Cofer v. Lee
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Pamela L Reeves on 8/26/19. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CODY COFER,
Petitioner,
v.
RANDY LEE, Warden,
Respondent.
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No.
3:16-cv-671
REEVES/POPLIN
MEMORANDUM OPINION
Petitioner Cody Cofer has filed a federal habeas petition pursuant to 28 U.S.C. § 2254
challenging his State-court judgments of conviction for two counts of felony murder and one count
of attempted especially aggravated robbery. Having considered the submissions of the parties, the
State-court record, and the law applicable to Cofer’s claims, the Court finds that the petition should
be denied.
I.
SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
The Tennessee Court of Criminal Appeals (“TCCA”) summarized the pertinent facts of
this case as follows:
This case arises from the Defendant’s participation in a home invasion that resulted
in the shooting deaths of two victims, Keith Patton and William Asher. Several
individuals participated in this home invasion to varying degrees, including: the
Defendant, Joshua Hutson, Alexander Carino, and Amanda Spence. For his role in
these crimes, a Cumberland County grand jury indicted the Defendant for two
counts of felony murder and one count of attempted especially aggravated robbery.
At the trial on these charges, the parties presented the following evidence: Tyler
Rhinehart testified that, in November 2008, he was fourteen years old. Rhinehart
said that he knew both victims in this case: Patton was a family friend and Asher
employed him to clean out horse stalls at Asher’s farm. Rhinehart recalled that, on
November 7, 2008, a group of people that included both Patton and Asher met at
Cancun’s restaurant in Crossville to celebrate Rhinehart’s father’s birthday. After
the dinner and on the drive home, Rhinehart’s father stopped at Patton’s home in
Crab Orchard to use the restroom. Rhinehart said that he entered Patton’s home and
sat down in a chair in the living room while he waited for his father. Rhinehart
described the other people in the room and their locations, saying that Jackie
Garrison, his stepmother’s father, and Asher were seated on the couch, Patton was
seated in a rocking chair, and Michael, a boy his stepmother Angie cared for, sat in
a chair “on the other side of the room.” Rhinehart said that “other people” in the
residence were in the back bedroom.
Rhinehart testified that, as he sat in the living room talking with the others, two men
wearing black masks and carrying guns entered the room and demanded money.
Rhinehart recalled that as Patton walked toward the two men, telling them to “get
out of his house,” the two men began shooting. Rhinehart described the first man
who entered the living room as “a little bit taller than the second.” Rhinehart
recalled that the first man carried an AK47 assault rifle with a loaded clip and one
clip attached to the gun. The second man carried a pistol. He said that he did not
see the man with the pistol actually fire the gun because he was focused on
protecting himself from the gunfire. Rhinehart said that, to his knowledge, Patton
did not have a weapon at the time of the shooting.
Rhinehart testified that he laid down on the floor and, after the gun fire stopped, the
man carrying the pistol put the pistol up against Rhinehart’s head and told him to
“get off the phone.” Rhinehart sat up and told the man he did not have a phone. The
man carrying the AK47 walked into the adjoining kitchen, toward the back
bedroom where Rhinehart could no longer see him. Rhinehart recalled that Patton
was lying on the floor next to him, and he could see Patton’s gunshot wounds.
Asher, who was still seated on the couch, was “leaned back” with his leg on the
rocking chair breathing heavily like he was “trying to get air.” At some point after
the shooting, Rhinehart saw a third man, who wore a black mask with a white
“skeleton type” design on it, stick his head through the door “like [he was] trying
... to figure out what was going on.” The man carrying the pistol pushed the third
man out of the doorway and told him to “get out there and watch out.”
Rhinehart testified that he heard a truck outside and one of the gunmen yelled “it’s
the boys,” and the two men ran out of the house. Shortly thereafter, a friend of
Patton’s appeared at the door and asked to see Patton. When he saw Patton lying
on the floor he walked over and began checking on him. Meanwhile Rhinehart
heard a small four-cylinder vehicle, possibly a Kia, start up outside. Rhinehart
recalled that his stepmother, Angie, called 911 and his father instructed Jackie
Garrison to leave with Rhinehart and Michael “in case somebody came back.”
On cross-examination, Rhinehart agreed that, early on the morning after the
shooting, he told police that the man who first entered the living room carrying the
AK47 was “about six foot tall, slim build and talked with a thuggish accent.”
Rhinehart also told police that the second man who entered the living room carrying
the pistol was “about five foot two inches and skinny,” dressed similarly to the first
except he wore “gray tennis shoes with drawstrings.” About the third man who had
been standing outside, Rhinehart described him to police as “about five foot one
2
inch” tall and “kind of fat.” He said this man was “wearing a black hooded jacket,
black toboggan, black and white skeleton motorcycle mask covering his head and
face[,]” and black gloves. Rhinehart testified that he could not tell the race of the
three men because all three men were “pretty well covered.”
Jackie Garrison testified that his daughter, Angie, is married to Rhinehart’s father.
Garrison said that he knew both of the victims in this case. Garrison recalled that,
on the night of November 7, 2008, he went to Cancun restaurant in Crossville to
celebrate his son-in-law’s birthday. Garrison said that, after the dinner and on the
drive home, Angie asked him to stop at Patton’s house, so she could use the
bathroom. Garrison stopped, and Patton invited them inside to visit “for a little
while.” Garrison said that he was inside Patton’s home for about five minutes when
two men entered the living room and demanded money. Garrison described the first
man who entered the room as tall and the second man as “a little shorter.” He
recalled that both men were dressed in black and wearing gloves and masks. The
taller of the two men carried an assault rifle with a clip in it and the shorter man
carried a black pistol. Garrison clarified that it was the first man who entered the
room that demanded money. In response to the demand, Patton stood up from his
chair and began walking toward the men telling them to get out of his home. When
Patton was approximately six to eight feet from the men, the intruders began firing
their guns.
Garrison testified that he never saw the man with the pistol actually fire his gun. He
explained that after the man carrying the assault rifle began shooting, he put his
head down and began praying. He also said that, to his knowledge, Patton did not
have a weapon at the time of the shooting. After the gunfire ceased, the taller man
carrying the assault rifle ran toward the back bedroom while the man carrying the
pistol remained in the living room and kitchen looking through drawers and
cabinets. Garrison recalled that he could see Patton lying on the floor bleeding and
that Asher, who was next to him on the couch, was making gasping sounds.
Garrison asked the man carrying the pistol if he could help Asher, and the man
replied, “if you move, ... you won’t need no help either.” Garrison interpreted the
statement to mean that the man would shoot Garrison if he attempted to help Asher.
Garrison testified that, as soon as the two shooters left the house, he immediately
took “the two young boys,” Michael and Rhinehart, away from the premises.
Garrison testified that he did not see a third person, only the two shooters. Garrison
said that, based on his location in the living room, he could not see out the door.
On cross-examination, Garrison said the second man who entered the living room
was substantially shorter than the first man who entered the room, estimating the
height differential to be between four and six inches. Garrison said that he did not
notice anything distinct about the two shooters’ speech and that he did not know
their race because both men were well covered.
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Garrison recalled that a heavyset man came to the door after the two shooters had
left. Garrison believed the man’s name was “Reed.” Garrison told the man to go
get help, and the man got in his truck and left.
Blake Reed testified that he had been friends with Patton since the two were in high
school. Although Reed did not know Asher personally, he lived near Asher and
“knew of him.” Reed recalled that he stopped by Patton’s home at about 9:30 on
the night of November 7, 2008. When he pulled in the driveway, he noticed a black
car parked in the driveway with round tail lights “stacked side by side.” Reed
identified a photograph of a black Kia that belonged to the Defendant’s friend,
Autumn Hale, as looking “similar” to the one he saw the night of the shooting. Reed
said that he emerged from his truck and had stepped up on the porch when “a man
came busting out of the house.” Reed said that he could not make out any
distinguishing features but noted that the man wore dark clothes. The man told Reed
to “get the f* * * in the house.” Because there was no light outside the house, Reed
could not see what the man was holding but believed it to be a gun. Reed walked
in the house and saw Patton lying on the floor. Garrison, who was seated on the
couch, asked if the men were gone. Reed heard tires spin and gravel spewing
outside and responded that the men were gone.
Joshua Hutson, a co-defendant in this case, testified that he had known the
Defendant almost his whole life and that he met Alexander Carino, another codefendant, about five months before the shooting. Hutson said that he and Carino
discussed the potential of committing a robbery and that he agreed to participate.
Hutson recalled that, on November 7, 2008, he spent most of the day at home. In
the evening, his girlfriend at the time, Anna Claire Daniels, drove him to meet the
Defendant and Carino at a Taco Bell in Oak Ridge, Tennessee. Hutson said Carino
drove the three men in a “dark colored four door Kia” to Cumberland County.
Hutson said that Daniels was not “involved in any plan” but that she knew the three
men were going to rob someone. Hutson said that Daniels “probably [did] not”
agree with what he was doing but that she did not tell Hutson not to go.
Hutson testified that, on the way to Cumberland County, the men stopped at the
Defendant’s home for the Defendant to retrieve black clothing. The Defendant also
purchased gloves at a gas station for the Defendant and Hutson. Hutson said that
all of the men dressed similarly, although Hutson’s mask had a camouflage pattern
covering the bottom portion of the mask. Once the men arrived in Cumberland
County, they drove down Highway 70 looking for the “right home.” Carino was
not sure which home was Patton’s, so he called Amanda Spence, who knew the
location of Patton’s home, but she did not answer her phone.
Eventually, Spence returned Carino’s call, and the men drove to Spence’s home.
Hutson said that he had only met Spence one time previously. Hutson recalled that
Carino, the Defendant, Spence, and a friend of Spence’s were all present when they
discussed the robbery. Spence provided the men with a diagram of the layout of the
residence. Spence then went with the men to “scout[ ] the place out.” Hutson said
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they had guns in a bag in the trunk of the Kia. After returning to Spence’s house,
Hutson took the driver’s seat and drove the men to Patton’s home where he stopped
in front of the neighbor’s driveway. The Defendant and Carino got out of the Kia
with guns and walked toward the residence, while Hutson drove down the street
and then back past Patton’s home, ultimately parking in the driveway.
Hutson testified that, before Carino and the Defendant went into Patton’s home, he
and Carino placed their cellular phones and keys in the glove compartment of the
Kia. The State produced, and Hutson identified, both his and Carino’s cellular
phones. Hutson recalled that, after he parked in Patton’s driveway, he got out and
walked around to the front of the car. Carino instructed Hutson to turn off the
headlights, and Hutson did so. Hutson said that Carino was standing at the corner
of the house closest to the door while the Defendant was on the other corner. Carino
entered the house first, carrying an assault rifle, and then the Defendant entered,
carrying a handgun. Hutson said that he stood beside the driver’s side door as the
men entered the home. Almost immediately, Hutson heard “rapid gunshots,” so he
reached in the glove compartment, grabbed the cellular phones and keys, and ran
to the front porch. When he looked in the residence he saw someone sitting on the
couch “that stared directly back at [him],” a man lying on the floor, and the
Defendant standing with the pistol drawn. The Defendant told Hutson to “keep a
lookout,” so Hutson ran back to the driveway. Within a minute, another car pulled
into Patton’s driveway, and Hutson fled.
Hutson described himself as “pretty scared” at the time. He then apologized to the
families of the victims and said that “not a day goes by that I don’t wish things were
different and wish that I could turn back time.” Hutson said that he felt responsible
for his role in these crimes.
Hutson testified about his flight into the woods. He said that he was unfamiliar with
the area and quickly became lost, so he tried to call Daniels, who did not answer
her cell phone. He said that he spoke with the Defendant, who was with Carino,
several times and learned that both men had left Patton’s home and that Spence
would pick Hutson up. Hutson recalled that he exited the woods looking for Spence
twice. The first time he left the woods he saw a police car and the second time he
saw a white pick-up truck. The white pick-up truck stopped and a woman got out
of the truck with a shotgun and told Hutson to lie on the ground. Hutson said that
he complied, and the woman waited there until police arrived and Hutson was taken
into custody. Hutson said that, during his flight through the woods, he threw out a
.22 caliber derringer, the gloves, the mask, and he lost a shoe close to the road where
he was arrested.
Hutson testified that he did not take responsibility initially and lied to investigators.
Hutson explained that he did so because he was scared of possible retaliation.
Hutson told investigators what they already knew and what he thought they might
believe because he was “really overwhelmed with the whole situation.” Hutson
agreed that he was charged with the same crimes as the Defendant and that he hoped
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for some form of leniency for his testimony. Hutson denied that the State had made
any promises as to his potential sentence. Hutson said that he was not testifying
because he wanted a “get out of jail free card” but because he believed it was
important for him to take responsibility for his actions by telling the truth. Hutson
said that he had not spoken with Carino, the Defendant, or Spence since the
shooting.
On cross-examination, Hutson agreed that he had bought and sold marijuana and
cocaine. Hutson said that “marijuana was being smoked” during the afternoon and
evening of the robbery. Hutson confirmed that his conversations about the robbery,
prior to its occurrence, were with Carino and not the Defendant. Carino told Hutson
that Spence knew someone they could rob. Hutson again confirmed that Daniels,
who drove him to meet Carino and the Defendant, knew that the men were going
to Cumberland County to rob someone. Hutson agreed that, if he had returned with
money, Daniels would have benefitted from it. Hutson also agreed that Daniels
never tried to discourage him from participating. Although Daniels knew Hutson
owned a .22 caliber pistol, she did not know that he took the gun with him or that
the two other men took guns.
Amanda Spence, a co-defendant, testified that she had known Alexander Carino
since she was fifteen and that his nickname was “Reno.” She said that she did not
meet the Defendant until the night of the shooting. Spence explained that, at the
time of these events, Carino was her drug source for cocaine and occasionally
marijuana. Spence recalled that Carino told her that he needed to “hit some lick.”
Spence explained that “hitting a lick” meant “[t]o rob someone.” She said Carino
asked her if she knew anyone he could rob, and she told him she did not. At the
time of this conversation, other people were present at Spence’s home, so Carino
talked with “a couple other guys” about a specific place he could rob. Spence
admitted that she played a role in relaying information from “the guys” to Carino
about Patton’s home as a potential robbery hit. Spence said that she did not know
Patton, but she became familiar with where he lived through the course of these
events.
Spence testified that she was in the process of moving on November 7, 2008, when
she received several phone calls from Carino to her cellular phone. Spence returned
Carino’s phone calls, and he told her he was waiting for her at her house. Carino
also texted Spence on that day telling her to “go by” Patton’s residence to “see who
was there and what was there and what it looked like.” Spence said that she did not
go to Patton’s home and, instead, lied to Carino, telling him that she had gone by
Patton’s home. Spence explained that she lied to Carino to “pacify him” because
he called repeatedly and would not “take no for an answer.” Spence said that she
did not believe that Carino was serious about the robbery because he “always talked
about things like this and never actually went through with a lot of things that he
talked about.”
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Spence testified that, after speaking with Carino on the phone, she went home
where she found Carino in a black four-door vehicle with the Defendant and
Hutson. Spence identified a black Kia in the State’s photograph as looking like the
car she saw the three men driving. Spence said that she repeated the same
information to Carino about Patton’s home and then gave him the directions to the
house. Spence said that she asked Carino to take her to the store and, as they were
preparing to leave, the Defendant brought a bag into her home. Spence asked Carino
what was in the bag, and Carino told her that guns were in the bag.
Spence testified that, after leaving her residence, they drove by Patton’s residence,
which was dark. They returned to Spence’s residence, where the three men took the
bag of guns and left. Thirty minutes to an hour later an “865” number that Spence
did not recognize displayed as an incoming call to her cellular phone. Spence
answered the phone, and the Defendant yelled at Spence that “things didn’t go the
way they were planned.” The Defendant instructed Spence to go and get Hutson
who was still at Patton’s residence. Spence said that she recognized the voice on
her cellular phone as the Defendant’s voice because he had a “distinct accent” that
is “really ghettoish.” The Defendant hung up on Spence, so she tried to call Carino,
but Hutson answered the phone. Hutson told Spence he was “in the woods” and did
not know his specific location. Multiple phone calls were exchanged between
Spence, Hutson and the Defendant. Spence described the flurry of phone calls as a
“panic type situation.” Ultimately, Spence said that she left her home to try and find
Hutson.
Spence testified that, when she drove by Patton’s residence, she saw an ambulance,
fire trucks, police officers, and a helicopter. Spence recalled that she talked with
Carino and told him about all the emergency personnel at Patton’s residence and
that she saw police arresting Hutson. Spence said that she did not know exactly
where the Defendant and Carino were at that time but that, earlier, Carino had told
Spence they were going back to Knoxville.
Spence testified that law enforcement came to her home the following day and gave
her a copy of a search warrant. The officers also told her that she was under arrest.
Thereafter, investigators interviewed Spence and, initially, she lied. Spence
explained that she lied because she was told to do so, and she was scared. As the
investigators began to present various pieces of evidence to Spence, she began
telling the truth.
Spence testified that she had a drug problem in November 2008. She said that she
used marijuana, Xanax, Percocet, and “Hydros.” Spence acknowledged that, before
the shooting, she had been charged with delivery of more than .5 grams of cocaine
and that she was currently serving a six-year sentence on an unrelated conviction.
Spence agreed that she was also charged for these offenses. She said that she hoped
that her testimony would result in a more lenient sentence but that the State had not
promised her anything in exchange for her testimony.
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On cross-examination, Spence testified that the two men who provided her with
information about Patton were Mike Fisher and Jason Coy, who bought large
quantities of drugs from Patton. Spence denied ever buying marijuana from Patton
and maintained that her drug source was Carino. Spence agreed that she was “high
on marijuana that night” but denied any cocaine use that evening. She said that,
despite the marijuana use, she had a clear recollection of the events. Spence said
that she did not believe Carino knew Patton at all. Spence testified that a friend,
Allison Pinson, was with her when she returned to her home and found Carino along
with Hutson and the Defendant on the night of the shooting. Pinson also drove
Spence to pick up Hutson because Spence did not have a valid driver’s license.
Spence agreed that she was also on house arrest at the time.
Anna Claire Daniels testified that she had known Hutson since the two were in sixth
grade and were dating at the time of these events. Daniels said that she also knew
Carino, through Hutson, and the Defendant, with whom she went to kindergarten.
Daniels testified that, on the day of the shooting, she and Hutson spent the morning
and afternoon together. At some point, she drove Hutson to a Taco Bell in Oak
Ridge, Tennessee to meet the Defendant and Carino. Daniels said that she returned
to Knoxville while the three men planned to drive to Crossville in a black Kia. She
said that “they had bad intentions” to “settle a dispute.” Hutson and Daniels had
contact after she dropped him off at the Taco Bell, but Hutson became “very short”
and evasive as to where he was and what he was doing. Daniels said she sent a text
message to Hutson, but he did not respond. Daniels said that she fell asleep at her
home and, when she woke up around 11:30 p.m., she noticed she had missed several
phone calls from Hutson at around 10:30 p.m. Daniels said that she suspected that
“something wasn’t right” when she returned Hutson’s phone calls, and Hutson’s
cellular phone was turned off. Daniels said she then called Carino’s girlfriend,
Ashley Snow, and learned that the men needed a ride.
Daniels testified that she, along with Snow and one of Snow’s friends, drove to a
BP gas station in Solway, Tennessee, to meet Carino and Hutson. When she arrived,
however, she found Carino and the Defendant. When she inquired about Hutson,
she was told “they’ve got him.” She later learned that Hutson was not there because
he had been arrested. Carino and the Defendant began taking items out of the
vehicle they had been driving, a red Explorer, and placing the items in Daniels car.
Daniels said that Carino got into her car, and the Defendant left. As Daniels drove
back to Hutson’s apartment with Carino, Snow, and Snow’s friend, she began to
understand what had occurred based on the conversation in the car. Daniels recalled
that she turned onto a side road in Karns by a baseball field, and Carino got out of
the car. Daniels said that she was instructed to turn the car around. She did so and
when she returned to where Carino had exited her car, she saw his shoes burning
on the side of the road. Carino got back into the car, and Daniels drove to Hutson’s
apartment.
Daniels testified that, as the night progressed, she grew more concerned about
Hutson and what had occurred in Cumberland County. The following day, she
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contacted police and provided information about Carino’s location, and he was later
arrested. Daniels said that she also gave a statement to police and assisted Agent
Calahan in finding the area where Carino burned his shoes. Daniels testified that
she and Hutson were no longer in a relationship, although she had spoken with him
“a couple of weeks ago.”
On cross-examination, Daniels agreed that Hutson was the source of most of the
information she provided to police. From Hutson, she had learned that the three
men were going to “see about marijuana and possibly fifty thousand dollars.”
Daniels said that she dropped Hutson off at a Taco Bell to meet Carino and the
Defendant at 6:30 or 7:00 p.m. eastern time. Daniels said that she met the Defendant
and Carino at the BP gas station at around midnight eastern time.
Jason Legg, a TBI agent, testified that, in November 2008, he assisted in an
investigation involving the Defendant. Agent Legg said that, during the course of
the investigation, a black Kia was recovered at a detail shop in Oak Ridge. Agent
Legg recalled that the car was “spotless” when recovered on November 10, 2008,
three days after the shooting. The detail shop’s records indicated that Autumn Hale,
a friend of the Defendant’s, brought the car to be detailed. Based upon further
investigation, Agent Legg learned that the Kia was to be sent to Atlanta and shipped
to Italy where Autumn Hale’s husband, a member of the armed forces, was
stationed.
Dan Friel, a Tennessee Bureau of Investigation (“TBI”) special agent, testified that
he assisted in an investigation involving the Defendant. Investigator Friel recalled
that, on November 10, 2008, he executed a search warrant at 109 East Drive,
Kingston, Tennessee. Investigator Friel said that the home at this address belonged
to the Defendant’s mother, Mary Costello, and authorities believed the Defendant
was living at his mother’s home. Investigator Friel identified a TBI property release
form that documented the items found during the execution of the search warrant,
including a Motorola AT & T wireless cellular phone and a pair of Nike shoes.
Judy Morris, an AT & T area manager, testified that the company keeps records on
all cellular phones and the usage in the ordinary course of business. Morris
identified the AT & T cellular phone records submitted for a prepaid phone which
included the location of the cell tower site used to connect the calls. The prepaid
phone information requested was for the phone police recovered from the
Defendant’s mother’s home. The subscriber information for the cellular phone
number 865–851–3032 was “Cody Coser” with an address of “Preston Road in
Dallas, Texas.” Morris agreed that because identification is not required to set up a
prepaid phone the information provided is unverified.
Eric Tyrell, a Sprint Nextel Telecommunications supervisor, testified that the
company maintained phone records that included subscriber information, cell sites,
call detail records which document incoming and outgoing calls for an account, and
text message content. Tyrell explained that the company had various locations with
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cell sites to transmit phone calls. Tyrell said that, when a phone call is placed, the
company network assesses the call to find the cell site with the strongest signal to
connect to the Sprint Nextel phone. Although the strongest cell site, due to terrain
or weather, may not be closest, generally the closest cell site is used to transmit the
calls. Tyrell identified records his company provided in response to a legal demand
in this case.
Robert Moelter, a Verizon Wireless facility manager, verified that the Verizon
wireless records pertaining to the trial were maintained through the normal course
of business. Moelter testified that the company keeps records of all cellular phone
calls made, the cell tower used to process the call, the originating and destination
number and text messages. Moelter explained that, usually, the closest cell tower
to the Verizon phone user is the cell tower that processes the call.
Jeff Slayton, a Cumberland County Sheriff’s Department investigator, testified that
he assisted in the homicide investigation related to the Defendant. Investigator
Slayton testified that, on the night of November 7, 2008, he responded to a “shots
fired” call near Crab Orchard. When Investigator Slayton entered the residence, he
observed Patton lying on the floor, conscious and breathing, with his eyes open.
Patton appeared to have sustained multiple gunshot wounds. Several individuals
were gathered around Asher attempting to stop his bleeding. Investigator Slayton
said that he immediately went to the other end of the residence to make sure no
shooters were still inside the home. After determining the shooters were not in the
residence, Investigator Slayton returned to the Sheriff’s Department to prepare a
search warrant for the residence.
Investigator Slayton testified that Josh Hutson was the first to be apprehended as a
suspect in this case. Hutson was found a short distance from the crime scene and
was wet, dirty, and missing one shoe. Two cell phones were found on Hutson’s
person when authorities took him in to custody. A mask “with a definite pattern”
was also found “very near” Hutson when he was apprehended. Investigator Slayton
said that, once search warrants for the phones were obtained, he was able to retrieve
phone information from the cell phone companies. Based upon this information, he
learned that the subscriber for one of the cellular phones was Ashley Snow,
Alexander Carino’s girlfriend, and the subscriber for the other phone was Josh
Hutson. Investigator Slayton said that the phone number assigned to Ashley Snow
appeared in the “Contacts” section of Josh Hutson’s phone under the name “Reno.”
Authorities also learned that Snow was the assigned subscriber for two cellular
phones. Based upon this information, Investigator Slayton said that he suspected
that Alexander Carino was the one who actually used the cellular phone for which
Ashley Snow was the subscriber.
Investigator Slayton testified that in the Contacts section of Josh Hutson’s cell
phone there was a phone number, 865–851–3032, listed for a “Cody C.” The same
phone number was listed in Carino’s cell phone contacts under the name “Cofer.”
The subscriber information provided from the phone company identified “Cody
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Coser” as the subscriber for this cell phone number and was associated with the
cellular phone that police recovered from the Defendant’s mother’s residence.
Police also recovered a cell phone from Amanda Spence, and the subscriber
information indicated Spence was the subscriber.
Investigator Slayton testified that Special Agent Brad Neeland and Lieutenant
Investigator Casey Cox interviewed Hutson the night of the shooting and, at some
point, Hutson requested an attorney. After an attorney was appointed, Hutson gave
another statement. Investigator Slayton said that, as frequently occurred in his work
with defendants, Hutson was not initially truthful. Hutson omitted or changed
certain facts in his statement. The same occurred with Spence in that she initially
withheld information.
On cross-examination, Investigator Slayton testified that, although Hutson initially
denied participation, he later identified “some people that might have been
involved,” one of whom was Amanda Spence. Spence was then taken in to custody,
and she also provided information. Through interviews with these two suspects,
authorities became aware that Carino and the Defendant might be participants in
the shooting. As the investigation progressed, Spence, Hutson, and Carino began
cooperating with the authorities. Hutson ultimately admitted to the possession of a
.22 caliber gun on the night of the shooting, but he stated that he disposed of the
weapon. Investigator Slayton agreed that the .22 caliber gun was never found.
Investigator Slayton testified that Patton “was known to deal in marijuana or sell
marijuana or use it.” Investigator Slayton did not recall whether marijuana was
found in the residence when authorities executed the search warrant. He did recall
the recovery of “at least” a thousand dollars during the search.
Dr. Feng Li, Senior Associate Medical Examiner for Davidson County, testified
that his office performed autopsies for Cumberland County. Dr Li said that he
performed Asher’s autopsy and found gunshot wounds to the chest with injury to
the major branch of the major artery and the top of the left lung. A “small fragment
of jacket” was recovered during the autopsy, but a bullet was not recovered because
the bullets both entered and exited Asher’s body. Dr. Li testified that the gunshot
wound was fatal and the manner of death was homicide.
Dr. Darinka Mileusnic–Polchan, the Chief Medical Examiner for Knox and
Anderson counties, testified that she performed an autopsy on Patton’s body. Dr.
Mileusnic–Polchan found a total of eight gunshot wounds. Some of these wounds
were caused by small caliber bullets, while at least one gunshot wound was due to
a large caliber bullet. A small caliber bullet was retrieved from Patton’s back, and
a “deformed” large caliber bullet was retrieved from the pelvic area. Another small
caliber bullet was recovered from Patton’s buttocks. Dr. Mileusnic–Polchan
testified that the cause of death was multiple gunshot wounds.
11
Robert Royse, a TBI Forensic Scientist, testified that he assisted in the investigation
involving the Defendant. Agent Royse explained that he reported to the scene and
identified and recorded physical evidence. Multiple .40 caliber Smith and Wesson
cartridge cases were recovered in Patton’s living room. Additionally six .223 round
cartridge cases were recovered. Agent Royse testified that this type of ammunition
is associated with assault-type rifles. The shell casings were recovered “a little bit
all over the place” in the living room and in the kitchen. Agent Royse explained
that this distribution was because semi-automatic or fully automatic firearms eject
fired cartridge cases to the right and slightly to the rear.
Agent Royse testified that he tested the Smith & Wesson .40 caliber pistol
recovered in this case and examined the three .40 caliber cartridge casings
recovered from Patton’s home, and the bullet fragments recovered during the
autopsy of Patton’s body. Based upon his examination and testing, he determined
that the cartridge casings recovered from Patton’s home and the bullet fragments
recovered from Patton’s body were all fired through the barrel of the Smith &
Wesson .40 caliber pistol. Agent Royse also identified a Norenco Model BWK92
S porter Carbine, commonly referred to as an AK47. Agent Royse testified that the
six .223 cartridge casings recovered from the crime scene as well as the bullet
fragments collected during the autopsy from Patton’s body had been fired from the
assault rifle.
On cross-examination, Agent Royse agreed that five bags of money, totaling
approximately $2,500, and one pound of marijuana were also recovered during the
search of Patton’s residence.
Wilson White, a Cumberland County Sheriff’s Department Correctional Officer,
testified that he worked in the jail, caring for inmates. Officer White recalled one
day when he was assigned to the “tower,” or the central control of the maximum
security area that provided a clear view of all fifty-two inmates. Officer White
identified an incident report that he drafted on April 5, 2009, at 6:15 a.m. The report
detailed an incident that occurred immediately after breakfast when inmates
brought their food trays out of their cells and placed them on a cart. Officer White
observed Carino bring his tray out of his section and the Defendant squat down and
slide a piece of paper into the hallway. After Carino placed his tray on the cart, he
bent down and picked up the piece of paper that the Defendant had slid into the
hallway and then returned to his cell. Officer Wilson instructed another correctional
officer to retrieve the paper from Carino. Officer White testified that he recognized
the paper the officer retrieved as the one he saw the Defendant push out in the
hallway because the paper had a torn corner. When he opened the paper, it
contained all numbers. He gave the paper to Sergeant Millsted.
Officer Wilson confirmed that, from the time the Defendant slipped the note outside
of his cell to the time that the correctional officer took the paper from Carino, the
paper was visible to him, except for when Carino passed through a doorway that
12
obstructed his view for “[t]wo seconds at the most.” Officer Wilson said that the
correctional officer retrieved the paper “within a minute” of entering Carino’s cell.
Lisa Bilbrey, a Cumberland County Sheriff’s Department correctional officer,
testified that she interpreted a code contained in a letter passed from the Defendant
to Carino. Officer Bilbrey identified the letter she decoded and explained for the
jury the process of deciphering codes. Officer Bilbrey read the deciphered note for
the jury as follows:
[M]an, did you not hear, they have nuttin on da car, it was clean. It
wasn’t up here, who went in the crib with dude, no witnesses saw a
car there. The police know girl was in the area, tried to pick dude
up. What’s girl’s name when was at Amanda’s? Dud girl don’t know
if I came up here or not. Some witness say a nigga was in the house.
Did you put the clip in the little strap? You gotta know. Did you
have any text in your phone? I trashed mine. They can’t place, prove
I had my phone. Witnesses saw two, they think three, but not for
sure. Did you get back your motion of discovery? Answer all my
questions. Do you think you put the clip in that, then handed it back?
On cross-examination, Officer Bilbrey testified that she did not know who wrote
the code.
Tommy Calahan, a TBI agent, testified that he responded to a call, on the night of
November 7, 2008, at Patton’s residence in Crab Orchard. Upon his arrival, he
found that the victim’s bodies had been removed and the crime scene secured.
Agent Calahan said that he quickly assessed the crime scene and determined that
he would need substantial assistance due to the involvement of two shooters, the
use of two different types of guns, and the multiple witnesses. A “Violent Crimes
Response Team” was sent to help expedite the investigation and allow Agent
Calahan to begin the process of interviewing witnesses. Agent Calahan said that,
because investigators were not sure exactly who was involved in the perpetration
of the crime, a search warrant for Patton’s residence was obtained.
Agent Calahan testified that Hutson was soon taken in to custody and made a few
statements but then requested an attorney. Agent Calahan said that Hutson’s initial
statements were not true. Agent Calahan recalled that on Sunday night, November
9, he interviewed Daniels. Daniels told investigators that Hutson was involved in
the crime, and she detailed her activities from November 7 through the early
morning hours of November 8.
Agent Calahan testified that, after interviewing the parties, he obtained cellular
phone records. He also submitted the cellular phones of the Defendant, Carino,
Hutson, and Spence to TBI Technical Services for forensic analysis. Agent Calahan
identified photographs taken at a location between Knoxville and Oak Ridge of
burnt tennis shoes, which corroborated Daniels’ statements to investigators.
13
Agent Calahan identified a document containing text message communication
between Spence, Carino, and the Defendant. A text was sent at 11:29 a.m. on
November 7, 2008, from Carino to Spence stating, “wake up, I need you to go see
about them dogs ‘n shit.” This message appeared in both Carino’s and Spence’s
cell phone records. Based upon the investigation, Agent Calahan believed the
reference to “dogs” was in relation to Patton owning dogs. On the same date, at
12:04 p.m., Carino sent a text message to the Defendant stating, “We driving the
Explorer up there?” Agent Calahan explained that the Defendant owned an
Explorer. At 12:05 p.m ., Carino sent another message to the Defendant that stated
“it’s big enough to fit bags?” Agent Calahan said that he believed Carino was
asking about the gun bags. At 3:04 p.m., Carino sent another text message to the
Defendant, stating “you find a car.” Agent Calahan explained that he believed this
to be a reference to the black, four-door Kia. The next text was a response to
Carino’s text message and was sent from the Defendant’s phone to Carino stating,
“I think so, hold on.” Forty-six minutes later, another text message was sent from
the Defendant’s phone to Carino that said, “They got to clean out the car and I gotta
total it or hide it.” Agent Calahan believed this referenced what would happen to
the car after the robbery. Agent Calahan said that the black Kia was found the
following Monday morning after the Friday night robbery at a detail shop in Oak
Ridge.
Agent Calahan testified that the next text message was one sent from Carino’s
phone to the Defendant asking “where you at.” A response from the Defendant’s
phone was sent at 3:52 p.m., stating “Da Ridge.” A text message was sent from
Carino’s phone to Spence’s phone at 3:53 p.m., stating “you need to go check
everything out, I’m coming out dar tonight.” A response was sent from Spence’s
phone at 3:55 p.m., stating “Dude ain’t home that takes me there, they out of town
til Monday, UMMA DO ME.” Agent Calahan explained that “UMMA DO ME”
was Spence’s “signature blog” and appeared at the end of all of her messages. Agent
Calahan said that it appeared that Spence made an excuse to Carino about why she
could not check out Patton’s home as he requested. The next message was sent at
3:56 p.m. from Carino’s phone to Spence's phone and stated, “well, go drive down
there and look and see what you can see.” A return text message from Spence’s
phone to Carino’s phone stated, “K. UMMA DO ME.” At 4:09 p.m., a text message
was sent from Carino’s phone to the Defendant’s phone, stating “here I come, don’t
be bullshitting, cuz.” Immediately after that, a message was sent from Carino’s
phone to Spence’s phone that said, “You need to go make sure he’s home.” A
response message from Spence’s phone to Carino’s phone stated, “I’m working on
it.” An hour later, a text message was sent from Spence’s phone to Carino’s phone
that said, “You straight, dude is there alone and I guess the dogs are inside and no
one there but him.” An hour later, a text message was sent from Carino’s phone to
Spence’s phone that stated, “Answer da phone, I’m here.” A response was sent from
Spence’s phone, “I’m bout to come over the bypass, UMMA DO ME.” Agent
Calahan said these text messages were consistent with the information Spence
14
provided to investigators that she was not at home when Carino, the Defendant, and
Hutson arrived.
Agent Calahan testified about text messages that were sent after the shooting. He
said that these messages occurred primarily between Spence and the Defendant,
who Spence had just met. Agent Calahan said that Spence told investigators that
she did not know the Defendant’s cell phone number until she received a phone call
that night from an unknown number that she learned was the Defendant’s number
when she answered the phone call. Agent Calahan confirmed that the Defendant’s
cell phone number was not in Spence’s list of contacts on her phone. The text
messages between the Defendant’s cell phone and Spence’s cell phone began after
the Defendant placed a phone call to Spence, which occurred after the shooting. At
10:39 p.m., a text message was sent from Spence’s cell phone to the Defendant’s
cell phone, stating “Tell Reno to call me, UMMA DO ME.” Agent Calahan said
this text is significant in that Hutson had Carino’s cellular phone. At 3:10 a.m. on
November 8, a text message was sent from Spence’s cellular phone to the
Defendant’s cellular phone stating, “Hey, they got dude under investigative hold
‘til Monday.”
Agent Calahan testified that he also compiled a record of actual calls. Agent
Calahan identified a phone call between Hutson and the Defendant at 2:29 p.m. on
November 7, 2008. The location of the cell tower used to connect the Defendant’s
call was in Oak Ridge, Tennessee. Agent Calahan said that this was consistent with
the Defendant’s text message at 3:52 p.m. to Carino that indicated he was in “Da
Ridge.” Agent Calahan testified that an incoming phone call at 4:09 p.m. from
Hutson’s cell phone indicated use of the Oak Ridge Tower, which showed the
Defendant’s continued presence in Oak Ridge. Agent Calahan noted that Autumn
Hale, who owned the black Kia, lived in Oak Ridge. Agent Callahan summarized
the contents of the cellular phone call records, explaining that few calls were placed
before the homicide and the “cell phones [went] crazy” among the relevant parties
after the homicide.
Agent Calahan testified that the first phone call placed from the Defendant’s
cellular phone after the shooting was to Carino’s cellular phone, which was in
Hutson’s possession. After the phone call to Carino’s cellular phone, there were
two phone calls placed to Spence’s cellular phone. The cell phone tower used to
connect the call for the Defendant’s phone was located in Crab Orchard, Tennessee.
Phone calls continued to be placed and received from the Defendant’s cellular
phone, and the records indicated that the cell towers used included those in Crab
Orchard, Ozone, Futrell Lane, Rockwood, Kingston, and Oak Ridge. Agent
Calahan said that the record of the cell towers used indicated that the Defendant left
Crab Orchard after the shooting and traveled to Oak Ridge and Knoxville. Agent
Calahan also noted that the records showed a “dead time,” with no phone usage for
thirty-eight minutes, from 8:55 p.m. to 9:33 p.m., which is the time frame of the
homicides.
15
Agent Calahan testified that, based on his investigation, he suspected that the
weapons might be located in or along the Clinch River, which runs between
Cumberland County and Oak Ridge. Agent Calahan identified the Smith and
Wesson .40 caliber pistol and the Nato .223 caliber assault rifle, which were
recovered within feet of each other in the Clinch River, below the Highway 58
bridge. TBI testing confirmed that these two weapons were used in the homicides.
State v. Cofer, No. E2011-00727-CCA-R3CD, 2012 WL 3555310, at *1–14 (Tenn. Crim. App.
Aug. 20, 2012), perm. app. denied (Tenn. Dec. 10, 2012) (“Cofer I”).
On November 18, 2010, a Cumberland County jury convicted Cofer of two counts of
felony murder and one count of attempted especially aggravated robbery [Doc. 1 p. 1]. At
sentencing, Danny Williams, a Board of Probation and Parole officer, testified that Cofer made
the following statement during Williams’ preparation of the investigative report for sentencing:
“I let someone use my phone and they were involved in the crime of robbery and murder. No
involvement, but my cell phone.” Cofer I, 2012 WL 3555310, at *14. Williams also testified
that Cofer’s criminal history consisted of two convictions for driving without a valid license, an
evading arrest conviction, driving on a suspended license conviction, a criminal impersonation
conviction, a disorderly conduct conviction, and two misdemeanor convictions for marijuana
possession. Id. Williams stated that Cofer’s record also indicated that he had three probation
violations that had been dismissed, and that at the time of the instant offenses, he was out of jail
on bond for the sale and delivery of marijuana in Knox County. Id. Terrye Patton, Patton’s
sister, read her victim impact statement at the sentencing hearing. Id.
The trial court imposed consecutive life sentences for the felony murder convictions,
ordering those sentences to run concurrently with the twelve-year sentence it imposed for the
attempted especially aggravated robbery conviction. Id. at *1. The Tennessee Supreme Court
denied Cofer’s application for permission to appeal on December 10, 2012. Id.
16
On June 26, 2013, Cofer filed a pro se petition for post-conviction relief, which he amended
on August 21, 2013 [Doc. 13-26 p. 5-8, 10-30]. On December 9, 2013, Cofer filed a second
amended petition, this time with the assistance of counsel [Id. at 46-82]. Through these pleadings,
Cofer argued that he received the ineffective assistance of counsel at trial and on direct appeal [Id.
at 60-81]. An evidentiary hearing was held on the post-conviction issues, and the TCCA
summarized the issues and evidence presented at hearing as follows:
At the post-conviction hearing, Anna Claire Daniels testified, in large part,
consistently with her testimony at trial. She stated that she began dating Joshua
Hutson in 2004 and that they ended their relationship a few weeks before the
Petitioner’s trial in November 2010. Daniels said that Hutson did not provide her
with many details about his plans for the evening of November 7, 2008. It was her
understanding that some people in Cumberland County owed Carino and the
Petitioner money from a bad drug deal, and the two men needed Hutson’s help. She
acknowledged that the plan involved robbing someone of drugs and money.
Daniels agreed that she dropped Hutson off at the Taco Bell in Oak Ridge that
afternoon and that she drove to the BP gas station in Solway at around midnight.
She explained that the BP station was located between Oak Ridge and Knoxville
and that she went there expecting to pick Hutson up. She said that Carino and the
Petitioner placed items in her car, though she did not know what the items were. At
the time, Daniels was concerned about Hutson’s whereabouts. However, Carino
would not disclose what had happened despite her repeated questioning. She said
she let Carino out of her car at a baseball field in Karns because he was very anxious
and was ordering her to do things. She turned her car around as instructed, and she
denied knowing that Carino intended to destroy certain items. When Daniels asked
Carino why his shoes were burning, he remained vague and just repeated that
something bad had happened. She later learned that he was trying to destroy
evidence related to a double homicide. She said that she testified truthfully at trial
and that she answered the questions that were presented.
Daniels agreed that she did not testify at trial about going into the BP gas station
that night and purchasing lighter fluid. She said that Carino and the Petitioner had
ordered her to do so, and she did not recall the purchase until she read some
transcripts. She was not asked about the lighter fluid at trial, and she was not
interviewed by trial counsel or an investigator from his office. Daniels testified that
she did not know that the lighter fluid would be used to burn shoes or other
evidence. She stated that trial counsel never asked her about a surveillance video
from the BP station. After viewing the surveillance video, Daniels could not
identify herself. She said that her memory would not have been refreshed if she had
been shown the video in 2008. She further stated that if trial counsel had
interviewed her, she would have been truthful regarding what she was able to recall.
17
Daniels said that prior to the post-conviction hearing, no one had ever questioned
her about the lighter fluid.
Trial counsel testified that he began practicing law in 1981 and that he focused
primarily on criminal defense. In the past decade, he had practiced mostly in courtappointed murder cases at the state level. When he was appointed to represent the
Petitioner in 2008, trial counsel had tried about eighteen murder cases. He said that
in this case, he had the assistance of co-counsel and two investigators. Trial counsel
stated that he personally interviewed four or five witnesses. He could not recall the
names of the individuals that his investigators had interviewed. He agreed that
eyewitnesses at the Patton residence were unable to identify the three perpetrators.
Counsel stated that the theory of the defense was that the State lacked any direct or
corroborating evidence to establish the Petitioner’s identity as the second intruder
in the home invasion.
Trial counsel said that he was aware that Anna Claire Daniels was an important
witness for the State and that she would testify at trial. He argued at trial and on
appeal that Daniels should have been declared an accomplice as a matter of law and
that her testimony required corroboration. He testified that he remained
disappointed that he could not convince the courts of his position. Trial counsel
stated that the fact that Daniels bought lighter fluid “would not have hurt” his theory
that she was an accomplice. He said that the State provided him with the BP
surveillance video, but he could not recall whether the Petitioner appeared in the
video. He did not want the jury to see the Solway BP video and conclude that the
Petitioner was present that evening. Trial counsel recalled that his investigators
interviewed the BP clerk. He said he did not interview Daniels because he already
had her police statement. Trial counsel opined that Daniels’s statement was critical
evidence and that her testimony and recollection tended to minimize her own
involvement. He testified that his decision not to interview Daniels was “tactical”
and not based on neglect, and he explained his strategy as follows:
As to not interviewing her, I had her written statement, I knew she
was going to minimize what she had to say and I’d rather the jury
hear from her on direct to minimizing and then use her statement,
plus use Mr. Calahan as rebuttal to show that she had every incentive
to minimize her involvement. Because I felt very strongly that the
court was not going to declare her as an accomplice as a matter of
law simply because she was not charged.
Trial counsel said he knew that Daniels went into the BP store and that the
defendants used an accelerant. He did not know whether his cross-examination of
Daniels would have been more effective if he had known that she had purchased
lighter fluid. He disagreed that Daniels’ BP purchase was “the most significant
piece of evidence” to establish her status as an accomplice. He believed that her
prior awareness of the criminal conduct was the most critical factor.
18
Trial counsel acknowledged that Hutson was represented by counsel who was also
representing the Petitioner on a separate charge in Knox County. He was aware that
Hutson’s counsel and the Petitioner had discussed the instant case. According to
trial counsel, Hutson made a statement inculpating the Petitioner before Hutson’s
counsel was appointed to represent Hutson. Hutson’s counsel represented Hutson
from November 2008 to July 2009, and a different attorney represented Hutson at
trial. Trial counsel said that he had several in-chambers discussions in General
Sessions Court about this conflict of interest. Hutson’s counsel stated that he sought
an opinion from the Board of Professional Responsibility, and the case “languished
for two or three months” while they awaited the outcome. Trial counsel said he
believed that there was “an out and out conflict” but he was willing to wait for
formal guidance. He had prepared a written motion raising the conflict of interest,
which he sent to Hutson’s counsel. However, trial counsel did not file that motion.
He said he adopted the motions filed by Carino’s counsel, including a motion to
disqualify Hutson’s counsel.
Trial counsel agreed that the handwritten coded note retrieved at the Cumberland
County Jail was a significant piece of evidence for the State. He stated that he
“strenuously tried to keep this [evidence] out” and objected on numerous grounds
to its admission at trial. Counsel recalled that after his objection based on lack of
foundation, the State “cured” the objection when the correctional officer testified
that he personally observed the Petitioner pass the note to Carino. He said that his
objections were overruled when he renewed them. He acknowledged that he filed
a motion for new trial arguing that the coded note was improperly introduced into
evidence and that the note failed to corroborate any accomplice testimony. Trial
counsel said that it was his practice to raise as many grounds as possible to preserve
issues for appeal. However, he did not include issues from the motion in the
appellate brief if they were insignificant. He said that co-counsel handled the
appeal, and the issue of the coded note may have been inadvertently omitted. He
acknowledged that he signed the appellate brief as counsel of record. He believed
that the defense selected and pursued the strongest arguments on direct appeal.
Trial counsel identified a motion to withdraw that he filed about two weeks before
the Petitioner’s trial. He testified that at the time of the motion, his relationship with
the Petitioner had deteriorated to the extent that he could not effectively represent
the Petitioner. Trial counsel said that “there was a significant change” in their
relationship after he filed the motion and before the trial date. He stated that his
difficulties with the Petitioner “evaporated” after the Petitioner stopped “receiving
advice and information from third parties.”
Trial counsel testified that he personally filed three or four motions on the
Petitioner’s behalf, and he adopted the motions filed by Carino’s counsel. He
acknowledged that he largely deferred to the motion practice of Carino’s counsel
and that he did not spend much time on the motions in this case. He agreed that
there were differences in the representation of the Petitioner and of Carino. Trial
19
counsel stated that the “main motion” he filed was a request for the State to identify
corroborating evidence.
Trial counsel said that the State initially sought the enhanced punishment of life
without parole for the Petitioner. As a result, the trial court approved funding for a
mitigation expert to present proof in the penalty phase. After voir dire, however,
the State approached trial counsel and offered to withdraw its notice of intent to
seek enhanced punishment if counsel refrained from emphasizing Carino’s plea
deal or his status as “the ring leader.” Trial counsel testified that he consulted the
Petitioner and his family, and they agreed to accept the State’s offer. He said he did
not regret this trial strategy. He acknowledged that he did not present mitigation
evidence at the Petitioner’s sentencing hearing. Counsel opined that trial courts
rarely align murder sentences concurrently to avoid a “free pass” for the second
homicide. He said that he raised the issue of sentencing on appeal without the
expectation of prevailing.
At the conclusion of the hearing, the post-conviction court denied relief after noting
that post-conviction counsel did not present proof to establish prejudice to the
Petitioner. The court then supplemented its oral ruling with a written order entered
on September 8, 2014. In its order, the court concluded that the Petitioner failed to
demonstrate either deficient performance or prejudice arising therefrom. It further
noted that “the proof presented by the Petitioner does not cause this court reason to
question the jury’s finding of guilt beyond a reasonable doubt.”
Cofer v. State, No. E2014-01844-CCA-R3-PC, 2015 WL 5679844, at *5–7 (Tenn. Crim. App.
Sept. 28, 2015), perm. app. denied (Tenn. Feb. 18, 2016) (“Cofer II”). The TCCA affirmed the
trial court’s ruling on September 28, 2015, and the Tennessee Supreme Court denied Cofer’s
application for permission to appeal on February 18, 2016. Id.
On or about November 3, 2016, Cofer filed a pro se petition for writ of habeas corpus,
raising the following issues, as paraphrased by the Court:
Ground 1:
Cofer was denied the effective assistance of counsel.
a.
The trial and appellate courts used the wrong standard of
review.
b.
Trial counsel was ineffective for failing to investigate facts
and interview witnesses prior to trial.
c.
Trial counsel was ineffective for failing to properly file a
motion challenging counsel’s conflict of interest.
20
d.
e.
Trial counsel was ineffective in failing to file multiple
pretrial motions.
f.
Ground 2:
Appellate counsel was ineffective for failing to appeal the
issue of the coded note.
Trial counsel was ineffective for failing to effectively
represent Cofer during sentencing.
Cofer’s convictions are not supported by sufficient evidence.
[Doc. 1]. Respondent was ordered to respond to the petition, and it did so by filing an answer to
the petition on April 27, 2017 [Doc. 14]. On July 11, 2017, Cofer, this time with the assistance of
retained counsel, filed a reply to Respondent’s answer [Doc. 19].
II.
LEGAL STANDARD
The Court’s review of the instant petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any
claim adjudicated on the merits in a State court unless that adjudication (1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established United States
Supreme Court precedent; or (2) resulted in a decision based on an unreasonable determination of
facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan,
550 U.S. 465, 473 (2007).
Federal habeas relief may be granted under the “contrary to” clause where the State court
(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2)
decides a case differently than the Supreme Court on a set of materially indistinguishable facts.
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application”
clause, a federal court may grant relief where the State court applies the correct legal principle to
the facts in an unreasonable manner. See id. at 407-08; Brown v. Payton, 544 U.S. 133, 141 (2005).
Whether a decision is “unreasonable” is an objective inquiry; it does not turn on whether the
21
decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under AEDPA is not
whether a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable ̶ a substantially higher threshold.”); Williams, 529 U.S. at 41011. This standard will allow relief on a federal claim decided on its merits in State court only
where the petitioner demonstrates that the State ruling “was so lacking in justification that there
was an error understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating the evidence
presented in State court, a federal habeas court presumes the correctness of the State court’s factual
findings unless the petitioner rebuts the presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1).
The doctrine of procedural default also limits federal habeas review. See O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner’s procedural default forfeits his federal
habeas claim). A procedural default exists in two circumstances: (1) where the petitioner fails to
exhaust all of his available State remedies, and the State court to which he would be required to
litigate the matter would now find the claims procedurally barred, and (2) where a State court
clearly and expressly bases its dismissal of a claim on a State procedural rule, and that rule provides
an independent and adequate basis for the dismissal. See, e.g., Coleman v. Thompson, 501 U.S.
722, 731-32, 735 n.1 (1991). A procedural default may be circumvented, allowing federal habeas
review of the claim, only where the prisoner can show cause and actual prejudice for the default,
or that a failure to address the merits of the claim would result in a fundamental miscarriage of
justice. Id. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). “Cause” is
established where a petitioner can show some objective external factor impeded defense counsel’s
ability to comply with the State’s procedural rules, or that his trial counsel rendered ineffective
assistance. See id. at 753. Additionally, the prejudice demonstrated to overcome the default must
22
be actual, not merely a possibility of prejudice. See Maupin v. Smith, 785 F.2d 135, 139 (6th Cir.
1986) (citations omitted); see also United States v. Frady, 456 U.S. 152, 170 (1982) (holding
prejudice showing requires petitioner to bear “the burden of showing, not merely that errors [in
the proceeding] created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire [proceeding] with error of constitutional dimension”) (emphasis
in original). A fundamental miscarriage of justice of occurs “where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S.
478, 496 (1986).
III.
DISCUSSION
A.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his federal habeas petition, Cofer claims that he received the ineffective assistance of
trial and appellate counsel. Such claims are governed by the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), which requires a habeas petitioner to satisfy a two-prong test to
warrant federal habeas corpus relief: (1) he must demonstrate constitutionally deficient
performance by counsel, and (2) he must demonstrate actual prejudice as a result of such
ineffective assistance. Strickland, 466 U.S. 668 (1984). Deficiency is established when a
petitioner can demonstrate that counsel’s performance fell below an objective standard of
reasonableness as measured by professional norms, such that counsel was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Id. at 687-88. A reviewing court’s scrutiny is to
be highly deferential of counsel’s performance, with an effort to “eliminate the distorting effects
of hindsight.” Id. at 689. In fact, counsel is to be afforded a presumption that his actions were the
product of “sound trial strategy” and undertaken with the exercise of reasonable professional
judgment. Id.
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Prejudice is established when the petitioner can demonstrate to a reasonable probability
that the result of the proceedings would have been different but for the challenged conduct, thereby
undermining confidence in the reliability of the outcome. Id. at 694. However, an error, even if
professionally unreasonable, does not warrant setting aside the judgment if it had no effect on the
judgment. Id. at 691.
On habeas review, the issue for the district court is not whether the Strickland standard is
met, but rather, whether the State-court’s decision that Strickland was not met warrants relief under
AEDPA standards. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.”). Accordingly,
when a Strickland claim has been rejected on its merits by a State court, a petitioner “must
demonstrate that it was necessarily unreasonable” for the State court to rule as it did in order to
obtain federal habeas relief. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
1.
Standard of review
Cofer’s first claim challenges the standard of review used by the trial and appellate court
in adjudicating whether counsel rendered ineffective assistance, arguing that the State courts used
an “outcome determinative standard” that was rejected in Strickland by requiring Cofer to show
that counsel’s actions or omissions would have altered the outcome of trial [Doc. 1 p. 5-9].
The Strickland standard was used to assess Cofer’s claims of ineffective assistance of
counsel in State court. See, e.g., Cofer II, 2015 WL 5679844, at *8-9. As noted above, Strickland’s
prejudice prong demands a petitioner demonstrate a reasonable probability exists that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 694. Subsequent Supreme Court cases have reinforced the applicability of Strickland’s
prejudice analysis except in the rarest of cases, noting that post-Strickland cases addressing
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ineffective assistance claims do “not justify a departure from a straight-forward application of
Strickland when the ineffectiveness of counsel” deprives the petitioner “of a substantive or
procedural right to which the law entitles him”. See, e.g., Williams v. Taylor, 529 U.S. 362, 393
(2000) (citing Nix v. Whiteside, 475 U.S. 157 (1986) and Lockhart v. Fretwell, 506 U.S. 364
(1993)). Therefore, the State courts applied the proper standard, and Cofer’s allegation to the
contrary does not warrant habeas relief.
2.
Investigation of witnesses
Petitioner argues that trial counsel performed ineffectively in failing to investigate and
interview Anna Claire Daniels prior to trial, maintaining that had counsel discovered her purchase
of lighter fluid that was used to destroy evidence, she could have been indicted and declared an
accomplice as a matter of law at trial [Doc. 1 p. 13-14]. Such a declaration was critical, Cofer
argues, because had Daniels been declared an accomplice, her testimony could not have been used
to corroborate the otherwise circumstantial evidence that Cofer participated in the crimes [Doc. 19
p. 28]. Cofer argues that without her testimony, a reasonable probability of acquittal exists because
no other independent evidence was offered to establish Cofer’s identity [Id. at 29].
Cofer raised this issue in his post-conviction appeal, and the TCCA noted that the trial
court had instructed the jury that Daniels’ role in the robbery was a question of fact for the jury’s
determination, and it found Daniels’ and the co-defendants’ testimonies corroborated by Cofer’s
cell phone records and the jail-house note he passed to Carino. Cofer II, 2015 WL 5679844, at
*9-10. Therefore, the TCCA found the record supported the trial court’s determination and
concluded that Cofer had not demonstrated trial counsel performed deficiently in failing to
interview Daniels. Id. The court otherwise noted:
The Petitioner argues that had trial counsel interviewed Daniels, he would have
discovered that Daniels purchased accelerant on the night of the offense. However,
trial counsel aggressively argued that Daniels should have been classified as an
accomplice as a matter of law based on other compelling evidence including her
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prior awareness that a crime was about to occur, her involvement as the driver for
the co-defendants after the double homicide, and her witnessing the destruction of
evidence. While Daniels’[] purchase of the accelerant was certainly relevant to
establishing her accomplice status, given the other evidence concerning her
involvement, we cannot say that its omission would have altered the outcome of
the trial. Accordingly, the Petitioner has failed to establish deficient performance
or prejudice arising therefrom. He is not entitled to relief.
Id. at *10.
Under Tennessee law, a conviction cannot be based “solely upon the uncorroborated
testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citation omitted).1
However, the corroboration rule is satisfied even where corroboration evidence is slight; it need
only “lead[] to the inference” that a crime has occurred and that the defendant is implicated in it.
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). “Whether sufficient corroboration exists is a
determination for the jury.” Id.
The record supports the conclusion that Cofer’s jury was instructed regarding whether
Anna Claire Daniels was an accomplice as a matter of fact [Doc. 13-13 p. 43-44]. Trial counsel
testified at the post-conviction hearing that he chose not to interview Daniels prior to trial because
he had her statement to police and did not want to give her the benefit of knowing what he was
going to ask her at trial, which is a reasonable, tactical decision entitled to deference. See
Strickland, 466 U.S. at 490. Additionally, Cofer has not demonstrated that Daniels’ testimony
regarding the accelerant, if it had been offered, would have altered the outcome of the proceedings.
Moreover, Therefore, the Court finds that Cofer has not demonstrated that the TCCA’s decision
rejecting this claim was contrary to or an unreasonable application of Strickland, nor that it was
1
The Court notes that Tennessee’s corroboration rule is a State-law rule and not one of
constitutional magnitude. See United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985)
(rejecting a sufficiency-of-the-evidence challenge, holding that “the uncorroborated testimony of
an accomplice may support a conviction under federal law”).
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based upon an unreasonable determination of facts in light of the evidence presented to the State
court. Cofer is not entitled to relief on this claim.
3.
Motion challenging counsel’s conflict of interest
Cofer next claims that trial counsel was ineffective in failing to file an independent motion
challenging the conflict of interest of attorney Kevin Angel, who simultaneously represented
Hutson and Cofer for a period of time in November 2008 through July 1, 2009 [See Doc. 1 p. 1418]. Cofer argues that he had spoken with Angel about the instant case prior to Angel making an
appearance for Hutson, and that Hutson thereafter benefitted from speaking to law enforcement
first and claiming to be the individual outside the Patton residence [See Doc. 19 p. 30]. Moreover,
he claims, the factual version of the offense presented at trial and later relied upon by the Tennessee
courts was largely based on Hutson’s accomplice testimony [Id.].
Cofer raised this issue in his post-conviction appeal, where the TCCA determined that
Cofer had failed to demonstrate that Hutson’s counsel “was burdened by an actual conflict of
interest.” Cofer II, 2015 WL 5679844, at *11. The TCCA noted:
Trial counsel testified at the post-conviction hearing that he had several inchambers discussions regarding the simultaneous representation of Hutson and the
Petitioner by Hutson’s counsel. During those discussions, counsel told the trial
court that he believed there was “an out and out conflict.” Although he drafted a
motion to disqualify Hutson’s counsel, he did not file it because he was willing to
wait for an opinion from the Board of Professional Responsibility. He said that
Hutson’s counsel was no longer representing Hutson at the time of trial. The trial
record reflects that during a motion hearing on March 4, 2010, Carino’s counsel
argued that Hutson’s counsel should be disqualified, and trial counsel adopted the
motions filed by Carino’s counsel. However, the trial court determined that the
matter was moot because Hutson’s counsel was no longer involved in the case and
did not represent any co-defendants. At the post-conviction hearing, the Petitioner
did not present any proof to establish a reasonable probability that an independent
motion raised by trial counsel would have resulted in a different outcome, therefore
he has failed to meet his burden of proof in this claim.
Id. at *11.
With conflict of interest claims, prejudice is presumed only if the petitioner
demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict
27
of interest adversely affected his lawyer’s performance.” Strickland, 466 U.S. at 692 (quoting
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).
The Sixth Circuit set forth the standard for determining whether an actual conflict of
interests exists as follows:
We will not find an actual conflict unless appellants can point to “specific instances
in the record to suggest an actual conflict or impairment of their interests.” ...
Appellants must make a factual showing of inconsistent interests and must
demonstrate that the attorney “made a choice between possible alternative courses
of action, such as eliciting (or failing to elicit) evidence helpful to one client but
harmful to the other. If he did not make such a choice, the conflict remained
hypothetical.” ... There is no violation where the conflict is “irrelevant or merely
hypothetical”; there must be an “actual significant conflict.”
Thomas v. Foltz, 818 F.3d 476, 481 (6th Cir. 1987) (citing United States v. Mers, 701 F.2d 1321,
1328 (11th Cir. 1983)). Accordingly, once a conflict is shown, “the standard still requires a choice
by counsel, caused by the conflict of interest.” McFarland v. Yukins, 356 F.3d 688, 706 (6th Cir.
2004).
In this case, there is no evidence that Attorney Angel operated under an actual conflict.
Angel was no longer Hutson’s counsel at the time of trial. In fact, the record demonstrates that
Attorney Angel was out of the case before Hutson was bound over for trial [Doc. 13-27 p. 11516]. Additionally, there was no proof presented to the State courts to establish that an independent
motion from counsel would have resulted in a different outcome than the motion filed by Carino’s
counsel. Therefore, the Court finds that Cofer has not demonstrated that the TCCA’s decision
rejecting this claim was contrary to or an unreasonable application of Strickland, nor that it was
based upon an unreasonable determination of facts in light of the evidence presented to the State
court. Cofer is not entitled to relief on this claim.
4.
Coded note
Cofer asserts that his appellate counsel was ineffective in failing to challenge the admission
of the coded note on direct appeal, as there was no testimony establishing who wrote the note, and
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Agent Calahan’s testimony regarding its contents was purely speculative [Doc. 1 p. 18-22]. He
further claims that trial counsel conceded at the post-conviction hearing that his omission may
have been inadvertent rather than tactical [Id.].
In rejecting this claim on post-conviction appeal, the TCCA found that Cofer had failed to
establish that counsel’s failure to challenge the coded note on direct appeal was prejudicial, noting
that where a petitioner faults counsel for failing to raise an issue on appeal, the reviewing court
should consider the merits of the issue. Coffer II, 2015 WL 5679844, at *11-12. The TCCA noted
that Officer White testified that he personally observed the exchange of the note between Cofer
and Carino, and that the note was immediately retrieved from Carino and brought to him, where
Officer White was able to identify the note because of its torn corner. Id. at 12. Therefore, the
TCCA found, “the facts and circumstances surrounding the coded note reasonably established its
identity and integrity,” and Cofer failed to show he suffered prejudice due to counsel’s failure to
challenge the note’s admission on appeal. Id.
A review of the record supports the TCCA’s recitation of Officer White’s testimony [See
Doc. 13-10 p. 89-99]. Moreover, the admissibility of the note was addressed both at trial and in
Cofer’s motion for a new trial [Id. at 96; Doc. 13-15 p. 6]. Cofer has failed to establish that the
outcome on appeal would have been different than the other times the motion was considered.
Accordingly, Cofer has not demonstrated that he was prejudiced by counsel’s failure to raise this
issue on appeal. Therefore, the Court finds that Cofer has not demonstrated that the TCCA’s
decision rejecting this claim was contrary to or an unreasonable application of Strickland, nor that
it was based upon an unreasonable determination of facts in light of the evidence presented to the
State court, and he is not entitled to relief on this claim.
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5.
Pretrial motions
Cofer contends that trial counsel was ineffective for failing to file multiple pretrial motions,
including suppression motions, a judgment of acquittal based on insufficient corroborating
evidence, and a motion to dismiss based on invalid arrest warrants [Doc. 1 p. 22-25]. He also
claims that post-conviction counsel failed to thoroughly present this claim at the post-conviction
hearing, and that post-conviction counsel’s poor presentation of this issue should warrant a hearing
on the merits of whether trial counsel filed adequate pre-trial motions [Id.].
On post-conviction appeal, the TCCA noted that Cofer had failed to demonstrate how he
was prejudiced by his trial counsel’s motion practice, as he did not present any proof or argument
at the evidentiary hearing “to establish a reasonable probability that the filing of the Petitioner’s
requested pretrial motions would have resulted in a different outcome.” Cofer II, 2015 WL
5679844, at *13. Likewise, Cofer has failed in these proceedings to establish how he was
prejudiced by counsel’s failure to file additional motions, and therefore, cannot demonstrate an
entitlement to relief as to this claim. Therefore, the Court finds that the TCCA’s decision rejecting
this claim was not contrary to or an unreasonable application of Strickland, nor was it based upon
an unreasonable determination of facts in light of the evidence presented to the State court.
As far as Cofer’s claim may be considered an ineffective assistance of post-convictioncounsel claim for failing to properly present this issue at post-conviction hearing, the Court notes
that a freestanding claim that post-conviction counsel was ineffective is not a cognizable basis for
federal habeas relief. See 28 U.S.C. § 2254(i) (stating claims alleging ineffectiveness of
collateral review counsel are not cognizable habeas claims); Coleman, 501 U.S. at 752 (“There
is no constitutional right to an attorney in state post-conviction proceedings.”); Wallace v. Sexton,
No. 13-5331, 2014 WL 2782009, at *11 (6th Cir. June 20, 2014) (finding “Supreme Court has not
recognized ineffective assistance of post-conviction counsel as a free-standing constitutional
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claim”). Therefore, because Cofer’s ancillary claim does not present a cognizable basis for federal
habeas review, relief is precluded.
6.
Sentencing proceedings
Cofer contends that trial counsel was ineffective in failing to effectively represent him
during sentencing, as he failed to present any mitigating factors or present mitigating evidence
[Doc. 1 p. 26-27]. In considering this claim on appeal from the denial of post-conviction relief,
the TCCA found:
Petitioner argues that trial counsel provided ineffective assistance during
sentencing. Specifically, he contends that trial counsel should have presented
mitigating factors or evidence to support concurrent sentencing; should have
objected to the trial court’s finding that the Petitioner committed the offenses while
on probation; and should have informed the court the reason that the State withdrew
its notice of intent to seek enhanced punishment. In rejecting this claim, the postconviction court found that the Petitioner failed to present any proof of factors that
the sentencing court could have considered and that the Petitioner did not
demonstrate how counsel’s representation was ineffective or deficient during
sentencing. We agree that the Petitioner has made an insufficient showing of
prejudice based on counsel’s performance.
The record reflects that at the sentencing hearing, the Petitioner did not accept
responsibility for the offenses, as shown in his statement in the presentence report:
“I let someone use my phone and they were involved in the crime of robbery and
murder. No involvement, but my cell phone.” See Cody Cofer, 2012 WL 3555310,
at *14. Officer Danny Williams of the Board of Probation and Parole testified that
he interviewed the Petitioner twice, and the Petitioner denied being present during
the offenses. At the conclusion of the hearing, trial counsel argued that the court
should impose concurrent sentences for the felony murder convictions because
consecutive sentencing was akin to life without parole, an enhanced punishment
that the State had withdrawn. The Petitioner then challenged his sentences on direct
appeal, and this Court affirmed the trial court’s imposition of consecutive
sentences. Id. at *24.
At the post-conviction hearing, trial counsel testified that funding for a mitigation
expert had initially been approved because the State was seeking an enhanced
punishment of life without parole. Counsel stated that he consulted the Petitioner
and his family and that it was a matter of trial strategy to accept the State’s offer to
withdraw its intent to seek enhanced punishment. He conceded that he did not
present mitigation evidence at the sentencing hearing. Trial counsel further testified
that he did not expect to prevail on the sentencing issue on direct appeal.
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At the conclusion of the evidentiary hearing, the court specifically questioned postconviction counsel regarding whether the lack of proof presented by trial counsel
prejudiced the Petitioner at sentencing. The following colloquy occurred:
THE COURT: Ineffective assistance at sentencing, what is the
mitigation proof? There is none before this court today. I heard none
of what it is that [trial counsel] would have put on in mitigation. If
you had called the mitigation specialist, perhaps he would have said
to me [the Petitioner]’s eighteen years old at the time, he has an IQ
of particular thing, he did this, that, I haven’t heard anything about
it.
....
I’ve got no proof in this record that I can rule upon. Bring your
witness, bring them to me, show them to me, I don’t have any of
that. That’s the––
[POST–CONVICTION COUNSEL]: [Trial counsel] testified that
on appeal he raised three mitigating factors.
THE COURT: And did he raise them when we were sentencing the
[Petitioner]?
[POST–CONVICTION COUNSEL]: No.
THE COURT: He raised them to the Court of Criminal Appeals?
[POST–CONVICTION COUNSEL]: Yes.
THE COURT: How would he win, who is it, that proof is not before
this court? It wasn’t before the Court of Criminal Appeals either.
Who is it that testified to the three things that he said, here, today?
Do you see what I’m saying? I have to be able to see that if someone
had testified to that, the court may have ruled differently. I don’t
have that testimony.
We conclude that the Petitioner has failed to establish a reasonable probability that
but for counsel’s alleged errors, the results of the sentencing hearing would have
been different. To demonstrate prejudice based on trial counsel’s failure to present
a mitigation expert, the Petitioner should have presented such a witness at the postconviction hearing. See Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008); see also
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Nor has the
Petitioner shown that he was prejudiced by counsel’s failure to object to the trial
court’s finding that he committed the offenses while on probation, given that this
Court upheld the separate finding that the Petitioner was a dangerous offender. See
Cody Cofer, 2012 WL 3555310, at *22–24; see also T.C.A § 40–35–115(4).
Finally, the Petitioner has not shown that he would have received concurrent
32
sentences if trial counsel informed the court of the basis of the State’s withdrawal
of its notice of intent to seek enhanced punishment. Although the Petitioner
complains of counsel’s representation during sentencing, the Petitioner has not met
his burden of proving his factual allegations by clear and convincing evidence. See
T.C.A. § 40–30–110(f). Accordingly, he is not entitled to relief on this issue.
Cofer II, 2015 WL 5679844, at *13–14.
In his federal proceedings, as in his State proceedings, Cofer does not present any evidence
of what mitigating evidence his trial counsel should have presented, nor has he established how
those factors would have altered the outcome of his sentencing hearing. The Court finds that the
TCCA’s decision rejecting this claim was not contrary to or an unreasonable application of
Strickland, nor was it based upon an unreasonable determination of facts in light of the evidence
presented to the State court.
Insofar as Cofer’s claim is predicated on an allegation that post-conviction counsel
rendered ineffective assistance for failure to properly present this issue at the post-conviction
hearing, the Court iterates that such a claim is not a cognizable basis for federal habeas relief. See,
e.g., 28 U.S.C. § 2254(i); Coleman, 501 U.S. at 752. Accordingly, relief on this claim will be
denied.
B.
SUFFICIENCY OF THE EVIDENCE
Cofer argues that the evidence presented was insufficient to support his convictions [Doc.
1 p. 28-30]. The TCCA concluded that the evidence was sufficient to support his convictions of
first-degree felony murder and attempted especially aggravated robbery, noting the following:
The evidence established that the Defendant acquired a black four-door Kia to drive
to Cumberland County and rob Patton. The Defendant, Carino, and Hutson, with
the assistance of Spence, located Patton’s residence. The Defendant, Carino, and
Hutson returned to Patton’s home with guns to rob Patton of money and drugs that
they believed were in Patton’s home. The Defendant, who carried a pistol, and
Carino, who carried an assault rifle, both wore all black clothing, gloves, and face
masks. They entered Patton’s home and demanded money. When Patton ordered
the men out of his house, the Defendant and Carino began firing in a room full of
people, shooting and killing both Patton and Asher. After shooting Patton and
33
Asher, Carino headed to the back of the home while the Defendant went through
the kitchen drawers and cabinets. During this time, the Defendant refused to allow
Garrison to assist Asher, who was seriously injured. When Reed arrived, the
Defendant and Carino fled without money or drugs. Therefore, the evidence was
sufficient to establish that the Defendant killed Asher and Patton during the attempt
to perpetrate an especially aggravated robbery.
The Defendant does not contest that these crimes were committed, but he argues
that the proof of his identity as a participant is insufficient because, he claims, there
was no corroboration of the accomplices’ testimony implicating him in these
crimes. It is well-settled that in Tennessee, “a conviction may not be based solely
upon the uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d
900, 903 (Tenn.2001). The law in Tennessee regarding accomplice testimony has
been described as follows:
The rule simply stated, is that there must be some fact testified to,
entirely independent of the accomplice’s testimony, which, taken by
itself, leads to the inference, not only that a crime has been
committed, but also that the defendant is implicated in it; and this
independent corroborative testimony must also include some fact
establishing the defendant’s identity. This corroborative evidence
may be direct or entirely circumstantial, and it need not be adequate,
in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect
the defendant with the commission of the crime charged. It is not
necessary that the corroboration extend to every part of the
accomplice’s evidence.
Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994)
(citations omitted)). Whether sufficient corroboration exists is a determination for
the jury. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994).
Amanda Spence and Josh Hutson both testified as accomplices regarding the plan
to rob Patton. Hutson testified that he met the Defendant and Carino at a Taco Bell
in Oak Ridge, and the three men drove in a black Kia to Cumberland County to rob
Patton. Spence also identified the Defendant as present, first, at her apartment and,
second, in the black Kia when she took Carino, the Defendant, and Hutson to
Patton’s residence. Daniels corroborated this testimony. She stated that she dropped
Hutson off at a Taco Bell in Oak Ridge, where Hutson met the Defendant and
Carino, and they were driving a black Kia. Reed also testified that a black KIA was
outside parked in Patton’s driveway when he arrived.
Josh Hutson testified that he, the Defendant, and Carino were present during the
robbery. He said that all three men were wearing black clothing, masks, and gloves.
He said that his mask differed slightly in that it had a design on the lower half of
the mask. He described Carino as carrying an AK47 and the Defendant as carrying
34
a pistol when they entered Patton’s home. Initially, Hutson remained outside, but,
after hearing gunfire, he ran onto the porch and looked in the house through the
door. The Defendant then ordered him back outside to keep watch. Rhinehart
corroborated Hutson’s testimony. Rhinehart testified that two men entered Patton’s
residence, dressed in all black clothing wearing masks and gloves. One man carried
an AK47 while the other carried a pistol. After the two men fired their guns, a third
man appeared in the doorway wearing all black with a mask that had a design. The
man carrying the pistol ordered this third man to return outside to keep watch.
Further, medical examiner testimony confirmed that bullets from a pistol and
assault rifle were found in Patton’s body.
Text messages and phone calls were also exchanged between the participants both
before and after the murders occurred. Phone calls received and made from the
Defendant’s cellular phone indicated that these calls were connected through the
nearest cell phone tower, which was located in Crab Orchard, Tennessee, the
location of Patton’s home. This further corroborates the Defendant’s presence in
the area at the time of the murders. Spence’s testimony regarding phone calls
between her and the Defendant after the murders was also corroborated by the cell
phone records.
Based upon this evidence, we conclude that a rational jury could find the Defendant
guilty beyond a reasonable doubt as to each of the counts of first degree felony
murder and attempted especially aggravated robbery. Accordingly, the Defendant
is not entitled to relief on this issue.
Cofer I, 2012 WL 3555310, at *16–18.
A challenge to the sufficiency of the evidence is governed by the standard set forth in
Jackson v. Virginia, 443 U.S. 307 (1979), which allows a reviewing court to set aside a verdict on
the basis of insufficient evidence only if, “after viewing the evidence in the light most favorable
to the prosecution,” no “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The reviewing court must presume that
the trier of fact resolved conflicting inferences of fact in favor of the prosecution and must defer
to that resolution, because such a standard “gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id. Because both the AEDPA and the Jackson
35
standard apply to insufficiency claims, this Court’s review is doubly deferential. See Tucker v.
Palmer, 541 F.3d 652, 656 (6th Cir. 2008).
Cofer argues that there is no non-accomplice testimony linking him to the crimes in this
case, and that while the evidence might lead to a reasonable speculation that he was involved in
the crimes, such testimony is not sufficient evidence to sustain his convictions beyond a reasonable
doubt. Specifically, he asserts that Huston is the only witness implicating him in the actual crimes,
and even he did not witness the robbery or the shooting [Doc. 19 p. 19]. Cofer further argues that
his cell phone records do not corroborate witness testimony, as no evidence was presented to
demonstrate he was in possession of the phone at the time the relevant text messages and calls
were made [Id. at 19-21].
The Court notes that Cofer raises no dispute as to the sufficiency of the evidence to
establish that the crimes of first-degree felony murder and attempted especially aggravated robbery
occurred.
Rather, the issue raised here is the sufficiency of the non-accomplice evidence
identifying Cofer as a participant in the crimes. However, there is no federal constitutional
requirement that accomplice testimony be corroborated. See Tackas v. Engle, 768 F.2d 122, 127
(6th Cir. 1985). Therefore, whether this issue was correctly decided under State law is not
cognizable in federal habeas, unless it rises to the level of a due process violation. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, the Court considers this claim under the
Jackson standard, which mandates that “[o]nce a defendant has been found guilty of the crime
charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion
that upon judicial review all of the evidence is to be considered in the light most favorable to the
prosecution.” Jackson, 443 U.S. at 319 (emphasis in original).
36
At trial, accomplices Amanda Spence and Josh Hutson both identified Cofer as being
present during the robbery, and Hutson identified Cofer as the second shooter entering the Patton
home [See Doc. 13-9 p. 75-83; Doc. 13-11 p. 38-50]. Their testimony was corroborated by Anna
Claire Daniels, who identified Cofer as being present when she dropped Hutson off at the Taco
Bell in Oak Ridge, and as being present with Carino later in the evening when she went to the BP
in Solway intending to pick up Hutson and Carino [Doc. 13-11 p. 6-15].
Additionally, the jury was presented with cell phone evidence of calls and text messages
from Cofer’s cell phone to the cell phones of Carino, Hutson, and Spence, and “pings” from a
tower near the Patton home further corroborated that Cofer was near the scene of the crime at
relevant times [See, e.g., Doc. 13-9]. While Cofer contends that there is no proof that he was the
individual in possession of his cell phone at the time of the murders, his cell phone was found at
his mother’s home during the execution of a search warrant a few days later, further corroborating
the testimony given at trial [See Doc. 13-8 p. 128-137; Doc. 13-9 p. 4-9].
The jury resolved the conflicts in testimony in this case in favor of the State, and there was
sufficient evidence presented to establish Cofer as a participant in the crimes. Therefore, the
decision rejecting this claim was not contrary to, nor did it involve an unreasonable application of,
Jackson v. Virginia, nor was it based on an unreasonable determination of facts in light of the
evidence presented. Cofer is not entitled to relief as to this claim.
IV.
CERTIFICATE OF APPEALABILITY
A petitioner must obtain a certificate of appealability (“COA”) before he may appeal this
Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue
unless a petitioner makes “a substantial showing of the denial of a constitutional right” of any
claim rejected on its merits, which a petitioner may do by demonstrating that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” 28
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U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim
that has been rejected on procedural grounds, a petitioner must demonstrate “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Applying this standard, the Court concludes that a
COA should be denied in this case.
V.
CONCLUSION
Cody Cofer has failed to demonstrate an entitlement to federal habeas relief.
Therefore,
his petition for a writ of habeas corpus will be DENIED, and this action will be DISMISSED
WITH PREJUDICE. A certificate of appealability from this decision will be DENIED.
Further, the Court will CERTIFY that any appeal from this action would not be taken in
good faith and would be totally frivolous. Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.
___________________________________________
CHIEF UNITED STATES DISTRICT JUDGE
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