United States District Court, M.D. Tennessee, Nashville Division
CHRISTOPHER M. BLACK, No. 00260259, Petitioner,
TODD THOMAS, Warden, Respondent.
A. Trauger United States District Judge.
Christopher M. Black, an inmate of the Trousdale Turner
Correctional Facility in Hartsville, Tennessee, has filed a
pro se petition for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 challenging his
2006 conviction and sentence for two counts of aggravated
rape and two counts of aggravated robbery for which he
currently is serving a term of imprisonment of fifty years in
the Tennessee Department of Correction.
pending before the court is the Warden's response to the
habeas petition in which he asks the court to
dismiss the petition. (Docket No. 15). The petitioner has not
replied to the response.
petition is ripe for review, and this court has jurisdiction.
28 U.S.C. § 2241(d). Having fully considered the record,
the court finds that an evidentiary hearing is not needed,
and that the petitioner is not entitled to relief. The
petition therefore will be denied and this action dismissed.
2010, a Davidson County Criminal Court jury convicted
Christopher Black of two counts of aggravated rape and two
counts of aggravated robbery. State of Tennessee v.
Christopher Black, No. M2007-00970-CCA-R3-CD, 2010 WL
8500217 (Tenn. Crim. App. Feb. 26, 2010), perm. app.
denied (Tenn. Aug. 26, 2010). The petitioner was
sentenced to consecutive twenty-year sentences for the
aggravated rape convictions and concurrent ten-year sentences
for the aggravated robbery sentences. Id.
direct appeal, the Tennessee Court of Criminal Appeals
affirmed the petitioner's convictions but remanded for a
resentencing hearing “with respect [to] the 2005
sentencing act and regarding the issue of consecutive
sentencing.” Id. Following a hearing on
remand, the trial court sentenced the petitioner to
twenty-five years for each count of aggravated rape and to
ten years for each count of aggravated robbery. The court
further found the petitioner to be a dangerous offender and
ordered that the two aggravated rapes be served
consecutively, but concurrently to the sentences for robbery,
again resulting in an effective sentence of fifty years.
appeal after the resentencing, the Tennessee Court of
Criminal Appeals affirmed the petitioner's sentences.
State of Tennessee v. Christopher Black, No.
M2010-02176-CCA-R3-CD, 2011 WL 7562957 (Tenn. Crim. App. Dec.
13, 2011), perm. app. denied (Tenn. May 16, 2012).
The Tennessee Supreme Court denied the petitioner's
application for discretionary review. Id. at *1.
filed a timely pro se petition for state
post-conviction relief on October 18, 2012. Christopher
M. Black v. State of Tenn., No. M2014-01607-CCA-R3-PC,
2015 WL 1285713, at *8 (Tenn. Crim. App. Mar. 19, 2015),
perm. app. granted (Tenn. Aug. 21, 2015). Counsel
was appointed, and a new petition for post-conviction relief
was filed on September 4, 2013. Id. Following an
evidentiary hearing, the post-conviction court denied the
petition, and the petitioner filed a timely notice of appeal.
The Tennessee Court of Criminal Appeals affirmed on March 19,
Tennessee Supreme Court granted the petitioner's
application for permission to appeal and remanded the matter
to the post-conviction court for the entry of a supplemental
order denying the petition. Christopher M. Black v. State
of Tenn., No. M2014-01607-CCA-R3-PC, 2015 WL 9487735, at
*5 (Tenn. Crim. App. Dec. 29, 2015). The court explained that
the original order entered by the post-conviction court did
not accurately reflect what occurred at the hearing on the
post-conviction court filed a supplemental order denying
post-conviction relief on September 16, 2015. Id. In
the supplemental order, the post-conviction court outlined
the facts presented at the post-conviction hearing and
concluded that the petitioner had failed to establish that
trial counsel was ineffective. Id. On discretionary
review, the Tennessee Supreme Court affirmed the
post-conviction court's denial of relief. Id. at
April 4, 2016, the petitioner filed the instant timely
petition for writ of habeas corpus. (Docket No. 1).
The respondent filed a response on June 15, 2016, urging the
court to dismiss the petition. (Docket No. 15).
petition, the petitioner asserts a single claim for relief:
that he received ineffective assistance of counsel in
violation of the Sixth Amendment to the United States
Constitution. (Docket No. 1 at 3).
Summary of the Evidence
Facts of the Offense
direct-appeal opinion affirming the trial court's
judgment, the Tennessee Court of Criminal Appeals summarized
the pertinent facts of the offense, conviction, and sentence
This case stems from a brutal attack upon a female victim,
L.P., and a male victim, D.B., beginning in the late hours of
February 12, 1999, and ending in the early morning hours of
February 13, 1999. The victims had been friends for several
years. Around 11:30 p.m. on the night of the offense, the
female victim drove to the male victim's parent's
home where the male victim lived to borrow a movie. She
pulled her vehicle in front of his home and paged him to come
outside. The male victim came outside, gave her the movie,
and sat inside her vehicle to talk. About fifteen minutes
later, the male victim was getting out of the vehicle when he
and the victim saw two men with hoods coming through his
The female victim stated that the two men came around from
behind her vehicle, over to the driver's side, and
knocked on the window. Neither victim knew the two men. The
female victim cracked the window, and a revolver was stuck in
the window to her temple. The men screamed at the female
victim, “Get out of the car, bitch. Get out of the car
bitch.” The vehicle was still running, and she unlocked
the door and opened it. The female victim said that a chrome
revolver was put to her head. She stated, “[I]t looked
like it had a pearl, or like, an engraved handle. Looked more
like a collector's gun.” When the female victim
began to get out of the vehicle, the men pushed her back
inside. At this point, she stated that she was in the front
seat of her vehicle. The male victim had gotten out of the
vehicle and was on the ground. The men went through the
vehicle and told the victim they wanted her wallet and money.
She told them that she only had ten dollars, and they yelled
at her for not having more money. The men looked through the
trunk twice and took the female victim's credit cards.
The female victim differentiated between the two men by their
skin tone. After the men asked for the female victim's
money, the female victim stated that the man with the dark
complexion demanded that she perform oral sex on him. She
testified that he said, “ ‘[Y]ou're going to
suck my d* * *.' “ She said that she complied
because she had a gun to her head and was terrified. She
stated, “It started in the street. He made me get on my
knees in the street and perform oral sex. And they both
switched back and forth between four to six times.”
Both men forced her to perform oral sex against her will and
consent by threatening her with a weapon.
The female victim testified that after the men forced her to
perform fellatio on them, the man with the lighter complexion
said, “ ‘I want to f* * * this b* * * *.' And
they made [her] pull down [her] pants and bend over in the
street. And they took turns raping [her] from behind.”
When one man was raping her, the other was watching for
oncoming cars. After being vaginally raped, the female victim
was forced back inside the car to perform oral sex.
Initially, the female victim could not recall if either man
ejaculated. However, she later stated that, at some point,
one of the men ejaculated in her mouth. She could not recall
where she was physically positioned but she gagged, and spit
the ejaculate outside the vehicle on the pavement of the
The female victim recalled that the male victim begged the
men to stop. The men began to leave, but came back. They
ordered the male victim to run down the street while they
held the female victim by her hair at gunpoint. The men then
pushed the female victim, and told her to run and not to look
back. The female victim found the male victim, and they ran
down the street knocking on doors until someone gave them a
phone to call 911. The male victim's father came to pick
them up and later took them to the crime scene to wait on the
police. When the female victim returned to the scene, her
vehicle was still there with the four doors open.
At trial, the female victim identified photographs from the
crime scene. She specifically identified a photograph of the
ejaculate that she spit out onto the pavement. It was
admitted into evidence as collective exhibit 1G. She recalled
that the police officers marked exhibit 1G as significant.
She described both men as in their early twenties. She also
estimated that the attack lasted around thirty to forty-five
minutes. She stated that the men were dressed alike. They
wore masks, black jeans and sweatshirts, but one man had on a
red shirt and the other a blue shirt. The man with the blue
shirt had a dark complexion and the man with the red shirt
had a light complexion.
The female victim was not missing any of her credit cards,
but the men took her ten dollars. She told the police what
happened and was given a gynecological examination that
night. The police obtained internal vaginal swabs and swabs
of her mouth. A black light was placed over her naked body to
determine the existence of any pubic hairs or semen. The
police also took the female victim's clothes. The female
victim stated that she did not discuss what she was going to
tell the police with the male victim.
The female victim recalled that, at some point, the two men
took their masks off. However, she could only remember seeing
the lighter complected man's face. She and the male
victim provided the police with a sketch; however, she had no
input in the sketch developed by male victim. She stated that
she did not remember anything about the man with the dark
On cross-examination, the female victim acknowledged that she
had trouble remembering the sequence of events; specifically,
whether she was forced to perform oral sex or was vaginally
raped first. In regard to the events leading up to the
man's ejaculating in her mouth, she said she could not
remember whether both men or only one man forced her to
perform oral sex. She further conceded that she was unsure if
the man with the lighter complexion ejaculated in her mouth.
She also admitted that she had previously misidentified a
busboy that she saw at a restaurant from a photographic
lineup as the man with the lighter complexion. This
photographic lineup was admitted into evidence as exhibit 8.
The female victim explained that the attack occurred in a
residential neighborhood and that the area was illuminated by
the headlights on her vehicle and by various streetlights.
She recalled that the inside of the vehicle was illuminated
from the dash board. She explained that the men wore masks
when they pistol-whipped Brewer but took them off during the
rape. She had no memory of either man wearing gloves but
stated that both men held her credit cards in their hands.
The male victim testified and corroborated the female
victim's testimony. He explained that when he went
outside to meet her that night, everyone else inside his
house was asleep. He stated that the men took his coat, which
contained his wallet and $350. He also had a “stereo
face” inside his coat pocket. The two men also took his
earrings, skull cap, and tennis shoes. He noticed that the
men had a silver weapon, and he saw one of the men forcing
the victim to perform oral sex on him.
The male victim also distinguished the men by skin tone and
said that the man with the dark complexion had the gun. He
saw the darker complected man, whom he later identified as
Black, forcing the victim to perform oral sex on him. The
male victim confirmed that the man with the dark complexion
also hit him in the back of the head with the gun. He went to
the hospital and received nine stitches to the head and had a
scar as a result. He provided a statement to the police and
worked on a sketch that same day. The male victim said that
he worked on the sketch which was admitted into evidence as
exhibit 2.A. When the sketches in this case were developed,
the male victim and the female victim were not in the same
The male victim identified Black as the person he saw forcing
the female victim to perform oral sex on him from a
photographic lineup, which was admitted into evidence as
exhibit 4. The male victim testified that it was “the
eyes” that stood out to him. He said that the man was
younger than he, 5'10" tall and 130 pounds. He
admitted that he had previously been confused about whether
Black wore a red shirt or a blue shirt but said he was
certain of his identification.
On cross-examination, the male victim stated that his credit
card was used at a gas station and two other stores within
thirty minutes of the offense. He conceded that in two prior
photographic lineups, he identified another individual as
someone who “looked like”the dark complected man.
He clarified that in each of those lineups, he told Detective
Sutherland that he “wasn't one hundred percent
sure” or was “not positive” of the
identification. Four years after the initial photographic
lineups, the male victim was brought in to view another
photographic lineup. Detective Sutherland told him he had a
possible suspect and that there was a DNA match. The male
victim testified that when he identified Black from the
photographic lineup, Detective Sutherland told him that he
had chosen the person confirmed by DNA analysis.
The male victim's sister testified that she was at home
on the night of the offense. She heard noises outside and
heard someone say “Make those 'hos run.” She
woke her father, went outside, and noticed the female
victim's vehicle in front with the doors open and things
on top of the roof. There was no one around at the time. She
called the non-emergency number, and she and her father
closed the doors to the vehicle. She later received a call
from a neighbor indicating the female victim and her brother
were there and had been hurt. She went inside to upgrade her
previous non-emergency call to a 911 call.
Michael Evans, a ten-year veteran with the Metro-Nashville
Police Department, was one of the first officers to respond
to the scene on the night of the offense. He secured the
crime scene, blocked one of the side roads, and called the
“ID division” because it was a major crime. He
received a description of the suspects from the male victim
and put out a “BOLO”or “be on the
look-out” announcement containing the male victim's
description of the two men involved in the offense. He was
told that one of the men had on blue jeans, not black jeans.
He was also told that one of the men had on a ...