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Turner v. Steward

United States District Court, M.D. Tennessee, Nashville Division

September 3, 2014

RAY TURNER, #224856, Petitioner,
v.
HENRY STEWARD, Warden, Respondent.

MEMORANDUM OPINION

TODD CAMPBELL, District Judge.

Petitioner Ray Turner, a state prisoner incarcerated at the Northwest Correctional Complex in Tiptonville, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus (ECF No. 1). The respondent has filed an answer in opposition to the petition, along with a complete copy of the underlying state-court record. The petition is ripe for review. For the reasons set forth herein, the petition will be denied and this action dismissed with prejudice.

I. PROCEDURAL BACKGROUND

On May 23, 2008, the petitioner was found guilty by a Davidson County Jury of conspiracy to deliver more than 300 grams of cocaine and delivery of more than 300 grams of cocaine. On July 16, 2008, the petitioner was sentenced to 60 years' incarceration on each count, to be served concurrently. (ECF No. 11-1, at 152-53 (Judgments).) The conviction and sentence were affirmed on direct appeal. State v. Miller et al., No. M2008-02267-CCA-R3-CD, 2010 WL 1644969 (Tenn. Ct. Crim. App. April 22, 2010), perm. appeal denied (Tenn. Oct. 18, 2010).

The petitioner filed a pro se petition for post-conviction relief, along with a supporting memorandum, on June 9, 2011. (ECF No.13-12, at 41-111.) Counsel was appointed, and an amended petition was filed. (ECF No.13-12, at 121-28.) The trial court conducted a hearing ( see ECF No. 13-13) and denied the petition. (ECF No. 13-12, at 135-53.) That decision was affirmed on appeal as well. Turner v. State, No. M2012-02311-CCA-R3-PC, 2013 WL 5503683 (Tenn. Ct. Crim. App. Oct. 1, 2013), perm. appeal denied (Tenn. Feb. 24, 2014).

Petitioner Turner filed his petition under 28 U.S.C. § 2254, along with a supporting memorandum, in this Court on June 4, 2014. The respondent has filed an answer and a complete copy of the underlying state-court record. The petition is timely, and this Court has jurisdiction.

II. STATEMENT OF FACTS

The Tennessee Court of Criminal Appeals summarized the testimony presented during trial as follows:[1]

This case results from an ongoing drug investigation involving the Defendants [Kenneth Miller and Ray Junior Turner]. A Davidson County grand jury issued a superseding indictment on December 13, 2007, charging the Defendants Miller and Turner with conspiracy to deliver 300 grams or more of cocaine [and] with delivery of 300 grams or more of cocaine....
We will summarize the proof in the light most favorable to the State. Agent Shelly Smitherman, with the Tennessee Bureau of Investigation ("TBI"), testified that she was the agent in charge of the investigation involving the Defendants, which began in December 2005. Agent Smitherman obtained a wiretap order allowing her to intercept the Defendants' phone calls; she explained that agents in the wireroom listened to the phone calls and that they would relay pertinent information to officers in the field conducting surveillance of the Defendants.
Through intercepting these phone calls, it was determined that a drug deal was to take place on March 24, 2006, at the Rivergate Mall. The Defendant Miller was to deliver a kilogram ("kilo") of cocaine to an unidentified individual coming from Kentucky. Police conducted surveillance of the Defendant Miller throughout the day. At 11:34 a.m. on this day, the Defendant Miller phoned the Defendant Turner and asked him to "come and drop it off." TBI Special Agent Steve Talley testified that Kavares Davis ("Davis") arrived at the Defendant Miller's apartment at 1:34 p.m. At 1:47 p.m., officers observed the Defendant Turner, along with two other individuals, arrive at the Defendant Miller's apartment. The Defendant Turner went inside the residence through the garage door. After his arrival, the blinds were closed. A few moments later, the blinds were reopened, and the Defendants and Davis exited the apartment and stood out front talking for a time. Around 2:50 p.m., the Defendant Turner and Davis left the residence.
Around 6:30 p.m., officers observed the Defendant Miller leave his apartment in his black Chevrolet Impala, heading toward the Rivergate area. When he arrived at the mall, the Defendant went inside the food court area and purchased some cookies. He received a call from Davis and then returned to his vehicle. The Defendant drove to the food court entrance, and a man got inside the vehicle. They drove around to the other side of the mall and parked near a green Pontiac Grand Am with Kentucky tags. Detective Herbert Kajihara, with the Twentieth Judicial Drug Task Force, saw the man who had been in the Defendant Miller's car walk back toward the mall. After the Defendant Miller left, Det. Kajihara continued to observe the Kentucky vehicle. He then saw the same man exit the mall, along with another male and a female juvenile, and get inside the car. The individuals were carrying packages.
Officers followed the green Pontiac to a gas station. At the gas station, an individual later identified as Ned Wayne Thompson ("Thompson"), got out of the vehicle and placed something that looked like a bag in the trunk. When Thompson left the gas station, the vehicle proceeded onto Interstate 65. Although radar was not used, Officer Michael Wilson of the Metropolitan Police Department paced the vehicle traveling 80 miles per hour in a 70 mile-per-hour zone. Officer Wilson stopped the vehicle. The State did not want to compromise the wiretap investigation, so the officers proceeded under the auspice that they were stopping the individuals for a traffic violation, and they obtained probable cause to search the vehicle due to a K-9 alert. Hidden behind carpeting inside the trunk, officers discovered two separately packaged bricks of cocaine, weighing approximately two kilograms.
Officers then procured search warrants for the Defendants' residences.... At the Defendant Turner's residence, Agent Talley was in charge of collecting evidence. Evidence collected included five notebooks containing drug ledgers found in the kitchen garbage can, digital scales, a vacuum bag sealer, two loaded handguns, a "kilo press, " and a "cutting agent."
Kavares Davis, initially a co-defendant in this case, testified that he had entered a guilty plea to possession of.5 grams or more of cocaine and received an eight-year sentence under the terms of the agreement. Davis affirmed that the Defendant Turner was his uncle and that the Defendant Miller was his cousin. The Defendant Miller supplied him with cocaine at the time of his March 2006 arrest and had done so "off and on" for two or three years. In November or December 2005, Davis told the Defendant Miller that he did not like dealing with the Defendant Turner because of his high prices, $20, 000 for a kilo of cocaine; however, the Defendant Miller continued to deal with the Defendant Turner.
Davis went to the Defendant Miller's apartment on the evening of March 23, 2006. The Defendant Turner was already there; he had brought three bricks or kilos of cocaine for the Defendant Miller, which were sitting on the table. The Defendant Miller said one of the kilos was "bad, " and the Defendant Turner promised to replace it with another one the next day. The Defendant Turner took the "bad" kilo with him when he left.
According to Davis, the Defendant Turner showed up the following morning with two other men. Davis was already there because he and the Defendant Miller were supposed to go get something to eat. Davis went downstairs to let the Defendant Turner in through the garage. The Defendant Turner went upstairs, but Davis stayed downstairs. Davis testified that the Defendant Turner was dropping off the new kilo of cocaine, which he had in his arms. The Defendants then came back down to the basement, and all three men exited and stood outside talking for a while.
Later that day, the Defendant Miller asked Davis to follow him to Rivergate Mall to meet Thompson, aka "Kentucky." Davis phoned the Defendant Miller who was in the food court area of the mall; the Defendant Miller stated he was "waiting on them to get done eating." Davis made plans to meet the Defendant Miller at a Mapco gas station following the exchange. After they met at the gas station, they proceeded to the Defendant Turner's residence, where only the Defendant Miller went inside. About five minutes later, he came back out to the car and grabbed a bag, which he stuffed in his coat, and went back inside. Later that evening, Davis and the Defendant Miller were arrested at a Mexican restaurant in Hermitage.
.... Additionally, on March 10, officers in the wireroom began listening to numerous conversations involving the Defendants, wherein the Defendants used code words for exchanging drugs and money.

Miller, 2010 WL 1644969, at *1-3 (footnote omitted). As previously indicated, based on this evidence, the jury returned a guilty verdict against Turner on the charges of conspiracy to deliver more than 300 grams of cocaine and delivery of more than 300 grams of cocaine.

III. ISSUES PRESENTED FOR REVIEW

In his petition for habeas corpus, Turner asserts that the conviction violated his constitutional rights on the following grounds:

1. That the evidence was insufficient as a matter of law to support the two drug-related convictions;

2. That trial counsel was ineffective for failing to investigate the wiretap recordings and failing to move to suppress the wiretaps;

3. That trial counsel was ineffective for failing to object to the introduction of evidence obtained illegally through the use of wiretaps; and

4. That trial counsel was ineffective for failing to make a " Bruton " objection to the introduction of statements made by co-defendants, ...


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