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Cook v. Settles

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

January 3, 2017

BILLY COOK, Petitioner,
DARREN SETTLES, Acting Warden, Respondent.



         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 70 years imprisonment imposed by the Sumner County Criminal Court on August 8, 2013, pursuant to a plea agreement. The respondent has filed an answer to the petition (ECF No. 17) stating that the petition should be denied because the claims raised therein are procedurally defaulted, do not comply with pleading requirements, are not cognizable in federal habeas proceedings and are without merit.

         The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). The respondent does not dispute that the petition is timely. (ECF No. 17 at Page ID# 54.) The respondent states that the 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(e)(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.


         The state prosecution arose from the petitioner's sexual abuse of his two children, aged 3 and 5 years old, in August and September, 2012. On December 6, 2012, the petitioner was indicted by the Sumner County Grand Jury and charged with 50 counts of especially aggravated sexual exploitation of a minor; 11 counts of rape of a child; 17 counts of aggravated rape of a child and 5 counts of aggravated sexual battery. (ECF No. 18-2 at Page ID## 113-196.) On August 8, 2013, pursuant to a plea agreement entered into between the parties, the petitioner pleaded guilty to 50 counts of especially aggravated exploitation of a minor, 10 counts of rape of a child, and 17 counts of aggravated rape of a child in exchange for an effective sentence of 70 years. (Id. at Page ID## 197-260, ECF No. 18-3 at Page ID## 263-75.) That same day, the trial court imposed sentence pursuant to the plea agreement. (Id.)

         On November 20, 2013, the petitioner filed a petition for post-conviction relief, alleging that his plea had not been voluntary and knowing, and that he was denied the effective assistance of counsel. (ECF No. 18-3 at Page ID## 276-87.) The post-conviction court appointed counsel, but no amended petition was filed. (Id. at Page ID## 289-90; 291-92.) The court conducted an evidentiary hearing on March 7, 2014, and thereafter, denied relief. (Id. at Page ID# 297; ECF No. 18-4.) The petitioner appealed to the Tennessee Criminal Court of Appeals (“TCCA”), which affirmed the denial of post-conviction relief. (ECF No. 18-9; see also Cook v. State, No. M2014-00616-CCA-R3-PC; 2015 WL 2445868, at *1 (Tenn. Crim. App. May 22, 2015) (“Cook I”).) The petitioner filed an application for permission to appeal to the Tennessee Supreme Court, which was denied on August 12, 2015.

         On August 24, 2015, the petitioner filed a petition for the writ of habeas corpus in the Sumner County Criminal Court, (ECF No. 18-12 at Page ID## 513-16), which was denied on August 20, 2015 (ECF No. 18-12 at Page ID## 519-20). The petitioner appealed to the TCCA, which denied relief on March 8, 2016. (ECF No. 18-15; see also Cook v. Cook, No. M2015-01886-CCA-R3-HC, 2016 WL 877852, at *1 (Tenn. Crim. App. Mar. 8, 2016) (“Cook II”).) The petitioner filed an application for permission to the appeal to the Tennessee Supreme Court, which was denied on June 23, 2016. (Id.)


         At the plea hearing, the State set forth the factual basis for the petitioner's plea, describing the evidence as follows:

On September 6th, 2012, the Hendersonville Police Department received a report of a burglary at the co[-]defendant's residence, Ashley Wright's residence, in Hendersonville. They reported to that burglary - - it became clear relatively quickly that it was not a burglary. There were some items missing including a camera, a computer, and some other electronic items. However, there was no sign of a forced entry. As this became clear, Ms. Wright pulled Detective Harris aside and told him that she had something that she needed to tell him.
She then proceeded to disclose to Detective Harris that the defendant had been having extensive sexual contact with his three- and five-year-old children, his three-year-old daughter and his five-year-old son, that she had personally observed this, that he had taken pictures of that behavior and that he had posted that sexual activity - - that she believed he had posted some of that, those pictures, online on a Russian child pornography website.
Some of the items that were missing were the camera that he used to take those pictures as well as the computer, the laptop computer that he had used to allegedly upload those images to the internet. Pretty much right away the Hendersonville Police Department made arrangements to have the children interviewed, and that was done the next day. Both the three-year-old and the five-year-old disclosed numerous - -due to their ages, they couldn't pinpoint how many occasions, but it became clear from the interview, their forensic interviews, that this behavior, the sexual activity with their father had been going on for quite some time and involved sexual penetration, digital penetration, oral sex and slight penile-vaginal penetration and penile-anal penetration. In addition, they were encouraged to engage in sexual activity with each other, including penile-vaginal intercourse and oral sex with each other.
Upon interviewing the defendant, the defendant did not make any real admissions during his interview after the forensic interviews were done. However, he was arrested at that point. A few days later when his car was impounded or taken - - repossessed by the company that had sold it to Mr. Cook, Ms. Wright was called to come get her personal items out of there, and there was an S.D. card that fit in the camera that was found in the car. In addition, the camera that we believe was used to take the photographs that are part of this offense was found and had been pawned by Mr. Cook shortly before he was arrested.
A forensic examination of that S.D. card was done and hundreds - - well, probably about 60 to 70 sexually explicit images were found. We have charged 50 counts because some of them were close. They were taken over, I think, two or three separate dates. Most of the counts in this case came from specific incidents that we tied to the images on the card.
These images involved fondling by the children of the defendant's genitals. It involved pictures of the defendant engaging again in penile-vaginal or penile-anal penetration with both of the children. It involved sexual activity between the children, and quite frankly, Your Honor, I don't think I will ever not - - ever be able to forget the things that I saw in those images, and I'm sure Detective Harris can tell you the same thing. I think that basically sums up what the proof was.
* * *
Ms. Wright did give a detailed statement in which she laid out the number of occasions and the dates that she saw the defendant engage in sexual activity with his children. The children were, as I stated, three and five at the time of the offenses. That is the basis for the aggravated rape of a child and rape of a child.

(ECF No. 18-1 at Page ID## 86-89.)


         In his pro se petition, the petitioner raises the following grounds for relief:

A. Whether the petitioner's guilty plea was knowing and voluntary
B. Whether trial counsel was ineffective
C. Whether the petitioner's Due Process rights were violated (ECF No. 1 at Page ID ## 5-8.)


         This matter is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 132 S.Ct. 490, 491 (2011); Felkner v. Jackson, 562 U.S. 594, 597 (2011). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115');">562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009). AEDPA prevents federal habeas “retrials” and “ensure[s] that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, this court may not rely on the decisions of lower federal courts. Lopez v, Smith, 135 S.Ct.1, 4 (2014); Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir. 2000). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38, 44 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Tennessee state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644-45 (6th Cir. 2014) (citing Greene, 132 S.Ct. at 44).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011); see Burt v. Titlow, 134 S.Ct. 10, 16 (2013); Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (2013); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Indeed. “habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through ...

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