Cranmer v. Johnson et al

Filing 22

MEMORANDUM signed by Chief Judge Kevin H. Sharp on 1/18/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

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

JAMES R. CRANMER #00503201,

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Petitioner,
v.
DEBRA JOHNSON,
Respondent.

No. 3:16-cv-00725
Chief Judge Sharp

MEMORANDUM
Petitioner James R. Cranmer, a state prisoner serving an effective sentence of fifteen
years for one count of second degree murder and three related felonies, has filed a pro se
petition under 28 U.S.C. § 2254 for the writ of habeas corpus. (ECF No. 1.) Respondent has
filed an answer, along with a copy of portions of the state court record. (ECF Nos. 13, 15, 20.)
For the reasons set forth below, the petition will be denied, and this action will be dismissed.
I.

BACKGROUND AND PROCEDURAL HISTORY
On March 26, 2012, judgment entered against Petitioner in the Criminal/Circuit Court of

Montgomery County, Tennessee, sentencing him to 15 years in prison upon his guilty plea to
one count of second degree murder. (ECF No. 13-1, at 7.) Petitioner also pleaded guilty to one
count of attempted second degree murder and two counts of reckless aggravated assault, but
lesser prison sentences for those convictions were ordered to run concurrent with the second
degree murder sentence, for an effective total sentence of fifteen years. (ECF No. 13-1, at 8–
10.) Petitioner did not take a direct appeal.
On October 8, 2012, through new counsel, Petitioner filed a petition for post-conviction
relief. (ECF No. 13-1, at 11–36.) An evidentiary hearing was commenced on January 10, 2013,
but was adjourned after the testimony of the first witness. (ECF No. 13-2, at 1–28.) Petitioner’s
original post-conviction counsel was disqualified from the case due to her previous partnership

with trial counsel during part of Petitioner’s representation (ECF No. 13-1, at 123–24), and
substitute counsel was retained and filed an amended petition. (ECF No. 13-1, at 125–34.) The
evidentiary hearing reconvened on September 12, 2013, and closing arguments were heard on
November 21, 2013. (ECF No. 13-2, at 34; ECF No. 13-3.) The post-conviction court entered
an order denying relief on November 26, 2013. (ECF No. 13-1, at 137–51.) Petitioner appealed,
and the Tennessee Court of Criminal Appeals (TCCA) affirmed the denial of relief on April 23,
2015. (ECF No. 13-9.)

The Tennessee Supreme Court denied permission to appeal on

September 17, 2015. (Id.).
Petitioner asserts that he submitted his pro se habeas corpus petition to be mailed to
this Court on April 1, 2016, and Respondent does not dispute that it is timely or that the claims
raised are exhausted. (ECF No. 15, at 1–2.) Respondent filed an answer to the petition on July
14, 2016, and has filed portions of the state court record. (ECF Nos. 13, 15, 20.) The matter is
ripe for review.
II.

STATEMENT OF FACTS
For its summary of the facts of the case, the TCCA quoted the following recitation made

by the prosecutor at the plea hearing:
The facts of this case are that on the morning of February 6, 2011, the
[Petitioner] and a number of individuals were at the Flavors (phonetic) After
Hours Club in Clarksville, Montgomery County. The [Petitioner] and a Mr. Lionel
Watkins, who is the victim in Count two, got into an argument. The [Petitioner]
challenged Mr. Watkins and Mr. Watkins struck the [Petitioner]. After being
struck, the [Petitioner] pulled a gun and started shooting and shot and killed
Detwain Bell (phonetic), struck Mr. [Bell] right in the chest and he died extremely
quickly from those injuries. The [Petitioner] continued to fire, struck Mr. Watkins
twice, once in the hand and once in the back. Mr. Watkins suffered some very
serious injuries, life-threatening injuries and still has ongoing problems from
those. He also struck Ms. Jaquita Murray (phonetic) in the leg and Ms. Jamaine
Thompson (phonetic) in the leg. There were numerous witnesses at the club,
[there] was over a hundred people in there. Several [witnesses] have identified
the [Petitioner] as the individual that was shooting and that fled from the scene
and ... later we found him, actually using ping tracing to locate him and found him
up in Kentucky hiding from the police three days after the shooting occurred.
2

Cranmer v. State, No. M201302866CCAR3PC, 2015 WL 1868815, at *1 (Tenn. Ct. Crim. App.
Apr. 23, 2015), appeal denied (Tenn. Sept. 17, 2015).
IV.

ISSUES PRESENTED FOR REVIEW
Petitioner raises three claims in his habeas petition:
1. His guilty plea was not knowing and voluntary because the state withheld Brady material
until after he entered his plea. (ECF No. 1, at 10.)
2. Trial counsel was ineffective for failing to timely convey the state’s offer of an agreed
withdrawal of his guilty plea based on the late-disclosed information. (ECF No. 1, at 12.)
3. Trial counsel was ineffective for failing to investigate multiple exculpatory leads, for
failing to file pre-trial motions or motions in limine, and for failing to advise him that
recordings of jailhouse telephone calls are inadmissible at trial. (ECF No. 1, at 12.)

V.

STANDARD OF REVIEW
The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). A federal court may grant habeas relief to a state prisoner “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). Upon finding a constitutional error on habeas corpus
review, a federal court may only grant relief if it finds that the error “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993); Peterson v. Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)).
The requirements of AEDPA “create an independent, high standard to be met before a federal
court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551
U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained, AEDPA’s
requirements reflect “the view that habeas corpus is a ‘guard against extreme malfunctions in
3

the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.”
Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307,
332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes “a substantially
higher threshold” for obtaining relief than a de novo review of whether the state court’s
determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v.
Taylor, 529 U.S. 362, 410 (2000)).
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits
in state court unless the state decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,”
or “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) and (d)(2). A state court’s legal decision
is “contrary to” clearly established federal law under § 2254(d)(1) “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). An “unreasonable
application” occurs when “the state court identifies the correct legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
at 413. A state court decision is not unreasonable under this standard simply because the
federal court concludes that the decision is erroneous or incorrect. Id. at 411. Rather, the
federal court must determine that the state court's decision applies federal law in an objectively
unreasonable manner. Id. at 410–12. Under this standard, “[a] state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Similarly, a district court on habeas review may not find a state court factual
4

determination to be unreasonable under § 2254(d)(2) simply because it disagrees with the
determination; rather, the determination must be “‘objectively unreasonable’ in light of the
evidence presented in the state court proceedings.’” Young v. Hofbauer, 52 F. App’x 234, 236
(6th Cir. 2002). “A state court decision involves ‘an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding’ only if it is shown that the state
court’s presumptively correct factual findings are rebutted by ‘clear and convincing evidence’
and do not have support in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007)
(quoting § 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 and n.3 (6th
Cir. 2014) (observing that the Supreme Court has not clarified the relationship between (d)(2)
and (e)(1) and the panel did not read Matthews to take a clear position on a circuit split about
whether clear and convincing rebutting evidence is required for a petitioner to survive (d)(2)).
Moreover, under § 2254(d)(2), “it is not enough for the petitioner to show some unreasonable
determination of fact; rather, the petitioner must show that the resulting state court decision was
‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected
on the merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the benefit of
the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102,
and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner carries the
burden of proof. Pinholster, 563 U.S. at 181.
VI.

ANALYSIS AND DISCUSSION
A.

Claim 1

In pretrial discovery, the state provided Petitioner with a statement from a witness who
described the shooter as a white male. During trial preparation, the same witness told the
prosecutor that the shooter was light-skinned rather than white. However, the prosecutor did
5

not share the witness’s latter comment until two days after Petitioner had entered his plea, at
which time he offered to agree to Petitioner’s withdrawing his guilty plea. (ECF No. 13-4, at 49.)
Petitioner claims that the prosecutor thus violated the disclosure requirements of Brady v.
Maryland, 373 U.S. 83 (1963), and prevented his plea from being voluntary, in violation of his
right to due process.
The post-conviction court denied relief on this claim, and the TCCA affirmed based on
the following analysis:
The Petitioner contends that “the [post-conviction] court erred in failing to permit
withdrawal of [the] Petitioner’s plea even absent a finding of ineffective
assistance of counsel, as the evidence showed that the prosecution withheld
evidence in violation of Brady v. Maryland, [373 U.S. 83 (1963)], and [the]
Petitioner’s plea was not knowing, voluntary, and intelligent.” The State responds
that the Petitioner has failed to prove a Brady violation because he has not
demonstrated that the evidence withheld was material, and he cannot
demonstrate a “reasonable probability” that the results of his proceeding would
have been different had it been disclosed.
When 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). The court reviewing the voluntariness of a guilty plea must look to the
totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353 (Tenn.
Ct. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542
(Tenn. Ct. Crim. App. 1990). A plea resulting from ignorance, misunderstanding,
coercion, inducement, or threats is not “voluntary.” Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993). A petitioner’s solemn declaration in open court
that his plea is knowing and voluntary creates a formidable barrier in any
subsequent collateral proceeding because these declarations “carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Two days after the Petitioner entered his guilty plea, the State admitted that it
had failed to disclose a statement made by the club security guard that the
shooter was not white but “light skinned.” Based on its withholding of the
potentially exculpatory evidence, the State offered to allow the Petitioner to
withdraw his guilty plea. Counsel informed the Petitioner of the State's offer, and,
after discussing it with Counsel and his family, the Petitioner decided not to
withdraw his plea. Any Brady violation committed by the State was remedied by
its subsequent offer to the Petitioner.
As to his contention that he should be allowed to withdraw his plea because it
was entered involuntarily, we reiterate that the Petitioner was given the
opportunity to do so. The post-conviction court found that the Petitioner did not
tell Counsel that he wanted to withdraw his plea. Counsel testified that she would
6

have withdrawn the Petitioner's plea if he had requested her to do so, or if had
she erroneously relied on his mother’s information that he wanted to withdraw his
plea, she would have gone to the judge and said the same. Counsel testified that
the Petitioner signed a document saying he did not want to withdraw his plea.
The post-conviction court accredited Counsel’s testimony.
Based upon our review of the record, we conclude the Petitioner received the
effective assistance of counsel and knowingly and voluntarily entered his plea.
We further conclude that it was the Petitioner’s decision not to withdraw his plea.
We affirm the judgment of the post-conviction court. The Petitioner is not entitled
to relief.
Cranmer v. State, No. M201302866CCAR3PC, 2015 WL 1868815, at *11–12 (Tenn. Ct. Crim.
App. Apr. 23, 2015), appeal denied (Tenn. Sept. 17, 2015).
As explained above, because the state court rejected Petitioner’s claim on its merits, he
has the burden of establishing that the rejection was based on an unreasonable determination
of the facts or is contrary to or an unreasonable application of federal law as announced by the
Supreme Court. 28 U.S.C. § 2254(d). Petitioner has not satisfied this burden for this claim, and
there is no way he could do so in light of the applicable federal law. The Supreme Court has
expressly rejected the notion that a guilty plea is not voluntary where Brady impeachment
material is not disclosed before the plea. See United States v. Ruiz, 536 U.S. 622, 628 (2002).
The Court explained that the right to receive such information is part of the constitution’s “basic
‘fair trial’ guarantee,” but that “[w]hen a defendant pleads guilty he or she, of course, forgoes not
only a fair trial, but also other accompanying constitutional guarantees.” Id. It distinguished
between the fairness of a trial and the voluntariness of a plea, and concluded that a plea may be
entered voluntarily without a defendant’s knowledge of Brady material, just as the constitution
permits entry of a plea where the defendant does not have an accurate understanding of the
strength of the prosecution’s case, the likely penalties involved or the admissibility of certain
evidence. Id. at 620–30.
Ruiz involved witness impeachment material, and circuits are split on whether
independently exculpatory Brady material must be disclosed before a plea, with the Sixth Circuit
7

having thus far declined to answer that question. Robertson v. Lucas, 753 F.3d 606, 621 (6th
Cir. 2014). The split among circuit courts, however, indicates that “fairminded jurists could
disagree” about whether Petitioner was entitled to receive all exculpatory material before his
plea. See Little v. Warren, No. 2:14-CV-10166, 2015 WL 6108248, at *6 (E.D. Mich. Oct. 16,
2015) (“[T]he circuit court split on the issue . . . indicates that the state court’s decision in this
case was not an unreasonable one; at most, it is one upon which ‘fairminded jurists’ could
disagree.”) (citing Harrington v. Richter, 562 U.S. at 101). Therefore, any such right was not
“clearly established” enough permit habeas relief from the state court’s finding that Petitioner’s
plea was voluntary despite the non-disclosure. See Carey v. Musladin, 549 U.S. 70, 76–77
(2006) (noting that lower courts’ wide divergence on a claim reflected “lack of guidance” from
Supreme Court, and accordingly “it cannot be said that the state court unreasonably applied
clearly established Federal law”); Evenstad v. Carlson, 470 F.3d 777, 783 (8th Cir. 2006)
(“When the federal circuits disagree as to a point of law, the law cannot be considered ‘clearly
established’....”); cf. Robertson at 621 (holding that defendants to civil rights suit were entitled to
qualified immunity because plaintiff arrestees did not have a “clearly established” right to receive
exculpatory material prior to their guilty pleas); Snow v. Nelson, 634 F. App’x 151, 156 (6th Cir.
2015) (“As we held in Robertson v. Lucas, our precedent does not support any clearly
established right of criminal defendants to receive exculpatory Brady material before plea
bargaining.”). But see Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012) (“The fact that a circuit
split exists on an issue may be indicative of a lack of clarity in the Supreme Court's
jurisprudence, but a split is not dispositive of the question.”) (citations omitted).
Moreover, while actual “misrepresentations or other impermissible conduct by state
agents” might violate the due process requirement that a guilty plea be “a voluntary and
intelligent choice,” the remedy for that violation is withdrawal of the plea. Robertson at 620
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970) and Brady v. United States, 397 U.S.
8

742, 757 (1970)). As determined by the state court and discussed further below, Petitioner
knowingly waived any right to that remedy when he instructed counsel not to move to withdraw
his plea after the prosecutor agreed to allow him to do so.
Petitioner has not established that he is entitled to relief on this claim, and it will be
denied.
B.

Claim 2

Petitioner next claims that his trial counsel was ineffective for “failure to timely convey
and communicate an offer by the state to permit withdrawal of a plea based on undisclosed
Brady evidence.” (ECF No. 1, at 12.)
All federal claims of ineffective assistance of counsel are subject to the highly deferential
two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether
counsel was deficient in representing the defendant; and (2) whether counsel’s alleged
deficiency prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To
satisfy the first prong, a petitioner must establish that his attorney’s representation “fell below an
objective standard of reasonableness.” Id. at 688.

In assessing counsel’s performance, a

reviewing court must be highly deferential and avoid the “second-guess[ing of] counsel’s
assistance . . . , [as] it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”
Strickland, 466 U.S. at 689. The court must determine whether, under the circumstances,
counsel’s allegedly unreasonable acts or omissions “were outside the wide range of
professionally competent assistance.” Id. at 690. In order to avoid “the distorting effects of
hindsight,” a reviewing “court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that . . . the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (citation omitted).
9

The “prejudice” component of the claim “focuses on the question of whether counsel’s
deficient performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Prejudice, under Strickland, requires
showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.

“The

likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 111–12 (2011) (internal citations omitted). “[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.” Strickland, 466 U.S. at 697.
The two-part Strickland test applies equally to ineffective-assistance claims in the
context of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy the first prong in such
a case, a petitioner must establish that counsel’s advice concerning the plea was not “within the
range of competence demanded of attorneys in criminal cases.” Id. at 56 (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970) and citing Tollett v. Henderson, 411 U.S. 258, 267
(1973)). To establish prejudice, a petitioner who pleaded guilty “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.” Hill, 474 U.S. at 59.
As discussed above, however, federal habeas relief may not be granted on an
exhausted claim 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); or
that it “involved an unreasonable application of” such law, § 2254(d)(1); or that it “was based on
10

an unreasonable determination of the facts” in light of the record before the state court, §
2254(d)(2). Thus, when an exhausted 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. at 101. As the Supreme
Court clarified in Harrington,
This is different from asking whether defense counsel’s performance fell below
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.
Id. (internal quotation marks and citation omitted).
Reviewing this claim on appeal from the denial of post-conviction relief, the TCCA
correctly

identified

the

applicable

Strickland

standard.

Cranmer

v.

State,

No.

M201302866CCAR3PC, 2015 WL 1868815, at *10–11 (Tenn. Ct. Crim. App. Apr. 23, 2015),
appeal denied (Sept. 17, 2015). It recounted the relevant post-conviction testimony from plea
counsel, Petitioner and his mother, and rejected the claim on its merits:
Counsel testified that, after the Petitioner entered his guilty plea, she was in
communication with the State about the Petitioner withdrawing the plea. Counsel
agreed that on March 28, 2012, two days after the Petitioner entered his guilty
plea, she learned from the State that the club’s security guard, Mr. Galbreath,
had made a statement that the shooter was not a white male but was “light
skinned.” Because that created some doubt about the Petitioner’s role in the
shooting, the State offered to give the Petitioner thirty days to withdraw his plea.
Counsel stated that she communicated this information to the Petitioner on April
4 or 5, 2012. Counsel stated that she attempted to contact Mr. Galbreath, as well
as Ms. Murray again, to attempt to get more information about the incident for the
Petitioner. Counsel's investigation and conversations with the State continued
through the middle of April, during which time the Petitioner communicated
ambivalence about whether to withdraw his plea. Counsel said he was
concerned about the witnesses, Ms. Murray and Mr. Galbreath, and wanted to
know if the new information from Mr. Galbreath might benefit the Petitioner’s
case. Counsel advised the Petitioner that she did not think what Mr. Galbreath
11

said would “hurt [the Petitioner’s] chances and or help[ ] his chances in any
way....” Counsel stated that the Petitioner eventually signed a document stating
that he did not want to withdraw his plea. Counsel clarified that the document
read: “I do or do not want her to file a motion to withdraw my plea,” and the
Petitioner circled, “do not.”
Counsel testified that she left town after the Petitioner made his decision not to
withdraw his plea. The Petitioner seemed unsure about his decision and wanted
to talk it over with his family. Before leaving town, Counsel advised the Petitioner
of her out of town trip. She explained to him that she would be available by
phone but could not visit him again at the jail to discuss his decision. While
Counsel was out of town, the Petitioner’s mother called her and said that the
Petitioner did not want to withdraw his plea. Upon Counsel's return, she sent a
follow-up letter to the Petitioner to close her file and received a letter from the
Petitioner in response stating that he wanted to withdraw his plea. Counsel
visited the Petitioner in jail to discuss the letter he sent to her and again he
signed a document stating that he did not wish to withdraw his plea.1 Counsel
told the Petitioner that she could try to contact the State about withdrawing his
plea outside the thirty-day period.
Counsel testified that if she had incorrectly relied on the Petitioner’s mother in her
thinking that the Petitioner did not want to withdraw his plea, she would have
gone to the trial court and the State and said the same. However, the Petitioner
continued to state that he did not want to withdraw his plea. He also never
indicated that he wanted to hire another attorney even though Counsel advised
him that he could retain a different attorney.
*

*

*

Ms. Cranmer agreed that Counsel contacted her after the Petitioner entered his
guilty plea and told her the State had offered to allow the Petitioner to withdraw
the plea due to exculpatory evidence that the State had not provided the
Petitioner. Ms. Cranmer said that she told Counsel that her son wanted to
withdraw the guilty plea and that she wanted to meet with Counsel, who was out
of town at the time.
*

*

*

The Petitioner recalled that after he entered his plea, he learned from Counsel
that the State had “unintentionally withheld some evidence” and that the State
had offered to allow the Petitioner to withdraw his plea. Counsel advised him to
1

The TCCA’s summary suggests that Petitioner signed documents at different times stating that he did
not want to withdraw his plea. The testimony indicates, however, that as of his mid-April meeting with
counsel, Petitioner was still undecided about whether to withdraw his plea, and that the meeting was
followed by verbal communication through Petitioner’s mother (ECF No. 13-2, at 120–27), counsel’s May
9 letter to confirm Petitioner did not want to withdraw the plea (ECF No. 13-4, at 53), his May 10 letter that
he had told his mother to tell counsel to withdraw his plea (ECF No. 13-4, at 85–86), and another meeting
on May 16, at which he signed the statement that he did not want counsel to file a motion to withdraw
after all. (ECF No. 13-4, at 55.) While the TCCA may have been in error on this detail, in light of the other
relevant evidence supporting the state court’s decision, this Court cannot conclude that the rejection of
Petitioner’s claim was “based on” that error as required for relief under § 2254(d)(2).
12

“be careful” about withdrawing his plea because it was possibly a ploy by the
State to have a trial resulting in a lengthier sentence. The Petitioner recalled that
he had discussions and communication with Counsel about his decision but
denied telling her that he did not want to withdraw his plea. He said that Counsel
gave him a document to sign stating that he did not want to withdraw his plea,
and he refused to sign it. He clarified that he signed a document stating that he
did not want Counsel to withdraw his plea because he planned to hire another
attorney.
*

*

*

In the matter at hand, the post-conviction court accredited Counsel’s testimony
and found that the Petitioner was not credible. . . . Finally, the post-conviction
court concluded that it was the Petitioner’s decision not to withdraw his plea and
that Counsel communicated with him effectively on that issue. The postconviction court found that the Petitioner’s allegation in regard to the withdrawal
of his plea was “completely erroneous.”
We conclude that the evidence does not preponderate against the postconviction court’s findings. . . . Counsel further testified that she gave the
Petitioner advice about whether to withdraw his guilty plea and he ultimately
declined the State’s offer. The post-conviction court accredited Counsel’s
testimony, thereby resolving all factual issues raised by the evidence. See
Momon [v. State], 18 S.W.3d 152[,] 156 [(Tenn. 1999)]. We conclude that the
Petitioner has failed to meet his burden of showing by clear and convincing
evidence that Counsel was ineffective. He is not entitled to relief on this issue.
Cranmer v. State, No. M201302866CCAR3PC, 2015 WL 1868815, at *5–6, 7, 11 (Tenn. Ct.
Crim. App. Apr. 23, 2015), appeal denied (Sept. 17, 2015).
Petitioner pleaded guilty on March 26, 2012, and the prosecutor contacted counsel on
March 28, 2012, about the discrepancy in Galbreath’s description of the shooter. (ECF No. 13-4,
at 49.) Petitioner’s claim is that counsel did not “timely” communicate the prosecutor’s offer to
agree to withdrawal of his plea (ECF No. 1, at 12), but the letter he wrote to her on April 5, 2012,
indicates that she had come to talk to him about the possibility of withdrawing his plea “last
Sunday,” which would have been Sunday, April 1, 2012 – only four days after the prosecutor’s
disclosure. (ECF No. 13-4, at 88.) At Petitioner’s request, counsel then spoke with Galbreath
and met again with Petitioner to advise him that she did not believe the newly disclosed
statement had any impact on Petitioner’s case; Petitioner acknowledged in his post-conviction
appellate brief that this meeting took place in mid-April, just as counsel had testified at the
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hearing. (ECF No. 13-2, at 122; ECF No. 13-7, at 54–55.) Petitioner’s state court brief and
another letter to counsel also acknowledged that at that point, Petitioner wanted to give more
thought to whether to withdraw his plea, but counsel was leaving town and would be unable to
return to discuss the matter in person, so they agreed that he would have his mother let her
know whether or not he wanted to withdraw his plea. (ECF No. 13-4, at 85–86; ECF No. 13-7, at
54–55.) While there is a factual dispute about what message Petitioner’s mother conveyed to
counsel about his decision, there is clearly no merit to his allegation that counsel’s
communication with him about the option to withdraw his plea was not timely. That claim will
therefore be denied.
To the extent that Petitioner is trying to claim that counsel was ineffective for failing to
act on his directive, either personal or through his mother, that he wanted to withdraw his plea
based on the newly disclosed evidence, the TCCA summarized the conflicting post-conviction
testimony on that question, and observed that “the post-conviction court accredited Counsel’s
testimony and found that the Petitioner was not credible.” Cranmer, 2015 WL 1868815, at *11.
Specifically, “the post-conviction court concluded that it was the Petitioner’s decision not to
withdraw his plea and that Counsel communicated with him effectively on that issue,” and that
“Petitioner’s allegation in regard to the withdrawal of his plea was ‘completely erroneous.’” Id.
The TCCA concluded that “the evidence does not preponderate against the post-conviction
court’s findings.” Id.
The state court’s factual determinations are presumed to be correct and may only be
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Moreover, to warrant

habeas relief, it is not enough that a federal district court disagree with the state court’s factual
determination or believe it to be erroneous; the determination must be “unreasonable.” 28
U.S.C. § 2254(d)(2). Witness credibility assessments are “predominately the business of trial
courts,” and “federal habeas courts do not have license, under § 2254(d), to redetermine
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witness credibility, whose demeanor is observed exclusively by the state court.” Givens v.
Yukins, 238 F.3d 420 (6th Cir. 2000) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
In this case, Petitioner has not established any clear and convincing evidence that
renders unreasonable the state court’s determination that his claim to have wanted or instructed
his attorney to withdraw his plea was not credible, or “completely erroneous.” Both the relevant
testimony and documentary evidence conflict, and the state courts did not unreasonably choose
one side over the other.
It is undisputed that on May 9, 2012, after a telephone conversation with Petitioner’s
mother, counsel wrote Petitioner a letter to “confirm that after our discussions, and after you
speaking with your family, you have elected NOT to withdraw your guilty plea.” (ECF No. 13-4,
at 53.) Petitioner responded in a letter dated May 10, 2012, saying that he had told his mother
to tell her he wanted to withdraw his plea (ECF No. 13-4, at 86), but it is also undisputed that
when counsel visited Petitioner on May 16 to discuss his letter, he signed a statement saying
that he did not want her to file a motion to withdraw his plea. (ECF No. 13-4.) Petitioner tried
during post-conviction proceedings to convince the state court that in signing the statement, he
meant only that he did not want plea counsel to file the motion, because he had lost faith in her
by then and was retaining another attorney to do so. (ECF No. 13-2, at 232–33; ECF No. 13-7,
at 56.) He testified that before counsel visited him on May 16, his family was already in the
process of arranging for another attorney, Carrie Gasaway, to move to withdraw his plea. (ECF
No. 13-2, at 232–33.)

In addition to the reasons given by the state court, its decision to

disbelieve Petitioner’s version of events is supported by the fact that, despite Petitioner’s
knowledge that the prosecution’s offer was only good for a limited time (ECF No. 13-2, at 233),
he never actually had Gasaway file a motion to withdraw the plea or take any action to
challenge Petitioner’s conviction until she filed his initial post-conviction petition almost five
months later, on October 8, 2012. (ECF No. 13-1, at 36.)
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Moreover, neither the initial petition drafted and filed by Gasaway, nor the affidavit of
Petitioner’s mother in support of that petition, alleged that Petitioner had ever informed counsel
that he wanted to withdraw his plea. (ECF No. 13-1, at 23–24, 39.) To the contrary, the petition
expressly alleged that upon receiving counsel’s letter “to confirm” that he did not want to
withdraw his plea, “[Petitioner] was very upset because he had not yet communicated to
[counsel] whether he wanted to withdraw his plea or not.” (ECF No. 13-1, at 23–24
(emphasis added).)

More than six months later, in the course of litigating the motion to

disqualify Gasaway from the post-conviction case, Petitioner – through Gasaway – filed a
response with the stated purpose of challenging plea counsel’s credibility. (ECF No. 13-1, at
60–64.) In the response, Petitioner alleged discrepancies and falsehoods in plea counsel’s
billing records and sworn affidavit testimony, but never mentioned any discrepancy between an
alleged instruction (through his mother) for her to withdraw his plea and her attempt to confirm
that he did not want to withdraw his plea. (Id.) Even in Petitioner’s amended petition filed in
August 2013, there was still no mention of any instruction through his mother to withdraw the
plea – just counsel’s attempt to “confirm” his desire not to withdraw his plea after his saying that
he needed more time to think about it. (ECF No. 13-1, at 130.) Thus, by the time of the relevant
post-conviction testimony in September 2013, the very newness of Petitioner’s allegation that he
had actually instructed counsel to withdraw his plea further supported the state court’s finding
that it was not credible.
Petitioner has not established that the state court’s rejection of this claim was contrary to
or an unreasonable application of federal law. Accordingly, it will be denied.
C.

Claim 3

Finally, Petitioner claims that plea counsel was ineffective for failing to investigate
multiple exculpatory leads, failing to file motions and failing to advise him that jailhouse phone

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call recordings were not admissible at trial. As discussed above, the state court identified and
applied the proper federal standard for ineffective-assistance claims.
Petitioner does not identify the “multiple exculpatory” leads that he faults counsel for not
investigating.

In his post-conviction appeal, he complained of the failure “to contact key

witnesses who would have potentially corroborated Petitioner’s innocence,” and specifically
mentioned Jaquita Murray, Michael Taylor, Jumain Thompson and Lionel Watkins. (ECF No.
13-7, at 19–20.) But with the exception of Ms. Murray, Petitioner has never presented evidence
of what further investigation would have revealed about those individuals’ information about the
case or their anticipated trial testimony. Ms. Murray testified at the post-conviction hearing that
Petitioner was the man who shot her and “was the only white person in that club that night with
that hoodie on,” and also confirmed that she had refused to speak to Petitioner’s attorney. (ECF
No. 13-2, at 12-13, 19, 21.)
Counsel’s unrebutted testimony was that in addition to Ms. Murray, she had tried and
failed to talk to Watkins, and that she was sure she probably tried to contact Thompson and
Taylor as well, but did not specifically recall those efforts. (ECF No. 13-2, at 46–47.) Through
her trial preparation and review of the discovery, counsel was already aware of Murray’s and the
other victims’ statements and the fact that they had not positively identified Petitioner as the
shooter. (ECF No. 13-2, at 49–54.) However, Thompson had said that “out of nowhere a
caucasian male” had thrown a punch just before the shooting began (ECF No. 13-2, at 18), and
Taylor had said that a “white boy” had come in with a gun and “just started shooting.” (ECF No.
13-2, at 23.) Even if counsel’s investigation of these victims or other witnesses or pieces of
evidence was deficient, Petitioner has not demonstrated what additional investigation would
have revealed or that there is a reasonable probability that it would have caused him to reject
the plea agreement. He has therefore not proven any prejudice arising from the allegedly
deficient investigation. Cf. Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007) (where habeas
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petitioner did not establish the likely content of missing witness’s testimony, “a fortiori, he cannot
show that he was prejudiced by its omission”).
With regard to the allegedly ineffective failure to file pre-trial motions, the TCCA quoted
the post-conviction court’s rejection of this claim: “There was no showing that there were any
motions that needed to be filed. [Counsel] had the discovery. There was no evidence presented
in the hearing of this case that demonstrated that there was any evidence that could have been
suppressed.” Cranmer v. State, No. M201302866CCAR3PC, 2015 WL 1868815, at *8 (Tenn.
Crim. App. Apr. 23, 2015), appeal denied (Tenn. Sept. 17, 2015). The petition in this action fails
to specify what motions counsel was ineffective for failing to file, except for a reference to
Petitioner’s having been prejudiced by counsel’s “failure to file a motion limine or even advise
Petitioner that jail call recordings would be inadmissible at his trial.” (ECF No. 1, at 12.) But
Tennessee law is clear that inmates who are aware that jailhouse phone calls are recorded2
have no legitimate expectation of privacy in those calls, and the recorded calls are admissible in
court. State v. Hill, 333 S.W.3d 106, 125–26 (Tenn. Ct. Crim. App. 2010).
It is possible that Petitioner is attempting to raise an argument he raised on postconviction appeal: that counsel failed to advise him that portions of the calls related to his
polygraph test would not be admissible at trial and was ineffective for advising him that his
chances at trial were damaged by evidence that she should have known was not admissible.
(ECF No. 13-7, at 35, 38–39.)

Tennessee law does prohibit admission of evidence of a

defendant’s taking, willingness to take or refusal to take a polygraph. State v. Sexton, 368
S.W.3d 371, 409 (Tenn. 2012). Counsel was aware of that law, and testified that she advised
Petitioner’s family accordingly. (ECF No. 13-2, at 94.) However, Tennessee does not exclude
evidence of voluntary statements, made either during a polygraph or after a polygraph machine

2

Petitioner’s using another inmate’s PIN to place his calls in order “to keep the district attorney from
knowing about the lie detector test” establishes that he knew the jail staff and/or prosecutor could hear
jailhouse phone calls. (ECF No. 13-2, at 219.)
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is disconnected, about the defendant’s answers during the polygraph or the underlying facts of
the crime, because such statements are “by definition . . . separate and discrete” from the
polygraph test or test result itself. State v. Damron, 151 S.W.3d 510, 513–14, 517–18 (Tenn.
2004). “[T]he fact that a polygraph test is not sufficiently reliable to warrant admission of its
results does not undermine the reliability of voluntary statements made by a defendant during a
polygraph test.” Id. at 517. This is equally true for voluntary statements made by a defendant to
his family members hours or days after the test.

Thus, hypothetically speaking, while a

defendant’s telling a family member during a phone conversation that he was taking a polygraph
or that he had failed a polygraph would not be admissible, his telling a family member that he
intended to lie or had lied during a polygraph by denying that he committed a crime may be
admissible. It is Petitioner’s burden to establish on which side of that line the evidence in
question falls in order to demonstrate that his counsel’s performance was deficient, and he has
failed to do so. As Petitioner himself observed in his post-conviction appellate brief, the records
of the damning phone calls were never entered into the state court’s record. (ECF No. 13-7, at
37.) In the absence of that evidence, Petitioner cannot prove either that counsel performed
deficiently in failing to move to exclude it or to advise him of that possibility, or that the impact of
the evidence was so significant that there is a reasonable probability that he would have
rejected the plea deal if he knew it might be inadmissible.

The relative impact of the

conversations related to the polygraph is particularly speculative given that Petitioner’s decision
to take the plea was also influenced by the prosecutor’s possession of call recordings in which
Petitioner and/or his mother arguably threatened a witness via a three-way call using another
inmate’s PIN, and recordings in which Petitioner had shared the entire defense strategy for trial.
(ECF No. 13-2, at 105-06, 163–64, 225.)

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Petitioner has not established that the state court’s rejection of this ineffective-assistance
claim was contrary to or an unreasonable application of clearly established federal law. The
claim will be denied.

VII.

CONCLUSION
For the reasons set forth above, the petition for the writ of habeas corpus will be denied,

and this case will be dismissed.
An appropriate Order shall enter.

Kevin H. Sharp, Chief Judge
United States District Court

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