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Pendergrass v. Lindamood

United States District Court, E.D. Tennessee, Greeneville

March 27, 2017

DANNY PENDERGRASS, Petitioner,
v.
CHERRY LINDAMOOD, Warden, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         In 2010, Danny Pendergrass (“Petitioner”) entered “best interest” guilty pleas[1] in the Sullivan County Criminal Court to a presentment charging him with four counts of child rape, eleven counts of incest, and seven counts of aggravated statutory rape. Upon his convictions for these twenty-two offenses, Petitioner received an effective total sentence of twenty-five years.[2]Petitioner now brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement under that state court judgment [Doc. 1].

         Warden Cherry Lindamood has filed a response to the petition, arguing that relief is unwarranted with respect to Petitioner's claims and, in support of her arguments, she has filed copies of the state court record [Docs. 10-11, Addenda 1-4]. Petitioner has not replied to the Warden's response, and the time for doing so has lapsed. See E.D. Tenn. L.R. 7.1(a). For the reasons below, this petition will be DENIED.

         I. PROCEDURAL HISTORY

         After the trial court sentenced Petitioner, he filed a pro se motion to withdraw his guilty pleas [Doc. 11, Add. 1 pp. 42-44]. The trial court treated the motion as a petition for post-conviction relief. Petitioner amended the petition and the trial court dismissed the amended pleading. Petitioner appealed the dismissal of his amended petition to the Tennessee Court of Criminal Appeals (“TCCA”) and he, thereafter, filed a second amended petition. The trial court likewise dismissed the second amended petition.

         Meanwhile, Petitioner filed a second pro se petition for post-conviction relief in the trial court, and he concurrently filed in the TCCA a counseled motion to remand the post-conviction petition pending on appeal. The TCCA granted the motion and remanded the case to the trial court for consolidation of the original petition, amended petition, and second post-conviction petition [Id., Add. 3]. The trial court conducted an evidentiary hearing in the matter and denied post-conviction relief, a decision that the TCCA affirmed on appellate review. Pendergrass v. State, No. E2012-01696-CCA-R3PC, 2013 WL 3973799 (Tenn. Crim. App. Aug. 2, 2013), perm. app. denied (Tenn. 2014). State post-conviction proceedings terminated on January 14, 2014, when Tennessee Supreme Court (“TSC”) denied Petitioner's application for permission to appeal. Id. There followed this timely § 2254 habeas corpus application.

         II. FACTUAL BACKGROUND

         The factual background is taken from the TCCA's opinion in Petitioner's post-conviction appeal. See Pendergrass, 2013 WL 3973799, at *1-5.

         In its opinion, the TCCA recounted the proof marshalled against Petitioner, as summarized by the prosecution during Petitioner's guilty plea hearing on May 5, 2010. According to that summary, the evidence at trial would have included the victim's testimony, in which she would describe specific events, all occurring in Sullivan County, during which Petitioner engaged in vaginal intercourse with her, anal intercourse on one occasion with her, and oral sex performed by the victim on the Petitioner. The proof would have included Petitioner's statement in which he acknowledged the crimes. The prosecution also could have presented testimony by witnesses, documentation, and records to corroborate the victim's testimony and a “timeline that outlined the approximate date, location, and offense associated with each count in the presentment.” Pendergrass, 2013 WL 3973799, at *1.

         During his plea colloquy, Petitioner denied being “threatened, coerced, intimidated, or pressured into accepting the State's plea offer, ” and agreed that he was entering a best interest plea based on his discussions with trial counsel and his review of the State's evidence and possible sentences. Pendergrass, 2013 WL 3973799, at *2. Petitioner stated that he was satisfied with counsel's representation of him.

         The backstory to the entry of the guilty pleas is that, two days earlier, Petitioner requested that counsel be relieved as his attorney. At the hearing on his request, Petitioner explained that he believed counsel was overworked, had not “handled [his case] adequately, ” and had met with him on several occasions, probably spending a total time of an hour and a half with him since January. Pendergrass, 2013 WL 3973799, at *2. Petitioner stated that he had received and reviewed the State's discovery response with counsel, that they had first discussed potential defense witnesses on “Thursday or Friday” of the prior week. Petitioner stated that the jail had prohibited him from telephoning counsel but that he was able to contact counsel by phone after the trial court addressed the telephone ban with the jailers.

         Trial counsel detailed at the hearing all the efforts he had made on behalf of his client, which included speaking with Petitioner's mother on several occasions, meeting with Petitioner and discussing discovery, possible witnesses, the corroborating statement Petitioner had given to the police, and his potential sentences, and answering Petitioner's questions. Counsel described the case as “extremely hard” and, as illustrative of that description, pointed to his client's “tremendous” exposure to a lengthy sentence, the anticipated trial testimony by the young female victim, recounting the sexual encounters she had with Petitioner, Petitioner's confession, which Petitioner insisted was incorrect, and his client's reluctance to identify possible witnesses who could testify at the trial set to commence in two days. Petitioner interjected, at this point, that “[t]here ain't [sic] no witnesses, ” to which counsel responded, “I mean that's where I'm at. There is [sic] none so-”. Pendergrass, 2013 WL 3973799, at *2. The trial court denied Petitioner's request and counsel continued the representation.

         The TCCA then set forth the facts as presented in Petitioner's post-conviction hearing, which followed soon thereafter. Only the facts which are relevant to the claims asserted in this § 2254 petition will be set forth.

         At the post-conviction hearing, Petitioner testified that, outside of court, he had discussed his case with trial counsel “probably 20 to 30 minutes, ” that the jail did not allow him to contact trial counsel by phone, and that counsel provided him with the State's response to discovery. Pendergrass, 2013 WL 3973799, at *2. Petitioner testified that he wanted trial counsel to file a motion for an independent medical exam of the victim, but trial counsel did not file the motion. Petitioner stated that he was “under so much distress “when he accepted the plea offer and entered his guilty pleas, that counsel had told him that if he signed the guilty plea form he was not admitting guilt, and that he was uninformed as to how the justice system worked. Pendergrass, 2013 WL 3973799, at *2. While Petitioner stated that he “kind of recall[ed]” answering questions during his plea colloquy, he speculated that he could have done so without realizing what he was answering. Pendergrass, 2013 WL 3973799, at *2.

         Petitioner also stated that on August 29, 2009, before issuance of the presentment, his wife and the victim visited him and that the victim told him that the District Attorney told her that if she did not testify against him, she would be removed from her mother's custody. This information, so Petitioner testified, led him to enter the guilty pleas involuntarily, out of fear of the threat. The information caused him to feel that he had no choice but to plead guilty, that he was backed up against the wall, and that he could not tell the trial court about his fear during the plea colloquy.

         On cross-examination, Petitioner testified that he wrote a letter to the victim's mother, asking her to tell the victim not to testify against him. Likewise, Petitioner wrote the victim a letter asking her to refuse to cooperate with the District Attorney. The letter contained this request: “PS, throw this away after you're done reading it.” Pendergrass, 2013 WL 3973799, at *2. Petitioner testified, when asked about the postscript that he “just didn't see any need to keeping it.” Pendergrass, 2013 WL 3973799, at *2.

         Petitioner testified that trial counsel told him that the plea offer was for a twenty-five-year sentence and that he believed that counsel “was pushing the plea on [him] instead of going to [trial].” Pendergrass, 2013 WL 3973799, at *2. Petitioner also testified that counsel moved to suppress the statement he gave to Officer Adkins, but that counsel did not attack the officer's credibility by inquiring into the reasons for her demotion from her position as a detective, which supposedly resulted from a “criminal investigation.” Pendergrass, 2013 WL 3973799, at *2.

         The victim's mother testified that her pastor told her that if she and the victim did not cooperate with the prosecution, she could lose custody of her daughter. She testified that the District Attorney did not make any such statements to her about losing custody and that, when she visited Petitioner while he was incarcerated in Pennsylvania on unrelated charges, she relayed to him her pastor's comment. She too testified about the letters Petitioner had sent asking her to tell the victim not to testify against him and stated that she gave the letters to the prosecution. Enclosed in one letter was a “statement of retraction, ” prepared by Petitioner, which he had requested that the victim sign.

         Counsel, who was appointed to represent Petitioner, obtained the victim's medical records, through his request for discovery. Based on those records, counsel decided that it was unnecessary to seek an independent medical evaluation of the victim-a matter which he discussed with his client, whom he thought appeared to be cognizant of what was taking place throughout the proceedings. Counsel and Petitioner likewise discussed suppression of Petitioner's statement, in which Petitioner admitted to having sex with the victim, but Petitioner stated that the sexual encounters were consensual and, sometimes, were initiated by the victim.

         Counsel testified that he met with Petitioner on several occasions, and that, while most meetings occurred in the holding cell at the courthouse, counsel believed that the length of the meetings was adequate to prepare for what was occurring that day. Counsel also communicated with Petitioner through Petitioner's mother. Counsel did not interview the victim, as he understood that she did not want to talk to him but counsel, instead, reviewed the summary of the victim's testimony with which he had been supplied. Counsel also sought unsuccessfully the suppression of Petitioner's statement, in which Petitioner “admitted doing things.” Counsel stated that he was unaware of any witnesses to testify for the defense, that Petitioner did not advise him of any witnesses, and that he advised Petitioner of the potential sentences and possibility of consecutive sentencing.

         Petitioner was extended an offer of a 25-year sentence, which he first declined. Counsel testified that he was prepared for trial, and that Petitioner agreed to accept the plea offer on the morning of the day the trial was scheduled to begin. Counsel testified that he did not pressure Petitioner to accept the plea offer, that he had explained the advice of rights form to Petitioner prior to the entry of the pleas, and that Petitioner never had said that he was entering guilty pleas out of fear.

         III. DISCUSSION

         The petitioner lists two main grounds for relief, with each ground containing several sub-claims [Doc. 1, pp. 5, 7, and 9].[3]

         A. Trial Counsel gave Petitioner ineffective assistance, in that counsel

1. did not meet with Petitioner to prepare for trial;
2. did not discuss defenses with Petitioner;
3. did not adequately represent Petitioner
4. did not review discovery in sufficient detail with Petitioner;
5. did not spend sufficient time with Petitioner discussing the case, including possible defenses, and did not discuss trial strategy with Petitioner, but instead, pressed him to accept the guilty pleas;
6. did not attempt to question Petitioner's wife or her daughter (the victim);
7. did not file pretrial motions, including a motion for an independent medical examination of the victim to determine whether sexual activity had occurred;
8. did not request DNA testing to determine whether Petitioner's DNA was present; and
9. did not succeed in having his statement suppressed, did not prepare Petitioner to testify at the suppression hearing, and did not investigate Officer Melanie Adkins's withdrawal from the criminal ...

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