Blue v. Lindamood

Filing 22

MEMORANDUM OPINION OF THE COURT signed by District Judge Aleta A. Trauger on 1/14/2015. (xc: Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES R. BLUE,

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Petitioner,
v.
CHERRY LINDAMOOD, Warden,
Respondent.

Case No. 3:14-cv-01549
Judge Trauger

MEMORANDUM OPINION
Petitioner James R. Blue, a state prisoner incarcerated at the Whiteville Correctional Facility in
Hardeman County, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas
corpus challenging his 2012 conviction in the Criminal Court of Davidson County, Tennessee. (ECF No.
1.) The respondent filed an answer in opposition to the petition (ECF No. 20), along with a complete copy
of the underlying state-court record (ECF No. 21). The petition is ripe for review, and this court has
jurisdiction.
Upon consideration of the petition, the answer, and the underlying state-court record, the court
finds for the reasons set forth herein that the petitioner is not entitled to relief on the grounds asserted.
The court further finds that an evidentiary hearing is not necessary, see Smith v. United States, 348 F.3d
545, 550 (6th Cir. 2003) (an evidentiary hearing is not required when the record conclusively shows that
the petitioner is not entitled to relief). Blue’s petition will be denied and this matter dismissed.
I.

PROCEDURAL BACKGROUND
On February 22, 2012, the petitioner submitted a petition to enter a plea of guilty to one count of a

three-count indictment (for sale of more than .5 grams of a Schedule II Controlled Substance). The plea
agreement provided for the dismissal of the other two counts and a stipulated sentence of 20 years’
incarceration to be served at 45% for parole-eligibility purposes. (ECF No. 21-1, at 13–17 (Plea Pet’n).)
The plea petition was accepted by the Davidson County Criminal Court (id. at 18 (Order accepting plea)),
and the petitioner was sentenced in accordance with the agreed sentence, meaning that he was
classified as a Range III persistent offender. (Id. at 14 (Judgment).)

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The petitioner did not pursue a direct appeal, but he filed a post-conviction petition in the state
court on January 9, 2013. (ECF No. 21-1, at 19–35.) The trial court appointed counsel, who filed an
amended petition. After conducting a hearing at which the petitioner and his trial attorney testified, the trial
court entered an order denying the petition. (Id. at 43–47.) That decision was affirmed. Blue v. State, No.
M2013-02251-CCA-R3-PC, 2014 WL 2592802 (Tenn. Ct. Crim. App. June 10, 2014).
Blue filed his § 2254 petition on or about July 18, 2014. The respondent apparently concedes that
the petition is timely.
II.

STATEMENT OF THE ISSUE
The petitioner raises two intertwined arguments in this Court: (1) that his entry of a plea was not

truly knowing and voluntary because (2) his trial counsel was constitutionally ineffective for allowing him
to plead as a Range III persistent offender when he actually should have been classified, based on his
prior criminal history, as a Range II offender. (ECF No. 1, at 5.)
The petitioner raised the same claims in his post-conviction proceedings at both the trial and
appellate levels.
III.

RELEVANT FACTUAL BACKGROUND
The Tennessee Court of Criminal Appeals summarized the procedural and factual history of this

case as follows:1
The brief factual basis for the petitioner’s conviction, as stated at the guilty plea
hearing, is “this matter took place here in Davidson County on November 4th of 2010
where the [petitioner] sold a quantity of cocaine over. 5 grams to an undercover police
officer inside Club Traks” . . . . The State filed a Notice of Enhanced Punishment in the
case, which established the petitioner’s status as a Range III persistent offender. The
State relied upon five prior convictions which arose from two separate cases: 96-C-1691
and 96-C-1373. Case 96-C-1691 involved two felony convictions, and Case 96-C-1373
involved three felony convictions. The State subsequently offered and the petitioner
accepted a plea agreement in which the petitioner pled guilty to the sale of .5 grams or
more of a Schedule II controlled substance, and the remaining charges were dismissed.
The agreement also provided for a sentence of twenty years in confinement as a Range
III offender.
At the guilty plea hearing, the trial court extensively covered the rights which the
1

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §
2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”). The petitioner here does not contest the appellate
court’s statement of facts.

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petitioner would be waiving should he choose to enter the guilty plea. Under oath, the
petitioner acknowledged that he had read the plea petition and reviewed it with trial
counsel, stating that he fully understood the contents of the agreement. The court
reviewed the charges against the petitioner and noted the possible ranges of punishment
for each crime should the petitioner choose to proceed to trial. The petitioner again
acknowledged that he understood the charges and the possible sentences related to
each of the separate charges. He testified that he understood that he was pleading guilty
to one offense, with the others being dismissed, and that he understood the sentence
which would be imposed pursuant to the plea agreement.
The petitioner stated on the record in the plea admission hearing that he had no
complaints whatsoever with trial counsel’s representation of him during the case. He
related that he had an opportunity to discuss with trial counsel the facts and
circumstances of the case, the applicable law, and the State’s evidence against him. The
petitioner testified that trial counsel had answered any questions he had concerning the
case. The trial court accepted the guilty plea, and the petitioner began serving his
sentence.
Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
alleging that his plea was not entered knowingly and voluntarily based upon the
ineffective assistance of counsel. Following the appointment of counsel, an amended
petition was filed. The main allegation of ineffective assistance of counsel, although
others were mentioned in the petition, was that trial counsel failed to discover that the
three convictions in Case 96-C-1373 were in “limbo” and therefore could not be used to
enhance the petitioner’s range. The petitioner contends that he, on the advice of trial
counsel, actually accepted a plea agreement as a Range III offender when in reality, he
only qualified as a Range II offender.
At the post-conviction hearing, the petitioner and trial counsel both offered testimony.
...
....
The petitioner testified that trial counsel brought him some of the discovery materials
later in the representation. He claimed that he did not receive all of them until after he
was in the Department of Correction. After he was incarcerated, the petitioner claimed
that he hired a private investigator to work on his case. At some point following his
conviction, the petitioner did receive all of the discovery materials, including the State’s
Notice of Enhanced Punishment. The notice listed a prior conviction in 2005 in Case 96C-1691 for which the petitioner was not convicted. However, the petitioner was convicted
in 1998 in that case of the charges listed. The State erred by listing the date of conviction
of a co-defendant in the case. Regardless of that error, the petitioner did acknowledge
that he had five prior convictions in two cases. However, he testified that, because of a
technicality, he now believed that only two were valid convictions. Accordingly, he felt that
trial counsel was ineffective for allowing him to accept a plea agreement as a Range III
offender.
Trial counsel also testified at the hearing that he represented the petitioner from
general sessions court until the completion of the case. . . .
....
During the argument portion of the hearing, the State conceded that the petitioner
was correct in that the enumerated 2005 conviction on the notice of enhancement was in
error. However, it was not disputed that the petitioner did have five prior convictions in
two separate cases. Counsel for the petitioner argued that only two of those convictions
were valid and could be considered for range determination purposes.

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To support his argument, the petitioner relied upon this court’s opinion in his prior
post-conviction case. In James R. Blue v. State, No. M2002-00383-CCA-R3-PC, 2003
Tenn. Crim. App. LEXIS 289, at *1, 2003 WL 1715745 (Tenn. Crim. App. Apr. 1, 2003),
this court noted that in Case 96-C-1373, the petitioner pled guilty to three Class B felony
drug offenses. Pursuant to the agreement, the petitioner received three ten-year
sentences, which were to be served concurrently. At the hearing, the petitioner requested
that he be allowed to begin serving his sentence the following day. The trial court allowed
this with the specific condition that, if the petitioner failed to report the following day, the
trial court would run the sentences consecutively instead of currently as the plea
agreement specified. The petitioner failed to report, and the trial court entered judgments
of conviction reflecting consecutive sentencing. Id. at *3–4.
Afterwards, the petitioner filed a petition for post-conviction relief challenging the
decision, but the post-conviction court denied relief. The petitioner then appealed to this
court, and it was concluded that the change in the sentencing was erroneous. Id. at *17.
This court reversed the change in sentences and remanded the case for entry of
corrected judgments which reflected concurrent sentencing. Id. at *22. Apparently, the
trial court failed to enter any corrected judgment forms. The petitioner contended,
therefore, that the judgments, as entered, were invalid because they were in violation of
this court’s findings and, accordingly, could not be used to enhance his range. If those
convictions are not considered, the petitioner actually qualifies only as a Range II
offender.
After hearing the evidence presented and arguments of the parties, the postconviction court entered a written order denying the petitioner relief. The petitioner has
timely appealed that decision.
Blue, 2014 WL 2592802, at *1–4 (footnote omitted).
IV.

STATE COURT’S RESOLUTION OF THE CLAIM
The Tennessee Court of Criminal Appeals framed the petitioner’s claims as follows:
(1) [W]hether [the petitioner] qualifies as Range II or Range III offender and (2) whether
trial counsel was ineffective for allowing the petitioner to accept a Range III plea
agreement. The petitioner argues that he qualifies only as a Range II offender and that
trial counsel should have advised him of this fact. Because trial counsel did not, the
petitioner contends that his guilty plea was not entered knowingly and voluntarily.

Id. at *4.
In resolving the claims in favor of the state, the court ruled as follows:
In evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea
represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). In making this
determination, the reviewing court must look to the totality of the circumstances. Indeed,
a
court charged with determining whether . . . pleas were “voluntary” and
“intelligent” must look to various circumstantial factors, such as the relative
intelligence of the defendant; the degree of his familiarity with criminal
proceedings; whether he was represented by competent counsel and had the
opportunity to confer with counsel about the options available to him; the extent
of advice from counsel and the court concerning the charges against him; and

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the reasons for his decision to plead guilty, including a desire to avoid a greater
penalty that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Once a guilty plea has been
entered, effectiveness of counsel is relevant only to the extent that it affects the
voluntariness of the plea. In this respect, such claims of ineffective assistance necessarily
implicate that guilty pleas be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S.
52, 56 (1985) (citing Alford, 400 U.S. at 31).
To succeed in a challenge for ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded
of attorneys in criminal cases. Under Strickland v. Washington, 466 U.S. 668, 687 (1984),
the petitioner must establish (1) deficient representation and (2) prejudice resulting from
the deficiency. In the context of a guilty plea, to satisfy the second prong of Strickland,
the petitioner must show that “there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.”
Lockhart, 474 U.S. at 59. The petitioner is not entitled to the benefit of hindsight, may not
second-guess a reasonably-based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceeding. This deference
to the tactical decisions of trial counsel, however, is dependent upon a showing that the
decisions were made after adequate preparation.
....
In its order denying relief, the post-conviction court found that:
Petitioner’s main argument that he had ineffective assistance of counsel is
that he was incorrectly advised that he was a Range III offender with five prior
felony convictions. . . .
However, the Court of Criminal Appeals has ruled that a court’s failure to
enter a final order is harmless if there is an oral pronouncement of the order from
the bench. . . . In Case 96-C-1373, the Court of Criminal Appeals issued a ruling
remanding the case to the trial court for entry of the amended judgments making
the sentences run concurrently instead of two running consecutively. . . .
Additionally, inferior courts must abide by orders made from a superior court.
. . . A trial court has no authority to refuse to obey an order by the appellate court
on remand. The slightest deviation from this rigid rule would disrupt and destroy
the sanctity of the judicial process. . . . There would be no finality or stability in
the law and the court system would be chaotic in its operation and unstable and
inconsistent in its decision. . . . The trial court in Case 96-C-1373 ha[d] no
authority to ignore the order from the Court of Criminal Appeals ordering the
entry of amended judgments in the case.
Since the Court of Criminal Appeals merely remanded the case for entry of
the amended judgment[s] instead of reversing the convictions, the convictions
are valid and are not affected by the trial court’s failure to enter the amended
judgments. Consequently, Petitioner has five prior felony convictions, thus,
making him a Range III offender for sentencing purposes.
Again, on appeal, the petitioner limits his argument regarding ineffective
assistance of counsel and the voluntariness of his guilty plea to his challenge of his
status as a Range III offender. However, after reviewing the record, we find nothing in the
record which preponderates against the post-conviction court’s findings. The petitioner’s
attempt to circumvent his guilty plea by asserting a technical argument such as this is not

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well taken. The petitioner was well aware of the number of prior convictions that he had
amassed when he stood before the court and entered the plea of guilty.
Initially, we note that the petitioner has actually failed to establish that the amended
judgments of conviction were never entered. The exhibits portion of the record contains
six judgments of conviction in Case number 96-C-1373. Three of those reflect concurrent
sentences, the others reflect consecutive sentences. Each of the six judgments is dated
September 24, 1998. We have no way of knowing which set of judgments were [sic]
entered first. Specifically, with nothing more to go on than these forms, it is not sufficiently
clear to establish that amended judgments of convictions were not entered and backdated to the original entry date. It is the petitioner’s burden to establish his entitlement to
relief. Moreover, we would note that clearly the petitioner was not required to serve his
three ten-year sentences in that case consecutively.
We agree with the post-conviction court’s conclusion that the petitioner is in fact a
Range III offender. We also agree that if the judgments in question were not actually
valid, he would qualify only as a Range II offender. However, that is not the case before
us presently. This court, in Case number 96-C-1373, did not invalidate the convictions, it
merely remanded for a change in sentencing, a change which incidently [sic] benefitted
the petitioner greatly. The convictions themselves were never reversed. Basically, this
court’s ruling served only to reinstate the petitioner’s original concurrent sentences. And
while the trial court may have neglected to ensure that the amended judgments were
entered, that in no way affects the validity of the actual convictions. Those convictions
being valid mean [sic] that the petitioner is a Range III offender because he has five prior
felony convictions on his record. Based upon that finding, there was no deficiency in trial
counsel’s performance for advising the petitioner to accept the agreement.
....
Even had we found that deficiency was established, the petitioner would be
challenged to establish the prejudice prong of his claim. Here, the petitioner was facing
two serious felony charges, as well as a misdemeanor. In addition to the possible
misdemeanor sentence, the petitioner faced two possible convictions and sentences of
eight to thirty years each. The transcript of the plea hearing and trial counsel’s testimony
at the post-conviction hearing establish that the petitioner wanted to enter the plea. He
was aware of the consequences and the possible sentences. Based upon the record and
trial counsel’s testimony relating to the State’s case against the petitioner, it appears that
if the petitioner had chosen to go to trial, he faced an almost certain conviction of the
multiple charges. The petitioner in fact acknowledged that he did not really want to
proceed to trial, he just wanted a shorter sentence than he agreed to accept. That does
not entitle him to post-conviction relief.
On the record before us, we can reach no other conclusion than that the petitioner
entered his guilty plea knowingly and voluntarily. He stood before the trial court and
stated his understanding of the agreement and his desire to enter the plea. The petitioner
may not now disavow his sworn testimony.
Id. at *4–7 (some citations omitted).
V.

STANDARD OF REVIEW
A federal district court will not entertain a petition for the writ of habeas corpus unless the

petitioner has first exhausted all available state-court remedies for each claim in his petition. 28 U.S.C. §
2254(b)(1). A habeas petitioner bears the burden of demonstrating that he has properly and fully

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exhausted his available state court remedies with respect to the claims he presents for federal habeas
review. Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987) (citation omitted).
This court’s review of the state court’s resolution of the properly exhausted issues raised in a
federal habeas petition under § 2254 is quite limited. First, this court may “entertain an application for a
writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Further, under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the 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.
Id. In other words, a federal court is bound by the state court’s adjudication of the petitioner’s claims
unless the state court’s decision was contrary to or involved an unreasonable application of clearly
established federal law, or was based on an unreasonable factual determination. Harris v. Stovall, 212
F.3d 940, 943 (6th Cir. 2000); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Further, this court
must presume the correctness of state-court factual determinations, and the petitioner has the burden of
rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Cremeans
v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) (“We give complete deference to state court findings unless
they are clearly erroneous.”), abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99, 111
(1995).
The United States Supreme Court has explained the proper application of the “contrary to” clause
as follows:
A state-court decision will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that contradicts the governing law
set forth in our cases. . . . A state-court decision will also be contrary to this Court’s
clearly established precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from [this Court’s] precedent.
Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (citation omitted).

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With respect to the “unreasonable application” clause of § 2254(d)(1), the Supreme Court has
held that a federal court should analyze a claim for habeas corpus relief under the “unreasonable
application” clause when “a state-court decision unreasonably applies the law of this Court to the facts of
a prisoner’s case.” Williams, 529 U.S. at 409. The Court defined “unreasonable application” as follows:
[A] federal habeas court making the “unreasonable application” inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable. . . .
. . . . [A]n unreasonable application of federal law is different from an incorrect
application of federal law. . . . Under § 2254(d)(1)’s “unreasonable application” clause,
then, a federal habeas court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.
Id. at 409–11 (emphasis original).
With these principles in mind, the court will turn to the examination of the claims raised in Blue’s
petition for habeas relief.
VI.

DISCUSSION
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that, in order to

successfully claim that a lawyer’s assistance was so ineffective as to violate the Sixth Amendment, a
defendant must meet two requirements. “First, the defendant must show that counsel’s performance was
deficient.” Strickland, 466 U.S. at 687. “Second, the defendant must show that the deficient performance
prejudiced the defense.” Id. As discussed above, however, federal habeas relief may not be granted
under 28 U.S.C. § 2254 unless the petitioner shows that the earlier state court’s decision “was contrary
to” federal law then clearly established in the holdings of the United States Supreme Court, § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 412 (2000); that it “involved an unreasonable application of” such law, §
2254(d)(1); or that it “was based on an unreasonable determination of the facts” in light of the record
before the state court, § 2254(d)(2).
Thus, when a claim of ineffective assistance of counsel is raised in a federal habeas petition, the
question to be resolved is not whether the petitioner’s counsel was ineffective. Rather, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was unreasonable.” Harrington
v. Richter, 562 U.S. ----, 131 S. Ct. 770, 785 (2011). As the Supreme Court clarified in Harrington,
This is different from asking whether defense counsel’s performance fell below

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Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review of a criminal
conviction in a United States district court. Under AEDPA, though, it is a necessary
premise that the two questions are different. For purposes of § 2254(d)(1), an
unreasonable application of federal law is different from an incorrect application of federal
law. A state court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard itself.
Harrington, 131 S. Ct. at 786 (internal quotation marks and citation omitted).
In addressing the petitioner’s claims for ineffective assistance of counsel in this case, the
Tennessee Court of Criminal Appeals articulated and discussed at some length the standard for proving
ineffective assistance of counsel as established by the Supreme Court in Strickland. Having articulated
the appropriate standard, the court then addressed the petitioner’s claims and concluded that the
petitioner had failed to prove ineffective assistance of counsel based on the attorney’s advising him that
he was a Class III offender for sentencing purposes. The court concluded as a factual matter and based
on state law that all five underlying convictions were valid and that the petitioner was properly classified
as a Class III offender. As a result, the petitioner could not show that his attorney’s advice was erroneous
or that his plea was not knowing and voluntary. The court found that petitioner was unable to establish
either that his counsel’s performance was constitutionally defective or that he was prejudiced by any
alleged error on the part of counsel.
The only question before this court is whether the Tennessee court’s application of Strickland was
unreasonable. For the reasons articulated by the Tennessee Court of Criminal Appeals, as set forth at
length above, it clearly was not. The petitioner is not entitled to relief on the basis of the claims asserted
in his petition in this court.
VII.

CONCLUSION
For the reasons set forth herein, James R. Blue’s petition under § 2254 will be denied and this

matter dismissed with prejudice.
Federal Rule of Appellate Procedure 22 provides that an appeal of the denial of a habeas petition
may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing § 2254 Cases requires that a district court issue or deny a COA when it enters a
final order. A COA may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that

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jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). The district court must either issue a COA indicating which
issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C.
§ 2253(c)(3); Fed. R. App. P. 22(b).
The court finds that the petitioner has failed to make a substantial showing of the denial of a
constitutional right and that his claims do not merit further review. The court will deny a COA.
An appropriate order is filed herewith.

Aleta A. Trauger
United States District Judge