Nolan v. Holloway (VVV)

Filing 13

MEMORANDUM OPINION. Signed by District Judge Pamela L Reeves on 8/8/17. (copy mailed to Dameion Nolan)(JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAMEION NOLAN,

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Petitioner,
v.
JAMES HOLLOWAY,
Respondent.

No. 3:14-cv-00375
REEVES/SHIRLEY

MEMORANDUM OPINION

This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Doc. 1]. Respondent filed a response in opposition thereto, as well as a copy of the state record
[Docs. 11 and 12]. For the reasons set forth below, Petitioner’s § 2254 petition [Doc. 1] will be
DENIED and this action will be DISMISSED.
I.

PROCEDURAL HISTORY
On July 28, 2008, Petitioner signed a “waiver of trial by jury and request for acceptance of

plea of guilty” for five counts of especially aggravated kidnapping, three counts of aggravated
rape, and two counts of burglary [State Court Record Attachment 3, Exhibit 2 to transcript of
hearing on petition for post-conviction relief]. Petitioner did not appeal the resulting convictions,
but did file a petition for post-conviction relief, which the post-conviction court denied [State Court
Record p. 105–110]. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed this denial.
Nolan v. State, No. E2012-0429-CCA-R3-PC, 2013 WL 335333, at *8 (Tenn. Crim. App. June 28,
2013), perm. app. denied (Tenn. Feb. 12, 2014).

II.

BACKGROUND

The following factual background is taken from the TCCA’s opinion on Petitioner’s appeal
of the denial of his petition for post-conviction relief:
At the July 28, 2008, guilty plea hearing, the State explained to the
trial court the factual basis for the pleas. The State said that shortly
after 1:00 a.m. on June 3, 2007, the petitioner and his two
codefendants, Shavon Page and Michael McMahan, entered the
Knox County residence of the victims, W.P. and T.P., by forcing
open the rear, basement door of the residence. All three defendants,
armed with handguns, went into the victims’ bedroom where they
were sleeping. As the victims began to awaken, one of the
defendants “pistol whipped” W.P. At gunpoint, the defendants
made T.P. remove her clothing and ordered both victims to lie down
on the floor. The defendants bound the victims with belts and other
items from the victims’ bedroom. The defendants took the jewelry
that was in the bedroom, removed T.P.’s wedding ring from her
finger, and demanded to know where the victims kept their money.
W.P. revealed that his credit cards were in his downstairs office.
After two defendants took W.P. downstairs, he gave them the cards
and the pin number for one of the cards. The two defendants put
W.P.’s collection of state quarters, which had an approximate value
of $3,000, in one of W.P.’s camera bags and took the bag with them.
While the two defendants and W.P. were downstairs, the defendant
with T.P. forced her at gunpoint to perform fellatio on him. When
the two defendants and W.P. returned to the bedroom, the
defendants made W.P. lie on the floor and watch as they forced T.P.
to perform fellatio on all three defendants. The petitioner’s codefendants also attempted to vaginally rape T.P. T.P. became
nauseous after the rapes, and the defendants threatened to shoot her
if she vomited. The defendants took T.P. downstairs at gunpoint
and made her turn off the power to the residence’s surveillance
camera. During the incident, the defendants repeatedly threatened
that if the victims “move[d] or talk[ed], . . . [the defendants] would
blow [the victims’] heads off.”
Shortly before 4:00 a.m., the defendants left the residence by a patio
door and got into an awaiting car. At 4:04 a.m., a security camera
at the SunTrust Bank on Cedar Bluff Road recorded the petitioner
in a car with at least two other individuals, using the victim’s ATM
card to withdraw $500 in cash.

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Greg Faulkner of the Knox County Sheriff’s Office later spoke with
the petitioner, and the petitioner revealed the names of his codefendants, Page and McMahan. Police searched the car the
petitioner was driving and found the victims’ jewelry in the glove
compartment. On June 5, 2007, McMahan’s mother, Tracie Bennet,
went to Charlie’s Pawn Shop on Kingston Pike, where she pawned
a diamond heart-shaped pendant that belonged to T.P. DNA testing
of samples from the defendants were compared with swabs taken
from the victim during a rape kit, revealing sperm from Page and
McMahan.
The petitioner entered guilty pleas to five counts of especially
aggravated kidnapping and three counts of aggravated rape, Class A
felonies, and for each conviction received a twenty-five-year
sentence to be served at one hundred percent. The petitioner also
pled guilty to two counts of aggravated robbery, a Class B felony,
and was sentenced as a Range I, standard offender to twelve years,
with release eligibility after serving thirty percent of the sentence in
confinement. Finally, the petitioner pled guilty to one count of
aggravated burglary, a Class C felony, and received a six-year
sentence as a Range I, standard offender, with release eligibility
after serving thirty percent of the sentence. The trial court ordered
the sentences to be served concurrently, for a total effective sentence
of twenty-five years at one hundred percent.
On June 4, 2009, the petitioner, acting pro se, filed a petition for
post-conviction relief, and amended the petition on June 26, 2009.
Thereafter, counsel was appointed, and four additional amended
petitions were filed. On January 27, 2012, the post-conviction court
held an evidentiary hearing on the petitions.
Before the petitioner testified at the hearing, post-conviction counsel
asked that trial counsel be excluded from the courtroom during the
petitioner’s testimony based upon Tennessee Rule of Evidence 615,
which governs the sequestration of witnesses. The State responded,
“No, I’m asking him to stay. I think he’s—he’s the State’s
designated witness under the rule. He’s the complained on lawyer, I
think he’s entitled to hear what the complaints are and respond to
them.” The post-conviction court overruled the petitioner’s motion.
The twenty-two-year-old petitioner testified that he was seventeen
years old when he was arrested. He said that he was never informed
that he would be transferred from juvenile court to criminal court.
He said that he did not want a preliminary hearing or transfer hearing
in juvenile court because his main goal was to be released on bond.

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The petitioner said that he met with trial counsel “[a] few times, a
couple of times, maybe a handful or less than a handful of times”
and that they discussed the facts of the case. During a meeting at
the county jail on June 26, 2008, trial counsel advised the petitioner
of a plea offer that would require him to serve twenty-five years in
confinement. Counsel said that “due to some law or something,” the
petitioner would have to serve only seventeen years. The petitioner
agreed to accept the plea. The petitioner asserted that trial counsel
never advised the petitioner that he would be subject to community
supervision for life or that he would be placed on the sexual offender
registry.
The petitioner said that his guilty plea hearing took place on June
28, 2008, and that he signed the written plea agreement the same
day. The written plea agreement did not include the provision that
the petitioner was subject to community supervision for life or that
he would be placed on the sexual offender registry.
The petitioner asserted that he would not have pled guilty had he
known of the lifetime community supervision requirement. He had
believed that after completing his term of incarceration, he “would
be done with this case.” The petitioner said that after his guilty
pleas, he sent trial counsel a letter saying that he was not guilty of
any of the charges and that he wanted to withdraw his guilty pleas.
On cross-examination, the petitioner acknowledged that he had been
in juvenile court on two prior occasions. He said that he did not
understand juvenile proceedings because “[n]o lawyer I ever had
ever explained anything about none of my cases.”
The petitioner said that after his arrest, he told the police of his
involvement in the crime. He acknowledged that he knew the police
had photographs of him using the victims’ ATM card. Trial counsel
told him that his co-defendants were not being offered a plea
agreement and that as a condition of his pleas, he would be required
to testify against them. Trial counsel said that the petitioner would
receive a twenty-five-year sentence, of which he would serve
seventeen years. The petitioner said that after he served seventeen
years, he expected to “walk out of prison and not have to worry
about anything else.”
The petitioner stated that he met with trial counsel less than five
times and that on one or two occasions, trial counsel brought an
investigator to the meetings. Trial counsel never discussed whether
the State’s case against the petitioner was strong or weak. The
petitioner maintained that counsel never mentioned that he would be
subject to community supervision for life, asserting that the
requirement “would have been a deal breaker.” He learned of the
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requirement “sometime in 2009” when, after arriving at the
Tennessee Department of Correction, he looked at his judgments of
conviction and saw a notation in the “special conditions” section that
explained he was subject to lifetime community supervision
following service of his sentences.
The petitioner acknowledged that he was not under the influence of
drugs or alcohol at the guilty plea hearing and that he told the trial
court he understood the proceedings and had no questions. The
petitioner said that although he was innocent of the crimes, he
followed trial counsel’s advice and “just answer[ed] yes to the
judge’s questions.”
Post-conviction counsel introduced as exhibits the original July 28,
2008 aggravated rape judgments of conviction and the October 16,
2008 corrected judgments of conviction. The original judgments of
conviction did not provide for lifetime community supervision;
however, the corrected judgments reflect that the petitioner was
subject to community supervision for life.
Trial counsel testified that after he was appointed to represent the
petitioner, he hired a private investigator and began investigating the
case. Counsel spoke with the petitioner and with members of the
petitioner’s family. Trial counsel believed he understood the facts
of the case and was prepared for trial. Nevertheless, based upon
information from the petitioner, counsel thought, given the
petitioner’s youth and the strength of the State’s proof against him,
it was in the petitioner’s best interest to negotiate a plea agreement.
Counsel thought they did not “have a very winnable strategy.”
Trial counsel told the petitioner that the charges he faced were based
upon his own acts and his criminal responsibility for the acts of his
co-defendants. The petitioner did not “like that concept [of criminal
responsibility,] but he seemed to understand it very clearly.” Trial
counsel told the petitioner that he might be able to earn up to fifteen
percent reduction credits on his sentence but that the credits “would
be determined by the prison not by the judge.”
Trial counsel said that he had lengthy discussions with the petitioner
regarding the community supervision for life required upon his plea
to aggravated rape. The private investigator was present during one
of the discussions. Counsel explained:
I had been involved with another lawyer in town on
several of these cases when the—when the Marcus
Ward case was being argued before the ruling and
that—the idea of letting the defendants know that this
is going to happen to them is something that a whole
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bunch of us, myself included, really started
hammering a couple of years before this even
happened with [the petitioner] because we all kind of
saw that this was—this could happen.
Trial counsel said that the petitioner was very young and faced
multiple charges that, if he were convicted, could result in a lengthy
sentence. The petitioner’s main concern was how quickly he could
be released from custody. Trial counsel advised the petitioner that
after completing the twenty-five-year sentence associated with the
plea agreement, he would be young enough to do things he wanted,
such as traveling. Trial counsel said he told the petitioner, “You’re
going to serve your time and be done and then you’re going to have
to go see these people. And then if you move to a different state,
you got to go talk to them, but it’s not too bad. It’s only a couple
times a year that you go talk to th[ese] people.”
Trial counsel said that due to an issue with the media, there was a
“break” during the petitioner’s guilty plea hearing. The petitioner
was “annoyed” by the media coverage because he did not want to
be known as “a snitch.” Trial counsel thought that he and the
petitioner discussed the community supervision for life requirement
again during the break.
On cross-examination, trial counsel said that he could not recall
whether he had seen the petitioner’s corrected aggravated rape
judgments. During his representation of the petitioner, he advised
the petitioner of his rights. Counsel stated that he had liked the
petitioner and had felt sorry for him. He did not think the trial court
had improperly advised the petitioner during the guilty plea hearing,
and counsel would have informed the petitioner if the court had
provided misinformation. Counsel noted that he did not “correct”
the trial court about the need to inform the petitioner about the
supervision requirement because “[t]he Ward case hadn’t come out
and I had reviewed the lifetime community supervision with [the
petitioner] already in the plea discussions.” Counsel denied ever
receiving a letter from the petitioner stating that he wanted to
withdraw his guilty pleas.
At the conclusion of the post-conviction hearing, the postconviction court said:
The Court has some trouble with—when you think
about it that is a fairly incredible notion that a man
who was so concerned that he might get a much
larger sentence, apparently, he had exposure
upwards toward 75 years. And in order to avoid that
kind of exposure, he would agree to a sentence to
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serve in prison 25 years at 100 percent but he would
not have done it if he’d known he had to check in
with somebody and let the State know about his
whereabouts when he got out of prison. That that
would just be a super imposition but 25 years in
prison he could live with. There is something fairly
odd about that line of thinking.
The post-conviction court accredited trial counsel’s testimony that
he advised the petitioner of the lifetime community supervision
requirement. The court found that trial counsel thoroughly
investigated the case, met with the petitioner several times, and
advised the petitioner of the possible consequences of trial and of
pleading guilty. The court said that even if the trial court failed to
specifically warn the petitioner during the guilty plea hearing about
the lifetime community supervision requirement, the petitioner had
been advised of the requirement by counsel. Therefore, “it is classic
harmless error.” The post-conviction court concluded that counsel
was not ineffective and that the petitioner’s guilty pleas were
knowingly and voluntarily entered. On appeal, the petitioner
challenges this ruling. He also challenges the post-conviction
court’s denial of his motion to remove counsel from the courtroom
during the petitioner’s testimony.
Nolan v. State, 2013 WL at *1–5 (footnotes omitted).

III.

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 Ҥ 2254(d), as amended by AEDPA, is a purposefully demanding
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standard . . . ‘because it was meant to be’”) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)). Further, findings of fact supported by the record are entitled to a presumption of
correctness which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

IV.

ANALYSIS
Petitioner sets forth the following interrelated claims for relief under § 2254:
1. Whether his guilty plea was knowing and voluntary where the trial court failed to
advise Petitioner of a direct punitive consequence thereof, namely lifetime supervision;
2. Whether “lifetime supervision” is a direct punitive consequence and failure to advise
thereof invalidates a guilty plea; and
3. Whether trial counsel provided ineffective assistance of counsel by failing to advise
Petitioner of the full consequences of pleading guilty, specifically lifetime supervision.

[Doc. 1 p. 4–10]. Although Petitioner lists these claims separately, they all involve the issue of
whether Petitioner was informed that he would be subjected to lifetime supervision as a result of
his guilty plea and the determination of whether Petitioner’s guilty plea was therefore knowing
and voluntary. As such, the claims are interrelated under the applicable law and the Court will
address them together for purposes of judicial efficiency.
The record reflects that the state court held as follows on these claims:
Underlying the petitioner’s assertion that his trial counsel was
ineffective and that his pleas were not knowingly and voluntarily
entered is his complaint that trial counsel failed to advise him that
he would be subject to community supervision for life after pleading
guilty to aggravated rape. See Tenn. Code Ann. § 39–13–524(a). In
support of his claims, the petitioner cites State v. Ward, 315 S.W.3d
461, 464 (Tenn. 2010), in which our supreme court examined the
effect of a trial court’s failure to advise a defendant during a guilty
plea hearing of the consequences of being subject to community
supervision for life. The court reiterated that for a guilty plea to be
entered knowingly and voluntarily, a defendant must be aware of the
“direct consequences” of the guilty plea and that “[t]he most obvious
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direct consequence of a conviction is the penalty to be imposed. It
is, therefore, well-recognized that the defendant must be apprised of
the sentence that he will be forced to serve as the result of his guilty
plea and conviction.” Id. at 474 (citation, internal quotations, and
emphasis omitted). The court held that “the mandatory lifetime
supervision requirement is an additional part of a defendant’s
sentence [; therefore,] the trial court is constitutionally required to
inform the defendant of the supervision requirement as part of the
plea colloquy.” Ward, 315 S.W.3d at 474.
Our review of the transcript of the guilty plea hearing reveals that
the trial court did not advise the petitioner that he would be subject
to a lifetime of community supervision as a result of his guilty pleas
to aggravated rape. Therefore, the trial court failed to advise the
petitioner of the consequences of his guilty pleas. However, we note
that this court has previously addressed this issue and concluded that
“the holding in Ward is not to be applied retroactively in collateral
proceedings such as petitions for post-conviction relief.” State v.
Joshua Jermaine Whitehead, No. E2012–00312–CCA–R3–CD,
2012 WL 4551345, at *5 (Tenn. Crim. App. at Knoxville, Oct. 3,
2012) (citing Derrick Brandon Bush v. State, No. M2011–02133–
CCA–R3–PC, 2012 WL 2308280, at * 10 (Tenn. Crim. App. at
Nashville, June 15, 2012), perm. to appeal granted, (Tenn. Oct. 17,
2012)). The petitioner pled guilty on July 28, 2008; our supreme
court’s Ward decision was not filed until July 7, 2010.
Thus, Ward was not applicable at the time the petitioner entered his
guilty pleas.
In any event, regarding the appellant’s claim of ineffective
assistance of counsel, the post-conviction court specifically
accredited trial counsel’s testimony that he was aware the Ward case
was pending and that he repeatedly and thoroughly advised the
petitioner that because of his aggravated rape convictions, he would
be subject to community supervision for life.
Nothing
preponderates against the trial court’s finding. Thus, the petitioner
has failed to show that counsel rendered deficient performance.
As to whether the trial court’s failure to advise the petitioner about
the consequences of his guilty pleas rendered the pleas unknowing
and involuntary, our supreme court stated in Ward that such error is
subject to harmless error review. 315 S.W.3d at 476. To save the
conviction, the State must “prove[ ] that the error was harmless
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beyond a reasonable doubt.” Id. “If it can be shown that the
defendant already knew what he was not advised, . . . the harmless
nature of the error is classic.’” Id. (quoting State v. Neal, 810
S.W.2d 131, 139 (Tenn.1991)). Again, the trial court explicitly
accredited trial counsel’s testimony that he advised the petitioner of
the requirement of community supervision for life, and the evidence
does not preponderate against this finding. Therefore, the State has
established that the trial court’s error was harmless beyond a
reasonable doubt.
Nolan v. State, 2013 WL at *7–8.
The record supports the above holdings. Specifically, the record establishes that the trial
court did not inform Petitioner that lifetime supervision would be a consequence of his guilty plea
at his sentencing [State Court Record, Attachment One p. 31–58], that neither Petitioner’s guilty
plea nor the original judgment1 entered against him stated that Petitioner would be subjected to
lifetime supervision [Id. at 88; State Court Record Attachment 3 Exhibit 2 to transcript of postconviction hearing], and that Petitioner testified at the post-conviction hearing that counsel did not
inform him of this consequence of his guilty plea [State Court Record, Attachment Two p. 34].
The record further reflects, however, that Petitioner’s counsel also testified at the post-conviction
hearing and stated therein that he informed Petitioner that lifetime supervision would be a
consequence of the guilty plea, that an investigator was present when counsel advised Petitioner
of this consequence, and that the investigator’s notes from that meeting supported counsel’s
recollection [Id. at 82–85]. The record also demonstrates that the post-conviction court credited
Petitioner’s counsel’s testimony over Petitioner’s testimony regarding the issue of whether counsel
informed Petitioner of the lifetime supervision consequence of the guilty plea and therefore found

1

A corrected judgment against Petitioner did note that Petitioner was sentenced to
community supervision for life after expiration of his sentence [State Court Record p. 89].
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that Petitioner was not entitled to relief on this claim for ineffective assistance [State Court Record,
Attachment One p. 105–09].
Habeas courts generally defer to trial court credibility findings, as the trial court is in the
best position to determine witness credibility. Miller-El v. Cockrell, 537 U.S. 322, 339 (2003);
see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (holding that § 2254 does not give
habeas courts “license to redetermine credibility of witnesses whose demeanor has been observed
by the state trial court, but not by them”). Even where reasonable minds could disagree about the
credibility of a witness, that reasonable disagreement is not sufficient to allow the habeas court to
override the trial court’s determination as to credibility. Rice v. Collins, 546 U.S. 333, 341–42
(2006). A habeas court may, however, overturn a trial court’s credibility determination where the
evidence is so powerful that the only possible conclusion is that the trial court was incorrect.
Miller-El v. Dretke, 454 U.S. 231, 265 (2005).
As the record supports the trial court’s finding that Petitioner’s counsel informed Petitioner
that he would be subject to lifetime supervision as a consequence of his guilty plea and that counsel
therefore was not deficient with regard to this issue, Petitioner is not entitled to relief based on this
claim for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687–88
(1984).
Accordingly, although the record establishes that the judge accepting Petitioner’s guilty
plea did not inform Petitioner of the lifetime supervision consequence when accepting Petitioner’s
guilty plea, the record also demonstrates that Petitioner was aware of this consequence. As such,
any error by the court in not informing Petitioner of the lifetime supervision consequence of his
guilty plea did not affect Petitioner’s substantive rights and was harmless. United States v.
Smagola, 390 F. App’x 438, 442–43 (6th Cir. 2010) (holding that a failure to inform a defendant

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that he will be subjected to supervised release affects a defendant’s substantial rights where
nothing in the record suggests that the defendant knew his sentence would include supervised
release); Ward v. State, 315 S.W.3d 461, 476–477 (Tenn. 2010) (holding that where a trial court
fails to inform a defendant of a direct consequence of his guilty plea, but the record shows that the
defendant already knew of the consequence, it is “classic” harmless error).
Thus, even if the Court assumes that lifetime supervision was a direct punitive consequence
to Petitioner’s guilty plea, Petitioner is not entitled to relief.
Accordingly, Petitioner has not established that the state courts’ denial of Petitioner’s
claims regarding the trial court and/or counsel’s failure to inform Petitioner of the lifetime
supervision consequence of his guilty plea was contrary to or an unreasonable application of
clearly established federal law, or that this denial was an unreasonable determination of the facts
in light of the evidence presented. As such, Petitioner is not entitled to relief under § 2254.

V.

CONCLUSION
For the reasons set forth above, the Court finds that none of Petitioner’s claims warrant

issuance of a writ. Therefore, Petitioner’s petitions for a writ of habeas corpus [Doc. 1] will be
DENIED and this action will be DISMISSED.

VI.

CERTIFICATE OF APPEALABILITY
The Court must now consider whether to issue a 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). Where the

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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 each of Petitioner’s claims, the Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right as to any claims. Specifically, Petitioner
has not shown that counsel was deficient or that any error affected his substantial rights.
Accordingly, a COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:

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UNITED STATES DISTRICT JUDGE
A S S
C
UNITED STATES DISTRICT

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