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Hardy v. Westbrooks

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

September 30, 2014

CARLOS HARDY,
v.
BRUCE WESTBROOKS.

REPORT AND RECOMMENDATION

JOHN S. BRYANT, Magistrate Judge.

To: The Honorable Kevin Sharp, District Judge

This petition for writ of habeas corpus is brought pursuant to 28 U.S.C. ยง 2254 by petitioner Carlos Hardy, an inmate at Turney Center Industrial Complex in Only, Tennessee, against the acting warden of that facility, Bruce Westbrooks. Petitioner is represented by counsel. For the reasons that follow, the undersigned Magistrate Judge recommends that the petition be DENIED and that this action be DISMISSED.

I. Statement of the Case

Petitioner was convicted, along with his cousin and co-defendant, Ms. Atlanta Hardy, by a Davidson County jury of second degree murder on March 17, 2004, and was sentenced to 25 years incarceration. His direct appeal was denied by decision dated February 10, 2006, and his application for review by the Tennessee Supreme Court was also denied. Petitioner then timely filed a petition for post-conviction relief on July 3, 2007. The post-conviction petition was denied, and the Tennessee Court of Criminal Appeals affirmed this decision. After his application for review in the Tennessee Supreme Court was denied, petitioner timely filed his pro se federal habeas petition in this Court on November 5, 2010. (Docket Entry No. 1) An amended petition was filed through appointed counsel on November 24, 2010. (Docket Entry No. 16) At the Court's direction, respondent filed his Answer to the petition on March 14, 2011. (Docket Entry No. 28) After a change in court-appointed counsel, petitioner filed a reply to respondent's answer on August 15, 2013. In that reply, petitioner agrees that the statements of the evidence offered by the Tennessee Court of Criminal Appeals on direct appeal[1] and on appeal from the denial of his state post-conviction petition[2] are accurate and complete. These statements of the evidence are set out in respondent's answer. (Docket Entry No. 28 at 4-11)

Upon review of the pro se petition, the amended petition, and the reply brief, the following claims for relief are alleged:

1. The evidence at trial was insufficient to support his conviction;
2. The trial court failed to cure the prejudice resulting from prosecution witness Mr. Charles Carter's testimony that he had taken a polygraph test;
3. The trial was unfair because of the knowing presentation of perjured testimony by the prosecution;
4. The rule of Apprendi v. New Jersey was violated;
5. The trial court failed to sever petitioner's case from that of his co-defendant;
6. His sentence is excessive in light of Blakely v. Washington;
7. Counsel was ineffective as a result of his:
a. Failure to interview or investigate the key witness against him, Mr. Carter;
b. Failure to object to Mr. Carter's reference to having taken a polygraph;
c. Untimely withdrawal from representation;
d. Failure to investigate, interview, or call to testify Evelyn Bell, Aljanada Coats, and Maria Hardy;
e. Failure to investigate or offer rebuttal to the state's ballistics evidence;
f. Failure to adequately consult with or prepare the petitioner prior to trial;
g. Failure to investigate or interview Marion Ford;
h. Failure to engage in any meaningful plea negotiations;
i. Deficiency in the trial court in light of the cumulative effect of the aforementioned failures;
j. Failure to raise or properly frame meritorious claims on appeal, including that of his own ...

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