Alexander v. Nixon

Filing 32

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 11/18/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ANTONIO D. ALEXANDER
Petitioner,

]
]
]
]
]
]
]

v.
STEVE NIXON, WARDEN
Respondent.

No. 3:15-0680
Judge Campbell

M E M O R A N D U M
The petitioner, proceeding pro se, is an inmate at the Deberry
Special Needs Facility in Nashville. He brings this action pursuant
to 28 U.S.C. § 2254 against Steve Nixon, Warden of the prison,
seeking a writ of habeas corpus.
I. Background
On July 24, 2010, a jury in Rutherford County found the
petitioner guilty of first degree felony murder, second degree
murder, especially aggravated kidnapping, especially aggravated
robbery, attempted aggravated robbery, and reckless endangerment.
Docket Entry No.24-15 at pgs.225-228.
By operation of law, the trial judge merged the murder
convictions. Docket Entry No.24-18 at pg.26. The jury, which had
been death qualified, fixed the petitioner’s sentence for the first
degree

murder

conviction

at

life

1

imprisonment

without

the

possibility of parole. Docket Entry No.24-2 at pg.120. For the
remaining crimes, the petitioner was given a consecutive aggregate
sentence of ninety (90) years in prison. Docket Entry No. 24-2 at
pgs.144-148.
On direct appeal, the Tennessee Court of Criminal Appeals
affirmed the convictions and sentences. Docket Entry No.24-29. The
Tennessee

Supreme

Court

would

later

deny

the

petitioner’s

application for further discretionary review. Docket Entry No.2431.
In September, 2013, the petitioner filed a pro se petition for
state post-conviction relief in the Criminal Court of Rutherford
County. Docket Entry No.24-32 at pgs.8-22. Counsel was appointed to
represent the petitioner and an amended post-conviction petition
was filed. Following an evidentiary hearing, the trial court denied
the petitioner post-conviction relief. Docket Entry No.24-33 at
pgs.115-120.
On appeal, the Tennessee Court of Criminal Appeals affirmed
the denial of post-conviction relief. Docket Entry No.24-37. Once
again,

the

Tennessee

Supreme

Court

chose

not

to

grant

the

petitioner’s request for additional post-conviction review. Docket
Entry No.24-39.
II. Procedural History
On June 18, 2015, the petitioner initiated this action with
the pro se filing of a petition for writ of habeas corpus (Docket

2

Entry No.8).1 The petition contains seven claims for relief. These
claims include:
1)

the evidence was insufficient to support
the petitioner’s convictions;

2)

petitioner’s sentences were improperly
enhanced, contrary to the teachings of
Apprendi;2

3)

consecutive sentences were imposed in
violation of Blakely;3

4)

failure to sequester the jury the weekend
prior to the commencement of the trial was
a denial of due process;

5)

the ineffectiveness of trial counsel4
a) failure to object to allowing the
unsworn jurors to return home for
the weekend prior to the commencement
of the trial;
b) failure to arrange for the petitioner
to be present at the hearing on motion
for a new trial; and
c) failure to object to a perceived
double jeopardy violation, i.e.,
“conviction and sentences for
numerous charges arising out of
the same incidents constituted
multiple punishments for the same
offense.”

By an order (Docket Entry No.10) entered July 6, 2015, the

1

The petition was originally submitted unsigned. See Docket
Entry No.1.
2

Apprendi v. New Jersey, 530 U.S. 466 (2000).

3

Blakely v. Washington, 542 U.S. 296 (2004).

4

Because the petitioner was facing the death penalty, he
was appointed two attorneys to represent him. These attorneys
were Barry Tidwell, a member of the Rutherford County Bar, and
Hershell Koger, a member of the Giles County Bar.
3

respondent was directed to file an answer, plead or otherwise
respond to the petition.
Presently before the Court is the respondent’s Answer (Docket
Entry No.26), to which the petitioner has offered no reply. Having
carefully considered the petition, respondent’s Answer, and the
expanded record, it appears that an evidentiary hearing is not
needed in this matter. See Smith v. United States of America, 348
F.3d 545, 550 (6th Cir. 2003)(an evidentiary hearing is not required
when the record conclusively shows that the petitioner is entitled
to no relief). Therefore, the Court shall dispose of the petition
as the law and justice require. Rule 8(a), Rules - - - § 2254
Cases.
III. Analysis of the Claims
A.) Procedurally Defaulted Claims
A federal district court will not entertain a petition for
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).
While exhaustion is not a jurisdictional requirement, it is a
strictly enforced doctrine which promotes comity between the states
and federal government by giving the state an initial opportunity
to pass upon and correct alleged violations of its prisoners’
federal rights. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Consequently, as a condition precedent to seeking federal habeas
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corpus relief, the petitioner is required to fairly present his
claims to every available level of the state court system. Rose v.
Lundy, 455 U.S. 509, 518-20 (1982); Lyons v. Stovall, 188 F.3d
327,331 (6th Cir.1999). The petitioner must offer the state courts
both the factual and legal bases for his claims. Hicks v. Straub,
377 F.3d 538,552 (6th Cir.2004). In other words, the petitioner must
present “the same claim under the same theory” to the state courts.
Id. It is not enough that all the facts necessary to support a
federal

claim

were

before

the

court

or

that

the

petitioner

exhausted a somewhat similar state law claim. Anderson v. Harless,
459 U.S. 4,6 (1982).
Once petitioner’s federal claims have been raised in the
highest

state

court

available,

the

exhaustion

requirement

is

satisfied, even if that court refused to consider the claims.
Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990).5
Federal habeas corpus relief is only available to cure “a
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Thus, a claim that is based upon a
perceived error or misapplication of state law will not normally be
recognized as an actionable claim for federal habeas corpus relief.
Lewis v.Jeffers, 497 U.S. 764, 780 (1990).

5

In Tennessee, a petitioner need only take his claims to
the Tennessee Court of Criminal Appeals in order to fully exhaust
his available state court remedies. Rule 39, Tenn. Sup. Ct.
Rules; see also Adams v. Holland, 324 F.3d 838 (6th Cir. 2003).
5

In challenging his sentences, the petitioner argues that the
trial judge erred by improperly enhancing them in violation of
Apprendi

(Claim

No.2)

and

by

running

them

consecutively

in

violation of Blakely (Claim No.3).
These claims were presented to the state courts solely as
perceived errors of state rather than federal law. Docket Entry
No.24-27 at pgs.17-23. As a consequence, these issues have never
been fully exhausted in the state courts as federal claims.
Unfortunately, at this late date, the petitioner is no longer
able to raise his sentencing issues as federal claims in state
court. See Tenn. Code Ann. § 40-30-102(a) and (c). Therefore, by
way of procedural default, the petitioner has technically met the
exhaustion requirement with respect to these claims. Alley v. Bell,
307 F.3d 380, 385 (6th Cir. 2002)(if an unexhausted claim would be
procedurally barred under state law, that claim is procedurally
defaulted for purposes of federal habeas corpus review).
The exhaustion of a claim via procedural default does not,
however, automatically entitle a habeas petitioner to federal
review of that claim. To prevent a federal habeas petitioner from
circumventing the exhaustion requirement in such a manner, the
Supreme Court has held that a petitioner who fails to comply with
state rules of procedure governing the timely presentation of
federal constitutional issues forfeits the right to federal review
of those issues, absent cause for the noncompliance and some

6

showing

of

actual

prejudice

resulting

from

the

alleged

constitutional violations. Gray v. Netherland, 518 U.S. 152, 162
(1996).
A habeas petitioner can not rely on conclusory assertions of
cause and prejudice to overcome the adverse effects of a procedural
default. Rather, he must present affirmative evidence or argument
as to the precise cause and prejudice produced. Lundgren v.
Mitchell, 440 F.3d 754, 764 (6th Cir.2006). To demonstrate cause,
the petitioner must show that an objective factor external to the
defense interfered with his ability to comply with the state
procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). To
establish prejudice, there must be a showing that the trial was
infected with constitutional error. United States v. Frady, 456
U.S. 152, 170-72 (1982).
The petitioner’s pleadings offer nothing to suggest cause for
the failure to exhaust his sentencing claims as questions of
federal law in the state courts in a timely manner. Nor has there
been a showing of prejudice arising from the alleged violations.
Consequently, petitioner’s sentencing claims (Claim Nos.2 and 3)
will not support an award of federal habeas corpus relief. Teague
v.

Lane,

489

U.S.

288,297-98

(1989)(denial

of

a

claim

is

appropriate when the federal claim was not raised in the state
appellate courts for review).
Two of the petitioner’s ineffective assistance claims, i.e.,

7

failure to arrange for the petitioner’s attendance at the hearing
for a new trial (Claim No.5b) and the failure to object to a
perceived double jeopardy violation (Claim No.5c), were never
raised in a state appellate court. See Docket Entry No.24-35. As
noted above, state court remedies for these claims are now no
longer available. In the absence of cause and prejudice, the
procedural default of those remedies is unexcused and will not
support an award of federal habeas corpus relief.
B.) Fully Exhausted Claims
The petitioner’s remaining claims challenging the sufficiency
of the evidence (Claim No.1), the failure to sequester the jury
(Claim No.4) and the ineffectiveness of counsel (Claim No.5a) for
neglecting to object to the failure to sequester the jury were
considered by the state courts on the merits and have been fully
exhausted.6
The availability of federal habeas corpus relief is limited
with respect to claims that have been previously adjudicated on the
merits in state court. Harrington v. Richter, 131 S.Ct. 770,780
(2011). When a claim has been adjudicated on the merits in state

6

In his Answer, the respondent contends that the petitioner
framed the failure to sequester issue (Claim No.4) in the state
courts as a question of state rather than federal law. Docket
Entry No.26 at pg.26. Clearly, the petitioner did refer to state
law in an effort to exhaust this claim. However, the Court finds
that petitioner’s reference to a due process violation was
sufficient to raise this claim to a question of federal as well
as state law.
8

court, the state court adjudication will not be disturbed unless it
resulted in a decision contrary to clearly established federal law
or involved an unreasonable application of federal law in light of
the evidence. 28 U.S.C. § 2254(d); Nevers v. Killinger, 169 F.3d
352, 357 (6th Cir.1999).
In order for a state adjudication to run “contrary to” clearly
established

federal

law,

the

state

court

must

arrive

at

a

conclusion opposite to that reached by the United States Supreme
Court on a question of law or decide a case differently than the
United

States

Supreme

Court

on

a

set

of

materially

indistinguishable facts. To grant the writ for an “unreasonable
application” of federal law, the petitioner must show that the
state

court

identified

the

correct

governing

legal

principle

involved but unreasonably applied that principle to the facts of
the case. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). In
short, state court judgments must be upheld unless, after an
examination of the state court judgment, the Court is firmly
convinced that a federal constitutional right has been violated.
Id. at 529 U.S. 389.
1.) Sufficiency of the Evidence
The right to due process guaranteed by the Constitution
insures that no person will be made to suffer the onus of a
criminal conviction except upon sufficient proof. Sufficient proof
has been defined as the “evidence necessary to convince a trier of

9

fact beyond a reasonable doubt of the existence of every element of
the offense.” Jackson v. Virginia, 99 S.Ct. 2781, 2787 (1979). When
weighing the sufficiency of the evidence to support a criminal
conviction, the Court must view the evidence in a light most
favorable to the prosecution. Id. at 2789.
It is the responsibility of the jury, not the court, to decide
what conclusions should be drawn from evidence admitted at trial.
Cavazos v. Smith, 132 S.Ct. 2,4 (2011). For that reason, within the
context of a sufficiency of the evidence claim in a habeas action,
a court need only answer “whether that finding was so unsupportable
as to fall below the threshold of bare rationality”.

Coleman v.

Johnson, 132 S.Ct. 2060, 2065 (2012).
The proof presented at trial showed that an individual wearing
a ski mask and coveralls approached an employee of an O’Charley’s
restaurant as he got into his car at the end of his shift. The
masked individual brandished a .22 caliber pistol and told the
employee that he was robbing him. Docket Entry No.24-9 at pg.194.
The masked man forced the employee out of his car and led him to
the back door of the restaurant.
Another employee opened the back door of the restaurant.
Docket Entry No.24-10 at pg.278. When he did, the masked man
pointed the pistol at him. Both employees ran into the manager’s
office where the manager was counting the evening’s receipts. The
employees tried to keep the robber from coming through the door but

10

were not completely successful. The masked man demanded that they
open the door and give him the money. When they did not comply, the
robber fired two shots into the office.
The manager was struck in the abdomen by one of the bullets.
The masked man came through the door and grabbed approximately
$2700 in cash before fleeing the scene. The manager later died from
his wound.
Employees of the restaurant gave the police a general physical
description of the perpetrator that matched the petitioner. Docket
Entry No.24-9 at pg.158; Docket Entry No.24-10 at pg.278. A van
with a warm hood was found in the lot behind the restaurant. Inside
the van, police recovered petitioner’s work badge, several pairs of
gloves,

earplugs,

a

stocking

mask

and

a

wallet

with

the

petitioner’s driver’s license. Docket Entry No.24-11 at pg.167.
The police found a trail of money leading from a fence behind
the restaurant to a house undergoing renovation. Id. at pg.189.
Inside the house were footprints matching those found near the
fence. Police recovered a pair of coveralls, an earplug, gloves and
a

loaded

.22

caliber

pistol

at

the

house.

Id.

at

pg.190.

Petitioner’s DNA was found on the gloves and coveralls. Docket
Entry No.24-13 at pgs.252-257. The bullets from the .22 caliber
pistol were consistent with those fired at the restaurant.
Evidence further showed that the petitioner tried to have a
male friend and a girlfriend provide him with an alibi for the time

11

of the killing. Docket Entry No.24-12 at pg.305; Docket Entry
No.24-14 at pgs.60-61. Petitioner’s shoes dropped in a dumpster by
the

male

friend

matched

the

footprints

found

at

the

house

undergoing renovation.
While no one was able to positively identify the petitioner as
the

killer,

overwhelming.

the
The

circumstantial
jury’s

evidence

verdict,

of

therefore,

his

guilt

was

not

was
so

unsupportable as to fall below the threshold of bare rationality.
Thus, the evidence was more than sufficient to establish the
petitioner’s

guilt

to

first

degree

felony

murder,

especially

aggravated kidnapping, especially aggravated robbery, attempted
aggravated robbery and reckless endangerment. This claim is without
merit.
2.)

Sequestration of the Jury
In this case, the prosecution sought the death penalty. Under

state law, a death qualified jury must be sequestered during the
trial. State v. Bondurant, 4 S.W.3d 662,672 (Tenn.1999). Prior to
trial and before the jury was sworn in, though, the trial judge
admonished the jury not to discuss the case or watch media reports
about the case and allowed the jury to return home for the weekend.
The petitioner believes that the failure to sequester the jury
even though it had not yet been sworn in and the trial had not
started, in some way served to deny him a fair trial (Claim No.4).
On review, the state courts determined that the failure to

12

sequester the jury did not violate state law. Docket Entry No.24-37
at pg.4. It has been held “that a state court’s interpretation of
state law .... binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey, 546 U.S. 74,76 (2005). Moreover, a criminal
defendant has no federally protected right to a sequestered jury.
Powell v. Rose, 581 F.Supp. 60,63 (M.D. Tenn.1983), aff’d 727 F.2d
1110 (6th Cir.1984). Therefore, this issue has no merit.
3.) Ineffective Assistance of Counsel
The petitioner’s final claim is that trial counsel were
ineffective for neglecting to object and raise on appeal the trial
judge’s failure to sequester the jury (Claim No.5a).
The Sixth Amendment provides that a criminal defendant is
entitled

to

the

effective

assistance

of

counsel.

McMann

v.

Richardson, 379 U.S. 759, 771 (1970). To establish a violation of
this right, the petitioner bears the burden of pleading and proving
that his attorney’s performance was in some way deficient and that
the

defense

was

prejudiced

as

a

result

of

the

deficiency.

Strickland v. Washington, 466 U.S. 668 (1984).
Prejudice arises when there is a reasonable probability that,
but for counsels’ errors, the result of the proceeding would have
been different. Id. at 466 U.S. 694. When considering such a claim,
counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment. Mallett v. United States, 334 F.3d 491, 497

13

(6th Cir. 2003).
As noted above, the petitioner had no federally protected
right

to

a

sequestered

jury.

As

a

consequence,

petitioner’s

lawyers, within the context of a federal habeas corpus proceeding,
could not have been deficient for failing to object to this
situation. Nor has the petitioner shown any prejudice that may have
arisen from allowing the jury to return home for the weekend. It
appears, therefore, that this claim has no merit.
The

petitioner

has

failed

to

rebut

the

presumption

of

correctness accorded to the findings of fact made by the state
courts with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Nor has he shown in what way the legal conclusions made by the
state courts with respect to the exhausted claims are either
contrary to or an unreasonable application of federal law.
IV. CONCLUSION
Four of the petitioner’s claims were never properly exhausted
in the state courts (Claim Nos.2,3,5b and 5c). The procedural
default of the state remedies for these claims is unexcused. For
that reason, these claims are insufficient to support an award of
habeas corpus relief.
The

state

courts

determined

that

the

petitioner’s

fully

exhausted claims lacked merit (Claim Nos.1,4 and 5a). The record
supports these findings. The petitioner has failed to demonstrate
in what way the legal analysis of the state courts ran contrary to

14

federal law. Accordingly, having carefully reviewed the record, it
appears that the state court adjudication of petitioner’s fully
exhausted claims was neither contrary to nor an unreasonable
application of federal law. Consequently, these claims have no
merit.
An appropriate order will be entered.

____________________________
Todd Campbell
United States District Judge

15