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Farra v. Carlton

August 26, 2008

CLIFFORD L. FARRA
v.
HOWARD CARLTON, WARDEN



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION

I. Introduction

Clifford L. Farra, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement pursuant to his 2000 Sullivan County, Tennessee drug convictions. [Doc. 6]. Respondent has filed a motion for summary judgment, which is supported by a brief and copies of the state court record. [Doc 12, Attach. # 1; Doc. 13, Addenda 1-23]. Petitioner opposes the motion and has offered his own motion for partial summary judgment and a supporting brief. [Docs. 15-17].

Respondent argues, in his motion, that petitioner is not entitled to relief from the state court decisions rejecting certain claims on the merits, given the deferential standards of review required in 28 U.S.C. § 2254, and that other claims have been inadequately pled, waived, or not exhausted in the state courts.*fn1 The Court agrees with respondent and, for or the following reasons, will GRANT respondent's motion, DENY petitioner's, and DISMISS the petition.

II. Procedural History

In August of 2000, petitioner was convicted of three cocaine-related offenses (sale, possession, and conspiracy to sell or deliver a quantity of more than 300 grams of cocaine), and two marijuana-related convictions (conspiracy to sell more than ten pounds of marijuana and possession of more than ten pounds of marijuana, merged with sale of more than ten pounds of marijuana). For these offenses, he was sentenced to an effective sentence of forty-four (44) years imprisonment as a Range I, standard offender. On direct appeal, petitioner's conviction for the marijuana conspiracy was reversed and vacated, but his judgment was affirmed in all other respects. State v. Farra, No. E2001-02235-CCA-R3-CD, 2003 WL 22908104 (Tenn. Crim. App. Dec. 10, 2003), perm. app. denied (Tenn. 2004). His subsequent petition for post-conviction relief was denied. Farra v. State, No. E2005-00963-CCA-R3-PC, 2006 WL 859202 (Tenn. Crim. App. April 3, 2006), perm. app. denied (Tenn. 2006).

He now brings this instant habeas corpus petition, seeking release from his alleged unlawful confinement.

III. Factual Background

Following an undercover operation, in which Jonathan Hamlin was a participant,*fn2 officers of the Second Judicial District Drug Task Force searched petitioner's home, pursuant to a warrant. Upon entering, they smelled a strong marijuana odor. When they moved to the master bathroom, they discovered plastic tubs containing marijuana residue, lids to those tubs, and, resting on the counter, a large set of scales with marijuana in the scales. In the bathtub were some twenty plastic bags, eighteen of which had marijuana residue in them.

Also found were cigarette rolling papers; a rolling machine; old magazines on marijuana horticulture; a cache of ninety-two firearms, including an M16 rifle; an electric keyboard; a pink mechanical pig-its relevance is explained below; and a key and a rental contract for a storage unit. Stored in a ceramic chicken on top of the refrigerator in the kitchen was $20,000 in marked cash, which Hamblin had used to satisfy a prior drug debt. However, the search revealed no documents or records, financial or otherwise, to suggest that petitioner was dealing drugs.

After finding a compartment underneath the sleeper-bunk area of petitioner's truck, sufficiently capacious to hold the plastic containers from the master bathroom, officers secured another search warrant and used the key they had located in the house to enter a storage unit, discovering therein some motor scooters and a box containing $60,000 in cash. As a result of the searches, petitioner was charged with several marijuana and cocaine offenses.

Later, at the trial, Jonathan Hamblin testified for the prosecution. Hamblin stated that petitioner had fifty pounds of marijuana and a "kilo" of cocaine for him to distribute but that, before petitioner would give him the drugs, Hamblin had to pay $20,000 he owed petitioner for a previous shipment of marijuana. Hamblin stated that he carried to petitioner's house a cooler containing the $20,000 furnished to him by the task force and that petitioner retrieved the cash from the cooler, which Hamblin had left inside the back door, and gave the money to his wife. Hamblin also stated that lying on the bed in the master bedroom were wrapped packages, which he took to the motel where he met the officers.

Hamblin further testified that, on numerous occasions from June 1, 1999 through December 29, 1999 [the conspiracy time-frame], he received marijuana and cocaine from petitioner and that, on one occasion, he saw as much as 200 pounds of marijuana at petitioner's home. Hamblin related that he helped the defendant break up bricks of marijuana and repackage it for distribution; that, to a smaller extent, he helped him repackage cocaine; and that, once, he helped petitioner carry drugs from his truck into his home. He also related that, during the relevant period of time, he sold approximately 50 to 70 pounds of marijuana which he had gotten from petitioner and that he paid him between $50,000 and $60,000 for sales of cocaine and marijuana.

Additionally, Hamlin stated that petitioner had mentioned a "scooter" business as a means of laundering money; that he had used drug money to buy cars, firearms, and coins, and to pay his house mortgage; and that petitioner had stored the drugs at Mayo's residence. He also identified the black bag found in Mayo's home as belonging to petitioner. The bag had contained, inter alia, cocaine.

Hamblin admitted that he had an agreement with the prosecution to dispose of his pending drug charges with an effective 20-year sentence, to be served at 30 percent and that, when first approached by the officers about his role in the drug trade, he told the officers several untruthful stories, including one elaborate lie about "Mafia" involvement.

A chemical analyst testified that the packages and plastic bags submitted by the task force contained a total of 51.9 pounds of marijuana and that some packages, collectively, contained 862.6 grams of cocaine.

Petitioner called several defense witnesses, including his neighbors, who testified that no suspicious activities, such as streams of callers or late-night visitors, had occurred at his house. Another witness, a former trucker, stated that he had dispatched petitioner on hauling trips; that petitioner had hauled for K-Mart and Wal-Mart, often driving to the West Coast on Interstate 10, where drug-sniffing dogs were routinely stationed; that truckers carried large amounts of cash for repairs (up to $8,000); that, 95 percent of the time, trips were "timed," meaning they had preset times for delivery; and that there had been no complaints about petitioner being late on his runs. The witness acknowledged, however, that, while he knew about petitioner's routes and methods in 1997 and in early 1998, that familiarity did not extend to 1999. Another witness testified that petitioner bought or leased trucking equipment from him from 1994 to1998; that petitioner had paid his invoices by check; that he had satisfied the debts owing on the truck and equipment, and that he had leased, in August 1999, a motor home for a $1,372 monthly fee.

Petitioner also called family members as witnesses. His adult daughter testified that her father was a longtime gun collector and that, four days prior to the Holiday, Hamlin, who was married, had left Christmas packages at the Farra house for his girlfriend. Petitioner's brother related that Hamblin had suffered some financial problems and, afterwards, had lived in his home, but that the living arrangement terminated because of Hamblin's involvement in the drug-trade.

Petitioner too was a witness, testifying that he had driven a truck for 32 years and that his truck routes ran between the South and the West Coast, that, en route, he would encounter 30 or 40 checkpoints where drug-sniffing dogs were employed, that he had not been to Mexico since he was sixteen years old, that he had known Hamblin for years but had not seen him for some time until he began living at his brother's house, that Hamlin asked him to take some drugs to California, that he refused, and that the extent of Hamblin's business with him was Hamblin's purchase of his boat, which the two worked on several times and for which Hamblin never finished paying, and that Hamlin had also worked on his computer, setting it up, fixing problems, and installing software.

Petitioner related that he had met with Hamblin on December 21, 1999, after Hamblin's house had been searched, that he agreed to loan him $4,500, and that Hamblin asked petitioner if he could leave some Christmas packages at his house. Petitioner explained that the tape-recorded calls had been the result of Hamlin's request that petitioner speak with him on the phone and "act like his boss"- a ruse intended, supposedly, to mislead Hamlin's Mafia associates. Petitioner further explained that, after the second call, he became suspicious about the Christmas presents, opened the end of one, but re-sealed it when he felt bricks inside and smelled marijuana. As for the December 29th delivery of $20,000, petitioner testified that it included repayment for the $4,500 loan and that the rest was money which Hamlin wanted petitioner to hold for him.

Petitioner denied that the black bag found in Mayo's residence was his and that a note discovered in the bag contained his handwriting. Also, according to petitioner, he had found the plastic boxes in a field behind a Pilot truck stop, had used the scales in the house to weigh silver and reloads for shotgun cartridges, had been collecting guns since he was a teenager, and had purchased the cigarette roller eighteen years earlier for his personal use. Petitioner stated that the officers had discovered no Christmas wrapping paper in his home which matched the wrapping on Hamblin's parcels, that Hamblin had spent time alone in petitioner's house, that he [petitioner] did not own a heater matching one of the boxes in the packages, and that probably he had thrown away the keyboard box, which, he imagined, could have been retrieved by anyone.

IV. Discussion

Petitioner's habeas corpus application contains eleven grounds for relief.

Those grounds are: 1) insufficient evidence, 2) jury tampering, 3) improper jury instructions, 4)evidentiary errors on the part of the trial court, 5) error by the state appellate court on direct review, 6) illegal search, 7) violation of a rule involving witness sequestration, 8) unconstitutional selection and composition of the grand jury, 9) ineffective assistance of counsel, 10) a violation of the rule in Brady v. Maryland, 373 U.S. 83 (1963), and 11) a violation of petitioner's jury-trial right, as detailed in Blakely v. Washington, 542 U.S. 296 (2004). These claims have been organized into three categories for purposes of discussion-adjudicated claims, procedurally defaulted claims, and insufficiently-pled/ non-cognizable claims.

A. Adjudicated Claims

Under the review standards set forth in 28 U.S.C. § 2254(d), a court considering a habeas claim must defer to any decision by a state court concerning that claim unless the state court's judgment (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.A. § 2254(d)(1)-(2).

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 resolves a case differently on a set of facts which cannot be distinguished materially from those upon which the precedent was decided. Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" prong of § 2254(d)(1), the relevant inquiry is whether the state court decision identifies the legal rule in Supreme Court cases which governs the issue but unreasonably applies that principle to the particular facts of the case. Id. at 407. The habeas court is to determine only whether the state court's decision is objectively reasonable, not whether, in the habeas court's view, it is incorrect or wrong. Id., at 411.

Findings of fact which are sustained by the record are entitled to a presumption of correctness, unless a petitioner rebuts that presumption by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). 1. Insufficient Evidence

Petitioner challenges the sufficiency of the convicting evidence as to all six convictions, arguing that the proof was inadequate to show that he knowingly possessed and intended to sell the cocaine and marijuana, that he knowing sold those drugs, and, ...


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