Page v. Sexton

Filing 18

MEMORANDUM OPINION: The Court finds that none of Petitioner's claims warrant issuance of a writ and, therefore, Petitioner's petition for a writ of habeas corpus [Doc. 2 ] will be DISMISSED. Signed by District Judge Pamela L Reeves on 3/23/15. (JBR) Modified to reflect copy mailed on 3/23/2015 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SHAVONE PAGE,

Petitioner,
v.
GERALD McALLISTER, Warden,

Respondent.

)
)
)
)
)
)
)
)
)

No.: 3:13-CV-215-PLR-HBG

MEMORANDUM OPINION
Acting pro se, Shavone Page (“Petitioner”), a Tennessee inmate confined in the
Northeast Correctional Complex, brings this petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement under a 2008
Knox County, Tennessee judgment [Doc. 2]. Petitioner pled guilty to five counts of
especially aggravated kidnapping, three counts of aggravated rape, two counts of
aggravated sexual battery, two counts of aggravated robbery, and one count of
aggravated burglary [Doc. 2]. Petitioner received a sentence of thirty years. Warden
Gerald McAllister (“Respondent”) has filed an answer to the petition, which was
supported by copies of the state record [Docs. 5, 6, 7].

Petitioner has failed to

respond. The case is now ripe for disposition.
I.

PROCEDURAL HISTORY
Following his guilty plea and sentence, Petitioner did not file a direct appeal to

the Tennessee Court of Criminal Appeals, or the Tennessee Supreme Court [Doc. 2].
Petitioner subsequently filed a petition for post-conviction appeal in the Knox County

Criminal Court which was dismissed, and the dismissal was affirmed on appeal by the
Tennessee Court of Criminal Appeals (“TCCA”). Page v. State, No. E2012-00421-CCAR3-PC, 2013 WL 68904 (Tenn. Crim. App. Jan. 7, 2013). Petitioner did not appeal the
dismissal to the Tennessee Supreme Court.

Thereafter, Petitioner filed this timely

habeas corpus petition.
II.

BACKGROUND
The factual recitation is taken from the TCCA’s opinion upon review of the denial

of Petitioner’s post-conviction petition.
This case arises from a home invasion during which the victims were
robbed and the female victim was repeatedly raped. The Petitioner and
two co-defendants, Dameion Nolan and Michael McMahan, were indicted
on charges involving kidnapping, rape, sexual battery, robbery, and
burglary. At the guilty plea submission hearing, the State provided the
following basis for the guilty plea:
Your Honor, the proof would show through the witnesses
listed on the indictment, that on June 3rd, 2007, these two
defendants along with a codefendant by the name of
Damien [sic] Nolan, who has already pled guilty in these
matters, about 1:30 in the morning approached the
residence belonging to Victim 1 and Victim 2 in Knox County.
All three of these individuals, in particular these two
defendants, the Petitioner and McMahan, gained entry by
forcing open a rear door leading into a basement area of the
victims’ home.
All three of these defendants, specifically the Petitioner and
Mr. McMahan, were armed with handguns. And after
entering the home made their way up a flight of stairs into
the main living area of the Victims’ home.
All three armed defendants then entered the bedroom of the
victims, where they were both in their bed asleep. And he
was awakened, Victim 1 was struck in the head with a gun
and pistol whipped by these defendant[s] acting in concert.

2

They were forced out of their bed at gunpoint, ordered to
lay down on the bedroom floor on a rug that was adjacent
to the bed. Very early on in this encounter Victim 2 was
forced to remove her clothing. Both victims were thereafter
tied up with belts found among the victims’ clothing in the
bedroom.
All three defendants managed to know where the victim[s]
kept their money. Victim 1 at the one point indicated that
he kept his credit cards in a downstairs office, and offered to
give those credit cards to the defendants.
Mr. McMahan and Mr. Nolan thereafter escorted Victim 1 at
gunpoint to his downstairs office where he gave Mr. Nolan
and Mr. McMahan his credit cards. In particular[,] one bank
card together with the pin number for the bank card that he
uses at SunTrust Bank.
While downstairs at some point in time, these defendants
acting in concert also stole from Victim 1 a collection of state
quarters valued at approximately $3,000 and used one of
Victim 1’s camera bags to conceal and ultimately remove
these quarters from the home.
While Nolan and McMahan confined Victim 1 downstairs, the
Petitioner still in the bedroom with Victim 2, confined her
there at gunpoint and forced her to perform oral sex on him
at gunpoint.
During the course of that[,] the Petitioner ejaculated inside
Victim 2’s mouth leaving DNA material that caused Victim 2
to be on the verge of throwing up. When she reported that
to the Petitioner that she was about to throw up, he made
statements to the effect, “if you throw up, I’ll blow your
head off.”
Victim 1 was ultimately returned to the bedroom at gunpoint
and forced to lie down on the floor and watch as Victim 2
was forced at gunpoint to have oral sex with the other two
defendants. During the sexual encounter with these two
defendants, Defendant McMahan and the Petitioner
attempted vaginal rape initially by touching the vaginal area
with the finger and later attempting to penetrate with the
penis. But this act was not completed.

3

At one point Victim 2 was removed at gunpoint to a
downstairs area to show all of these defendants where the
surveillance camera’s power switch was, and was forced to
turn it off.
While in the bedroom, all of the defendants, while armed
with and using deadly weapons, forced Victim 2 to show
them where her jewelry was within the bedroom closet area.
She showed them and turned over items jewelry to them as
demanded.
This entire ordeal and confinement lasted in excess of two,
during which these defendants, in particular Mr. McMahan
and the Petitioner, repeatedly ordered these victims not to
move or talk or that they would blow their heads off.
The defendants eventually fled out the bedroom door onto a
patio, a deck area, and through an obscured patio door onto
the ground and into a waiting car.
At approximately 4:04 a.m. that same morning at a SunTrust
Bank on Cedar Bluff Road, Mr. Nolan is observed on a
security camera using the victim’s ATM card to withdraw
$500.00. The cameras also captured the presence of two
other individuals in the car.
Using these pictures, Damien Nolan was identified by
witnesses as the driver of the car and the person that used
the ATM card to withdraw this money.
Mr. Nolan gave the names of the Petitioner and Michael
McMahan as two individuals with whom he had been that
night.
The car driven by Mr. Nolan was later searched pursuant to
the search warrant and a ring belonging to Victim 2 was
found inside the glove compartment.
On June 5th, 2007, a heart shaped pendant belonging to
Victim 2 was recovered from Charlie’s Pawn Shop on
Kingston Pike. She later positively identified that item as
belonging to her, and one of the items that was taken during
this home invasion.
DNA samples eventually were collected from all three of the
defendants, and compared against the evidence obtained
during the processing of the crime scenes, specifically the
4

rug area where Victim 2 was able to spit out the substance
in her mouth onto the rug, there was blood on that rug that
came back to Victim 1 from where he had been hit in the
head and cut and bled on that rug. There was semen
evidence from Mr. McMahan and the Petitioner isolated from
the examination of the rug and bed sheet on the floor also.
The swabs indicated the sperm of the Petitioner and Mr.
McMahan in these samples from the rug and the sheets.
And that DNA sample matched the Petitioner and McMahan
to the conclusion of anyone else in the world.
The defendants were later taken into custody. A brief
interview was had with the Petitioner, he acknowledged
receiving $160.00 of the $500.00 taken from the use of the
debit card but denied any other involvement in this home
invasion.
The petitioner agreed that these are the facts that the State would prove
had the case gone to trial, he was not on any medications, and he
understood his constitutional rights and the ramifications of pleading guilty.
Then, based upon this evidence and the Petitioner’s acknowledgments, the
trial court accepted the Petitioner’s plea of guilty to five counts especially
aggravated kidnapping, three counts of aggravated rape, two counts of
aggravated sexual battery, one count of aggravated robbery, and one
count of aggravated burglary, in exchange for an effective sentence of
thirty years, to be served at 100%.

Page, 2013 WL 68904, at * 1–3 (footnote omitted).
On post-conviction, the trial court held a combined hearing for Petitioner and his
co-defendants. Id. at *3 n.2. During the post-conviction hearing, both Petitioner and
his trial counsel testified. The TCCA summarized the trial court’s factual findings in its
opinion. Id. at *3–8.
III.

STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in

28 U.S.C. § 2241, 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)
5

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).
A state court’s decision is “contrary to” federal law when it arrives at a conclusion
opposite to that reached by the Supreme Court on a question of law, or resolves a case
differently on a set of facts which cannot be distinguished materially from those upon
which the precedent was decided. Williams v. Taylor, 529 U.S. 362, 413 (2000). Under
the “unreasonable application” prong of § 2254(d)(1), the relevant inquiry is whether
the state court decision identifies the legal rule in the Supreme Court cases which
govern the issue, but unreasonably applies the principle to the particular facts of the
case. Id. at 407. The habeas court is to determine only whether the state court’s
decision is objectively reasonable, not whether, in the habeas court’s view, it is
incorrect or wrong. Id. at 411.
This is a high standard to satisfy. Montgomery v. Bobby, 654 F.3d 668, 676 (6th
Cir. 2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 786 (2011)) (noting that §
2254(d), as amended by AEDPA is a purposefully demanding standard . . . ‘because it
was meant to be.’”). Furthermore, findings of fact which are sustained by the record
are entitled to a presumption of correctness. This presumption may only be rebutted
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

6

IV.

ANALYSIS
Petitioner’s § 2254 habeas corpus petition raises two main grounds for relief: (1)

that Petitioner was denied a full and fair hearing and due process of the law during his
post-conviction hearing; and (2) that Petitioner received ineffective assistance of
counsel during his guilty plea proceedings [Doc. 2].
In his answer, Respondent argues that Petitioner is not entitled to relief on his
first ground because it is procedurally defaulted, as Petitioner only presented this claim
in terms of a state-law rule of evidence [Doc. 7].

Respondent next argues that

Petitioner’s claim of ineffective assistance of counsel should be denied because the
state court’s determination was not contrary to nor an unreasonable application of
clearly established federal law, as determined by the United States Supreme Court
[Doc. 7].
The Court agrees with the Respondent concerning the Petitioner’s entitlement to
habeas relief, and will DENY and DISMISS this petition, for the reasons provided
below.
A.

Procedural Default
1.

Applicable Law

Under 28 U.S.C. § 2254(b), a federal court’s jurisdiction to a hear habeas claim is
limited to those cases in which a petitioner has exhausted all available state-court
remedies. The statute provides that:
(1)
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a state
court shall not be granted unless it appears that—

7

(A)
the applicant has exhausted the remedies
available in the courts of the State; or
(B)
(i) there is an absence of available State
corrective processes; or
(ii) circumstances exist that render such
process ineffective to protect the rights of the
applicant.
(2)
An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
the State.
28 U.S.C. § 2254(b); see also Granberry v. Greer, 481 U.S. 129, 133–34 (1987); Rose

v. Lundy, 455 U.S. 509, 519 (1982).
A Petitioner must present each factual claim to the state court as a matter of
federal law. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“It is not enough to
make a general appeal to a constitutional guarantee as broad as due process to present
the ‘substance’ of such a claim to a state court.”). “If a habeas petitioner wishes to
claim that an evidentiary ruling at a state court trial denied him the due process of law
guaranteed by the Fourteenth Amendment, he must say so, not only in federal court,
but in state court.” Duncan v. Henry, 513 U.S. 364, 366 (1995); see also Anderson v.

Harless, 459 U.S. 4, 6 (1982) (“It is not enough that all the facts necessary to support
the federal claim were before the state courts, or that a somewhat similar [s]tate-law
claim was made.”).
At bottom, a claim sought to be vindicated in a federal habeas proceeding must
have been raised in the state courts so that the state courts have the first opportunity
to hear the claim.

If the state court decides such a claim on an adequate and

independent state ground, the petitioner is barred from seeking federal habeas review,
unless he can show cause and prejudice for the default. Edwards v. Carpenter, 529
8

U.S. 446 (2000). Cause for a procedural default depends on some “objective factor
external to the defense” that interfered the with the petitioner’s efforts to comply with
the procedural rule. Coleman v. Thompson, 501 U.S. 722, 752–53 (1991); Murray v.

Carrier, 477 U.S. 478, 488 (1986).
2.

Discussion

Petitioner’s first ground for relief asserts that he was denied due process of law
under the Fourteenth Amendment because the post-conviction court denied his request
for his trial counsel to be excluded during Petitioner’s testimony at the hearing.
Petitioner argues that the court’s refusal to grant his request violated Rule 615 of the
Tennessee Rules of Evidence, and allowed his trial counsel to tailor his testimony to
Petitioner’s earlier testimony during the post-conviction hearing [Doc. 2].
Respondent correctly points out that this claim was only presented in state court
in terms of state law and is, therefore, procedurally defaulted. Respondent contends
that Petitioner has not alleged cause and prejudice to excuse his procedural default, nor
can he show prejudice given the TCCA’s dismissal of his claim based on Tennessee Rule
of Evidence 615.
As stated earlier, a state prisoner must exhaust all constitutional claims, by fully
and fairly presenting them in state court, before a federal court can consider them in a
habeas proceeding. 28 U.S.C. § 2254(b)(1)(A), (C). Petitioner’s failure to present his
violation of due process claim to the Tennessee courts as a matter of federal law has
resulted in a procedural default of the claim. See Duncan, 513 U.S. at 366. Petitioner
has not alleged any grounds upon which the Court can excuse this procedural default.

9

According, Petitioner’s claim that he was deprived of a full and fair hearing in violation
of the Due Process Clause will be DISMISSED as procedurally barred from habeas
review.
B.

Ineffective Assistance of Counsel

Petitioner next asserts that he received ineffective assistance from his attorney
during his guilty plea hearing [Doc. 2]. According to Petitioner, his trial counsel failed
to fully explain the nature and consequences of the plea, and because of his lack of
intelligence, he was unable to fully understand the nature of the constitutional rights he
was waiving. Petitioner also claims that counsel failed to fully investigate his case [Doc.
2].
1.

Applicable Law

The Sixth Amendment provides 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 criminal defendant’s Sixth Amendment right to counsel necessarily

implies a right to “reasonably effective assistance” of counsel.

Washington, 466 U.S. 668, 687 (1984).

See Strickland v.

Under the Strickland standard for proving

ineffective assistance of counsel, a defendant must meet a two-pronged test: (1) that
counsel’s performance was deficient; and (2) that the deficient performance prejudiced
the defense. Id.
Proving deficient performance requires a “showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.”

Id.

The appropriate measure of attorney performance is

10

“reasonableness under prevailing professional norms.”

Id. at 688.

A defendant

asserting a claim of ineffective assistance of counsel must “identify the acts or
omissions of counsel that are alleged to not 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).

It is strongly

presumed that counsel’s conduct was within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689.
The second prong, prejudice, “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.” Id.
Here, Petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Moss

v. United States, 323 F.3d 445, 454 (6th Cir. 2003) (quoting Strickland, 466 U.S. at
694) (internal quotation marks omitted).

“A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Moss, 323 F.3d at 454–55 (quoting

Strickland, 466 U.S. at 694) (internal quotation marks omitted).

Counsel is

constitutionally ineffective only if a performance below professional standards caused
the defendant to lose what he “otherwise would probably have won.” United States v.

Morrow, 977 F.2d 222, 229 (6th Cir. 1992).

11

2.

Discussion

Petitioner challenged the effectiveness of his counsel during his plea hearing,
arguing to the TCCA that counsel did not adequately investigate his case and did not
explain the nature and extent of the charges Petitioner was facing. Page v. State, 2013
WL 68904, at *10. The court of appeals, applying Strickland v. Washington, concluded
that Petitioner had not met his burden of proving deficient performance or prejudice.

Id. at *11. Thus, the task before the Court is to determine whether the state court’s
application of Strickland to the facts of Petitioner’s case was unreasonable.
The crux of Petitioner’s claim of ineffective assistance of counsel challenges the
voluntariness of his guilty plea. Petitioner claims that he did not knowingly enter a plea
of guilty because his counsel did not adequately advise him of all his constitutional
rights, and because of his lack of intelligence and the fact that he was a minor when he
was charged with the offenses, his counsel and the trial court should have been more
thorough in determining whether he knew what constitutional rights he was waiving
[Doc. 2]. Petitioner also claims that his counsel failed to interview either of the victims
to ascertain their ability to identify him, or determine their recollection of the crime
[Doc. 2].

Strickland affirms that a defendant is entitled to effective assistance of counsel
before deciding whether or not to plead guilty. 466 U.S. at 686 (citing McMann v.

Richardson, 397 U.S. 759, 771 (1970)). Strickland also imposes upon an attorney “the
obligation to investigate all witnesses who may have information concerning his client’s

12

guilt or innocence.” Ramonez v. Berghuis, 490 F.3d 482, 487 (6th Cir. 2007) (quoting

Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005)).
As recounted by the TCCA, counsel testified during the post-conviction hearing
that he spent “quite a bit of time” going over the case with Petitioner. Page, 2013 WL
68904, at *6. Counsel further testified that it was not until learning about the state’s
evidence against Petitioner that he determined that the case was not one that could be
won. Id. According to counsel, he discussed this with both Petitioner and Petitioner’s
mother, and Petitioner knew the charges and knew his case.

Id. at *7

Counsel

testified that regardless of this, he had investigated the case and was ready to proceed
to trial.

Id.

Counsel also testified that he went over every charge in the plea

agreement in detail, and that Petitioner was aware that his sentence involved lifetime
supervision. Id. at *7–8.
While Petitioner testified to the opposite at his post-conviction hearing, he has
not overcome the strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance.

Petitioner has not shown that there was no

thorough investigation of the victims or of his case; instead, he merely testified that he
never discussed with counsel whether counsel had interviewed any witnesses in the
case. See, e.g., Webb v. Mitchell, 586 F.3d 383, 395 (6th Cir. 2009) (observing that the
petitioner had failed to “overcome the ‘strong presumption’ that his trial counsel
conducted a reasonable investigation” (citation omitted)). Regardless, Petitioner has
not shown that if counsel had conducted any further investigation, he would not have
pled guilty.

13

The Court finds that relief is not warranted here because the TCCA’s rejection of
Petitioner’s claim of ineffective assistance of counsel was not an unreasonable
application of Strickland, and because the state court did not unreasonably determine
the facts before it.
V.

CONCLUSION
Based on the above legal principles and reasoning, the Court finds that none of

Petitioner’s claims warrant issuance of a writ and, therefore, Petitioner’s petition for a
writ of habeas corpus [Doc. 2] will be DISMISSED.
VI.

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. See 28 U.S.C. § 2253(c)(2). Where a claim has been dismissed
on the merits, a substantial showing is made if reasonable jurists could conclude that
the issues raised are adequate to deserve further review. See Miller-El v. Cockrell, 537
U.S. 322, 327, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a claim
has been dismissed on procedural grounds, a substantial showing is demonstrated
when it is shown that reasonable jurists would debate whether a valid claim has been
stated and whether the court’s procedural ruling is correct. Slack, 529 U.S. at 484.
After reviewing each of Petitioner’s claims, the Court finds that reasonable jurists
could not conclude that Petitioner’s claim is adequate to deserve further review, nor

14

would reasonable jurists debate the correctness of the Court’s procedural ruling. As
such, because Petitioner has failed to make a substantial showing of the denial of a
constitutional right, a COA will not issue.
ORDER ACCORDINGLY.

__________________________________
UNITED STATES DISTRICT JUDGE

15