Ralph v. Leibach
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Clifton L Corker on 7/10/20. (c/m to Lawrence David Ralph, Jr. #224370, TTCC, 140 Macon Way, Hartsville, TN 37074)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
LAWRENCE DAVID RALPH, JR.,
Petitioner,
v.
BLAIR LEIBACH,
Respondent.
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No.
4:17-CV-020-DCLC-SKL
MEMORANDUM OPINION
On September 1, 2006, Bruce Pryor, a Tennessee highway patrol trooper in Warren
County, Tennessee, saw a white Pontiac that was going “a little fast” appear to cross into another
lane of traffic. State of Tennessee v. Lawrence D. Ralph, 347 S.W.3d 710, 713 (Tenn. Crim. App.
2010), perm. app. denied (Tenn. March 9, 2011). Trooper Pryor signaled for the Pontiac to pull
over so that he could give the driver a warning, but the car sped off as Trooper Pryor approached
it. Id. As Trooper Pryor chased the Pontiac, he again saw it cross into another lane of traffic before
it parked on the left side of the road, at which point the driver, who had a ponytail and was wearing
a white t-shirt and “denim ‘short pants’” and whom Trooper Pryor identified at trial as Petitioner,
ran into the woods. Id.
After Petitioner fled, a passenger got out of the Pontiac and Trooper Pryor arrested him for
public intoxication. Id. Other troopers arrived to assist Trooper Pryor in searching for Petitioner
and while they were doing so, a third party named Johnny McCormick, Jr., saw a man with long
hair who was carrying a white shirt and “looking around ‘like he was scared,’” whom he identified
at trial as Petitioner, leave the woods and run across the street. Id. Mr. McCormick then learned
from his brother that police were looking for someone in the area, found Trooper Pryor, and
reported what he had seen. Id. at 713–14.
After Trooper Pryor received another tip regarding his search for Petitioner from a local
resident, he went to the residence of Sheila Hobbs. Id. at 714. While he was speaking to Ms.
Hobbs, Petitioner came out from the back of Ms. Hobbs’s house, at which point Trooper Pryor
recognized him as the driver of the Pontiac and arrested him. Id. While he was arresting Petitioner,
Trooper Pryor noticed leaves and twigs in Petitioner’s hair, scratches on Petitioner’s legs, a “strong
odor of alcohol,” and that Petitioner had bloodshot eyes. Id. According to Trooper Pryor,
Petitioner was alert and “frazzled” during his arrest at Ms. Hobbs’s residence, which was about
forty-five minutes after Trooper Pryor had seen the Pontiac that Petitioner was driving cross into
another lane. Id.
According to Ms. Hobbs, Petitioner had performed repairs in her home in the days prior to
September 1, 2006, and had been sleeping in her bedroom for more than five and up to fifteen or
thirty minutes when Trooper Pryor arrived on that day, but she was unsure how long he had been
at her home or whether he was working on her home on September 1, 2006. Id. However, Ms.
Hobbs did not find any blood or leaves in her bed after Petitioner was arrested. Id.
When he and Trooper Pryor arrived at the jail, Petitioner signed the implied consent form
for a breath-alcohol test after Trooper Pryor reviewed it with him. Id. Trooper Pryor then observed
Petitioner for twenty minutes, during which time Petitioner did not put anything in his mouth,
chew gum or tobacco, smoke or drink, or “appear to belch” before Trooper Pryor administered the
test, which he was certified to do, using an intoximeter that the Tennessee Bureau of Investigation
had certified. Id. The test showed that Petitioner’s blood alcohol level was .09. Id.
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Based on this evidence set forth at Petitioner’s trial for offenses arising out of this incident,
a Warren County jury convicted Petitioner of driving under the influence (“DUI”), DUI per se
(fourth offense), driving on a revoked driver’s license (fifth offense), violation of the habitual
traffic offender statute, and two counts of evading arrest [Doc. 18-1 p. 65–66]. However, the trial
court ultimately set aside Petitioner’s conviction for driving on a revoked license based on double
jeopardy concerns due to Petitioner’s conviction for being a habitual traffic offender that arose
from the same indictment, and dismissed this count of the indictment conditioned on Petitioner’s
habitual traffic offender conviction surviving appeal [Doc. 18-6 p. 61].
The TCCA affirmed Petitioner’s convictions. Id. at 719. Petitioner then filed a petition
for post-conviction relief that the state court denied after a hearing [Doc. 18-12 p. 45; Doc. 18-13],
and the TCCA affirmed. Ralph v. State of Tennessee, No. M2013-00828-CCA-R3-PC, 2014 WL
2000987 (Tenn. Crim. App. May 14, 2014), perm. app. denied (Tenn. Sept. 25, 2014).
Now before the Court is Petitioner’s pro se amended petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he asserts that (1) the evidence was insufficient to support
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The judgments in the technical record of Petitioner’s direct appeal are from the wrong
case [Doc. 18-1 p. 86–91]. However, a supplemental record from this appeal contains the correct
judgments against Petitioner for the convictions for which he seeks relief under § 2254 herein
[Doc. 18-6].
Also, the Tennessee Court of Criminal Appeals’ (“TCCA”) opinions regarding the
convictions Petitioner challenges herein state that the trial court merged Petitioner’s DUI
convictions together, merged his revoked license conviction with his habitual traffic offender
conviction, and sentenced Petitioner to four years each for the DUI, habitual traffic offender, and
evading arrest convictions, resulting in an effective twelve-year sentence. State of Tennessee v.
Lawrence D. Ralph, 347 S.W.3d 710, 713 (Tenn. Crim. App. 2010), perm. app. denied (Tenn.
March 9, 2011); Ralph v. State of Tennessee, No. M2013-00828-CCA-R3-PC, 2014 WL 2000987
(Tenn. Crim. App. May 14, 2014). However, as set forth above, the supplemental record
establishes that the trial court actually set aside and dismissed Petitioner’s revoked license
conviction due to double jeopardy concerns [Doc. 18-6 p. 6] rather than merging it with the
habitual traffic offender conviction.
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his DUI conviction; (2) the trial court erred in sentencing him; (3) his trial counsel was ineffective
for not ordering the transcript of the voir dire before his trial; and (4) his trial counsel was
ineffective for not asserting a double jeopardy argument arising out of his convictions for driving
on a revoked license and being a habitual traffic offender, and his post-conviction counsel was
ineffective for not asserting that his trial counsel was ineffective with regard to the double jeopardy
argument [Doc. 12]. Respondent filed a response in opposition thereto [Doc. 19], as well as the
state record [Doc. 18]. After reviewing the relevant filings, including the state court record, the
Court finds that the record establishes that Petitioner is not entitled to relief under § 2254.
Accordingly, no evidentiary hearing is warranted, see Rules Governing § 2254 Cases, Rule 8(a)
and Schirro v. Landrigan, 550 U.S. 465, 474 (2007), Petitioner’s requests for § 2254 relief will be
DENIED, and this action will be DISMISSED.
I. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28
U.S.C. § 2254, et. seq., a district court may not grant habeas corpus relief for a claim that a state
court adjudicated on the merits unless the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding.
28 U.S.C. § 2254(d)(1)–(2).
The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (noting that Ҥ 2254(d), as amended by AEDPA, is a purposefully demanding
standard . . . ‘because it was meant to be’”) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)). When evaluating the evidence presented in State court, a federal habeas court presumes
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the correctness of the State court’s factual findings unless the petitioner rebuts that presumption
with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
II.
ANALYSIS
A. Sufficiency of the Evidence
Petitioner first claims that the evidence was insufficient to support his DUI conviction. The
United States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307 (1979), provides the
controlling rule for such claims. See Gall v. Parker, 231 F.3d 265, 287–88 (6th Cir. 2000),
superseded on other grounds Parker v. Matthews, 567 U.S. 37 (2012). In Jackson, the Supreme
Court held that the evidence is sufficient to sustain a conviction if, viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson, 443 U.S. at 319. In making
this determination, the district court may not “reweigh the evidence, re-evaluate the credibility of
witnesses, or substitute [its] judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191, 205
(6th Cir. 2009).
A habeas court reviewing a challenge to the sufficiency of the evidence must apply two
levels of deference. Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). First, under Jackson,
the court gives deference to the fact finder’s verdict “with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Tucker v. Palmer, 541 F.3d 652, 656
(6th Cir. 2008) (citing Jackson, 443 U.S. at 324 n.16); see also Cavazos v. Smith, 565 U.S. 1, 6–7
(2011) (providing that “a reviewing court ‘faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution’”) (quoting Jackson, 443 U.S. at 326). The habeas court must also give additional
deference the state court’s consideration of the trier-of-fact’s verdict pursuant to the highly
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deferential standards of the AEDPA. Cavazos, 565 U.S. at 6 (noting the double deference owed
“to state court decisions required by § 2254(d)” and “to the state court’s already deferential
review”). As such, a petitioner bringing a claim of insufficient evidence “bears a heavy burden.”
United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).
Petitioner makes no argument to support his claim that the evidence was insufficient to
support his DUI conviction in his § 2254 petition, but instead cut and pasted the TCCA’s factual
summary of his trial and legal analysis of this claim from its opinion denying Petitioner’s direct
appeal [Doc. 12 p. 6–12]. However, as set forth above, there was substantial circumstantial
evidence that Petitioner was intoxicated at the time that Trooper Pryor saw him driving the Pontiac,
including but not limited to the breath-alcohol test, and Petitioner cites no evidence to the contrary.
Such circumstantial evidence is sufficient to support a DUI conviction under Tennessee
and federal law. State v. Greenwood, 115 S.W. 3d 527, 532–33 (Tenn. Crim. App. 2003)
(providing that a breath-alcohol test “administered a reasonable time after the defendant has been
driving . . . constitutes circumstantial evidence upon which the trier of fact may, but is not required
to, convict the defendant of DUI”) ; Durr v. Mitchell, 487 F.3d 423, 449 (6th Cir. 2007) (holding
that “circumstantial evidence is entitled to equal weight as direct evidence”). Thus, Petitioner has
not met his heavy burden to establish that the TCCA’s determination that the evidence was
sufficient to support Petitioner’s DUI conviction was an unreasonable application of federal law
or an unreasonable determination of the facts in light of the evidence presented and Petitioner is
not entitled to § 2254 relief for this claim.
B. Sentence
Petitioner also claims that the state court erred with regard to his sentence. In support of
this claim, Petitioner again copied and pasted portions of the TCCA’s opinion affirming the trial
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court’s denial of this claim in his direct appeal, and additionally states that the court erred in
imposing the maximum sentence and that this sentence is cruel and unusual punishment because
the trial court’s findings that Petitioner had a “‘blatantly obvious’” extensive criminal record and
“‘had devoted a great deal of his life to criminal acts’” were too vague to support the imposition
of this sentence [Doc. 2 p. 6; Doc. 5 p. 1–2].
To the extent that this claim arises out of allegations of error in the application of state law
as Petitioner alleged in his direct appeal claim challenging his sentence as excessive [Doc. 18-7 p.
20–21], however, it is not cognizable under § 2254. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)
(holding that “it is not the province of a federal habeas court to reexamine state-court
determinations on state-court questions”).
Moreover, to the extent that Petitioner now asserts in his § 2254 petition that his sentence
violates the Eighth Amendment because it amounts to cruel and unusual punishment, he did not
present any such claim to the state court when he raised a claim challenging his sentence in his
direct appeal [Doc. 18-7 p. 20–21], or when he appealed the denial of his post-conviction petition
[Doc. 18-14]. For a federal court to consider a claim on habeas review, a petitioner must first
exhaust his state court remedies for that claim. 28 U.S.C. §2254(b)(1). Exhaustion requires the
petitioner to “fairly present” each federal claim to all levels of the state appellate system by
presenting the “same claim under the same theory” up to the state’s highest court, Wagner v. Smith,
581 F.3d 410, 414, 418 (6th Cir. 2009), to ensure that states have a “full and fair opportunity to
rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The
record establishes Petitioner did not exhaust his claim that his sentence violated his constitutional
rights with the state courts.
Thus, the Court will not address the merits of this claim.
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C. Ineffective Assistance of Counsel
As set forth above, Petitioner also claims that his trial counsel was ineffective for failing
to request a copy of the transcript from the voir dire at his trial and for not asserting a double
jeopardy argument arising out of his convictions for driving on a revoked license and being a
habitual traffic offender, and his post-conviction counsel was ineffective for not asserting that his
trial counsel was ineffective with regard to the double jeopardy argument. The Sixth Amendment
provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . .
. to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. This includes the
right to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687
(1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of
ineffective assistance of counsel:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687. A petitioner has the burden of proving ineffective assistance of his
counsel. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
In considering the first prong of Strickland, the appropriate measure of attorney
performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688.
A party asserting an ineffective assistance of counsel claim must “identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at
690. The evaluation of the objective reasonableness of counsel’s performance must be made “from
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counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the
standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong of the Strickland test requires a claimant to show counsel’s deficient
performance prejudiced the defense.
Thus, “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Strickland, 466 U.S. at 691.
The Supreme Court has emphasized that a claimant must establish both prongs of a claim
for ineffective assistance of counsel to meet his burden, and if either prong is not satisfied, the
claim must be rejected. Strickland, 466 U.S. at 69. Moreover, a habeas petitioner alleging
ineffective assistance of counsel bears a heavy burden, given the “doubly deferential” review of a
such a claim under § 2254(d)(1). Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
1. Voir Dire
As set forth above, Petitioner asserts that trial counsel was ineffective for not requesting
the transcripts of the voir dire in his trial. However, Petitioner has not set forth any facts suggesting
that anything occurred in voir dire that prejudiced his defense. Thus, Petitioner has failed to
establish the second prong of Strickland for this ineffective assistance of counsel claim, and the
TCCA’s holding that Petitioner was not entitled to relief on this claim was not an unreasonable
application of federal law or an unreasonable determination of the facts in light of the evidence
presented. As such, Petitioner is not entitled to relief under § 2254 for this claim.
2. Double Jeopardy
Petitioner also alleges that his convictions for being a habitual traffic offender and driving
on a revoked license convictions violated double jeopardy, that his trial counsel was ineffective
for failing to raise this argument, and that his post-conviction counsel was ineffective for failing
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to raise this claim for ineffective assistance of trial counsel [Doc. 12 p. 22–5]. Petitioner relies on
Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir. 2014), to overcome his procedural default of
this argument and asserts that this error resulted in a four-year prison sentence [Id.].
A petitioner who fails to raise his federal claim in the state courts and cannot now do so
due to a procedural rule has committed a procedural default that forecloses federal habeas review
unless the petitioner shows cause to excuse his failure to comply with the procedural rule and
actual prejudice from the constitutional violation. Coleman v. Thompson, 501 U.S. 722, 750
(1991). An attorney’s ineffective assistance in post-conviction proceedings generally does not
establish “cause” to overcome procedural default of claims. Id. at 755. Where a habeas petitioner
could raise a claim for trial counsel’s ineffective assistance for the first time in a post-conviction
petition, however, ineffective assistance of post-conviction counsel may be “cause” to excuse the
procedural default. Wallace v. Sexton, 570 F. App’x 443, 452–53 (6th Cir. 2014); Trevino v.
Thaler, 133 S.Ct. 1911, 1918–21 (2013); Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). This
exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir. 2014).
Petitioner’s claim that his trial counsel was ineffective for not raising a double jeopardy
argument and that his post-conviction counsel was ineffective for not raising this claim for
ineffective assistance of trial counsel in his post-conviction petition fits within the Martinez
framework.
Thus, the Court must determine whether Petitioner is entitled to relief under
Strickland based on his post-conviction counsel’s failure to raise an ineffective assistance of
counsel claim asserting that Petitioner’s trial counsel should have argued that convicting Petitioner
for both driving on a revoked license and for being a habitual traffic offender violated the principles
of double jeopardy under the Tennessee Constitution. State v. Green, 947 S.W.2d 186, 190 (Tenn.
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Crim. App. 1997) (finding that the offenses of driving on a revoked license and for being a habitual
traffic offender “are the ‘same’ for double jeopardy purposes under the Tennessee Constitution”).
As set forth above, however, the record establishes that the trial court ultimately set aside
Petitioner’s conviction for driving on a revoked license due to double jeopardy concerns arising
from the fact that the jury had convicted Petitioner of being a habitual traffic offender based on
the same indictment [Doc. 18-6 p. 6]. Thus, even if Petitioner’s counsel was deficient for not
raising this double jeopardy argument based on Green, nothing in the record suggests Petitioner
was prejudiced by this deficiency, as he did not actually serve any time for this set-aside conviction
for driving on a revoked license, but rather the trial court sentenced him to four years for his
habitual traffic offender conviction alone [Id. at 7], as well as four years for his merged DUI
convictions [Id. at 4–5], and eleven months and twenty-nine days for each of his evading arrest
convictions [Id. at 8–9]. As such, Petitioner has not established that he suffered any prejudice due
to his trial counsel’s failure to raise this double jeopardy argument, and therefore cannot establish
that his post-conviction counsel was ineffective for failing to raise a claim for ineffective assistance
of trial counsel arising out of trial counsel’s failure to make this argument.
Accordingly, Petitioner has not met his burden to establish that he is entitled to relief under
§ 2254 for this claim.
III.
CONCLUSION
For the reasons set forth above, Petitioner’s requests for § 2254 relief will be DENIED and
this action will be DISMISSED.
IV.
CERTIFICATE OF APPEALABILITY
The Court must now consider whether to issue a certificate of appealability (“COA”),
should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may
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appeal a final order in a habeas proceeding only if he is issued a COA, and a COA may only be
issued where a Petitioner has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a procedural basis without
reaching the underlying claim, a COA should only issue if “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Where the court dismissed a claim on the merits, but
reasonable jurists could conclude the issues raised are adequate to deserve further review, the
petitioner has made a substantial showing of the denial of a constitutional right. See Miller-El v.
Cockrell, 537 U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484.
Reasonable jurists would not debate the Court’s finding that Petitioner procedurally
defaulted his claim that his sentence violated his rights under the Eighth Amendment. Further,
reasonable jurists could not conclude that Petitioner has made a substantial showing of a denial of
a constitutional right with regard to his claims regarding sufficiency of the evidence or for
ineffective assistance of counsel such that they would be adequate to deserve further review.
Accordingly, a COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:
s/Clifton L. Corker
United States District Judge
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