Merritt v. Lindamood

Filing 25

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/22/2016. (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

TAVARIA MERRITT
Petitioner,
v.
CHERRY LINDAMOOD, Warden
Respondent.

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No. 3:15-0870
Judge Trauger

MEMORANDUM

The petitioner, proceeding pro se, is an inmate at the South Central Correctional Center in
Clifton, Tennessee. He brings this action pursuant to 28 U.S.C. § 2254 against Cherry Lindamood,
Warden of the facility, seeking a writ of habeas corpus.
I. Background
On March 21, 2011, the petitioner pled guilty to nine counts of child rape in the Criminal
Court of Wilson County. Docket Entry No. 22-3 at pgs. 2-21. For these crimes, he received an
aggregate sentence of two hundred twenty five (225) years in prison. Docket Entry No.22-2 at pgs.
32-33.1
On direct appeal, the Tennessee Court of Criminal Appeals affirmed the convictions but, in
a split decision, found that the petitioner’s sentences were excessive. For that reason, the case was

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The petitioner was offered a plea bargain of thirty five (35) years if he pled guilty to
child rape and aggravated sexual battery. He turned down this offer. Docket Entry No. 22-3 at
pgs. 17-18.
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remanded to the trial court for entry of judgment reflecting an effective sentence of fifty (50) years
in prison. Docket Entry No. 22-6.
In March, 2014, the petitioner filed a pro se petition for state post-conviction relief in the
Criminal Court of Wilson County. Docket Entry No. 22-7 at pgs. 22-35. Counsel was appointed and
the petitioner filed an amended post-conviction petition. Following an evidentiary hearing, the trial
court denied the petitioner post-conviction relief. Id. at pgs. 57-63. On appeal, the Tennessee Court
of Criminal Appeals affirmed the denial of post-conviction relief. Docket Entry No. 22-14.
II. Procedural History
On August 6, 2015, the petitioner filed a pro se Motion (Docket Entry No. 1) in this Court
requesting a stay and/or abeyance to exhaust claims. The Court granted petitioner’s Motion for a
stay and directed the Clerk to administratively close the case in order to give the petitioner an
opportunity to fully exhaust state court remedies for his federal claims. Docket Entry No. 7.
In February, 2016, the petitioner filed a pro se petition (Docket Entry No. 10) under 28
U.S.C. § 2254, for writ of habeas corpus. The Court has liberally construed the petition, as it is
obliged to do, and found nine claims for relief. These claims include :
1)

it was error to deny petitioner’s motion to suppress a
statement he made to the police because the statement
was obtained “as the fruit of an unlawful arrest”; at
pg. 20

2)

petitioner was denied the effective assistance of counsel
when :
a) appellate counsel failed to include a transcript
of the suppression hearing and recorded confession
as part of the appellate record; at pg. 2
b) trial counsel failed to investigate the petitioner’s
mental capacity; at pg. 3
c) trial counsel failed to meet with the petitioner a
sufficient number of times; at pg. 3
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d) appellate counsel was impaired because she had
to operate “under a conflict of interest”; at pg. 72
3)

petitioner’s guilty plea was neither knowingly nor voluntarily
given; at pg. 9

4)

the trial court abused its discretion by failing to conduct a
hearing to resolve a conflict of interest issue that impaired
the ability of the District Public Defender’s Office to effectively
represent the petitioner; at pg. 4

5)

the evidence was not sufficient to support the convictions;
at pg. 36, and

6)

the cumulative effect of these errors served to deny the
petitioner his right to due process; at pgs. 38-40.

The Court construed the filing of the petition as a motion to reopen the case. By an order
(Docket Entry No. 12) entered March 9, 2016, the motion was granted, the case was reopened and
the 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. 24), to which the
petitioner has offered no response. 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
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Therefore, the Court shall dispose of the petition
as the law and justice require. Rule 8(a), Rules - - - § 2254 Cases.

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The petitioner’s prosecution began in the Juvenile Court of Wilson County where he
was represented by E. Marie Farley of the District Public Defender’s Office. Docket Entry No.
22-3 at pg. 11. Upon transfer of the case to the Criminal Court of Wilson County, the petitioner
retained Adam Wilding Parrish, a member of the Wilson County Bar, to represent him.
Following his convictions, though, during the pendency of the direct appeal, Parrish was allowed
to withdraw and E. Marie Farley was again appointed to represent the petitioner. Farley was later
appointed to represent the petitioner during the post-conviction proceedings as well. Docket
Entry No. 22-12 at pg. 6. This is the factual basis for petitioner’s claim of a conflict of interest.
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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 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 made 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).3
On direct appeal of the convictions, the petitioner chose only to question the excessiveness

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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).
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of his sentence. Docket Entry No. 22-4. Later, during post-conviction proceedings, the petitioner
alleged only two instances of ineffective assistance and the invalidity of his guilty plea. Docket
Entry No. 22-12. Thus, all but three of the petitioner’s current claims (i.e., Claim Nos. 1, 2a, 2d, 46), were never offered to the state courts for consideration.
Unfortunately, at this late date, the petitioner is no longer able to raise these issues in the
state courts. 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 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). The prejudice element requires the petitioner to show not merely that the

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errors at trial created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting the entire trial with error of constitutional dimensions. Id. at 477 U.S. 494.
Even in the absence of cause and prejudice, though, a procedurally defaulted claim can still be
reviewed if the failure to do so would result in a fundamental miscarriage of justice, Coleman v.
Thompson, 501 U.S. 722, 750 (1991), i.e., the conviction of one who is actually innocent. Gibbs v.
United States, 655 F.3d 473, 477 (6th Cir. 2011).
In the petition, the petitioner states that the failure of post-conviction counsel to raise a claim
of ineffective assistance at trial can constitute cause in a procedural default analysis. Docket Entry
No. 10 at pg. 13. This is an accurate recitation of the law. see Martinez v. Ryan, 132 S.Ct. 1309
(2012). Nevertheless, it has no application in this instance. The only ineffective assistance of counsel
claims that have been procedurally defaulted involve appellate counsel (Claim Nos. 2a and 2d),
rather than errors committed by trial counsel. Further, there is nothing to suggest the type of
prejudice needed to excuse a procedural default, and the petitioner has not alleged factual innocence.
As a consequence, he has failed to demonstrate that the procedural default of these claims should
be excused. 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).
B.) Fully Exhausted Claims
The petitioner’s remaining claims challenging the effectiveness of counsel (Claim Nos. 2b-c)
and the validity of his guilty plea (Claim No. 3) were considered by the state courts on the merits
during post-conviction and have been fully exhausted.
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, 562 U.S. 86 (2011).

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When a claim has been adjudicated on the merits in state 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, the petitioner “must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,
supra at 562 U.S. 103.
1.) Ineffective Assistance of Counsel
It is alleged that trial counsel was ineffective for failing to investigate the petitioner’s mental
capacity (Claim No. 2b) and for failing to meet with the petitioner a sufficient number of times
(Claim No. 2c).
The Sixth Amendment provides that a criminal defendant is entitled to the effective
assistance of counsel. Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012). 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

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v. Washington, 466 U.S. 668 (1984). A deficiency occurs when counsel has acted in a way that falls
below an objective standard of reasonableness under prevailing professional norms. Id. at 466 U.S.
688. Within the context of a guilty plea, prejudice is shown by demonstrating that “there is a
reasonable probability that, but for counsel’s errors, petitioner would not have pleaded guilty and
would have, instead, insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Where the issue is one of ineffective assistance, review under the Anti-Terrorism and
Effective Death Penalty Act is “doubly deferential”, Cullen v. Pinholster, 563 U.S. 170, 190 (2011),
because counsel is “strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, supra at 466 U.S. 690.
At petitioner’s post-conviction evidentiary hearing, counsel stated that he had been made
aware that the petitioner was suffering from some sort of diminished intellectual capacity. He
testified that he did investigate to determine whether this in any way affected petitioner’s
competency to stand trial. Docket Entry No. 22-9 at pg. 44. Counsel asked petitioner’s family to
provide him with scholastic and mental health records which they did. Id. at pg. 45. Upon review
of the records, counsel found no reason to doubt petitioner’s competency, despite the fact that he had
not been a good student in school. Id. at pg. 46. Counsel found the petitioner to be a “very articulate,
very bright young man”. Id. Petitioner was a Youth Director at his church who had preached to the
congregation. Id. at pgs. 12-14. A Juvenile Court judge made a specific finding of fact that the
petitioner had no mental health issues that should prevent him from being tried as an adult. Id. at pg.
47. Moreover, the petitioner never told counsel that he did not understand the nature and gravity of
the proceedings. Id. at pg. 64. From this evidence, the state courts found that counsel had not been
ineffective by failing to investigate the petitioner’s mental capacity. Docket Entry No. 22-14 at pg.

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5. The record supports this finding. As a consequence, the Court finds no merit in this claim (Claim
No. 2b).
The petitioner also alleges that counsel had been ineffective for failing to meet with him a
sufficient number of times (Claim No. 2c). The petitioner testified at the evidentiary hearing that
counsel met with him “more than five times but less than ten”. Docket Entry No. 22-9 at pg. 17. The
petitioner’s “spiritual father”, Bishop Jerry Morton, testified that he had accompanied the petitioner
and his mother to meetings with counsel on six or seven occasions. Id. at pg. 7. Counsel had
documented at least ten meetings with the petitioner and/or his family, with numerous
undocumented meetings. Id. at pg. 46. It appears, therefore, that counsel did meet with the petitioner
a sufficient number of times to discuss the case with him. In any event, the petitioner has offered
nothing in the way of prejudice arising from the alleged absence of meetings. This claim, therefore,
is without merit.
2.) Validity of the Guilty Plea
Finally, the petitioner argues that his guilty plea is invalid because it was neither knowingly
nor voluntarily given (Claim No. 3).
A plea of guilty is valid if it was entered voluntarily and intelligently, Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005), as determined under the totality of the circumstances. Boykin v. Alabama,
395 U.S. 238, 242-244 (1969).
After the petitioner was unsuccessful in an attempt to suppress his confession, he decided
to enter a plea of guilty. Docket Entry No. 22-9 at pg. 36. In a Request for Acceptance of Guilty
Plea, the petitioner averred that he understood the charges and potential penalties facing him. Docket
Entry No. 22-1 at pgs. 59-60. During a hearing to discuss the plea, the petitioner reiterated his

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understanding of the charges and penalties. Docket Entry No. 22-3 at pg. 6. The trial judge informed
the petitioner of the rights that he would be waiving by pleading guilty. Id. at pgs. 12-15. The
petitioner had no questions for the judge. Id. at pg. 7. The petitioner acknowledged that there was
sufficient proof against him to support the convictions. Id. at pg. 12. He went on to tell the court that
his attorney had been diligent and had done everything he could possibly do for him. Id. at pg. 16.
At the conclusion of the hearing, the trial judge made the following findings :
I believe you know what you’re doing. I believe your
plea is voluntary. I think you understand these proceedings.
I think your plea is an intelligent plea and I think you are
competent to enter the plea.
Docket Entry No. 22-3 at pgs. 19-20.
The representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well
as any findings made by the judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of
verity. Blackledge v. Allison, 431 U.S. 63, 74 (1977). The trial judge determined that the petitioner’s
guilty plea was both knowing and voluntary. 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 this exhausted claim are either contrary to or an unreasonable application
of federal law.
IV. CONCLUSION
Six of the petitioner’s claims were never properly exhausted in the state courts (Claim Nos.
1, 2a, 2d, 4-6). 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.
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The state courts determined that the petitioner’s fully exhausted claims lacked merit (Claim
Nos.2b, 2c, 3). The record supports these findings. The petitioner has failed to demonstrate in what
way the legal analysis of the state courts ran contrary to 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.

____________________________
Aleta A. Trauger
United States District Judge

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