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Black v. Thomas

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

December 16, 2016

CHRISTOPHER M. BLACK, No. 00260259, Petitioner,
TODD THOMAS, Warden, Respondent.


          Aleta A. Trauger United States District Judge.

         Judge Trauger

         I. Introduction

         Petitioner 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.

         Presently 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.

         The 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.

         II. Procedural History

         In 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.

         On 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.

         On 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.

         Black 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, 2015. Id.

         The 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 petition. Id.

         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 *6.

         On 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).

         In his 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).

         III. Summary of the Evidence

         A. Facts of the Offense

         In its 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 as follows:[1]

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 yard.
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 street.
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 complexion.
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 room.
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 ...

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