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Birdwell v. Freeman

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

December 3, 2014

BRANDY LEA BIRDWELL, Petitioner,
v.
VICKI FREEMAN, Warden, Respondent.

MEMORANDUM OPINION

TODD CAMPBELL, District Judge.

Petitioner Brandy Lea Birdwell, a state prisoner incarcerated at the Tennessee Prison for Women in Nashville, Tennessee, filed a pro se petition and supporting memorandum of law under 28 U.S.C. § 2254 for a writ of habeas corpus (ECF Nos. 1, 2). 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 August 21, 2008, the petitioner was found guilty by a Davidson County Jury of first-degree felony murder and especially aggravated robbery, under a theory of criminal responsibility. The petitioner received an automatic, statutory life sentence on the murder conviction. On September 17, 2008, the trial court sentenced the petitioner to a prison term of twenty years at 100% on the robbery conviction, to be served concurrently with the life sentence. (ECF No. 23-1, at 17-18 (judgments); see ECF No. 23-14 (court order denying post-conviction petition).) Her conviction and sentence were affirmed on direct appeal. State v. Birdwell, No. M2009-00722-CCA-R3-CD, 2010 WL 3582489 (Tenn. Ct. Crim. App. Sept. 15, 2010), perm. appeal denied (Tenn. Feb. 17, 2011).

On October 27, 2011, the petitioner filed a state-court petition for post-conviction relief. (ECF No. 23-14, at 7-29.) The trial court conducted a hearing at which the petitioner, her mother, and her trial attorney testified. (Hearing Tr., ECF No. 23-15.) The trial court denied the petition. (ECF No. 23-14, at 33-54.) That decision was affirmed on appeal as well. Birdwell v. State, No. M2012-02062-CCA-R3-PC, 2013 WL 6405733 (Tenn. Ct. Crim. App. Dec. 6, 2013), perm. appeal denied (Tenn. April 9, 2014).

Petitioner Birdwell filed her petition under 28 U.S.C. § 2254, along with a supporting memorandum, in this Court on July 11, 2014. The respondent has filed an answer along with 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]

On November 6, 2007, Jared Collins was shot and killed in the parking lot of the Last Chance Liquor Store and Market on Dickerson Pike in Nashville, Tennessee. Appellant, Reginald Atkins, and Darrell Thompson were identified as suspects in the crime. In January of 2008, the three were indicted for first degree felony murder and especially aggravated robbery.
On November 6, 2007, Mr. Collins had gone to the liquor store around 5:00 p.m. Around that same time, Appellant decided to go to the store to get juice and cigarettes. Appellant drove her truck to the market along with Ralethia Mayfield, also known as "Tierra, " Mr. Atkins, and Mr. Thompson. When they arrived at the market, Appellant parked the truck at the side of the store. The two men got out of the truck first while Appellant was getting a few things out of her purse. At that point, there are various accounts of what happened. Ultimately, as Mr. Collins was leaving the store, it appears that he was approached by Mr. Atkins and Mr. Thompson. The men started tussling. A witness heard one of the men demand "the damn money." Mr. Collins gave the men "everything he had" in his possession and turned to run into the market that was next door to the liquor store. As Mr. Collins ran away, one of the men shot him in the back. The gunshot was witnessed by the owner of the market, Tewodros Tashu. Mr. Tashu heard the shot and saw Mr. Collins literally fall through the door of the store. As he fell, he pleaded with Mr. Tashu to "save me, save me, this is all of the money I got." Mr. Collins died as a result of the gunshot wound to his back.
After the shooting, Mr. Atkins and Mr. Thompson were seen jumping into the back of a white Ford pickup truck. Appellant was identified as the driver of the truck by Christy Dean, Mr. Collins' friend and a passenger in his vehicle. Ms. Dean had previously seen Appellant driving the same truck at a neighbor's house. Ms. Dean also recognized the other two defendants from the same location.
Officer Po Cheng of the Metropolitan Nashville Police Department was on patrol at the time of the incident. As he was driving by the market, someone flagged him down. Officer Cheng realized that someone had been shot. He found Mr. Collins unresponsive.
The next day, Appellant was arrested by Detective Paul Harris. She was arrested at her residence, and the white Ford truck was seized. When the truck was searched, police recovered spent.38 caliber cartridge cases inside the front center console, a live.38 caliber round from the driver-side door compartment, and two live.38 caliber rounds from Appellant's purse.
Four days later, Detective Harris executed a search warrant at Appellant's residence. When the residence was searched, a fully loaded.38 caliber revolver was recovered from inside a slow cooker. Appellant's mother informed the detective that she was the owner of the weapon. Appellant's mother was angry at Appellant when she noticed that the weapon was not in its usual spot on the bedside table the day after the shooting. Appellant's mother retrieved the gun from Appellant and put it in the slow cooker so that Appellant would not know where the gun was located.
A firearm identification analysis was performed by the Tennessee Bureau of Investigation. The results indicated that the bullet that killed Mr. Collins was fired from the gun seized at the Appellant's residence. In addition, spent cartridge cases in the truck and the home had also been fired from the same revolver.
Appellant testified on her own behalf at trial. She admitted that she knew both Mr. Atkins and Mr. Thompson. According to Appellant, on the day of the shooting, she got off work and went to a friend's house on Penncock Avenue. Mr. Atkins and Mr. Thompson were there, and everyone started drinking. Around 4:30 or 5:00 p.m., Appellant needed cigarettes and juice. Appellant, Mr. Atkins, Mr. Thompson, and Ms. Mayfield loaded up in the truck and went to the market.
When they arrived at the market, Appellant parked the truck on the side of the building. She let Mr. Atkins and Mr. Thompson out of the truck. Appellant riffled through her purse to find her driver's license. At that time, Ms. Mayfield exclaimed, "They got him, they got him." Appellant could not see what was going on from where she was standing, so she backed up and was able to see Mr. Atkins and Mr. Thompson engaged in an altercation. Appellant heard a gunshot. The next thing she knew, Mr. Atkins and Mr. Thompson were jumping in the back of the truck.
Appellant drove off down an alley to Cleveland Street. Once they got onto Ellington Parkway, Appellant pulled over and the men got inside the cab of the truck. Appellant claimed that she had no idea what had happened at the market. She continued to drive around Nashville as she was ordered to do so by Mr. Atkins and Mr. Thompson. Eventually, Appellant dropped the men off at a house in Madison. Appellant went home and went to bed. According to Appellant, she was surprised when she learned that her mother's gun was used in the crime. Further, Appellant insisted that she did not know that a robbery was going to occur.

State v. Birdwell, 2010 WL 3582489, at *1-2. As previously indicated, based on this evidence, the jury returned a guilty verdict against Birdwell on the charges of first-degree felony murder and especially aggravated robbery.

III. ISSUES PRESENTED FOR REVIEW

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

1. That the evidence was insufficient as a matter of law to support the convictions for first-degree felony murder or especially aggravated robbery under a theory of criminal responsibility;

2. That the trial court erred in admitting evidence of petitioner's pending shoplifting charge, in violation of Rules 608 and 609 of the Tennessee Rules of Evidence;

3. That the petitioner's Fifth Amendment right not to be compelled to be a witness against herself was violated at trial; and

4. That the petitioner was deprived of her Sixth Amendment right to the effective assistance of trial counsel insofar as counsel failed to:

(a) adequately prepare for trial;
(b) protect the petitioner's Fifth Amendment right;
(c) request a proper jury-out conference to discuss why evidence of the pending shoplifting ...

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