Hall v. Parrish
Filing
21
ORDER DENYING PETITION. Signed by Judge Thomas L. Parker on 3/29/2019. (pab) (Main Document 21 replaced on 3/29/2019) (pab).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHARLES HALL,
)
)
)
)
)
)
)
Petitioner,
v.
MIKE PARRIS,
Respondent.
No. 2:15-cv-02273-TLP-tmp
ORDER DENYING PETITION,
ORDER DENYING CERTIFICATE OF APPEALABILITY,
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Charles Hall1 petitions this Court for habeas corpus relief under 28 U.S.C. §
2254. (Petition (“Pet.”), ECF No. 1.) Respondent answered and filed the state court record.
(Answer, ECF No. 15, Record (“R.”), ECF No. 14.) Hall replied to Respondent’s answer.
(Reply, ECF No. 19.)
As discussed more fully below, the issues Petitioner raises in the habeas petition fall into
one category, whether the state court identified and applied the correct federal legal principles.
For the reasons discussed below, the petition is DENIED.
BACKGROUND
I.
Petitioner’s State Court Conviction
A Shelby County grand jury returned an indictment against Petitioner Hall on January 8,
2004, charging him with two counts of aggravated robbery. (R., Indictment, ECF No. 14-16 at
Petitioner, Tennessee Department of Correction (“TDOC”) prisoner number 127083, is
confined at the Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee.
1
PageID 803.) Hall was convicted of both counts as charged on May 22, 2009. (R., Minutes
(“Mins.”), ECF No. 14-16 at Page ID 882.) The trial court sentenced Hall to life without parole
after determining that he was a repeat violent offender.2 (R., Judgment (“J.”), ECF No. 14-16 at
PageID 888-89.) Hall appealed his conviction and sentence. (R., Notice of Appeal, ECF No. 1416 at PageID 904.) The TCCA affirmed. State v. Hall, No. W2009-02569-CCA-R3-CD, 2010
WL 5271082 (Tenn. Crim. App. Dec. 10, 2010), perm. app. denied (Tenn. Apr. 12, 2011).
II.
Petitioner’s State Court Post-Conviction Petition
Hall filed a pro se petition in Shelby County Criminal Court pursuant to the Tennessee
Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to 40-30-122. (R., Pet. for PostConviction Relief, ECF No. 14-29 at PageID 2204-15.) On October 23, 2012, appointed counsel
filed an amended petition.3 (R., Am. Pet., ECF No. 14-29 at PageID 2218-19.) The postconviction court conducted an evidentiary hearing and denied relief in an order entered on May
31, 2013. (R., Order, ECF No. 14-29 at PageID 2221-30.) Hall appealed this denial. (R., Notice
of Appeal, ECF No. 14-29 at PageID 2233.) The Tennessee Court of Criminal Appeals
(“TCCA”) affirmed the post-conviction court’s ruling. Hall v. State, No. W2013-01438-CCAR3-PC, 2014 WL 5502424 (Tenn. Crim. App. Oct. 31, 2014).
On direct appeal, the TCCA summarized the procedural history of the case and the
evidence presented at trial:
This case arises out of the February 2003 robbery of Sherron Jefferson, the
victim, an employee of the Wonder Bread store on South Third Street in
Memphis. As a result, the defendant was indicted on two counts of alternate
theories of aggravated robbery. The indictment was consolidated with another
indictment, case number 04–00119, for trial; however, on August 11, 2006, this
2
The trial court merged the second count of aggravated robbery into the first count.
The petition filed by counsel is styled as a second amended petition. However, the record does
not contain an amended petition. (R., ECF No. 14-29.)
2
3
court reversed the defendant’s convictions in the two cases and remanded for
separate trials as to each indictment. See State v. Charles Hall, No. W2005–
01338–CCA–R3–CD, 2006 WL 2334850, at *1, *7 (Tenn. Crim. App. Aug.11,
2006), perm. to appeal denied (Tenn. Dec. 18, 2006).
State’s Proof
The victim testified that she was working at the Wonder Bread store on
Sunday, February 23, 2003. As she was stocking shelves in the back room in
preparation of closing, the victim noticed that a man, identified as the defendant,
had entered the store through the front door. As the defendant entered, a young
boy also entered the store, yelling to the victim that she had a customer. The
victim called to the front that she would help him shortly, but the defendant
walked from the front and into the office that bisected the store. The defendant
brandished a “[l]ittle silver gun” in his right hand and told her to cooperate. Upon
seeing the gun, the victim was frightened, afraid that the defendant was going to
kill her.
The defendant told the victim to go to the front of the store, display the
“closed” sign, and lock the door. When the victim complied with the defendant’s
demand, she noticed that the young boy, who appeared to be nine years old, was
still in the store. She explained that it was normal for the neighborhood children
to hang around the store and help with tasks in exchange “for a cake or
something.” The defendant held the boy’s hand in his left hand and the gun in his
right hand as he told the victim to go to the cash register and not sound any
alarms. The defendant told her to remove only the cash from the register and put
it in a plastic bag. The victim did as she was instructed, placing approximately
$100 in a store bag. The victim handed the money to the defendant “[b]ecause he
had a gun, and [she] was afraid.”
The victim testified that the defendant then asked for the videotape from
the store’s surveillance camera. When the victim tried unsuccessfully to eject the
tape from the VCR, the defendant became agitated. The victim attempted to
remove the VCR from the wall, and the defendant “snatched it and stepped on it,
and that’s the only way we got the tape out of it.” The defendant had the victim
show him a door in the stock room he could use as an exit and then placed the
victim and young boy in the bathroom with instructions not to come out for
fifteen minutes. The defendant threatened to hurt them if they came out of the
bathroom before he left.
The victim testified that after fifteen to twenty minutes, they exited the
bathroom, and she called the nearby fire station. By the time the fire department
personnel arrived, the young boy had left the store. Police officers arrived in less
than ten minutes after the fire department personnel, and she told them what had
happened. However, she did not mention anything about the young boy being
3
present because “[t]hey never asked [her] was anybody in the store. They just
asked [her] about the robbery.” The victim admitted that she later gave a
statement to Sergeant Bell in which she again did not mention the young boy.
She explained that she did not mention him because
he was upset about [the robbery]. And I was upset. And I didn’t
want to put him through what I had to go through because his
mom—during that time, his mom had said he was already having
problems, so I didn’t want to take him through it, so I never
mentioned him.
She elaborated that she spoke with the boy’s mother about the incident
because he had told his mother about what had happened. The victim said that the
first time she mentioned the presence of the young boy was when she was asked a
question by the defendant’s attorney at another court proceeding.
The victim testified that she gave a brief description to the police that the
defendant was tall and light-skinned. At trial, she recalled that the defendant was
wearing blue jeans, a yellow-orange “bubble” jacket pulled up over the bottom of
his face, a “skull hat,” and rubber surgical gloves. She estimated that the entire
ordeal, including the time they waited in the bathroom, lasted thirty minutes. She
was within one to two feet of the defendant the entire time, and nothing impaired
her view. The victim explained that she had been instructed by her employer that
in the event of a robbery, to look at the perpetrator’s eyes in hopes of later making
an identification. The victim said that she looked at the defendant’s face but
focused on his eyes as a way of letting him know that she was going to cooperate.
The victim testified that she viewed a photographic array on March 13,
2003, from which she identified the defendant as the robber because “[she]
recognized him through his eyes.” She said that she also recognized the
defendant’s forehead, nose, cheeks, and mustache area. She recalled that the
defendant’s photograph “jumped out” at her, so she took a piece of paper to cover
part of his forehead and mouth “to make sure [she] was picking the right guy.”
The victim said that in addition to the photographic array, she also identified the
defendant at a preliminary hearing, at a motion hearing, and at another court
proceeding.
On cross-examination, the victim admitted that it was untruthful for her to
have previously testified that the first time she spoke with anyone about the young
boy being present was when defense counsel asked her at a prior proceeding when
she had actually spoken with the boy’s mother. She also admitted that it was
untruthful for her to have not mentioned the boy when asked to give a detailed
description of the incident. The victim said that she never told Sergeant Bell prior
to viewing the photographic array that the robber’s eyes were the feature by
which she would be able to identify him. When shown the photographic array,
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the victim admitted that she would not have picked two of the individuals because
their eyes were closed but said that she still looked at their photographs. The
victim acknowledged, in looking at a photograph of the defendant, that the
defendant had a scar in his left eye, but she did not include a scar in her
description.
On redirect examination, the victim testified that she did not select the
individuals in the array who had their eye or eyes closed because neither of them
was the individual who robbed her.
Boris Owens testified that he and his mother were outside the Wonder
Bread store on February 23, 2003, when they saw a light-skinned, African–
American man who was approximately 6’1” exit out the seldom-used side door of
the store. They went to the front door of the store and it was locked. They looked
inside and saw that the cash register was lying on the counter. Owens never saw a
young boy or a woman come out of the store.
The prior sworn testimony of Officer Sherman Bonds was read into
evidence. In that testimony, Officer Bonds stated that he worked in the Memphis
Police Department’s Crime Scene Unit. On February 23, 2003, Officer Bonds
was called to the scene at the Wonder Bread store on South Third Street. Officer
Bonds dusted a VCR for prints but was unable to obtain any.
Lieutenant William Woodard with the Memphis Police Department
testified that he was involved in the investigation of the Wonder Bread store
robbery. Lieutenant Woodard made a follow-up call to the victim the day after
the robbery to obtain any additional details. The victim never mentioned a young
boy being present, nor did he ask if a young boy was there. Lieutenant Woodard
typed a synopsis for the case file and waited for more information to come in. At
some point, the officer received a Crime Stoppers tip identifying the Wonder
Bread store and the defendant by name and giving a few details about the
defendant. Lieutenant Woodard obtained an old booking photograph of the
defendant based on the information gathered from the tip. Approximately five
days later, Lieutenant Woodard received a call inquiring about the status of the
prior Crime Stoppers tip and providing the same, plus some additional,
information. Lieutenant Woodard did not take a formal, written statement from
the victim, and he explained that it was not uncommon to wait for an arrest to be
imminent before obtaining a written statement. The case was transferred to
Sergeant J.B. Bell of the Memphis Police Department.
On cross-examination, Lieutenant Woodard acknowledged that the victim
told him during their conversation the day after the robbery that she did not think
she could identify the robber and such was noted in the report supplement. He
also acknowledged that he was able to create a photographic array based on
5
information received from the Crime Stoppers tip, not from any information given
by the victim.
Sergeant J.B. Bell, Jr. testified that he was transferred to the Wonder
Bread store robbery case after the Crime Stoppers tip came in because he was
working on a similar case. Upon receiving the case, Sergeant Bell contacted the
victim who gave him a general description of the robber, including the robber’s
hair and eyes and that he had “a little mustache” and was light-complected.
Based on the information given by the victim, along with the information from the
Crime Stoppers tip, Sergeant Bell assembled a photographic array depicting the
defendant and five other individuals similar to the defendant and matching the
victim’s general description. He first attempted to assemble the array with the
help of a computer system. However, the computer kept suggesting “real old
men” and men with “gray hair and afros,” so Sergeant Bell had to create the array
manually to ensure that the defendant did not stand out in the array.
Sergeant Bell testified that he had the victim read and sign an advice form
prior to viewing the array on March 13, 2003, and the victim appeared to
understand the instructions. The victim looked at all the individuals and used
paper to cover up their faces even though she “seemed kind of startled,” as if she
recognized someone, upon initially seeing the array. The victim pointed out the
defendant and said that she was absolutely sure of her identification. The victim
gave a formal statement within a day or two of making the identification.
Sergeant Bell testified that the victim never told him about a young boy
being present during the robbery, and he never asked her if one was present. The
victim never affirmatively told him that she was alone. Sometime after the victim
made the identification, Sergeant Bell spoke with the defendant at the robbery
office and noticed nothing unusual about the defendant’s appearance. At an
earlier court proceeding, Sergeant Bell was asked to look at the defendant from a
distance of two to three feet, during which time he eventually noticed that one of
the defendant’s eyes was smaller than the other. He was also able to see, after the
defendant pointed it out, that the defendant had a small scar on his eye.
On cross-examination, Sergeant Bell recalled that the victim mentioned
the defendant’s eyes when she selected him from the array, but she had never
given a description of the robber’s eyes. Asked why he included photographs of
two individuals in the array in which the view of the individuals’ eyes was
impeded, Sergeant Bell explained that they had similar features to the defendant
and he “didn’t have information about the [importance of the] eyes when [he]
[created the array].” Sergeant Bell clarified that the victim made the
identification and then began mentioning the robber’s eyes. Sergeant Bell
admitted that in the statement given by the victim the day after the photographic
identification, she did not mention anything about the robber’s eyes or mustache
in her description.
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On redirect examination, Sergeant Bell stated that he would not have
changed the course of his investigation in any way had he known that a young
boy was present except that he probably would have charged the defendant with
an additional offense.
Defendant’s Proof
Georgia Johnson, the defendant’s first cousin, testified that the defendant
had a noticeable dark spot in one of his eyes since childhood. She said that the
defendant would have been in his early to mid-fifties in 2003.
Robert Lively, owner of Courtesy Consultants, a security company,
employed the defendant as a security guard for an apartment complex in 2003.
Lively never received any complaints from the apartment complex about the
defendant not showing up for work, and Lively characterized the defendant as a
good employee. He recalled that the defendant filled out a time sheet that
indicated he was working from 1:00 to 9:00 p.m. on February 23, 2003.
However, Lively could neither confirm nor deny that the defendant actually
worked the hours he claimed to have worked on the day of the robbery. Lively
acknowledged that regarding one of the other days reported on the time sheet, the
defendant was docked three hours from what he reported due to his not
responding when the base radioed him. Lively acknowledged that he never got
the radio belonging to Courtesy Consultants back from the defendant after his
employment ceased. If he were informed that the defendant had pawned the radio
on twenty occasions, he would not have considered him a good employee. Lively
said that in the approximately nine months that the defendant worked for him, the
defendant asked for an advance on his paycheck on more than one occasion.
After the conclusion of the proof, the jury convicted the defendant as
charged of two counts of aggravated robbery.
State v. Hall, 2010 WL 5271082, at *1–*5.
The Tennessee Court of Criminal Appeals’ opinion on post-conviction appeal
summarized the evidence presented at the post-conviction hearing:
It is somewhat difficult to follow the petitioner’s evidentiary hearing
testimony because several of the issues appear to be closely related and he moves
back and forth among his various complaints. Additionally, his testimony is
peppered with citations to various legal opinions and arguments. His first issue,
as we understand, was that the victim had been shown two photospreads, and one
was an “illegal, contaminated duplicate photospread,” which, in his view, trial
counsel should have sought to suppress by filing an appropriate motion. He
7
contended that the first was suggestive in the manner in which his photograph was
presented and the victim picked his photograph in the second spread only after
she had been shown the first suggestive spread. Related to this complaint is the
petitioner’s claim that counsel should have pursued a motion to suppress the
identification by the victim.
The petitioner testified that his “second issue” was that trial counsel did
not object “when [the] prosecutor elicited testimony from Sergeant J.B. Bell about
a bank robbery. Counsel failed to file a motion to suppress the Crime Stopper[s]
tip that contained prejudicial hearsay statements.” As to this claim, trial counsel
testified that he did not object to this testimony because his defense was based
partly on an inadequate investigation by the police of the robbery for which the
petitioner was being tried.
Further, the petitioner complained that counsel failed to seek hearings on
twenty-two pretrial motions which were filed. Among these motions was one for
the State to identify all persons at the crime scene. The petitioner said that a
young boy was present and speculated that this particular witness “could have
been brought to court and possibly exonerated [the petitioner] from being, you
know, not being the one that committed the crime.”
The petitioner argued that counsel was ineffective for failing to object to
“old booking photos” of the petitioner, thus “[i]nferring to the jury that [he] had
been arrested before.”
Trial counsel testified that he had been an attorney for thirteen years,
practicing both civil and criminal law, and had participated in approximately fifty
jury trials. He said that he met with the petitioner during the times he was
brought to court. The petitioner called trial counsel “quite a bit” at both his office
and on his cell phone. He described the petitioner as a “jailhouse lawyer”:
And what I mean by that is [the petitioner] is, I don’t know if this
is the proper term, but at times can act very much as if he’s some
kind of jailhouse lawyer and he was constantly sending me things
to review and case law to read. And I would spend a lot of the
time . . . having to explain to [the petitioner] that those issues were
really not relevant to his case. And that my job was essentially to
attack . . . the State’s case and put on the best trial possible.
And as far as the strategy, [the petitioner] was constantly kind of
straying from what I thought was the road map which we were
going to follow and that was going to essentially attack the
credibility of the eyewitness, Sharron Jefferson. And one of the
what I though[t] was going to be a bonus, which actually maybe
8
turned into a little bit more of a problem, was that this case had
already been tried once. . . .
And so a lot of the things that [the petitioner] was trying to focus
on I kept telling him those are really appellate issues, it didn’t have
anything to really do with challenging the evidence and preparing a
good opening and cross-examination of the State’s witnesses. But
if I had to summarize and say what was our defense, what was our
tactic, it was to challenge the mistakes, the errors that were going
to come out in the proof. And to be honest, we were very
successful at that.
Trial counsel said the petitioner was never in “full agreement” with what
he was doing, and they spent a “considerable time” in “debates.” During the trial,
the petitioner “was constantly tapping [counsel] on the shoulder, handing [him]
things, telling [him] to jump up.” Counsel said that “for three years” he spent the
“majority” of his afternoons “researching, kind of essentially responding to [the
petitioner’s] letters.” Although the petitioner gave counsel the impression that he
wanted to testify during the trial, he did not provide a list of “alibi witnesses or
anything like that.” They discussed the impact of the petitioner’s prior criminal
record. During the trial, the petitioner told counsel that he was “just trying to get
the judge tripped up so we’ll have something for appeal.”
As for the petitioner’s claims about the photospread, counsel said he did
not remember seeing one with the numbers missing, as the petitioner had
presented during his evidentiary hearing testimony. Rather, the copy of the
photospread in counsel’s file bore a notation that the petitioner had been identified
by the victim. As for a motion to suppress the identification, counsel said that
such a motion was unsuccessful in the first trial, and the petitioner then wanted to
raise objections about “either typos or graphical or procedural things, not the
actual substance of the lineup.” However, at the second trial, there were “no
additional reasons” to seek suppression of the victim’s identification.
Regarding the “twenty-two some odd motions” the petitioner complained
that counsel had not pressed, counsel said he had a “good rapport” with the State
and open-file discovery had been made. He explained that the petitioner had a
“considerable amount” of robbery convictions, some in other states, and it was the
petitioner’s decision not to testify. He said that it had been trial strategy to allow
testimony regarding the Crime Stoppers tip:
And . . . I made the decision that based on the testimony of the
officers who agreed with me that there were errors to the Crime
Stopper[s] tip, dates were left off, things like that. And so we
made the decision to allow it to be entered so that it would go
along with the theme of look at all these errors. Look at all these.
9
How can this stuff be reliable if they don’t even—if they have
dates that I believe the date on the sheet of paper was a date that
wasn’t even in time, so it was an impossibility.
Counsel concluded by saying that the petitioner was complaining about
matters that would not have resulted in a different verdict.
At the conclusion of the hearing, the post-conviction court took the matter
under advisement and subsequently entered a written order denying relief.
Hall v. State, 2014 WL 5502424, at *5–*7.
LEGAL STANDARDS
Federal courts have authority to issue habeas corpus relief for persons in state custody
under 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).
I.
Exhaustion and Procedural Default
A federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless,
with certain exceptions, the prisoner has exhausted available state remedies by presenting the
same claim sought to be redressed in a federal habeas court to the state courts. 28 U.S.C. §
2254(b)–(c); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner must “fairly
present”4 each claim to all levels of state court review, up to and including the state’s highest
court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), except where the state
For a claim to be exhausted, “[i]t is not enough that all the facts necessary to support the federal
claim were before the state courts, or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). Nor is it
enough to make a general appeal to a broad constitutional guarantee. Gray v. Netherland, 518
U.S. 152, 163 (1996).
4
10
has explicitly disavowed state supreme court review as an available state remedy, O’Sullivan v.
Boerckel, 526 U.S. 838, 847-48 (1999). Tennessee Supreme Court Rule 39 eliminated the need
to seek review in the Tennessee Supreme Court to “be deemed to have exhausted all available
state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003); see also Smith v.
Morgan, 371 F. App’x 575, 579 (6th Cir. 2010).
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards
v. Carpenter, 529 U.S. 446, 452–53 (2000) (noting the interplay between the exhaustion rule and
the procedural default doctrine). If the state court decides a claim on an independent and
adequate state ground, such as a procedural rule prohibiting the state court from reaching the
merits of the constitutional claim, the procedural default doctrine ordinarily bars a petitioner
from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also
Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court will not review a claim
rejected by a state court if the decision of the state court rests on a state law ground that is
independent of the federal question and adequate to support the judgment”) (internal quotation
marks and citation omitted)).5 In general, a federal court “may only treat a state court order as
enforcing the procedural default rule when it unambiguously relied on that rule.” Peoples v.
Lafler, 734 F.3d 503, 512 (6th Cir. 2013).
5
The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier
to adjudication of the claim on the merits. Walker, 562 U.S. at 315. A state rule is an
“adequate” procedural ground if it is “firmly established and regularly followed.” Id. at 316
(quoting Beard v. Kindler, 558 U.S. 53, 60–61 (2009)). “A discretionary state procedural rule . .
. can serve as an adequate ground to bar federal habeas review . . . even if the appropriate
exercise of discretion may permit consideration of a federal claim in some cases but not others.”
Id. (quoting Kindler, 558 U.S. at 54.) (internal quotation marks and citations omitted).
11
If a petitioner’s claim has been procedurally defaulted at the state level, the petitioner
must show cause to excuse his failure to present the claim and actual prejudice stemming from
the constitutional violation or that a failure to review the claim would result in a fundamental
miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320–21 (1995); Coleman v. Thompson, 501
U.S. 722, 750 (1991). The latter showing requires a petitioner to establish that a constitutional
error has probably resulted in the conviction of a person who is actually innocent of the crime.
Schlup, 513 U.S. at 321; see also House v. Bell, 547 U.S. 518, 536–39 (2006) (restating the ways
to overcome procedural default and further explaining the actual innocence exception).
II.
Merits Review
Pursuant to Section 2254(d), where a claim has been adjudicated in state courts on the
merits, a habeas petition should only be granted if the resolution of the claim:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). Petitioner carries the burden of proof on this “difficult to meet” and
“highly deferential [AEDPA] standard,” which “demands that state-court decisions be given the
benefit of the doubt.” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102
(2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Review under § 2254(d)(1) is limited to the record before the state court that adjudicated
the claim on the merits. Cullen, 563 U.S. at 182. A state court’s decision is “contrary” to federal
law when it “arrives at a conclusion opposite to that reached” by the Supreme Court on a
question of law or “decides a case differently than” the Supreme Court has “on a set of
12
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). An
“unreasonable application” of federal law occurs when the state court “identifies the correct
governing legal principle from” the Supreme Court’s decisions “but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 412–13. The state court’s application of
clearly established federal law must be “objectively unreasonable” for the writ to issue. Id. at
409. The writ may not issue merely because the habeas court, “in its independent judgment,”
determines that the “state court decision applied clearly established federal law erroneously or
incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citing Williams, 529 U.S. at 411).
There is minimal case law addressing whether, under § 2254(d)(2), a decision was based
on “an unreasonable determination of the facts.” In Wood v. Allen, 558 U.S. 290, 301 (2010), the
Supreme Court stated that a state-court factual determination is not “unreasonable” merely
because the federal habeas court would have reached a different conclusion.6 In Rice v. Collins,
546 U.S. 333 (2006), the Court explained that “[r]easonable minds reviewing the record might
disagree” about the factual finding in question, “but on habeas review that does not suffice to
supersede the trial court’s . . . determination.” Rice, 546 U.S. at 341–42.
The Sixth Circuit has described the § 2254(d)(2) standard as “demanding but not
insatiable” and has emphasized that, pursuant to § 2254(e)(1), the state court factual
determination is presumed to be correct absent clear and convincing evidence to the contrary.
In Wood, the Supreme Court granted certiorari to resolve whether, to satisfy § 2254(d)(2), “a
petitioner must establish only that the state-court factual determination on which the decision
was based was ‘unreasonable,’ or whether § 2254(e)(1) additionally requires a petitioner to rebut
a presumption that the determination was correct with clear and convincing evidence.” Wood,
558 U.S. at 299. The Court found it unnecessary to reach that issue, and left it open “for another
day”. Id. at 300–01, 303 (citing Rice v. Collins, 546 U.S. 333, 339 (2006) (recognizing that it is
unsettled whether there are some factual disputes to which § 2254(e)(1) is inapplicable)).
6
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Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010). A state court adjudication will not be
overturned on factual grounds unless objectively unreasonable in light of the evidence presented
during the state court proceeding. Id.; see also Hudson v. Lafler, 421 F. App’x 619, 624 (6th Cir.
2011).
III.
Ineffective Assistance
A claim that ineffective assistance of counsel has deprived a defendant of his Sixth
Amendment right to counsel is controlled by the standards stated in Strickland v. Washington,
466 U.S. 668, 687 (1984). To succeed on this claim, a movant must demonstrate two elements:
1) that counsel’s performance was deficient, and 2) “that the deficient performance prejudiced
the defense.” Id. “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Id. at 686.
To establish deficient performance, a person challenging a conviction “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. A court
considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s
representation was within the “wide range of reasonable professional assistance.” Id. at 689.
The challenger’s burden is to show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.7 “A reasonable probability is a probability sufficient to undermine confidence in the
7
If a reviewing court finds a lack of prejudice, it need not determine whether, in fact, counsel’s
performance was deficient. Strickland, 466 U.S. at 697.
14
outcome. Id. at 694. It is not enough ‘to show that the errors had some conceivable effect on the
outcome of the proceeding.’ [Strickland,] at 693. Counsel’s errors must be ‘so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.’ Id., at 687.” Harrington,
562 U.S. at 104 (citing Strickland); see also Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per
curiam) (“But Strickland does not require the State to ‘rule out’” a more favorable outcome to
prevail. “Rather, Strickland places the burden on the defendant, not the State, to show a
‘reasonable probability’ that the result would have been different.”).
The deference accorded a state-court decision under 28 U.S.C. § 2254(d) is magnified
when reviewing an ineffective assistance claim:
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland and
§ 2254(d) are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U.S.
320, 333, n.7 (1997), and when the two apply in tandem, review is “doubly” so,
Knowles [v. Mirzayance], 556 U.S., at 123, 129 S. Ct. at 1420 [(2009)]. The
Strickland standard is a general one, so the range of reasonable applications is
substantial. 556 U.S., at 123, 129 S. Ct. at 1420. Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.
Harrington, 562 U.S. at 105.
A criminal defendant is entitled to the effective assistance of counsel on direct appeal.
Evitts v. Lucey, 469 U.S. 387, 396 (1985). The failure to raise a nonfrivolous issue on appeal
does not constitute per se ineffective assistance of counsel, as “[t]his process of winnowing out
weaker arguments on appeal and focusing on those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray,
477 U.S. 527, 536 (1986) (internal quotation marks and citation omitted). Claims of ineffective
assistance of appellate counsel are evaluated using the Strickland standards. Smith v. Robbins,
15
528 U.S. 259, 285–86 (2000) (applying Strickland to claim that appellate counsel rendered
ineffective assistance by failing to file a merits brief); Smith v. Murray, 477 U.S. at 535–36
(failure to raise issue on appeal). To establish that appellate counsel was ineffective, a prisoner
must first show that his counsel was objectively unreasonable in failing to find
arguable issues to appeal - that is, that counsel unreasonably failed to discover
nonfrivolous issues and to file a merits brief raising them. If [the prisoner]
succeeds in such a showing, he then has the burden of demonstrating prejudice.
That is, he must show a reasonable probability that, but for his counsel’s
unreasonable failure to file a merits brief, he would have prevailed on his appeal.
Smith v. Robbins, 528 U.S. 259, 285 (citation omitted).8
An appellate counsel’s ability to choose those arguments that are more likely to succeed
is “the hallmark of effective appellate advocacy.” Matthews v. Parker, 651 F.3d 489, 523 (6th
Cir. 2011) (quoting Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003)). It is difficult to show
that appellate counsel was deficient for raising one issue, rather than another, on appeal. See id.
“In such cases, the petitioner must demonstrate that the issue not presented was clearly stronger
than issues that counsel did present.” Id. Defendant must show that “there is a reasonable
8
The Sixth Circuit has identified a nonexclusive list of factors to consider when assessing claims
of ineffective assistance of appellate counsel:
1.
Were the omitted issues “significant and obvious?”
2.
Was there arguably contrary authority on the omitted issues?
3.
Were the omitted issues clearly stronger than those presented?
4.
Were the omitted issues objected to at trial?
5.
Were the trial court’s rulings subject to deference on appeal?
6.
Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
7.
What was the appellate counsel’s level of experience and expertise?
8.
Did the petitioner and appellate counsel meet and go over possible issues?
9.
Is there evidence that counsel reviewed all the facts?
10.
Were the omitted issues dealt with in other assignments of error?
11.
Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir. 2006) (citation omitted).
16
probability that inclusion of the issue would have changed the result of the appeal.” McFarland
v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004).
“There is no constitutional right to an attorney in state post-conviction proceedings.
Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such
proceedings.” Coleman, 501 U.S. at 752 (internal citations omitted). Attorney error cannot
constitute “cause” for a procedural default “because the attorney is the petitioner’s agent when
acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of
attorney error.” Id. at 753 (internal quotation marks omitted). Where the State has no
constitutional obligation to ensure that a prisoner is represented by competent counsel, the
petitioner bears the risk of attorney error. Id. at 754.
In 2012, the Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012), which
recognized a narrow exception to the rule in Coleman, “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding . . .
.” Martinez, 566 U.S. at 17. In such cases, “a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance [of counsel] at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” Id. The Supreme Court also emphasized that “[t]he rule of Coleman governs in all
but the limited circumstances recognized here. . . . It does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective
assistance at trial, even though that initial-review collateral proceeding may be deficient for other
reasons.” Id. The requirements that must be satisfied to excuse a procedural default under
Martinez are:
17
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;
(2) the “cause” consisted of there being “no counsel” or only “ineffective”
counsel during the state collateral review proceeding; (3) the state collateral
review proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim] . . . be raised in an initial-review
collateral proceeding.”
Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis and alterations in original).
Martinez considered an Arizona law that did not permit ineffective assistance claims to
be raised on direct appeal. Martinez, 566 U.S. at 4. In the Supreme Court’s subsequent decision
in Trevino, 569 U.S. at 429, the Court extended its holding in Martinez to states in which a “state
procedural framework, by reason of its design and operation, makes it highly unlikely in a
typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal . . . .” Trevino modified the fourth Martinez
requirement for overcoming a procedural default. Martinez and Trevino apply to Tennessee
prisoners. Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014).
ANALYSIS
In the § 2254 petition, Hall raises the following issues:
1.
The trial court erred by failing to hold an evidentiary hearing on Hall’s
motion to suppress the witness’ identification (Pet., ECF No. 1 at PageID
5);
2.
The evidence was not sufficient to convict Petitioner of aggravated
robbery (id., ECF No. 1 at PageID 7);
3.
Trial counsel performed deficiently by
a.
introducing the Crime Stoppers tip in evidence, rather than
suppressing it, by failing to object to Sergeant Bell’s
testimony about the tip, by failing to suppress the witness’
identification, and by failing to cite to authorities which
18
supported these issues on appeal9 (id., ECF No. 1-1 at
PageID 29);
b.
failing to follow through on certain pre-trial motions (id.);
and
c.
failing to suppress Hall’s prior convictions. (Id.)
Issues 1 and 2 were presented to the TCCA on direct appeal. (R., Brief (“Br.” of
Appellant, ECF No. 14-25 at PageID 2097.) Issues 3(a)-(c) were presented to the TCCA during
the post-conviction appeal. (R., Br. of the Appellant, ECF No. 14-32 at PageID 2338.)
I.
Did the trial court err by failing to hold an evidentiary hearing on Hall’s
motion to suppress the witness’ identification? (Pet., ECF No. 1 at PageID
5.)
Hall alleges that he was identified by use of a suggestive, prejudicial, and unfair
photographic array and that the trial court erred by failing to hold an evidentiary hearing on his
motion to suppress the photographic identification. (Id.) Hall contends that the decision of the
TCCA is contrary to Neil v. Biggers, 409 U.S. 188 (1972). (Id.) Respondent argues that the
decision of the TCCA is consistent with controlling Supreme Court law. (Answer, ECF No. 15
at PageID 2436.)
After reviewing the evidence presented at trial, the TCCA opined:
The defendant argues that the photographic array from which the victim
made a pretrial identification was overly suggestive and that the trial court erred
in failing to hold an evidentiary hearing or rule on his motion to suppress the
identification prior to trial.
Defense counsel, who was a different attorney than the defendant’s
attorney at the first trial, filed over twenty motions prior to the second trial. It
Respondent’s Answer addresses Issue 3(a) as five separate issues of ineffective assistance and
contends that two of the five are barred by procedural default. (Answer, ECF No. 15 at PageID
2349, 2449-51.) Petitioner Hall’s Reply contends that the issues were presented as one issue to
the Tennessee Court of Criminal Appeals, were addressed, and are exhausted. (Reply, ECF No.
19 at PageID 2472–77.) The Court will address the topics as one issue.
9
19
appears that the State did not respond to, pertinently, the defendant’s motion to
suppress, nor did the court explicitly rule on the motion. However, discussion at
the motion for new trial indicates that the defendant had a conversation with the
trial court at some point in which it was discussed that “some motions had been
filed but that they had already been ruled on . . . and the court decided just to go
ahead and proceed based on . . . the issue of suppression had already been ruled
on.” The State further indicated at the motion for new trial hearing that, because
the case was reversed only on the consolidation issue, it did not go through the
redundancy of dispensing of the pretrial motions a second time. From our opinion
on direct appeal following the first trial, we glean that a hearing on a motion to
suppress was held and that the motion was apparently denied as the photographic
identification was mentioned at that trial.
The defendant provided no authority in support of his assertion that the
trial court erred in apparently relying on the original trial court’s ruling and not
holding an evidentiary hearing on the suppression motion. In any event, the crux
of the defendant’s complaint is that the pretrial photographic identification was so
impermissibly suggestive that the victim’s identification was unreliable, which we
will address.
In Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401
(1972), the United States Supreme Court established a two-part test to determine
when a defendant’s due process rights have been violated by a pretrial
identification. Our supreme court has adopted the same standard to be applied by
our courts for assessing whether a pretrial identification has violated the due
process rights of the defendant, thereby tainting any in-court identification made
by the witness. See Bennett v. State, 530 S.W.2d 511, 512–15 (Tenn. 1975).
Under this test, the court first considers whether the identification procedure itself
was unduly or unnecessarily suggestive. Biggers, 409 U.S. at 199. The risk of
irreparable mistaken identification is heightened if one of the photographs in the
photographic lineup “is in some way emphasized,” or if “the police indicate to the
witness that they have other evidence that one of the persons pictured committed
the crime.” Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed.
2d 1247 (1968).
If the identification procedure is found to have been suggestive, the court
next considers “whether under the totality of the circumstances the identification
was reliable even though the confrontation procedure was suggestive.” Biggers,
409 U.S. at 199 (internal quotations omitted). The factors to be considered in
evaluating the reliability of an identification include: (1) the opportunity of the
witness to view the criminal at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the criminal; (4)
the level of certainty demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. Id. If, however, the court
first determines that the identification procedure itself was neither unnecessarily
20
or impermissibly suggestive nor likely to create a substantial likelihood of
irreparable misidentification, there is no need to apply the totality of the
circumstances test outlined in Biggers. See State v. Leon J. Robins and Tabatha
R. White, No. M2001–01862–CCA–R3–CD, 2003 WL 1386835, at *9 (Tenn.
Crim. App. Mar.20, 2003) (citing State v. Butler, 795 S.W.2d 680, 686 (Tenn.
Crim. App. 1990)), perm. to appeal denied (Tenn. Oct. 13, 2003).
Upon review of the photographs in the array, we cannot conclude that the
defendant’s photograph was “grossly dissimilar” to the others. State v. Edwards,
868 S.W.2d 682, 694 (Tenn. Crim. App. 1993) (citing United States v. Wade, 388
U.S. 218, 233, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), for the proposition that
“a lineup would be considered unduly suggestive only when the other participants
were grossly dissimilar”). The array includes color photographs of six African–
American males with short haircuts and small mustaches. No one photograph
background sticks out as the backgrounds are all different—varying from pure
white to blue. The defendant is correct in pointing out that not all the individuals
are of the same complexion, and one of the pictured individuals has his eyes
closed and another individual has one eye closed. However, our supreme court
has previously ruled that the “[p]hotographs contained in a photographic array do
not have to mirror the accused,” State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998),
and the victim had not expressed any significance of the eyes. In viewing the
array, the victim was told that the robber may or may not be depicted and was
advised not to select anyone unless she was positive of the identification. The
defendant places much emphasis on Sergeant Bell’s manually creating the array
instead of using a computer-generated program, but Sergeant Bell explained that
he created the array manually because the computer suggested individuals with
drastically dissimilar characteristics. In sum, we cannot conclude that the
photographic identification was unnecessarily suggestive.
Moreover, even if the identification procedure was suggestive, a review of
the five Biggers factors indicates that the victim’s identification of the defendant
was nonetheless reliable. First, the victim was within one to two feet of the
robber during the incident, in a well-lit store with nothing impairing her view.
Second, it is apparent that the victim’s degree of attention was high as she had
been instructed by her employer that in the event of a robbery, to look at the
perpetrator’s eyes in hopes of later making an identification, and she said that she
looked at the robber’s face and focused on his eyes also as a way of letting him
know that she was going to cooperate. Third, the victim’s initial description of
the robber as tall and light-skinned, although very general, was accurate. Fourth,
the victim “seemed kind of startled,” as if she recognized someone, upon initially
seeing the array, and then pointed out the defendant and said that she was
absolutely sure of her identification. The victim affirmed at trial that she was
certain of her identification. Fifth, the victim was shown the photographic array
only two and a half weeks after the robbery. Upon consideration of the Biggers
21
factors and the totality of the circumstances, we conclude that the photographic
identification of the defendant was reliable.
State v. Hall, 2010 WL 5271082, at *5–*7.
The TCCA identified the proper federal rule and applied the Biggers factors to the facts
of the case. See id., at *6. The TCCA determined that the victim’s identification was reliable
because the photographic lineup was not unduly suggestive and, additionally, that all five
Biggers factors indicated the identification was reliable. Hall repeats the argument considered
and rejected by the TCCA on direct appeal. (Pet., ECF No. 1-1 at PageID 22-26; R., Br. of
Appellant, ECF No. 14-25 at PageID 2120-25.) Hall has not satisfied his burden of showing that
the decision was objectively unreasonable. Hall also does not provide argument or evidence that
refutes the presumption of correctness accorded the state court’s factual determination. A state
court’s factual findings are entitled to a presumption of correctness in the absence of clear and
convincing evidence to the contrary. 28 U.S.C. §§ 2254(d)(2), 2254(e)(1).
Hall presents no compelling argument that the photographic array was unduly suggestive.
Based on this Court’s review of the transcript of Hall’s trial, including the testimony of Sherron
Jefferson and Sergeant J.B. Bell (R., Trial Transcript (“Tr.”), ECF Nos. 14-20, 14-21, 14-22, and
14-23), the TCCA correctly concluded the photographic lineup was not suggestive and that, even
if it were, the Biggers’ factors were satisfied. Deference to the state court decision on this issue
is appropriate. Issue 1 is without merit and is DENIED.
II.
Was the evidence sufficient to convict Petitioner of aggravated
robbery? (Pet., ECF No. 1 at PageID 7.)
Petitioner Hall contends the TCCA’s determination that the evidence was sufficient to
support his conviction for aggravated robbery was an unreasonable determination of the facts.
(Id.) Specifically, Hall contends that the State failed “to prove that Petitioner was guilty of the
22
essential elements of the offenses beyond a reasonable doubt.” (Id.) Respondent replies that the
TCCA applied the correct federal rule and that its decision was correct. (Answer, ECF No. 26 at
PageID 2439.)
After reviewing the evidence presented at trial, the TCCA considered Hall’s argument
and opined:
The defendant challenges the sufficiency of the convicting evidence, arguing that
because the victim was untruthful, her identification of him as the robber was
insufficient to sustain his convictions. In considering this issue, we apply the rule
that where sufficiency of the convicting evidence is challenged, the relevant
question of the reviewing court is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the
trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d
185, 190–92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992). The same standard applies whether the finding of guilt is predicated
upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990).
All questions involving the credibility of witnesses, the weight and value
to be given the evidence, and all factual issues are resolved by the trier of fact.
See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge
and the jury see the witnesses face to face, hear their testimony and
observe their demeanor on the stand. Thus the trial judge and jury
are the primary instrumentality of justice to determine the weight
and credibility to be given to the testimony of witnesses. In the
trial forum alone is there human atmosphere and the totality of the
evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v.
State, 212 Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the
presumption of innocence with which a defendant is initially cloaked and replaces
it with one of guilt, so that on appeal a convicted defendant has the burden of
23
demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982).
As pertinent here, aggravated robbery is the “intentional or knowing theft
of property from the person of another by violence or putting the person in fear,”
Tenn. Code Ann. § 39-13-401(a), “[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it
to be a deadly weapon[.]” Id. § 39-13-402(a)(1).
The defendant does not dispute that an aggravated robbery occurred; he
only contends that he was misidentified as the robber. The identity of the
defendant as the perpetrator of the offense is a question of fact for the jury. State
v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). The identification
testimony of the victim is sufficient, alone, to support a conviction. Id. In the
light most favorable to the State, the evidence shows that the victim first
identified the defendant as the robber from a photographic array within three
weeks of the robbery, from which the defendant’s photograph “jumped out” at
her. The victim also identified the defendant at a preliminary hearing, at a motion
hearing, and at another court proceeding in addition to the present trial. The
victim was within one to two feet of the defendant during the incident and nothing
was impairing her view. She recalled that she had been instructed by her
employer that in the event of a robbery, to look at the perpetrator’s eyes in hopes
of later making an identification.
The defendant impugns the victim’s trustworthiness as a witness because
of her repeatedly failing to mention that a boy was present during the robbery
when asked to give a specific account of the robbery and for saying that she had
not spoken with anyone about a boy being present when she had actually spoken
with the boy’s mother. However, any issues concerning the credibility of the
witnesses were resolved by the jury as the trier of fact. The victim explained that
she did not provide the information because she was not specifically asked and
because the boy’s mother did not want him to get involved in the matter. The
defendant rigorously cross-examined the victim—challenging her credibility
before the jury. The jury apparently accepted the victim’s explanation and found
her identification of the defendant credible. We will not second-guess its
determinations.
State v. Hall, 2010 WL 5271082, at *9–*10.
In Jackson v. Virginia, 443 U.S. at 324, the Supreme Court held that, “in a challenge to a
state criminal conviction brought under 28 U.S.C. § 2254––if the settled procedural prerequisites
for such a claim have otherwise been satisfied––the applicant is entitled to habeas corpus relief if
24
it is found that upon the record evidence adduced at the trial no rational trier of fact could have
found proof beyond a reasonable doubt.” This standard requires a federal district court to
examine the evidence in the light most favorable to the State. Id. at 326 (“a federal habeas
corpus court faced with a record of conflicting facts that supports conflicting inferences must
presume–even if it does not affirmatively appear in the record––that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to that resolution”).
Hall contends that the victim’s identification was suspect and her testimony was not
credible. (Pet., ECF No. 1-1 at PageID 27.) Under Tennessee law, aggravated robbery is “the
intentional or knowing theft of property from the person of another by violence or putting the
person in fear,” accomplished with a deadly weapon. See Tenn. Code Ann. §§ 39-13-401(a),
39-13-402(a)(1). It is indisputable that an aggravated robbery occurred. Additionally, as
previously discussed, the victim’s identification was reliable. The jury chose to credit the
testimony of the victim. Hall has not met his burden of demonstrating that the state court’s
resolution of this issue was objectively unreasonable.
The TCCA applied the correct legal rule and cited both Jackson v. Virginia and state
cases applying the Jackson standard. See State v. Hall, 2010 WL 5271082, at *9. The appellate
court determined “the identification testimony of the victim is sufficient, alone, to support a
conviction” id., at *10 (citation omitted). Based on this Court’s review of the transcript of Hall’s
trial (R., Trial Transcript (“Tr.”), ECF Nos. 14-20, 14-21, 14-22, and 14-23), the TCCA correctly
concluded that the testimony and evidence were more than sufficient to permit the jury to find
that Hall was guilty of aggravated robbery. Issue 2 is DENIED.
25
III.
Did trial counsel perform deficiently by introducing the Crime
Stoppers tip in evidence, rather than suppressing it, by failing to
object to Sergeant Bell’s testimony about the tip, by failing to
suppress the witness’ identification, and by failing to cite to
authorities supporting these issues on appeal? (Pet., ECF No. 1-1 at
PageID 29.)
Hall contends that the Crime Stoppers tip should have been suppressed because it
contained evidence of another crime. (Id. at PageID 30.) He alleges that he wrote trial counsel
and requested that counsel file a motion to suppress any reference to the Crime Stoppers tip and
a motion to suppress the victim’s photographic identification. (Id.) Hall disagrees with his
lawyer’s decision to request that the Crime Stoppers tip be admitted in evidence. (Id. at PageID
31.) Hall now contends that counsel should have objected when Sergeant Bell testified about
investigating an unrelated offense. (Id.) Respondent replies that the TCCA’s determination was
not contrary to or an unreasonable application of clearly established federal law nor was it based
on an unreasonable determination of the facts. (Response, ECF No. 15 at PageID 2443, 2445,
2448–49.)
The TCCA identified the proper standard for analyzing the claim of ineffective
assistance, Strickland, 466 U.S. at 687. Hall v. State, 2014 WL 5502424, at *8. The appellate
court reviewed the post-conviction trial court’s determination and concluded:
A. Motion to Suppress Identification
Following the evidentiary hearing, the post-conviction court found that the
trial court, before the first trial, had denied the defense motion to suppress the
identification of the petitioner. At the second trial, counsel relied upon this earlier
ruling but, in the direct appeal, assigned this ruling as error. On appeal, this court
concluded that the photographic procedure used by the investigating officer was
not unnecessarily suggestive and, even if this had been the case, the victim’s
identification was reliable. . . .
Charles Hall, 2010 WL 5271082, at *7.
26
We note that, at the evidentiary hearing, the petitioner did not present
testimony from the victim or the officer who prepared the photospread. Thus, the
complaint of the petitioner regarding the identification procedure is without merit.
In this regard, the petitioner also complains that, because his prior arrest
photographs were used in the photographic show-up, the jury could infer that he
had a prior arrest. As to this claim, the post-conviction court found that he had
failed to show that he had been prejudiced, and the record supports this
determination.
B. Crime Stoppers Tip
The petitioner complains that trial counsel should have objected to
testimony regarding a Crime Stoppers tip that he was a possible suspect in another
robbery. Trial counsel testified that he made a tactical decision to introduce this
evidence because it further proved mistakes and errors in the investigation of the
matter for which the petitioner was being tried. The post-conviction court
concluded that this “was a tactical decision which is within the realm of reason”
and that prejudice had not been shown regarding it. The record supports this
determination . . . .
E. Failure to Cite Authorities on Appeal
The petitioner complains that trial counsel should have cited authorities on
appeal that the trial court erred in refusing to reopen the motion to suppress. The
post-conviction court found that the petitioner failed to cite any relevant
authorities in this regard or to show prejudice. The record supports this
determination.
Hall v. State, 2014 WL 5502424, at *8-*10.
Although Petitioner Hall testified at the post-conviction hearing that he wanted counsel to
suppress an “illegal, contaminated, duplicate photospread,” Hall failed to authenticate his exhibit
and failed to establish that the victim was shown the exhibit during the identification process.
(R., Post-conviction Hr’g. Tr., ECF No. 14-30 at PageID 2246-57.) Hall testified that, because
counsel didn’t have the Crime Stoppers tip suppressed, prejudicial hearsay statements were
admitted during the testimony of Sergeant Bell. (Id. at PageID 2276-77.) Hall contended that
counsel “inadvertently had the Crime Stopper tip entered in evidence” and the jury was able to
27
read that he allegedly robbed a bank. (Id. at PageID 2279-81.) Hall testified repeatedly and in
conclusory fashion that counsel “was deficient and [Hall] was prejudiced by his deficiency.” (Id.
at PageID 2296.)
Trial counsel testified that his main strategy was to attack the credibility of the victim,
however, Hall “was constantly straying from . . . the road map” because he was “kind of a
jailhouse lawyer.” (Id. at PageID 2303.) Trial counsel testified that he did not recall seeing the
photospread that Hall presented as an exhibit at the hearing. (Id. at PageID 2308.) Counsel
presented a copy of the photospread from the trial and it was not the photospread Hall presented
at the post-conviction hearing. (Id. at PageID 2308-09.) Counsel testified that the motion to
suppress had been denied in Hall’s first trial, that there was “nothing in that lineup . . . which was
suggestive or prejudicial,” and that there was no reason to revisit the suppression motion. (Id. at
PageID 2309–10.) Counsel testified that the introduction of the Crime Stoppers tip was a
deliberate strategy and not an inadvertent mistake. (Id. at PageID 2312.) Counsel testified that
“there was pretty sloppy police work that . . . had been done as far as paperwork” and the officers
agreed that there were errors. (Id. at PageID 2312-13.) Counsel testified that the case theme was
“look at all these errors . . . [h]ow can this stuff be reliable” if the police officers don’t have the
dates correct. (Id. at PageID 2312.) Counsel testified that he could not “see how [that] decision
impacted the ultimate outcome from the jury.” (Id. at PageID 2313.)
Based on this Court’s review of the post-conviction testimony (R., Post-conviction Hr’g.
Tr., ECF No. 14-30), as well as the transcript of trial (R., Trial Tr., ECF Nos. 14-20, 14-21, and
14-22), Hall has failed to establish that his trial counsel’s strategic decisions were deficient or
that he suffered any prejudice from counsel’s performance. Deference to the state court decision
on this issue is appropriate. Claim 3(a) is therefore DENIED.
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IV.
Did trial counsel perform deficiently by failing to follow through on
certain pre-trial motions? (Pet., ECF No. 1-1 at PageID 29.)
Hall contends that counsel performed deficiently by failing to follow up on twenty pre-
trial motions “that could have clearly effected the outcome of the trial”, e.g., a motion for a bill
of particulars, a motion to obtain the arrest history of prosecution witness Boris Owens. (Id. at
PageID 32.) Respondent replies that Petitioner cannot show that the state court’s rejection of this
claim was unreasonable or unsupported by the record. (Answer, ECF No. 15 at PageID 2444.)
The TCCA reviewed the determination of the post-conviction court and determined:
C. Pretrial Motions
The petitioner complains that trial counsel was ineffective by not seeking
orders on various motions. Counsel testified at the hearing that the State had
provided open-file discovery, that most of these motions had been for discovery
purposes, and that the complaints in this regard were about matters that would
have made no difference in the outcome of the trial. The post-conviction court
found that the petitioner had failed to show either that any of these motions would
have been granted or that he was prejudiced as a result. The record supports this
determination.
Hall v. State, 2014 WL 5502424, at *9.
Hall contended that counsel “owed [him] a duty to have a hearing” on the motions and
“failed to perform his duty.” (R., Post-conviction Hr’g. Tr., ECF No. 12-15 at PageID 2269.)
Hall testified that had trial counsel followed through with requesting a bill of particulars, the
child witness would have been identified and could have “possible exonerated [him]”. (Id. at
PageID 2271-72.) Hall also testified that he wanted the arrest histories of state witnesses. (Id. at
PageID 2273-74.)
Counsel testified that he spent a considerable amount of time explaining to Hall why
Hall’s requests were not relevant. (Id. at Page 2305.) Counsel testified that Hall “would provide
case law and things but wouldn’t ever provide . . . the reason or the substance of the factual issue
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as to why he wanted something done. It was almost as if the cart was somewhat more in front of
the horse.” (Id.) Counsel testified that the majority of motions were “discovery type motions”
and the prosecution had made open-file discovery available. (Id. at PageID 2310.)
Hall has failed to establish that a hearing on the pretrial motions was necessary. Trial
counsel had the record from the previous trial and open-file discovery during the second trial.
Hall’s first trial revealed the presence of a child during the robbery. Hall did not call the child as
a witness during the post-conviction hearing. The Court is left to speculate about the specific
testimony the unidentified and uncalled witness might have offered. Petitioner’s conclusory
allegations about the testimony of an uncalled witness are insufficient to demonstrate prejudice.
See Adams v. Jago, 703 F.2d 978, 981 (6th Cir. 1983). Petitioner has failed to demonstrate
deficient performance by counsel or that he suffered any prejudice from counsel’s performance.
Deference to the state court decision on this issue is appropriate. Issue 3b is DENIED.
V.
Did trial counsel perform deficiently by failing to suppress Hall’s prior
convictions? (Pet., ECF No. 1-1 at PageID 29.)
Petitioner contends that trial counsel should have had his prior convictions suppressed.
(Id.) Respondent replies that Petitioner cannot show that the state court’s rejection of this claim
was unreasonable or unsupported by the record. (Answer, ECF No. 15 at PageID 2448.)
The TCCA reviewed the determination of the post-conviction court and decided:
D. Rule 609 Prior Convictions
The petitioner complains that trial counsel should have sought a pretrial
ruling before the second trial as to which of his prior convictions could be used
for impeachment purposes. Trial counsel testified that, in this regard, he relied
upon the court’s ruling before the first trial, and the post-conviction court noted
that this matter was taken up during the second trial when the petitioner was being
questioned as to whether he wished to testify. The post-conviction court found
that the petitioner had failed to show what his trial testimony would have been
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and failed to show that he was prejudiced in this regard. The record supports
these determinations.
Hall v. State, 2014 WL 5502424, at *10.
Hall testified that counsel failed to request a hearing outside the presence of the jury to
determine which prior convictions could be used against him. (R., Post-conviction Hr’g. Tr.,
ECF No. 14-30 at PageID 2287.) Counsel testified that, although no formal 609 hearing was
held, the trial judge stated he “was not going to let a lot of the prior convictions in should Hall
want to testify.” (Id. at PageID 2307, 2321.) Counsel also testified that the trial judge “was
going to err on the side of caution.” (Id. at PageID 2311.)
The record demonstrates that Hall knew which convictions would be used against him. A
separate hearing was unnecessary. No facts are presented that demonstrate any prejudice to Hall.
Deference to the state court decision on this issue is appropriate. Issue 3c is without merit and is
DENIED.
APPELLATE ISSUES
There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition.
Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). The Court must issue or deny a certificate of
appealability (“COA”) when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts. A petitioner may not take an
appeal unless a circuit or district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P.
22(b)(1). A COA may issue only if the petitioner has made a substantial showing of the denial
of a constitutional right, and the COA must indicate the specific issue or issues that satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2)-(3). A “substantial showing” is made when the
petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree
31
that) the petition should have been resolved in a different manner or that the issues presented
were ‘adequate to deserve encouragement to proceed further.’” Miller-El, 537 U.S. at 336
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)); Henley v. Bell, 308 F. App’x 989, 990 (6th
Cir. 2009) (per curiam) (holding a prisoner must demonstrate that reasonable jurists could
disagree with the district court’s resolution of his constitutional claims or that the issues
presented warrant encouragement to proceed further).
A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at
337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011) (same). Courts should not
issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005)
(quoting Slack, 537 U.S. at 337).
In this case, there can be no question that the claims in this petition are without merit.
Because any appeal by Petitioner on the issues raised in this petition does not deserve attention,
the Court DENIES a certificate of appealability. Additionally and for the same reasons, Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith,
and leave to appeal in forma pauperis is DENIED.
Nevertheless, if Petitioner files a notice of appeal, he must pay the full $505 appellate
filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth
Circuit Court of Appeals within thirty (30) days of the date of entry of this order. See Fed. R.
App. P. 24(a)(5).
CONCLUSION
Petitioner Hall’s § 2254 Petition is without merit and is DENIED. Hall is further DENIED
leave to proceed in forma pauperis on appeal. Judgment shall be entered for Respondent.
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SO ORDERED, this 29th day of March, 2019.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE
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