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Gardner v. Qualls

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

April 14, 2017

CHARLES GARDNER
v.
ERIC QUALLS, WARDEN

          Honorable Bernard A. Friedman, District Judge.

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES United States Magistrate Judge.

         By Order entered August 11, 2014 (Docket Entry No. 4), the above captioned Petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 was referred to the Magistrate Judge for further proceedings under Rule 8(b) of the Habeas Corpus rules, 28 U.S.C. § 636(b)(1)(B), and Rule 72.03 of the Local Rules of Court.

         After review of the Petition, Respondent's Answer, and a Reply filed by Petitioner, the undersigned Magistrate Judge respectfully recommends that the Petition be denied and this action be dismissed.

         I. BACKGROUND

         Charles Gardner (“Petitioner”) is an inmate of the Tennessee Department of Correction (“TDOC”) confined at the Bledsoe County Correctional Complex in Pikeville, Tennessee. On May 20, 1999, a jury in Davidson County, Tennessee, found him guilty of one count of first degree murder and two counts of reckless aggravated assault. For these crimes, he was sentenced to an effective sentence of imprisonment for life without the possibility of parole.

         Petitioner's convictions arise out of events that occurred on October 18, 1997, when an unarmed security guard named Demetrius Laquan Wright (“Wright”) was shot and killed at a now closed entertainment club in Davidson County called Club Yesterday. See State v. Gardner, 2001 WL 306227 (Tenn.Crim.App. March 30, 2001). The evidence presented at Petitioner's trial showed that Petitioner had been forcibly ejected from the club in September 1997 by Wright and other security guards after an incident and a fight in the club, prompting Petitioner, once outside the club, to loudly threaten that he was “going to kill him [Wright]” and that he was going to “go get a gun.” The evidence showed that Petitioner returned to the club during the early morning hours of October 18, 1997, entered the crowded club, located Wright inside the club, and shot him twice in the back. Wright died from his wounds shortly after being taken to a local emergency room. Two bystanders in the club that night were also shot in the legs. A witness testified at trial that she saw Petitioner shoot the victim directly in front of her and identified Petitioner as the shooter. Another witness testified that she saw Petitioner standing over the victim after she heard shots fired. Employees at the club also testified that they saw Petitioner enter the club and then saw him running out of the club after the gunshots were fired. Ballistics evidence produced at trial showed that a bullet recovered from the crime scene and two bullets recovered from the body of Wright were identified as being .38/357 caliber bullets that were similar to the other bullets that were recovered from the scene. Petitioner's first trial resulted in a hung jury and mistrial. After a second trial, he was found guilty of the crimes for which he is imprisoned.

         Petitioner thereafter unsuccessfully sought relief from his convictions through various state court remedies. His direct appeal was denied. State v. Gardner, 2001 WL 306227 (Tenn.Crim.App. March 30, 2001). He then filed an unsuccessful petition for post-conviction relief, the denial of which was affirmed on appeal. Gardner v. State, 2004 WL 840086 (Tenn.Crim.App. April 16, 2004). Petitioner also pursued an unsuccessful pro se petition for a state writ of habeas corpus on May 18, 2005, the denial of which was upheld on appeal. Gardner v. Parker, 2006 WL 119635 (Tenn.Crim.App. January 17, 2006).

         On February 7, 2011, Petitioner then filed a pro se petition in the state court for a writ of error coram nobis. See Docket Entry No. 16-21 at 3-10.[1] Petitioner contended that he had been seeking a copy of his criminal case file from the Office of the District Attorney General since sometime in 2005 but had only received the case file in August 2010. He argued that newly discovered exculpatory evidence from the case file justified the equitable tolling of the statute of limitations for filing his petition and warranted relief because the evidence may have resulted in a different verdict if it had been presented at his trial. Specifically, Petitioner argued that his case file contained an Official Firearms Identification Report from the Tennessee Bureau of Investigation that provided the results of the ballistics examination and a conclusion regarding the bullets recovered by the police. Petitioner also argued that his case file contained, 1) a Nashville Metro Police Department Supplemental Report written by Detective Juan Borges, and 2) a handwritten note from Assistant District Attorney Katy Miller that was attached to a Case Evaluation Report and that referenced the Supplemental Report by stating “see supplement where someone else admitted to shooting their gun off in the club.” The Supplemental Report states:

On 10/18/97 a woman called the homicide office and stated that her friend went to visit her at her house. While her friend was at her house she page[d] a man by the name of Roosevelt, Colbert[.] Mr. Colbert went to the house with another man by the name of Keith, Odum[.] Both are M/B. The woman that called told me that while she was in her bedroom she overheard a conversation between the two subjects. She stated that Roosevelt was telling Mr. Odum that when he heard people shooting he also started shooting his 45. caliber pistol and he wasn't for sure if he also shot the security guard. Mr. Roosevelt also mention[ed] that he was still in possession of the 45. pistol. Roosevelt owns a station wagon and Odum owns a gray Monte Carlo. After they made those comments they change[d] the conversation and left the house soon after.

Gardner v. State, 2013 WL 794026, *2 (Tenn.Crim.App. March 5, 2013); Docket Entry No. 16-21 at 35.

         The Davidson County Criminal Court dismissed the petition by written order on July 27, 2011, determining that it was untimely and that Petitioner failed to establish a cognizable claim. See Docket Entry No. 16-21 at 38-48. Upon appeal, during which Petitioner was represented by counsel, the Tennessee Court of Criminal Appeals affirmed the denial of relief. Gardner v. State, 2013 WL 794026 (Tenn.Crim.App. March 5, 2013). The state court found that the ballistics report claim was not based upon newly discovered evidence and, thus, was not a “later-arising” ground for relief. Specifically, the information contained in the ballistics report was a part of the written report introduced at trial and testified to by a ballistics expert and was evidence that was available to Petitioner during trial. Id. at *5. The state court then reviewed Petitioner's claim based upon the Supplemental Report and the handwritten attorney's note and found they were insufficient to support the requested relief. Id. at **6-7. The state court found that the handwritten note was attorney work product that did not constitute grounds for relief. Id. at *6. The state court then found that Petitioner failed to show that coram nobis relief was supported by his claim based upon the Supplemental Report. Id. at **7-8. In analyzing the claim, the state court found as follows:

Here, the coram nobis court concluded, and we agree, that the Petitioner has failed to present a cognizable claim for relief.
“The decision to grant or deny a petition for the writ of error coram nobis on the ground of subsequently or newly discovered evidence rests within the sound discretion of the trial court.” State v. Hart, 911 S.W.2d 371, 375 (Tenn.Crim.App. 1995). “A court abuses its discretion when it applies an incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to the complaining party.” Wilson, 367 S.W.3d at 235.
As an initial matter, the record reflects that the coram nobis court, applied the appropriate standard of review and explicitly cited State v. Vasques, 221 S.W.3d 514 (Tenn. 2007) and Hart, 911 S.W.2d 371, in its order denying coram nobis relief. Although the coram nobis court later concluded “the evidence provided by Petitioner as exhibits to his petition would not have resulted in a different judgment in light of the evidence against him, ” this comment, in our view, does not evince an application of the wrong standard of review. Billy Ray Irick v. State, No. E2010-02385-CCA-R3-PD, 2011 WL 1991671, at *15 n. 5 (Tenn.Crim.App. May 23, 2011).
Next, the Petitioner argues that the coram nobis court erroneously stated that “Katy” did not prepare the “Case Preparation Evaluation.” Even if true, the Petitioner fails to explain the significance of who generated the “Case Preparation Evaluation.” It is clear from the court's order that it understood the difference between the boilerplate “Case Preparation Evaluation” form which was unsigned, and the attached handwritten note which was signed by assistant district attorney Katy Miller. In our view, the import of the handwritten note was its reference to the report by Detective Borges, not who prepared the forms. We interpret the Petitioner's second claim, that the court's conclusion that the Petitioner “mischaracterized” the supplement report, as a challenge to the court's conclusion and not a factual error. Here, we further observe that the Borges report did not identify the female caller and was therefore inadmissible hearsay. Wilson, 367 S.W.3d at 235 (quoting T.C.A. § 40-26-105(b)); Tenn. R. Evid., Rules 801, 802; Tenn. R. Civ. P. 26.02(3). (footnote omitted) More importantly, the third party who allegedly confessed to shooting in the club on the night of the offense admitted to firing a “.45 caliber pistol”, and the bullets recovered from the body of the victim were from a .38/.357 caliber weapon. (footnote omitted)
Finally, the Petitioner contends that the coram nobis court erred by noting that there was an eyewitness who identified the Petitioner as the person who shot the victim. The Petitioner insists that there was no eyewitness to the shooting in our opinion in his direct appeal. This is simply incorrect. In the sufficiency of the evidence section of our opinion, we clearly set forth the testimony of Ms. Tanisha Stewart, the sole eyewitness to the shooting. Gardner, 2001 WL 306227, at *9. As shots were fired, Ms. Stewart was “looking directly at [the Petitioner].” Id. She said the Petitioner was standing approximately ten feet away from her when the shots were fired. Ms. Stewart positively identified the Petitioner from a photographic lineup and at trial as the man she looked in the face and saw holding a gun pointed directly at the victim's back. Id. The coram nobis court considered whether the alleged newly discovered evidence attached to the petition may have resulted in a different judgment at trial. The court denied relief in light of the evidence against the Petitioner at trial including the positive identification of the Petitioner as shooter by Ms. Stewart, firearm analysis, testimony about a previous altercation ...

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