard . . . ‘because it was meant to be’”) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)). Further, where findings of fact are supported by the record, they are entitled to a
presumption of correctness which may be rebutted only by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
Petitioner’s § 2254 habeas corpus petition [Doc. 2] raises only one ground for relief.
Petitioner claims that her guilty plea was not entered into knowingly and voluntarily [Doc. 2 p. 5].
Specifically, Petitioner argues that she entered her plea of guilty based upon the mistaken
understanding that the highest sentence she could receive was an eight year sentence, when in fact,
she was facing a sentence of anywhere between eight to twelve years [Id.].
The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court set forth a two-pronged test 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. Unless a
defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland, 466 U.S. at 687. Petitioner has the burden of showing both deficient performance and
prejudice. Smith v. Robbins, 528 U.S. 259, 285–86 (2000).
Under the first prong of the test, the appropriate measure of attorney performance is
“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. A defendant
asserting a claim of ineffective assistance must “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690. The
evaluation of the objective reasonableness of counsel’s performance must be made “from
counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the
standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong requires the petitioner to show that counsel’s deficient performance
prejudiced the defense. Thus, “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. In order to prevail on a claim of prejudice, a petitioner
must show “there is a reasonable probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Id. at 695. While both prongs must be established to meet a
petitioner’s burden, if “it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” Id. at 697.
Review of a Strickland claim under § 2254(d)(1) is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). Further, “[w]hen § 2254(d) applies, the question is not
whether counsel’s actions were reasonable,” but instead “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 131 S.Ct. 770, 788
This standard applies during the plea-negotiation process. See, Hill v. Lockhart, 474 U.S.
52, 59 (1985) (“[T]he voluntariness of the plea depends on whether counsel’s advice was within
the range of competence demanded of attorneys in criminal cases.”). Failing to advise a client of
factors that could negate the benefit of a guilty plea may render the plea involuntary. See, Miller
v. Straub, 299 F.3d 570, 580–81 (6th Cir. 2002).
Here, Petitioner asserts that her guilty plea was not entered into knowingly and voluntarily
[Doc. 2 at 5]. She claims that her plea was rendered involuntary by the ineffective assistance of
her trial counsel’s failure to advise her of the full range of punishment [Id.]. Respondent argues
that Petitioner’s claim should be dismissed because the T.C.C.A.’s rejection of the claim was not
contrary to and did not involve an unreasonable application of clearly established federal law and
was not based on an unreasonable determination of facts in light of the evidence presented in the
state court proceedings [Doc. 9 p. 10].
The law is clear that a guilty plea must be a “voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25. 31
(1970); see also State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977).
To determine the
voluntariness and intelligence behind a guilty plea, the court must look to various circumstantial
factors, including the relative intelligence of the defendant; the degree of her familiarity with
criminal proceedings; whether she was represented by competent counsel and had the opportunity
to confer with counsel about the options available to her; the extent of advice from counsel and
the court concerning the charges against her; and the reasons for her decision to plead guilty,
including a desire to avoid a greater penalty that might result from a jury trial. Blankenship v.
State, 585 S.W.2d 897, 904 (Tenn. 1993). A petitioner’s solemn declaration in open court that his
or her plea is knowingly and voluntary creates a formidable barrier in any subsequent collateral
proceeding because these declarations “carry a strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977).
As set forth above, the state post-conviction court held a hearing on the claim at which both
Petitioner and her attorney testified as to their recollections of counsel’s discussions with Petitioner
regarding her plea agreement and sentencing range.
The TCCA concluded that Petitioner
knowingly, voluntarily, and intelligently entered her guilty plea and that she had failed to show
her counsel was deficient or she was prejudiced by her performance.
We conclude that the Petitioner knowingly, voluntarily, and
intelligently entered her guilty plea. The record shows that the trial
court told the Petitioner that because no agreement existed regarding
sentencing, she faced a possible sentence of eight to twelve years.
The Petitioner responded that she understood the plea agreement,
that she and counsel reviewed the plea agreement, that she signed
the agreement because she was guilty of vehicular homicide, and
that she understood what was happening in court. She said she was
not under the influence of any substances that might affect her
ability to comprehend the substance of the plea agreement or
appreciate the consequences of entering a guilty plea.
Strickland, 2014 WL at 605442, at *5.
It is apparent from the post-conviction court’s memorandum findings on this claim that the
court “discredited Petitioner’s testimony that counsel advised her that the maximum sentence was
eight years” and accredited Counsel’s post-conviction testimony in which she repeatedly testified
that she told Petitioner she faced a sentence between eight and twelve years if she entered a guilty
plea. [Doc. 9 p. 10].
Counsel testified that she did not advise the Petitioner the sentence
would be eight years. Rather, counsel discussed with the Petitioner
the possible sentencing outcomes, although counsel admitted she
focused on an eight-year sentence as the likely outcome. The record
fails to show, though, that counsel told the Petitioner she would
receive an eight-year sentence after pleading guilty. Because
counsel wanted to ensure that the Petitioner understood the possible
sentencing outcome, she wrote the Petitioner a letter detailing the
potential outcomes at the sentencing hearing. In the letter, counsel
clarified that an eight-year sentence for a similar offense was the
usual sentence based on her experience but that the trial court could
sentence her between eight and twelve years. Furthermore, no
evidence exists showing that the Petitioner contacted counsel to
express any misunderstanding regarding the possible sentence after
the letter was sent to the Petitioner. The evidence does not
preponderate against the trial court’s findings. The Petitioner failed
to show that counsel provided deficient performance or that she was
prejudiced by counsel’s performance. The Petitioner is not entitled
Strickland, 2014 WL 605442, at *5.
The state trial court’s proper colloquy can be said to have cured any misunderstanding
Petitioner may have had about the consequences of her plea. See, Barker v. United States, 7 F.3d
629, 633 (7th Cir. 1993), cert. denied, 510 U.S. 1099 (1994) (the trial court’s “thorough
examination at the hearing, taking careful and appropriate measures to dispel any confusion on
[the defendant’s] part before the plea was accepted,” cured any claim that the defendant was
prejudiced by erroneous “advice from [the defendant’s] trial attorney [that allegedly] led to his
misunderstanding of the consequences of his guilty plea”); Ventura v. Meachum, 957 F.2d 1048,
1058 (2nd Cir. 1992) (the trial court’s “clear and thorough plea allocution” apprising the defendant
“of the actual sentencing possibilities” prevented the defendant from claiming prejudice under
Strickland). Thus, a claim of ineffective assistance of counsel predicated on allegedly misleading
information given by counsel about the terms of a plea agreement cannot constitute a constitutional
error when the court conducts a proper, clear, and thorough plea colloquy. Ramos v. Rogers, 170
F.3d 560, 565 (6th Cir. 1999). It was reasonable for the state court to conclude that Petitioner was
bound by her open-court declaration that she understood her sentence could be eight to twelve
years after the presiding judge explained the range of punishment to her.
Based upon the foregoing, the Court concludes that the state courts’ determination that
Petitioner received the effective assistance of counsel were neither contrary to, nor did they involve
an unreasonable application of, federal law as established by the Supreme Court in Strickland.
Petitioner is not entitled to relief on her claim of ineffective assistance of counsel.
The petition for habeas corpus relief will be DENIED and this action will be DISMISSED
CERTIFICATE OF APPEALABILITY
The Court must consider whether to issue a Certificate of Appealability (“COA”), should
Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may appeal a
final order in a habeas proceeding only if he is issued a COA, and a COA may only be issued
where a Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). When a district court denies a habeas petition on a procedural basis without reaching
the underlying claim, a COA should only issue if “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Where the court dismissed a claim on the merits, but
reasonable jurists could conclude the issues raised are adequate to deserve further review, the
petitioner has made a substantial showing of the denial of a constitutional right. See Miller-El v.
Cockrell, 537 U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484.
After reviewing Petitioner’s claim, the Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right. Accordingly, a COA SHALL NOT
AN APPROPRIATE ORDER WILL ENTER.
United States District Judge
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