Williams v. Lindamood
Filing
33
MEMORANDUM OPINION: For the reasons set forth herein, the Court finds that none of Petitioner's claims warrant the issuance of a writ of habeas corpus. Accordingly, Petitioner's § 2254 petition [Doc. 2] will be DENIED and this action will be DISMISSED WITH PREJUDICE. Petitioner's motion for leave to supplement the record [Doc. 32] will be DENIED. Because Petitioner has failed to make a substantial showing of the denial of a constitutional right, a COA SHALL NOT ISSUE. See Order for details. Signed by District Judge J Ronnie Greer on 03/28/2019. (Copy of Memorandum Opinion mailed to Antoneo Williams) (CAT)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ANTONEO JONTE WILLIAMS,
Petitioner,
v.
WARDEN CHERRY LINDAMOOD,
Respondent.
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No. 3:16-CV-00062-JRG-DCP
MEMORANDUM OPINION
Presently before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254 [Doc. 2] filed pro se by Petitioner Antoneo Jonte Williams. Respondent has filed an answer
to the petition [Doc. 23] along with the state court record [Doc. 22]. Petitioner has filed a reply to
the answer [Doc. 26] and a motion to supplement the record [Doc. 32].
For the following reasons, Petitioner’s § 2254 petition [Doc. 2] will be DENIED and this
action will be DISMISSED WITH PREJUDICE. Petitioner’s motion to supplement the record
[Doc. 32] also will be DENIED.
I.
PROCEDURAL HISTORY
On January 22, 2013, Petitioner was charged in a five-count presentment in Knox County,
Tennessee, with attempted second degree murder, employing a firearm during a dangerous felony,
and two counts of aggravated assault and reckless endangerment [Doc. 22-1 at 7–9]. Following a
trial, a jury returned a verdict of guilty on all counts [Doc. 22-2 at 36–37]. Following a bifurcated
hearing, the jury also found that Petitioner was a criminal gang member who committed criminal
gang offenses, which resulted in enhanced punishment for the attempted murder and two
aggravated assault convictions [Id. at 37]. Petitioner was sentenced to an effective sentence of
fifty-three years in confinement [Doc. 22-2 at 98–102].
Petitioner appealed his conviction and sentence to the Tennessee Court of Criminal
Appeals (“TCCA”) raising three issues: (1) the trial court erred by denying his motion to suppress
his audio-recorded conversation with a fellow jail inmate in violation of the Sixth Amendment; (2)
the trial court erred by finding sufficient evidence existed to support his convictions; and (3) the
trial court improperly enhanced his sentence by taking into consideration his juvenile criminal
history [Doc. 22-15 at 4].
The TCCA affirmed Petitioner’s conviction and sentence and
Petitioner’s application for permission to appeal was denied by the Tennessee Supreme Court.
State v. Williams, No. E2014–01076–CCA–R3–CD, 2015 WL 5023136 (Tenn. Crim. App. Aug.
25, 2015) perm. app. denied (Tenn. Jan 15, 2016). Petitioner did not seek post-conviction relief
in the state court.
II.
FACTUAL BACKGROUND
The TCCA opinion contains a lengthy recitation of the testimony and evidence adduced at
Petitioner’s trial. Because Petitioner raises a sufficiency of the evidence claim, the Court includes
the TCCA summary in whole as follows:
Michael Mayes of Knox County 911 testified that on June 5, 2012, the 911 center
received calls about a shooting. The State played the audio-recorded calls for the
jury. During the first call, which was recorded at 3:31 p.m., a woman reported that
she was stopped at a stoplight at the intersection of Martin Luther King Avenue and
Chestnut Street when shots “rung out.” She said that she [sic] that she heard “Celos”
and four gunshots, that the shots were directed at three African–American “boys,”
and that the boys ran behind “the old drycleaners.” She said that the gunshots were
coming from the “side of the store” and that “the guy getting shot at he fell but got
up and starting running.” She stated that the boys were “getting ready to shoot back”
but ran away. One of them was wearing a brown shirt, one was wearing a black
shirt, and one was wearing a red shirt. She said a window at a business on Martin
Luther King had been “shot out.” During the second call, which was recorded at
3:34 p.m., a man reported that some “guys” shot out the window of his business
2
and that “they coming through the alley right now, all three of them.” He stated that
“I'm chasing the guys right now” and that “the one with a red shirt” had a gun.
Nineteen-year old Carlos Bennett testified that on June 5, 2012, he was walking on
Martin Luther King Avenue in Knoxville with Barry McRae and Kaleb McClanhan
and heard someone call his nickname, “Celo.” He said he turned around and “heard
some shots go off.” He said that he had been shot previously, that he looked down
at his chest, and that he “took off running.” At first, Mr. Bennett said that he saw
the appellant, who was sitting in a car, shooting at him and that he heard two or
three gunshots. However, he then stated that he did not see the appellant firing the
gun. He said he did not remember telling a police officer that the appellant was the
shooter. The State played an audio-recording of Mr. Bennett's conversation with an
officer. After the State played the recording, Mr. Bennett acknowledged telling the
officer that the appellant shot at him.
On cross-examination, Mr. Bennett testified that he did not see the appellant
shooting and that someone told him the appellant was the shooter. He said that on
the day of the shooting, he was wearing a black shirt and that no one was wearing
a red shirt. He estimated that the car was twenty-five to thirty yards away at the
time of the shooting but acknowledged that it could have been thirty to fifty yards
away. He also acknowledged that he did not want to testify against the appellant
and was doing so under subpoena.
On redirect examination, Mr. Bennett testified that he ran because “I didn't want to
get hit, especially if I ain't got mine on me.” He said that if he had had his gun, “it
would have been two different stories.”
Twenty-one-year-old Mackenzie Coleman testified that in June 2012, she was
dating Rodney Miller and staying with the Miller family. Rodney lived in an
apartment in Morningside Hills in East Knoxville with his mother, who had a black
Nissan Maxima, and his brother, James. She said that she knew the appellant as
“Tone,” that the appellant was Rodney's friend, and that the appellant “would come
there some nights and maybe leave the next day and then come back again.” Ms.
Coleman acknowledged that she was testifying against the appellant under
subpoena.
Ms. Coleman testified that on June 5, 2012, she was supposed to have an interview
at KFC on Western Avenue. She left for the interview driving the black Maxima,
and Rodney, James, and the appellant rode with her. She said that Rodney was
sitting in the front passenger seat, that James was sitting behind Rodney, that the
appellant was sitting behind her, and that “we were just riding around I guess until
the interview.” Ms. Coleman said that as she was driving on Martin Luther King
Avenue, she saw three “boys” walking. One of them was Carlos Bennett, and the
appellant told her to stop the car. She asked why, and the appellant said that “it's
Athens Park.” She stopped the car, the appellant got out, and the appellant started
3
shooting. The appellant fired the gun three times. She stated that she did not know
the appellant was going to shoot at anyone and that she drove to a park. She was
mad and upset after the shooting because she was trying to obtain custody of her
infant son at the time.
Ms. Coleman testified that she, Rodney, James, and the appellant left the park and
returned to the Miller apartment. The police arrived, and she talked with them but
denied knowing anything about the shooting. However, she ultimately told them
that the appellant “started shooting.” On June 18, 2012, the police showed her a
photograph array, and she identified the appellant's photograph.
On cross-examination, Ms. Coleman testified that she looked in her rearview mirror
just before the shooting. She saw the three boys turn around and face the back of
the Maxima. She could see the sides of their faces and that Mr. Bennett was wearing
a white shirt. She acknowledged that after she, Rodney, James, and the appellant
left the park, she drove to her interview at KFC. The three males waited in the car
during her interview.
Officer Joey Whitehead of the Knoxville Police Department (KPD) testified that
on June 5, 2012, he responded to a shooting in East Knoxville. A man had reported
that “his business had been shot” and that he was following the possible suspects
toward Magnolia Avenue. Officer Whitehead made contact with the suspects at the
corner of Magnolia and Olive Street, questioned them, and determined that they
were the victims of the shooting. The police began looking for a dark-colored
Nissan Maxima, and Officer Whitehead's supervisor learned of a possible location
for the car. Officer Whitehead went to the Morningside Apartments, and his
supervisor walked through the apartment complex and found the car's owner.
Officer Whitehead said that he saw the car and that the appellant and Rodney Miller
were inside it. Officer Whitehead spoke with Rodney, Rodney's mother, and
Mackenzie Coleman. He said that the appellant “fled” from the Maxima. Officer
Whitehead's supervisor found a shell casing in plain view in a driver-side door
panel, and Rodney's mother gave the officers permission to search the car.
On cross-examination, Officer Whitehead testified that the appellant did not violate
any law by leaving the Maxima. He acknowledged that the appellant “just walked
away” and that the appellant had every right to do so.
Danielle Wieberg, an evidence technician for the KPD, testified that on June 5,
2012, she received a call about the shooting and arrived at the scene about 4:30
p.m. She photographed a damaged window and collected a small piece of “brass”
that appeared to be “the fragment of the jacket that had peeled off the bullet.” The
fragment was on the ground directly in front of the broken window. She said the
lead from the bullet “was almost completely flattened and sitting inside between
the panes of glass that it had hit.” About 9:00 p.m., Ms. Wieberg was called to an
address where officers thought they had located the car involved in the shooting.
4
When she arrived, officers had collected a .38 Special bullet casing from the car
and an unfired 357 cartridge from an apartment.
On cross-examination, Ms. Wieberg testified that a revolver could fire both a .38
Special cartridge and a 357 cartridge. On redirect examination, she testified that
casings remained inside a revolver but were ejected from semi-automatic firearms.
She did not recover any casings at the scene of the shooting.
Ira Grimes testified that in June 2012, he owned a business on Martin Luther King
Avenue. On the afternoon of June 5, Mr. Grimes was inside his store with four
people. He said that he heard “a loud boom,” that he went outside, and that he saw
three males “running on the side of the building.” Mr. Grimes, thinking that the
males had done “something they shouldn't have,” ran after them. He caught up with
them, called 911, and waited for the police to arrive. He said that a bullet had broken
his window and that the window saved his life because the bullet “could have very
easily hit me, [or] the chair that I was sitting in when I heard the boom.” The State
asked the appellant to stand, and Mr. Grimes said that he did not know the appellant.
On cross-examination, Mr. Grimes testified that he heard only one gunshot. He said
he did not see the shooter and “took it upon myself to think it was the guys that was
on the side of the building.” When the police arrived, they arrested two of the males.
Mr. Grimes said he did not get close enough to see if any of the males was carrying
a gun. The State played an audio-recording of Mr. Grimes talking with a police
officer, and Mr. Grimes acknowledged telling the officer that one of the males had
a gun. He explained to the jury, “I felt like when they made a move, somebody
made a move ... like they might have had a gun and I stopped pursuit right then.”
A couple of days after the shooting, Carlos Bennett came to Mr. Grimes's store and
apologized, telling Mr. Grimes that he “[d]idn't mean to bring no trouble” to
Grimes. Mr. Bennett told Mr. Grimes that he was not the shooter, that he was just
walking down the street at the time of the shooting, and that he did not have any
money to replace the broken window. Mr. Grimes accepted Mr. Bennett's apology.
William Phillips testified that in April 2013, he and the appellant were inmates at
the Knox County Detention Facility. Mr. Phillips said that he had been working
with the KPD on a “cold” case that had nothing to do with the appellant, that he
wore an audio-recorder, and that he turned on the recorder every time he left his
cell. Mr. Phillips stated that on April 29, 2013, the appellant “called [Phillips] over
to his cell” and that the appellant “started talking about his case.” Mr. Phillips said
that he asked the appellant “what he did” and that the appellant told him “what he
had done.” He asked if the appellant had hurt anyone, and the appellant said, “[N]o,
I didn't hit a thing.” Mr. Phillips gave the recording to Detective Jeff Day.
The State played the recording for the jury. On the recording, the appellant said,
“You seem like you know a little bit about the law, man.” Mr. Phillips stated, “I
ain't no damn lawyer.” The appellant asked Mr. Phillips about waiving a
5
preliminary hearing, and Mr. Phillips stated, “I guess it depends on what you're here
for, and I typically don't ask. What's your deal?” The appellant said he was being
held on an attempted murder charge and asked, “You think they will dismiss it?”
Mr. Phillips stated, “That I don't know.... [W]hat have they got on ya?” The
appellant told Mr. Phillips that he shot but missed, that he hit a window, and that
nobody got hurt.
On cross-examination, Mr. Phillips testified that he was not expecting anything
from the State in exchange for his testimony and that “I've been told from my
attorney that there will be nothing offered for this.” He acknowledged that he had
cooperated with the State “on other matters” and that he agreed to plead guilty in
exchange for a sentence of one year in jail and nine years on probation. He said,
though, that he entered the agreement “back last January and all of this took place
after the fact.” He said that he never initiated any questions with the appellant and
that “I followed up with the questions that he asked me.”
Mr. Phillips testified that he had other conversations with the appellant and that he
did not remember any of them being about the appellant's case. He said that at the
beginning of his conversation with the appellant on April 29, the appellant said he
wanted to talk with Mr. Phillips because Mr. Phillips may know something about
the law. Mr. Phillips told the appellant that he was not a lawyer, but the appellant
“continued to ask questions.” Mr. Phillips said he thought the appellant was being
truthful about the facts of the case because “[he] had no reason to lie to me.”
Detective Jeff Day of the KPD testified that he gave Mr. Phillips a recording device
and that he did not know the appellant on April 29, 2013. Mr. Phillips returned the
device to Detective Day, and Detective Day “downloaded” Mr. Phillips's
conversation with the appellant.
Fifteen-year-old James Miller testified for the appellant that he knew the appellant
“from around the way.” On the day of the shooting, James was “riding around”
with Mackenzie Coleman. They saw the appellant and stopped to give him ride.
Ms. Coleman was driving, James was sitting in the rear passenger seat, and the
appellant was sitting behind Ms. Coleman. James's brother, Rodney, was not
present.
James testified that while they were stopped at the intersection of Martin Luther
King and Chestnut, they saw some people “mugging” the car. He said that by
“mugging,” he meant that they were looking at the car “in a mean way.” The
appellant got out of the car and said, “[W]hat's up.” James said that he did not know
if an argument or an altercation was in progress but that the appellant “tensed up.”
James said that he heard gunshots but that the shots did not sound like they came
from the appellant because “if it was close to me, you know, I would have had
sound effects in my ear going off.”
6
On cross-examination, James testified that the shooting occurred after Coleman's
job interview and that one of the three people he saw on Martin Luther King was
Carlos Bennett. James said he was worried that one of them was going to shoot at
the car because “where I'm from if you're mugging, that means you are fixing to do
something.” The appellant told Ms. Coleman to stop the car, and James heard the
appellant say “Celos.” James said that he thought Celos was the appellant's
“homey” and that “[n]ext thing I know I hear shots.” James heard four gunshots
and ducked down. He said he did not hear the appellant say, “Athens Park.”
James testified that after the shooting, Ms. Coleman drove to the apartment in
Morningside Hills. They told Rodney Miller what had happened and went to a park.
Later that day, James gave a statement to the police in which he said that he, the
appellant, and Ms. Coleman left the apartment together before the shooting, not that
he and Ms. Coleman picked up the appellant. He also told the police that the
appellant “said Celos and then went boom, boom, boom.” He acknowledged that
his statement to the police differed from his testimony but said that he was scared
when he talked to the police. He also acknowledged that the day before trial, he told
the assistant district attorney general that he was asleep in the car and was awakened
by gunshots. He said he lied to her because “I didn't want to tell you nothing in
order to keep it real. I just didn't want to tell you nothing.” He said he did not know
the identity of the shooter “[b]ecause it happened so fast.”
Rodney Miller testified under subpoena that at the time of the shooting, he was at
home in Morningside Hills. He said that on the evening of June 5, 2012, he told the
police that he was not in the car at the time of the shooting. However, the police
started “confusing” him, so he “just kind of got scared and lied” and said he was
present. He said he learned about the shooting when “everybody got home ... they
let me know what happened.” He acknowledged that on the evening of June 5, a
police officer saw him and the appellant in the Maxima at the apartment complex.
However, he maintained that he was not in the car when the shooting occurred.
On cross-examination, Rodney testified that at the time of the shooting, he had
known the appellant about one month. He acknowledged telling the police that the
appellant was the shooter and that his account sounded like he witnessed the
shooting. He said he had learned about the shooting from the appellant. According
to the appellant, the car stopped; the appellant said, “Celos”; Celos put his hands
up; and the shooting started. The State asked if the appellant began shooting at
Celos, and Rodney answered, “I guess both of them from what I was told.”
The twenty-year-old appellant testified that he was in the Maxima on June 5, 2012,
but that he did not shoot at Bennett. The appellant said that on that day, he, Rodney
Miller, and James Miller rode with Mackenzie Coleman to her interview at KFC.
When they left KFC, Ms. Coleman was driving the Maxima, the appellant was
sitting behind her, Rodney was sitting in the front passenger seat, and James was
sitting behind Rodney. Ms. Coleman turned onto Martin Luther King, and they saw
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three males, one of whom was Mr. Bennett. Rodney told Ms. Coleman to stop,
Rodney got out of the car, and Rodney shot at Mr. Bennett. Rodney then got back
into the car, and Ms. Coleman drove to the Morningside Apartments. When they
arrived, Rodney's mother came outside and told Rodney that the police wanted to
speak with him. The appellant left because he had a warrant for a probation
violation. At some point, a detective interviewed the appellant. The appellant told
the detective that he did not know Rodney or anything about the shooting.
The appellant testified that after his arrest in this case, he asked William Phillips
for legal advice and that Mr. Phillips questioned him about his case. The appellant
said that he had several conversations with Mr. Phillips, that he told Mr. Phillips
“different stories every time,” and that he told Mr. Phillips “anything” because
other inmates were “trying to size [him] up.”
On cross-examination, the appellant testified that in May 2012, he was living
“everywhere” because his grandmother had evicted him from her home. The
appellant met Rodney and stayed at the Miller apartment when Rodney's mother
was at work. While the appellant was there, he saw one or two guns, and one of
them was a revolver that he thought Rodney used during the shooting. The appellant
said that at the time of the shooting, he had not seen Mr. Bennett since 2007. He
said that he “ran with” the Athens Park Bloods and that he “had no clue” Mr.
Bennett was a member of the Crips gang. The appellant acknowledged that he had
“CK” tattooed on his face and that “CK” stood for “crip killer.” He said, though,
that he got the tattoo “a long time ago” and that “just because I got that on my face
doesn't mean that I hate crips, no, that's not what it mean, not at all.” He
acknowledged that as a general rule, Bloods did not like Crips. However, he stated
that he did not hate Crips and that “I run with a number of crips. I just didn't hang
around them every day.” He denied having a gun on June 5, 2012, but said Rodney
had one. The appellant said Rodney was a member of the Bloods, not the Athens
Park Bloods.
The appellant acknowledged that he initiated the April 29 conversation with Mr.
Phillips and that he told Mr. Phillips that he shot at Mr. Bennett but missed and hit
a window. He said that he had thought Rodney was his friend and that he had
planned to take the “rap” for Rodney but changed his mind. The appellant
acknowledged having a prior conviction for criminal impersonation, receiving
“write-ups” in jail, and pleading guilty to the “write-ups.”
Williams, 2015 WL 5023136, *1–6.
In light of the evidence, the jury convicted Petitioner of the attempted second degree
murder of Carlos Bennett, the aggravated assaults of Barry McRae and Kaleb McClanhan,
8
employing a firearm during the commission of a dangerous felony, and reckless endangerment.
Id. at *6.
III.
STANDARD OF REVIEW
A state prisoner is entitled to habeas corpus relief “only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, which amended § 2254, sets
forth “an independent, high standard to be met before a federal court may issue a writ of habeas
corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10 (2007). By this standard,
when a state court adjudicates a claim on the merits, habeas relief is available only if the
adjudication of that claim “(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).
A state court decision is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if
the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court's ruling is an
“unreasonable application of” clearly established federal law if the state court identifies the correct
governing legal principle from Supreme Court precedent but unreasonably applies it to the facts
of the particular state prisoner's 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.
9
Under the AEDPA, a habeas petitioner must “‘show that the state court's ruling on the
claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)). This standard is “difficult to meet,” “highly deferential,” and “demands
that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (quoting Harrington, 562 U.S. at 102; Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
IV.
ANALYSIS
Petitioner’s § 2254 petition raises three grounds for habeas relief: (1) the trial court erred
in denying his motion to suppress his audio-recorded conversation with a fellow jail inmate which
was made without counsel present in violation of the Sixth Amendment; (2) the evidence is
insufficient to support his convictions of attempted second degree murder and aggravated assault;
and (3) the trial court erred in enhancing his sentence based upon his juvenile criminal history
[Doc. 2].
Respondent argues that relief is not appropriate on Petitioner’s first two claims because the
adjudication of those claims on the merits in state court did not result in a decision that was contrary
to, or an unreasonable application of, clearly established Federal law, or that was based on an
unreasonable determination of the facts in light of the evidence presented [Doc. 23]. Respondent
further asserts that claim three has been procedurally defaulted because it was not fairly or
adequately presented to the highest available state court as a federal constitutional claim and is
now barred from presentation to the state courts [Id.]
A.
SIXTH AMENDMENT CLAIM
10
Petitioner’s first claim alleges that the trial court erred in denying his motion to suppress
his audio-recorded conversation with William Phillips, a fellow jail inmate at the Knox County
Detention Facility [Doc. 2 at 5]. Specifically, he contends that Phillips was an informant acting as
a government agent and that Phillips deliberately elicited incriminating information from him,
violating his Sixth Amendment right to counsel. [Doc. 3 at 30–45].
Petitioner raised this claim on direct appeal and the TCCA adjudicated the claim on the
merits, finding that the trial court properly denied the motion to suppress because Phillips was not
acting as a government agent. Williams, 2015 WL 5023136, at *7-10. Respondent contends that
the decision of the TCCA is entitled to deference under § 2254(d).
1.
Factual Background
Prior to trial, Petitioner filed a motion to suppress the statements he made to Phillips [Doc.
22-1 at 113-116]. The trial court held a hearing on the motion, the relevant portions of which were
summarized by the TCCA as follows:
Detective Day testified that a couple of weeks before April 29, 2013, Mr. Phillips,
who was an inmate in the Knox County Detention Facility, contacted the KPD
“about a person in the detention facility that was talking about a homicide case, an
apparent unsolved homicide.” Detective Day, who primarily worked on unsolved
cases, met with Mr. Phillips to talk about the case, which did not have anything to
do with the appellant. Mr. Phillips agreed to keep a recording device with him and
record some conversations with “the target.” Detective Day instructed Mr. Phillips
not to talk with the target about the target's pending charge. However, Mr. Phillips
could talk with the target about anything else. Mr. Phillips would turn on the
recorder before he left his cell and turn it off when he returned to his cell. Every
couple of days, Detective Day would meet with Mr. Phillips to “see how [things]
were going.” Detective Day said that “when we finished our dealings, I got the
device and downloaded the recordings off the recorder onto a disk.”
Detective Day testified that Mr. Phillips told him that while Mr. Phillips was on his
way to talk with the target, “another gentleman had talked to him about another
case.” Mr. Phillips did not know the inmate's name, just his cell number, and
Detective Day used the number to learn the name of the inmate, who was the
11
appellant. Detective Day contacted the investigator for the appellant's case and
made a copy of the conversation for the investigator.
The State played the recording for the trial court. On the recording, Mr. Phillips can
be heard walking through the jail, and then the following exchange occurs:
The appellant (calling out): You seem like you know a little bit about the law, man.
Alright, listen.
Phillips (chuckling): I ain't no damn lawyer.
The appellant: I know you ain't no lawyer. I'm not going to ask you nothing like
what about this, what about that.
Phillips: Ok.
The appellant: If my lawyer didn't tell me something, like whose fault is that[?]
Phillips: What did she not tell you?
The appellant: She been telling me that I couldn't have one. And I went to the library
and I seen that I could have one.
Phillips: Have one of what, son?
The appellant: A preliminary hearing.
Phillips: Oh, okay.
The appellant: I went to the library and I seen it[.] [I]n the library the paper say that
if they didn't give me one and I didn't waive it it should get dismissed because they
denied me one.
Phillips: Well, I guess it depends on what you're here for, and I typically don't ask.
What's your deal?
The appellant: I got an attempt.
Phillips: Attempted murder charge?
The appellant: Yep. I got a presentment. I don't got a warrant. I got a presentment....
My lawyer been telling me I couldn't have [a preliminary hearing.]
Phillips: Well, take it up with her when she calls you.
....
12
The appellant: You think they will dismiss it?
Phillips: That I don't know. You know, hell, what have they got on ya?
The appellant: Just he say she say.... Just somebody saying I shot at him. And I
don't even see how that's attempted murder because didn't nobody get hurt. Didn't
nobody get hurt at all, bro.
Phillips: You just shot at him? That's it?
The appellant: That's it. I missed. I didn't hit shit but a window. And ... the person
whose window that I hit ... he don't even know who did it....
Phillips: So nobody got hurt?
The appellant: Nobody got hurt at all, bro.
On cross-examination, Detective Day acknowledged that he gave Mr. Phillips the
recording device in order for Mr. Phillips to record a specific individual. The target
individual was in jail for a rape charge, and Detective Day told Mr. Phillips that he
could not talk with the target about the rape. Detective Day told Mr. Phillips,
though, that he could talk with the target about anything else.
Captain Terry Wilshire of the Knox County Sheriff's Office testified that he was a
facility commander for the Knox County Detention Facility and reviewed records
related to the appellant and Mr. Phillips. On April 29, 2013, Mr. Phillips was not a
trustee in the detention facility. Captain Wilshire did not find any record of
disciplinary actions related to Mr. Phillips or the appellant. However, he found a
September 14, 2013, incident report involving the two men.
Williams, 2015 WL 5023136, at *7–8.
At the conclusion of the testimony, the State argued that the trial court should deny the
motion to suppress because Phillips was not targeting Petitioner, Petitioner was “the one who
engaged Phillips about his case,” and the State came to possess Petitioner’s confession “by
happenstance or luck.” Id., at *8. The TCCA summarized the trial court’s finding as follows:
The trial court stated that Mr. Phillips “did start pumping the defendant for
information” and that Mr. Phillips “apparently saw an opportunity to maybe pick
up some information from this fellow that might help him in the eyes of the police.”
However, the court ruled that Mr. Phillips was a state agent only with respect to the
target individual, stating that “there was no instruction by the police to do anything
13
with Mr. Williams. It was not police action that caused the conversation between
Bill Phillips and Mr. Williams. Mr. Williams initiated the conversation.” The trial
court concluded that Mr. Phillips “was [not] doing anything manipulating anyone
in any manner to try to get information from Mr. Williams in violation of his right
to counsel” and denied the appellant's motion to suppress.
Id., at *9.
2.
Applicable Law
In Massiah v. United States, 377 U.S. 201 (1964), the United States Supreme Court held
that a criminal defendant is denied the Sixth Amendment right to counsel where the prosecution
“use[s] against him at his trial evidence of his own incriminating words, which federal agents . . .
deliberately elicited from him after he had been indicted and in the absence of his counsel.” Id. at
206. Thus, the Sixth Amendment guarantees the accused, after the initiation of formal charges,
the right to rely on counsel as a medium between himself and the State. Maine v. Moulton, 474
U.S. 159, 176 (1985).
The Sixth Amendment right to counsel not only applies to direct
confrontations by known government officers but also to “‘indirect and surreptitious
interrogations’” by covert government agents and informants. United States v. Henry, 447 U.S.
264, 269, 274 (1980). (quoting Massiah, 377 U.S. at 206)).
“[O]nce a defendant's Sixth Amendment right to counsel has attached, he is denied that
right when federal agents ‘deliberately elicit’ incriminating statements from him in the absence of
a lawyer.” Kuhlmann v. Wilson, 477 U.S. 436, 457 (1986). In Kuhlmann, the Supreme Court
observed:
Since the Sixth Amendment is not violated whenever—by luck or happenstance—
the State obtains incriminating statements from the accused after the right to
counsel has attached[ ] a defendant does not make out a violation of that right
simply by showing that an informant, either through prior arrangement or
voluntarily, reported his incriminating statements to the police. Rather, the
defendant must demonstrate that the police and their informant took some action,
14
beyond merely listening, that was designed deliberately to elicit incriminating
remarks.
Id. at 459 (internal quotation marks and citations omitted).
The Sixth Circuit has held that absent “direct written or oral instructions by the State to a
jailhouse informant,” agency is determined by analyzing “the facts and circumstances of a
particular case to determine whether there exists an express or implied agreement between the
State and the informant.” Ayers v. Hudson, 623 F.3d 301, 311–12 (6th Cir. 2010); see also United
States v. Mohammed, 501 F. App’x 431, 445–46 (6th Cir. 2012).
2.
Discussion
In light of the AEDPA’s exacting standard, Petitioner’s Sixth Amendment claim must fail.
In addressing Petitioner’s claim, the TCCA identified Massiah and its progeny as the appropriate
standard and applied that standard in a reasonable manner. The TCCA first observed that the Sixth
Circuit has rejected the bright-line rule that an informant becomes a government agent only when
the informant has been instructed to get information from the particular defendant and instead has
held that the determination of whether an individual is a government agent depends on the facts
and circumstances of each case. Williams, 2015 WL 5023136, at *9. The TCCA concluded:
Under the facts and circumstances of this case, we agree with the trial court that
Mr. Phillips was not a government agent. Granted, Mr. Phillips was using a
recording device at the direction of the KPD. However, Detective Day gave the
recording device to Mr. Phillips in order for Mr. Phillips to record a specific
individual, who was not the appellant, with possible information about a cold case.
In fact, Detective Day had never even heard of the appellant when he gave the
device to Mr. Phillips. In short, nothing indicates that Detective Day must have
known that Mr. Phillips was likely to obtain incriminating statements from the
appellant in the absence of counsel. Therefore, the trial court properly denied the
appellant's motion to suppress.
Id., at *10.
15
In light of the foregoing evidence, the Court cannot conclude that the TCCA’s
determination that Phillips was not acting as a government agent was objectively unreasonable.
Phillips was using the recording device at the instruction of Detective Day to record a different
individual. Day was unaware of Petitioner when he gave the recording device to Phillips and
Phillips also did not know Petitioner previously. It was Petitioner who initiated the conversation
with Phillips, and, although Phillips did seem to “start pumping Petitioner for information,” there
is nothing in the record to indicate that Day must have known that Phillips was likely to obtain
information from Petitioner in the absence of counsel. Again, Day was not even aware of
Petitioner until Phillips brought him the information. In short, there is nothing in the record
suggesting that any agreement, either express or implied, existed between Day and Phillips which
would support a finding that Phillips was acting as a government agent to obtain information from
Petitioner in violation of his right to counsel. See Ayers, 623 F.3d at 311–12.
Under the deferential standard of the AEDPA, the Court is satisfied that the decision of the
TCCA finding that Phillips was not acting as a government agent is not an unreasonable
determination of the facts in light of the evidence.
Further, the TCCA’s conclusion that
Petitioner’s Sixth Amendment right to counsel was not violated is neither contrary to, nor an
unreasonable application, of Federal law as established in Massiah and its progeny. Accordingly,
Petitioner’s first habeas claim will be DISMISSED.
B.
SUFFICIENCY OF THE EVIDENCE
Petitioner’s second claim alleges that the evidence presented at trial was insufficient to
support his convictions for attempted second degree murder and aggravated assault. Specifically,
he contends that one of the victim’s admitted he never saw Petitioner, that other witnesses admitted
they lied to the police, and that one witness “had a reason to be bias” [Doc. 2 at 6].
16
Petitioner challenged the sufficiency of the evidence on direct appeal and the TCCA
adjudicated the claim on the merits. Taking the evidence in the light most favorable to the State,
the TCCA concluded that a reasonable jury could have concluded that the evidence was sufficient
to support Petitioner’s convictions of attempted second degree murder and aggravated assault.
Williams, 2015 WL 5023136, at *6-7. Respondent contends that the decision of the TCCA is
entitled to deference under § 2254(d).
1.
Applicable Law
The Due Process Clause of the Fourteenth Amendment protects an accused against
conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. at 364. When a habeas petitioner
challenges his conviction based upon insufficient evidence the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 at 324.
“This standard is even more exacting” under § 2254, as a review of the state court’s merits
determination must be made “through AEDPA's deferential lens.” Hill v. Mitchell, 842 F.3d 910,
933 (6th Cir. 2016). Thus, in giving proper deference both to the verdict and to the state court
opinion upholding that verdict, even if the Court were to “’conclude that a rational trier of fact
could not have found the petitioner guilty beyond a reasonable doubt, on habeas review, [the Court]
must still defer to the state appellate court's sufficiency determination as long as it is not
unreasonable.” Id. at 933–34 (quoting Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)).
2.
Discussion
In light of this exacting standard, Petitioner’s challenge to the sufficiency of the evidence
supporting his convictions must fail. Although the TCCA did not cite to any United States
17
Supreme Court precedent in its analysis, it is clear that it applied the Jackson standard by taking
the evidence in the light most favorable to the state and concluding that a reasonable and rational
jury could have concluded that the State had proved the essential elements of the offenses charged.
Williams, 2015 WL 5023136, at *6-7. Accordingly, the AEDPA’s deferential standard applies to
the Court’s review of the TCCA’s merits adjudication. See Slagle v. Bagley, 457 F.3d 501, 513–
14 (6th Cir. 2006) (“The state-court decision need not refer to relevant Supreme Court cases or
even demonstrate an awareness of them . . . it is sufficient that the result and reasoning are
consistent with Supreme Court precedent”).
Here, the TCCA’s analysis is consistent with the Supreme Court precedent outlined in
Jackson. The TCCA first identified the elements of second degree murder, attempt and aggravated
assault under Tennessee law. Williams, 2015 WL 5023136, *6 (citing Tenn. Code. Ann. §§ 39–
13–210, 39-12-101(a) and 39-13-101(a)(2)—102(a)(1)(A(iii)).
The TCCA then summarized the relevant evidence supporting Petitioner’s conviction of
attempted second degree murder as follows:
Taken in the light most favorable to the State, the evidence shows that on June 5,
2012, the appellant was sitting in the back seat of a car being driving by Mackenzie
Coleman. As the car was traveling on Martin Luther King Avenue, the appellant
saw Mr. Bennett, Mr. McRae, and Mr. McClanhan walking and told Ms. Coleman
to stop. When Ms. Coleman stopped the car, the appellant got out; yelled, “Celos”
and “Athens Park”; and fired three or four shots at Mr. Bennett. Mr. Bennett, having
been shot previously, looked down at his chest to see if he had been hit and ran
away. Mr. McRae and Mr. McClanhan also ran. Although the appellant claims that
the evidence is insufficient to support his attempted murder conviction because Mr.
Bennett was thirty to fifty yards away at the time of the shooting, we note that Mr.
Bennett initially estimated that he was twenty-five to thirty yards from the Maxima.
Regardless of the distance, the evidence shows that the appellant recognized Mr.
Bennett and intentionally shot at him. Therefore, a reasonable jury could have
concluded that the appellant knowingly tried to kill Mr. Bennett.
Id., *6.
18
As to the aggravated assault convictions, after setting forth Tennessee law on establishing
the “fear” element, the TCCA found as follows:
the evidence established that the appellant fired three or four shots at Mr. Bennett
as Mr. Bennett, Mr. McRae, and Mr. McClanhan were walking together. As soon
as the victims heard the gunshots, they ran. Mr. Bennett even testified that he looked
down at his chest to see if he had been shot. Clearly, from these facts, a rational
jury could have inferred that Mr. McRae's and Mr. McClanhan's running away
resulted from their imminent fear of being harmed. Therefore, the evidence is
sufficient to support the convictions.
Id., *7.
In light of the foregoing evidence as outlined by the TCCA, the inferences that Petitioner
was guilty of attempted second degree murder and aggravated assault are reasonable ones, and the
Court must presume that both the jury and the TCCA resolved any reasonable conflicting
inferences in favor of the prosecution. See Copeland v. Tiseo, 645 F. App’x 500, 506 (6th Cir.
2016).
Although Petitioner now questions the credibility of some of the witnesses, under Jackson,
“the assessment of the credibility of witnesses is generally beyond the scope of review.” Schlup
v. Delo, 513 U.S. 298, 330 (1995); see also Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002)
(attacks on witness credibility are simply challenges to the quality of the government's evidence
and not to the sufficiency of the evidence). Moreover, “[t]he trier of fact . . . holds ‘the
responsibility . . . fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’” Tibbs v. Florida, 457 U.S. 31, 45 n. 21
(1982) (quoting Jackson, 443 U.S. at 319)). Thus, it is not for this Court to reweigh the evidence,
re-evaluate the credibility of the witnesses, or substitute its judgment for that of the trier of fact.
See Brown, 567 F.3d at 205.
19
Under the doubly deferential standard of Jackson and the AEDPA, the Court is satisfied
that the evidence presented at Petitioner’s trial was sufficient for a rational trier of fact to find
beyond a reasonable doubt all of the essential elements of the crimes of second degree murder and
aggravated assault, and further that the decision of the TCCA so finding was objectively
reasonable. Accordingly, because the decision of the TCCA that the evidence was sufficient to
support Petitioner’s convictions was neither contrary to, nor an unreasonable application of,
Federal law as established in Jackson, nor based on an unreasonable determination of the facts in
light of the evidence, his second habeas claim will be DISMISSED.
C.
SENTENCING ENHANCEMENT
Petitioner’s third habeas claim is that the trial court erred in enhancing his sentence based
upon his juvenile criminal history [Doc. 2]. He contends that the trial court’s consideration at
sentencing of his juvenile criminal record, which included adjudications for carjacking and
aggravated robbery, [Doc. 22-1 at 30], violated his right to due process under the United States
Constitution [Doc. 2 at 15; Doc. 14 at 1–2]. Respondent contends that Petitioner has procedurally
defaulted any federal constitutional claim relating to the use of juvenile adjudications to enhance
his sentence because his challenge to the enhancement on direct appeal was presented solely under
state law.
1.
Applicable Law
Before a federal court may review a federal claim raised in a habeas petition, it first must
determine whether the petitioner has exhausted the remedies available in state court. See 28 U.S.C.
§ 2254(b)(1). If a federal habeas claim has not been presented to a state court for adjudication,
then it is unexhausted and may not properly serve as the basis of a federal habeas petition. See
Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
20
The exhaustion “requirement is satisfied when the highest court in the state in which the
petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's
claims.” Wilson v. Mitchell, 498 F.3d 491, 498–99 (6th Cir. 2007) (quoting Lott v. Coyle, 261 F.3d
594, 608 (6th Cir. 2001)). Under Tennessee Supreme Court Rule 39, a Tennessee prisoner
exhausts a claim by raising it before the TCCA. See Adams v. Holland, 330 F.3d 398, 402 (6th
Cir. 2003).
A federal court will not review claims that were not entertained by the state court due to
the petitioner's failure (1) to raise those claims in the state courts while state remedies were
available, or (2) to comply with a state procedural rule that prevented the state courts from reaching
the merits of the claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006). A petitioner
who fails to raise a federal claim in the state courts and who is now barred by a state procedural
rule from returning with the claim to those courts has committed a procedural default. See
Coleman v. Thompson, 501 U.S. 722, 732 (1991). A procedural default forecloses federal habeas
review, unless the petitioner can show cause to excuse the failure to comply with the state
procedural rule and actual prejudice resulting from the alleged constitutional violation. Id. at 750.
2.
Discussion
Petitioner’s third claim alleges that the trial court erred in using his juvenile criminal
history to enhance his sentence [Doc. 2 at 8]. Petitioner’s claim is framed as a violation of the
“constitutional interests of minors” and the Due Process Clause of the United States Constitution
[Id.; Doc. 3 at 25; Doc. 14 at 2].
However, Petitioner did not fairly present any federal
constitutional claim to the state court. Although Petitioner argued on direct appeal that the trial
court improperly enhanced his offender classification to a Range II, multiple offender based on his
21
juvenile adjudications under Tennessee Code Annotated § 40-35-106(b)(3)(B), he invoked no
federal constitutional provision nor cited any federal case law in support [Doc. 22-15 at 17–19].
Exhaustion of state remedies “requires that petitioners ‘fairly presen[t]’ federal claims to
the state courts in order to give the State the ‘‘opportunity to pass upon and correct’ alleged
violations of its prisoners' federal rights.’” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting
Picard v. Connor, 404 U.S. 270, 275)). “If state courts are to be given the opportunity to correct
alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the
prisoners are asserting claims under the United States Constitution.” Duncan, 513 at 365–66.
Thus, before seeking a federal writ of habeas corpus, a state prisoner must fairly present his claim
to each appropriate state court by alerting that court to the federal nature of the claim. Baldwin v.
Reese, 541 U.S. 27, 29 (2004).
In this case Petitioner did not cite to any provision of the United States Constitution in his
brief to the TCCA on direct appeal nor cite to a single Supreme Court or federal case in support of
his claim. Cf., Dye v. Hofbauer, 546 U.S. 1, 3–4 (2005) (claim that featured citations to specific
provisions of the Constitution and four federal cases alerted the state court that the claim “was
based, at least in part, on a federal right”); Trimble v. Bobby, 804 F.3d 767, 781 (6th Cir. 2015)
(federal claim clearly presented to state court where claim explicitly invoked three separate federal
constitutional provisions and four Supreme Court cases in support).
Petitioner’s failure to alert the TCCA to any federal constitutional claim arising from the
use of juvenile adjudications to enhance is sentence is confirmed by the TCCA’s decision on direct
review, as the appellate court analyzed and denied Petitioner’s claim solely under Tennessee state
law. Williams, 2015 WL 5023136, at *11–12.
22
Because Petitioner failed to fairly present his challenge to the enhancement of his sentence
based on juvenile adjudications as a federal constitutional claim to the TCCA on direct appeal, he
failed to exhaust that claim, and he now is precluded from returning to state court to pursue it.
Accordingly, his claim is procedurally defaulted. Moreover, Petitioner has asserted no cause for
not raising that issue as a federal constitutional claim on direct appeal, nor has he asserted prejudice
arising from the procedural default of that claim
Finally, Petitioner cannot establish “actual innocence” as an exception to the procedural
default rule. The Supreme Court has held that “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of cause for the procedural default.”
Murray v. Carrier, 477 U.S. 478, 496 (1986). However, “actual innocence” is an extremely narrow
exception, and “claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 321. This
is not an extraordinary case.
Accordingly, Petitioner’s third habeas claim alleging trial court error in enhancing his
sentence based upon his juvenile criminal history will be DISMISSED.
3.
Motion for Leave to Supplement
On March 21, 2019, Petitioner filed a “motion for leave to supplement the record in support
of his § 2254 petition” pursuant to Rule 15(d) of the Federal Rules of Civil Procedure [Doc. 32]. 1
Petitioner wishes to “supplement” his petition with two new theories in support of his third habeas
claim that the trial court erred in using his juvenile history to enhance his conviction. Specifically,
1
Rule 15(d) of the Federal Rule of Civil Procedure authorizes a court to permit a party to
serve a supplemental pleading “setting out any transaction, occurrence or even that happened
after the date of the pleading to be supplemented.”
23
he now argues that the use of his prior adjudications violated the Ex Post Facto clause of the United
States Constitution, and that he was not fairly apprised at the time he pled to the juvenile
adjudications that they might be used against him in the future, in violation of Due Process [Doc.
32 at 2–6].
Although captioned as a motion to “supplement,” Petitioner’s motion more accurately is to
be construed as a motion to amend his § 2255 motion, since it essentially seeks to add two entirely
new claims to his original pleading. See Michael v. Ghee, 498 F.3d 372, 386 (6th Cir. 2007) (a
Rule 15(a) motion for leave to amend, not a Rule 15(d) motion to supplement, is the appropriate
mechanism through which a party may assert additional claims for relief); United States v. Hicks,
283 F.3d 380, 385 (D.C. Cir. 2002) (within the meaning of Rule 15, supplements relate to events
that have transpired since the date of the original pleading, while amendments typically rely on
matters in place prior to the filing of the original pleading).
In any event, the Court finds no basis to permit Petitioner either to amend or supplement his
pleading to add these new theories in support of his third habeas claim because Petitioner did not
raise either of these theories to the state court, and he now is precluded from doing so. Because
any claim based on these new theories would be procedurally barred, and Petitioner has asserted
neither cause nor prejudice, federal habeas review of such a claim is foreclosed. Coleman, 501
U.S. at 750. Since supplementing the record to add these new theories would be futile, Petitioner’s
motion to supplement [Doc. 32] will be DENIED.
V.
CONCLUSION
For the reasons set forth herein, the Court finds that none of Petitioner’s claims warrant the
issuance of a writ of habeas corpus. Accordingly, Petitioner’s § 2254 petition [Doc. 2] awill be
24
DENIED and this action will be DISMISSED WITH PREJUDICE. Petitioner’s motion for
leave to supplement the record [Doc. 32] will be DENIED.
VI.
CERTIFICATE OF APPEALABILITY
Finally, 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)(1), a petitioner may
appeal a final order in a § 2254 case only if he is issued a COA, and a COA will be issued only
where the applicant has made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2).
Where claims have been dismissed on their merits, a petitioner must show reasonable
jurists would find the assessment of the constitutional claims debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A petitioner whose claims have been rejected on a
procedural basis must demonstrate that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Id.; see also Porterfield v. Bell, 258 F.3d 484, 485-86
(6th Cir. 2001).
Here, the Court finds that Petitioner has failed to make a substantial showing of the denial
of a constitutional right as to any of his claims. Specifically, jurists of reason would not debate
the Court’s finding that Petitioner failed to exhaust and procedurally defaulted his third habeas
claim. Nor has Petitioner shown that reasonable jurists would find the Court’s assessment of
Petitioner’s remaining constitutional claims debatable or wrong. Because Petitioner has failed to
make a substantial showing of the denial of a constitutional right, a COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
25
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
26
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