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Johnson v. Holloway

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

December 20, 2016

MARQUES JOHNSON, Petitioner,
v.
JAMES HOLLOWAY, Warden, Respondent.

          MEMORANDUM OPINION

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. The petitioner is serving a term of 18 years imprisonment imposed by the Davidson County Criminal Court on December 15, 2011, after the petitioner pleaded guilty to four counts of burglary of an automobile, one count of theft over $500, and one count of theft over $1.000. The respondent has filed an answer to the petition (ECF No. 29) stating that the petition should be denied because the grounds on which it is based are procedurally barred and meritless.

         The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). The respondent does not dispute that the petitioner's federal habeas petition is timely. (ECF No. 29 at Page ID# 507.) The respondent states that the federal habeas petition at issue here appears to be the petitioner's first application for federal habeas relief. (Id.)

         Because a federal court must presume the correctness of a state court's factual findings unless the petitioner rebuts this presumption with ‘clear and convincing evidence, ” 28 U.S.C. § 2254€(1), and because the issues presented can be resolved with reference to the state-court record, the court finds that an evidentiary hearing is not necessary. See Schriro v. Landrigan, 550 U.S. 464, 474 (2007) (holding that if the record refutes a petitioner's factual allegations or otherwise precludes habeas relief, the district court is not required to hold an evidentiary hearing (citing Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998))). Upon review and applying the AEDPA standards, the court finds that the petitioner is not entitled to relief on the grounds asserted. Accordingly, the petition will be denied and this matter dismissed.

         I. PROCEDURAL BACKGROUND

         The state prosecution arose from a series of motor vehicle burglaries that took place July 4 and 8, 2010. The petitioner was indicted in case number 2010-D-3338 by the Davidson County grand jury and charged with two counts of burglary of an automobile (Tenn. Code Ann. § 39-14-402) and four counts of theft of property of varying amounts (Tenn. Code Ann. §39-14-103). (ECF No. 28-1 at Page ID## 151-56.) Additionally, the Davidson County grand jury indicted the petitioner in case number 2010-C-2568 and charged him with two counts of burglary of an automobile (Tenn. Code Ann. § 39-14-402) and three counts of theft of property of varying amounts (Tenn. Code Ann. § 39-14-103). (ECF No. 28-1 at Page ID## 160-66.)

         On October 17, 2011, the petitioner submitted petitions under Tenn. R. Crim. P. 11 to enter a plea of guilty in each case, which the court accepted. (ECF No. 28-1 at Page ID## 174-83.) In case number 2010-C-2568, the petitioner pleaded guilty to two counts of burglary of an automobile and one count of theft of property over $500, the remaining counts to be dismissed, with an agreed-upon sentence of 6 years at 60% as to each count, with all counts running concurrently with each other. (Id. at Page ID# 178; see also ECF No. 28-2, Transcript of Plea (“Plea Tr.”) at Page ID## 204-05) In case number 2010-D-3338, the petitioner agreed to plead guilty to two counts of burglary of an automobile and one count of theft of property over $1, 000, the remaining counts to be dismissed, with an agreed-upon sentence of 6 years at 60% as to the burglary counts and 12 years at 60% as to the theft count, with all counts running concurrently with each other. (ECF No. 28-1 at Page ID# 183; see also ECF No. 28-2, Plea Tr. at Page ID## 204-05.)

         Pursuant to the plea agreement, the court conducted a sentencing hearing to determine whether the sentence in case number 2010-C-3338 would run consecutively or concurrently with the sentence in case number 2010-C-2568. (ECF No. 28-1 at Page ID# 184.) After hearing testimony from the petitioner's aunt and mother, reviewing the pre-sentence report, and considering “all matters required by [state law], ” the court ordered the 6-year sentence in case number 2010-C-2568 to run consecutively to the 12-year sentence in case number 2010-D-3338 for an effective 18-year sentence, to be served at 60%. (Id. at Page ID# 185-87; see also ECF No. 28-3.)

         The petitioner appealed the trial court's determination that his sentences should run consecutively to the Tennessee Court of Criminal Appeals (“TCCA”), which rejected his appellate arguments and affirmed the trial court's determination that petitioner's sentences should run consecutively in an unpublished opinion issued on October 18, 2012. (ECF No. 28-7; see also State v. Marques Sanchez Johnson, No. M2012-00169-CCA-R3-CD; 2012 WL 5188136, at *1 (Tenn. Crim. App. Oct. 18, 2012) [“Johnson I”].) The petitioner filed an application for permission to appeal to the Tennessee Supreme Court, which was denied on January 22, 2013. (ECF No. 28-9.)

         On December 10, 2013, the petitioner filed a pro se petition for post-conviction relief in the Davidson County Criminal Court. (ECF No. 28-10 at Page ID## 353-67.) On January 15, 2014, counsel was appointed to assist the petitioner, (Id. at Page ID# 379), and, on May 13, 2014, counsel filed an amended petition for post-conviction relief in the state court (Id. at Page ID# 384-90). The state court held an evidentiary hearing on June 6, 2014, (ECF No. 28-11, Post-Conviction Transcript (“P.C. Tr.”) at Page ID# 405-38), and on June 30, 2014, the state court issued an order denying relief (ECF No. 28-10 at Page ID# 392-98).

         The petitioner appealed to the TCCA, which denied relief on February 26, 2015. (See Marques Sanchez Johnson v. State, No. M2014-01419-CCA-R3-PC, 2015 WL 832328, at *1 (Tenn. Crim. App. Feb. 26, 2015) [“Johnson II”].) The Tennessee Supreme Court denied discretionary review on June 15, 2015. (Id.)

         On August 21, 2014, while his post-conviction proceeding was pending in state court, the petitioner filed a petition for the writ of habeas corpus in this court (ECF No.1) and a motion to hold the petition in abeyance pending exhaustion of state remedies (ECF No. 2). On June 9, 2014, the petitioner filed a supplement to the petition (ECF No. 10). On August 21, 2014, the court ordered that this action be stayed pending the resolution of the petitioner's state court proceedings. (ECF No. 17.) This case was reopened on April 5, 2016 (ECF No. 26) and the respondent timely filed his opposition on July 20, 2016 (ECF No. 29).

         II. STATEMENT OF FACTS

         Because the petitioner does not dispute, nor raise any claims pertaining to, the facts underlying his convictions, it is unnecessary to recite them here. His claims do, however, implicate the evidence presented at the sentencing hearing, which the TCCA summarized as follows:

At the sentencing hearing, the trial court heard testimony from Appellant's aunt, Gwendolyn Lashell Stewart. She spoke fondly of Appellant but acknowledged that she recalled him first getting into trouble at around the age of ten. She noted that he had a very lengthy criminal history as both a juvenile and an adult. Ms. Stewart agreed that Appellant primarily supported himself through crimes of theft.
Angela Jones, Appellant's mother, testified at the hearing. She stated that Appellant lived with her for quite a while and was eager to help out his brothers and sisters. Appellant even helped her get medication when insurance would not pay for it. Ms. Jones acknowledged on cross-examination that Appellant had trouble as a juvenile, being placed by the State in Richland Village, Woodland Hills, Wilder Youth Center, and Taft Youth Development Center. She recalled that Appellant had been incarcerated several times as an adult but explained that Appellant supported himself and his family in part by crimes of theft.
The trial court ultimately ordered the sentences in the two cases to run consecutively to each other, finding:
Based upon the record and the proof presented at the sentencing hearing, the Court finds that [Appellant] does have an extensive record of criminal activity and is a professional criminal who has continually committed criminal acts as a major source of livelihood. See [T.C.A.] § 40-35-115. Furthermore, consecutive sentencing is necessary given the severity of the offenses committed and in order to protect the public from further criminal acts committed by [Appellant]. See State v. Wilkerson, 905 S.W.2d 933 (Tenn.1995). For the foregoing reasons, the Court orders the six (6) year sentence in 2010-C-2569 to run consecutively to the twelve (12) year sentence in 2010-D-3338 for an effective eighteen (18) year sentence at sixty percent (60%) to serve

Johnson I, 2012 WL 5188136, at *3.

         The petitioner also raises claims that implicate the state court's determination of his state post-conviction petition. The TCCA summarized the evidence presented at the post-conviction evidentiary hearing, in pertinent part, as follows:

Petitioner testified that trial counsel never told him that he had a right to testify at the sentencing hearing. The trial court also did not inform him of this right. If he had testified, Petitioner stated that he would have admitted that he “made some mistakes in the past, ” but would have pointed out that most of his crimes were either misdemeanors or juvenile offenses. He would have also tried to “probably apologize to the victims that I did something to them.”
Petitioner also testified that trial counsel did not adequately investigate the value of the stolen property. He believed that some of the felony thefts could have been reduced to misdemeanor thefts. Petitioner also claimed that trial counsel did not inform him of other plea offers from the State. Petitioner testified that trial counsel told him that the most time he could get would be twelve years. However, Petitioner admitted that he understood the terms of the plea agreement, including the provision that the trial court would determine whether the sentences from the two cases would be served concurrently or consecutively. Petitioner acknowledged that he accepted the plea agreement because of the risk of a longer sentence if he was convicted at trial.
Trial counsel[1] testified that he had been practicing law since 2008, and that over 95 percent of his cases were criminal defense. Trial counsel was appointed to Petitioner's case after Petitioner was indicted. Trial counsel received discovery from Petitioner's former attorney, which he reviewed with Petitioner. Trial counsel hired an investigator once Petitioner's case was set for trial. Trial counsel testified that he had multiple discussions with Petitioner throughout the case, including discussions about the charges he faced and the plea offers from the State. Trial counsel testified that he corresponded with Petitioner frequently and that Petitioner had a “real good grasp” on the case.
Trial counsel testified that Petitioner initially rejected a plea offer for a total effective sentence of twelve years because it was “too much time.” Trial counsel testified that once this offer was taken off the table by the State, he continued to negotiate with [the] State for a better deal, but the best the State offered was the arrangement to which Petitioner ultimately agreed: a six-year sentence in one case and a twelve-year sentence in the other case, with the trial court to determine whether the sentences would run concurrently or consecutively. Trial counsel denied that he ever told Petitioner that the most time he could get would be twelve years. Trial counsel testified that Petitioner understood the plea agreement and that it was his choice to accept the offer.
Trial counsel testified that he discussed with Petitioner his right to testify at the sentencing hearing and the possibility of making a statement of allocution. Trial counsel advised Petitioner that his testimony would not be necessary in light of the other witnesses he presented at the sentencing hearing. However, trial counsel stated that it was Petitioner's decision not to testify.
On June 30, 2014, the post-conviction court filed an order denying post-conviction relief. The post-conviction court accredited the testimony of trial counsel “that he thoroughly consulted with the [P]etitioner regarding his case and possible sentencing scenarios.” The post-conviction court found that Petitioner had not proven by clear and convincing evidence that trial counsel failed to inform him of his right to allocution and that Petitioner had not established prejudice from the supposed failure. The post-conviction court found that Petitioner “was informed and had sufficient knowledge of the nature and consequences of the plea and that he voluntarily and intelligently chose to enter the guilty plea.”1
Fn. 1 The post-conviction court's order also addressed several claims made in Petitioner's original pro se petition and dismissed those claims for lack of evidence. These claims were not raised on appeal and are, therefore, deemed abandoned. See Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn.Crim.App. Oct. 26, 2009) (“While the Petitioner raised additional issues in his petition for post-conviction relief, he has abandoned those issues on appeal.”).

Johnson II, 2015 WL 832328, at *2-3, *5 n.1.

         III. ISSUES PRESENTED FOR REVIEW

         In his pro se petition, the petitioner raises the ...


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