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Swett v. Genovese

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

May 11, 2017

RAYMOND SWETT, #220143, Petitioner,
v.
KEVIN GENOVESE, WARDEN, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         Petitioner Raymond Swett, a prisoner in state custody, filed a timely pro se Petition (Doc. No. 1) under 28 U.S.C. § 2254 for the writ of habeas corpus, challenging his conviction in the Davidson County Criminal Court on charges of first-degree felony murder, especially aggravated kidnapping, and aggravated burglary. The respondent filed an Answer (Doc. No. 17) in opposition to the Petition, along with a copy of the underlying state-court record (Doc. No. 18). The matter is ripe for review, and this court has jurisdiction. 28 U.S.C. § 2241(d).

         As an initial matter, 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))).

         Further, upon consideration of the record as a whole, the court finds, for the reasons set forth herein, that the petitioner is not entitled to relief on the basis of any of the grounds asserted. The Petition will therefore be denied and this matter, dismissed.

         I. PROCEDURAL BACKGROUND

         The petitioner and two co-defendants were originally indicted in a ten-count indictment charging aggravated burglary (Count 1), four counts of especially aggravated kidnapping (Counts 2-5), attempted first-degree murder (Count 6), especially aggravated robbery (Count 7), first-degree premeditated murder (Count 8), first-degree felony murder (Count 9), and possession of a controlled substance with intent to deliver or sell (Count 10). (Doc. No. 18-1, at 4-16.) One of the co-defendants agreed to testify; his trial was severed while the petitioner and his other co-defendant proceeded to trial. Just prior to trial, the state requested to amend the indictment and proceeded on eight renumbered charges: aggravated burglary (Count 1), especially aggravated kidnapping (Counts 2-5), aggravated robbery (Count 6), first-degree premeditated murder (Count 7), and first-degree felony murder (Count 8). (Id. at 59-68.) The petitioner pleaded not guilty to all charges. (Id. at 17.)

         On October 8, 2010, a Davidson County jury found the petitioner guilty of aggravated burglary (Count 1), one count of especially aggravated kidnapping (Count 2), second-degree murder (lesser included offense of Count 7), and first-degree felony murder (Count 8). He was acquitted on the other charges. (Id. at 76-83.) The court merged the two murder convictions and sentenced the petitioner to life on that conviction, twenty-two years on the kidnapping conviction, to run consecutively to the life sentence, and six years on the burglary conviction, to run concurrently with the kidnapping sentence, for a total effective sentence of life plus twenty-two years. (Id. at 82.) Judgment was entered on November 12, 2010, and the petitioner filed a timely Motion for Judgment of Acquittal or a New Trial on December 2, 2010. (Id. at 84-85.) The trial court denied that motion by written Order on January 24, 2011. (Id. at 87-90.)

         The Tennessee Court of Criminal Appeals affirmed the petitioner's convictions and sentences on direct appeal. State v. Swett (“Swett I”), No. M2011-00439-CCA-R3-CD, 2013 WL 53993, at *1 (Tenn. Crim. App. Jan. 4, 2013), perm. app. denied (Tenn. May 9, 2013).

         On July 22, 2013, the petitioner filed a pro se petition for post-conviction relief in the state trial court. (Doc. No. 18-24, at 50-74.) The court appointed counsel, who filed an Amended Petition. (Id. at 82-91.) After conducting a hearing at which the petitioner and his trial attorney testified, the trial court entered an order denying the petition. (Doc. No. 18-24, at 97-118.) That decision was affirmed. Swett v. State (“Swett II”), No. M2014-02243-CCA-R3-PC, 2015 WL 5679292 (Tenn. Crim. App. Sept. 28, 2015), perm. app. denied (Tenn. Jan. 14, 2016).

         The petitioner filed his federal habeas Petition in this court around August 9, 2016.[1] After being directed by the court to respond, the respondent filed his Answer on November 14, 2016. (Doc. No. 17.)

         II. FACTUAL SUMMARIES

         The Tennessee Court of Criminal Appeals summarized the evidence presented at trial as follows:

The facts of this case are largely undisputed. Following a drug deal gone awry, the defendant and Calvin Hargrove went to the apartment of Jessica Cain-Beaty, and, while there, the defendant struck Ms. Cain-Beaty repeatedly with a gun while demanding the return of money he believed was owed to him as a result of the drug transaction. After one of Ms. Cain-Beaty's friends gave him the money, the defendant left the apartment and walked toward the exit of the apartment complex. Just before the defendant reached the exit, Jeffrey Beaty, Ms. Cain- Beaty's estranged husband, confronted him. The defendant warned Mr. Beaty with the gun while walking backward toward the exit. When Mr. Beaty continued to advance, the defendant shot him.
At trial, Ms. Cain-Beaty testified that early in the day on May 24, 2009, the defendant, whom she knew as Skeet, telephoned her to inquire about purchasing prescription pills from her, and she agreed to give him 10 pills that had a street value of $20 and $20 cash in exchange for $40 worth of powder cocaine. After they struck the deal, the defendant arrived in the parking lot outside her apartment in a vehicle being driven by an individual she did not know. Ms. Cain-Beaty described what happened next:
I went to the window and I gave him the bottle of pills, the ten pills, and twenty dollars cash. And then I waited for what I thought I was supposed to get and he said he had already . . . given it to me. And I said this . . . isn't right. And I proceeded to grab the twenty off his lap and . . . I went back inside.
She said that instead of $40 worth of powder cocaine, the defendant had given her “just a little tiny crumb of something” that “there wasn't enough to do.” She put the cocaine under her bathroom sink. She said that she talked to her friends, Major Drinks and Justin Harmer, “for about five minutes” and that she went into her apartment alone.
Ms. Cain-Beaty testified that approximately five to 10 minutes later, Mr. Drinks and Mr. Harmer returned to the apartment and told her that the defendant and the other man had returned. She said that she “got the door open enough to let” Mr. Harmer inside the apartment, but she was forced to leave Mr. Drinks outside; she shut the door and locked the three locks to prevent the defendant's entering. Ms. Cain-Beaty testified that when she told the defendant that she was going to telephone the police, the defendant said, “I don't care if you call the cops” and then kicked in the door. The defendant, who was armed with a handgun, grabbed Ms. Cain-Beaty by the hair and dragged her into the bathroom, where he hit her in the head with the gun a number of times and kicked her in the head and face “repeatedly.” During the beating, the defendant demanded the return of “his twenty dollars.” Ms. Cain-Beaty said that the defendant did not give her “any kind of chance to ever get” the money and that she did not have the money because she had originally borrowed it from Mr. Harmer and had returned it to him after the deal soured.
According to Ms. Cain-Beaty, her neighbor, Mikhol Preston, arrived at some point and gave the defendant $20 so that he would leave. She said that the defendant broke her nose with the gun and kicked her in the head before leaving through the broken door. “About thirty seconds after that then the door opened again, but it wasn't them, it was Jeff.” Mr. Beaty asked what had happened and where her attacker had gone, and she told Mr. Beaty that “they had guns and they were crazy” and begged him not to go after the men. She said that Mr. Beaty ignored her pleas and left the apartment through the patio door. She eventually managed to gain her feet and walked toward the door of the apartment. Ms. Cain- Beaty testified that before she could get out of the apartment, she heard a single gunshot. She went outside and saw Mr. Beaty lying in the parking lot.
During cross-examination, Ms. Cain-Beaty admitted to heavy drug use around the time of the offenses but denied using drugs on that particular day. She also admitted smoking crack cocaine with the defendant on an earlier occasion but denied having a sexual relationship with him. Ms. Cain-Beaty conceded that she lied to police about her association with the defendant during an initial interview but said that she later disclosed that the attack came on the heels of a botched drug deal.
Major Drinks testified that he was living with Ms. Cain-Beaty at the time of the offenses, but the two were not romantically involved. On May 24, 2009, the defendant called Ms. Cain-Beaty to inquire about purchasing some prescription pills. Mr. Drinks said that he was standing in the breezeway of the apartment building when the defendant arrived in a sport utility vehicle (“SUV”) being driven by a person that Mr. Drinks did not recognize. He recalled seeing Ms. Cain-Beaty and Mr. Harmer approach the passenger side window of the SUV and hearing Ms. Cain-Beaty say, “Somebody's trying to beat me, he's trying to beat me.” Mr. Drinks said that Ms. Cain-Beaty “snatched” some money from the defendant and walked back toward her apartment.
After observing the SUV exit the parking lot, Mr. Drinks walked with Mr. Harmer back to Ms. Cain-Beaty's apartment. Before they reached the apartment, they saw the SUV return. Mr. Drinks said that Mr. Harmer ran to Ms. Cain-Beaty's apartment and shut the door. The driver parked the SUV, and the defendant and another man got out of the SUV armed with guns. The men asked Mr. Drinks where Ms. Cain-Beaty had gone, and he told them that he did not know. The men then pounded on Ms. Cain-Beaty's door, demanded that she open it, and ordered her to return the money. The man with the defendant kicked the door in, and the defendant entered through the broken door. Mr. Drinks walked in behind him. Mr. Drinks said that once inside the apartment, the defendant grabbed Ms. Cain-Beaty and dragged her to the bathroom. Mr. Drinks testified that although he could not see into the bathroom area, he heard Ms. Cain-Beaty screaming and heard the defendant's companion say, “Why are you beating her like that?” Shortly thereafter, the man told the defendant that he was leaving and left the apartment via the sliding glass door.
Mr. Drinks said that he followed the man out of the apartment and saw the man get into the SUV and leave. He then went to look for Mr. Harmer, whom he had seen leave the apartment just before the defendant's companion. When he could not find Mr. Harmer, Mr. Drinks walked back toward Ms. Cain-Beaty's apartment. Mr. Drinks testified that as he neared her apartment, he saw Mr. Beaty go into Ms. Cain-Beaty's apartment. The defendant, he said, had already exited Ms. Cain-Beaty's apartment and was walking across the parking lot. Shortly thereafter, Mr. Beaty came out of the apartment and asked Mr. Drinks where the defendant had gone. Mr. Drinks said that he pointed the defendant out but warned Mr. Beaty that the defendant was armed. Mr. Drinks said that Mr. Beaty “seemed calm” and that Mr. Beaty claimed that “he wanted to speak with the gentleman in a calm manner.” Mr. Drinks testified that he followed Mr. Beaty, who was walking at a “normal pace, ” from a short distance. Mr. Drinks said that as they approached the defendant, the defendant began to back away but told Mr. Beaty, “I got something for you.” Mr. Drinks said that when Mr. Beaty was approximately “two or three feet in front of” the defendant, the defendant raised his gun and shot Mr. Beaty. After the defendant shot Mr. Beaty, the SUV, which had returned just before the shooting, drove away, and the defendant ran away in the same direction.
During cross-examination, Mr. Drinks admitted that he had sold prescription pills for Ms. Cain-Beaty before and that he told police that Ms. Cain-Beaty had been “turning tricks with” the defendant the day before the offenses. Mr. Drinks said that despite the defendant's warning Mr. Beaty off, Mr. Beaty continued to approach him.
Mikhol Preston testified that at the time of the offenses, she lived in the apartment directly above Ms. Cain-Beaty's. On that day, she heard “a lot of noise coming from outside, ” so she looked out her window and saw Ms. Cain-Beaty getting out of a black SUV. Ms. Preston said that she returned to what she had been doing, but she went downstairs to investigate when she heard Ms. Cain-Beaty yell several times. She testified that as soon as she got downstairs, Ms. Cain-Beaty rushed her into Ms. Cain-Beaty's apartment and locked the door. The two women went into the bedroom, “and before [they] could even start speaking again, [they] heard a noise[, ] and . . . two other gentlemen entered her apartment.” Ms. Preston said that the men were armed and that the defendant shouted, “Where is my money, where is my money?” She testified that the defendant then took Ms. Cain-Beaty “by the arm and led her into the bathroom.” Ms. Preston said that she heard “a loud smacking noise” followed by Ms. Cain-Beaty's screaming, “Stop, please stop hitting me.” She recalled that the defendant's companion, whom she identified as Calvin Hargrove, shouted for the defendant to “come on, ” and when the defendant did not respond, the man left. Mr. Drinks and Mr. Harmer left the apartment behind Mr. Hargrove.
At that point, Ms. Preston testified, the defendant dragged Ms. Cain-Beaty back into the living area of the apartment. He hit her again and demanded the return of his money. Ms. Preston said that she asked the defendant how much money was owed to him, and he told her that Ms. Cain-Beaty owed him $20. Ms. Preston said that she got $20 from her own purse and gave it to the defendant. The defendant struck Ms. Cain-Beaty “a few more times and kicked her” before he left the apartment.
Ms. Preston testified that she got her purse and attempted to leave when Ms. Cain-Beaty asked her to record the license tag number of the SUV. Ms. Preston said that although she agreed, she “wasn't going to go out there and get the license plates” because she “was too scared.” When she exited the apartment, she saw Mr. Beaty running toward Ms. Cain-Beaty's apartment. After Mr. Beaty went inside the apartment, Ms. Preston went to a neighbor's house and knocked on the door until someone let her inside.
Metropolitan Nashville (“Metro”) Police Department Officer Ashley Kendall Coon responded to the call of a shooting at the Pagoda Apartment Complex at approximately 11:00 p.m. on May 24, 2009. When Officer Coon arrived at the complex, he observed Mr. Beaty's body lying “roughly thirty feet” from the front of the apartment complex. Ms. Cain-Beaty was near the body, and “she appeared to be cut up, looked to have been beat on.” He said that “she was basically just in a basic state of hysteria” and that, as a result, he was unable to get any information from her. He called an ambulance and tried to obtain information from other witnesses at the scene.
Metro Officer Carroll Fondaw testified that he assisted in setting up the crime scene and that he requested and reviewed surveillance video recorded from the Walmart located across the street from the Pagoda Apartments. He said that video cameras recorded a dark SUV pull into the Pagoda apartments at 10:53 p.m. The same vehicle exited the apartment complex at 11:00 p.m. and returned at 11:08 p.m. The vehicle again exited the complex at 11:12 p.m. and returned at 11:14 p.m. The video then showed an individual running out of the apartment complex toward the Walmart approximately 30 seconds later. The SUV “followed, stopped briefly and then that subject got into that vehicle and then it appear [e]d as though that dark colored SUV continued east on Welch.” Jennifer Grubbs, an investigator with the medical examiner's office, testified that she responded to the Pagoda Apartments and pronounced Mr. Beaty dead at 2:20 a.m. She recalled that Mr. Beaty had “a black single drop blade knife” in his “right rear pocket” at the time he died. Ms. Grubbs removed the knife, along with Mr. Beaty's other personal possessions, and photographed them at the scene.
Shameka Saffold, custodian of records for Cricket Communications, testified that cellular telephone records showed that several calls were placed from a cellular telephone registered in the defendant's name to a cellular telephone registered in Ms. Cain-Beaty's name on May 24, 2009, in the hours leading up to the offenses. The last call was placed at 11:05 p.m. A call was placed to 9-1-1 from Ms. Cain- Beaty's cellular telephone at 11:10 p.m.
[Co-defendant] Maxwell Alexander Delancy testified that on May 24, 2009, he was at Mr. Hargrove's house “conversating, hanging out” when the defendant arrived and spoke to Mr. Hargrove “about some sort of drug deal he had for Hargrove.” Mr. Delancy heard the defendant tell Mr. Hargrove that the defendant had “a lady down there who has $20 and will give you $20 worth of some type of pills for $40 of crack.” Mr. Delancy said that Mr. Hargrove asked him to drive the defendant to make the transaction and that he agreed because he owed Mr. Hargrove money. Mr. Delancy testified that the defendant directed him to the Pagoda Apartments and that when he pulled into a parking space, “[t]he white lady that [he] had seen came to the car, just directly to the car.” He described what happened next:
And they're conversating and she shows him-she gives him $20 already. And she gives him $20, he has the crack in his hand. As he's about to show her the crack, . . . she's opening up a pill bottle as well while he's about to open up . . . his hand. He's opening up his hand; she sees it. And she looks at it for a second; pauses and looks at it. And then she goes on . . . . No, no. You're not . . . about to get me. You're not about to get me. No. No. No. Just carrying on and pretty much just takes everything out of Swett's hand including her pills, including that $20 and the crack, and walks off.
After Ms. Cain-Beaty walked away, Mr. Delancy “threw [the] car in reverse and started driving.” He said that he told the defendant that the defendant would be responsible for telling Mr. Hargrove what had happened. Mr. Delancy testified that the defendant said that he “didn't give a f* * * that he got stolen from and he don't give a f* * * about what Hargrove thinks.”
Mr. Delancy said that he drove directly to Mr. Hargrove's residence. Once there, the defendant went inside first and told Mr. Hargrove what happened. Mr. Delancy recalled that Mr. Hargrove came to Mr. Delancy and told him that the defendant wanted Mr. Hargrove to provide him with drugs for setting up the deal with Ms. Cain-Beaty even though the deal went sour. Mr. Hargrove then asked Mr. Delancy to return him to the apartments to get his money back. Mr. Delancy said that he did not want to do so, and the two argued. At that point, Mr. Hargrove called in the debt that Mr. Delancy owed. Mr. Delancy testified that because he did not have the money to repay the debt, he agreed to take Mr. Hargrove and the defendant back to the Pagoda Apartments.
Mr. Delancy said that during the drive to the apartments, the defendant was “in the back pissed off that Jessica even got over on him on this situation. And he's throwing himself everywhere around the car, and making a big scene in the car. Yeah, man; screaming, you know, I'm going to f* * * this b* * * * up. She doesn't know me. She doesn't know who I am.” Mr. Delancy testified that Mr. Hargrove told the defendant to “calm the f* * * down, chill the f* * * out, you're not going to do anything, just calm down.” When they arrived at the apartments, Mr. Hargrove told the defendant to call Ms. Cain-Beaty, but the defendant was unable to do so, so the two men got out of the car and walked to the apartment. Mr. Delancy testified that “seven to ten minutes” passed before he saw someone come out of the sliding glass door and travel “straight up to another path of stairs.” He then saw Mr. Hargrove stick his head out the sliding glass door, glance both ways, and then go back inside for “like 5, 10 seconds” before returning to Mr. Delancy's vehicle. When Mr. Hargrove got inside the vehicle, he told Mr. Delancy that the defendant was in the apartment “beating her.” Mr. Delancy said that he told Mr. Hargrove to “go get him, he's going to kill somebody; go get his a* *.” Mr. Hargrove instead ordered Mr. Delancy to leave.
Mr. Delancy testified that he complied with the order and drove away. When they reached “the top of Welch Road, ” Mr. Hargrove “pull[ed] out a gun and thr[e]w it underneath the seat.” At that point, Mr. Hargrove told Mr. Delancy to turn around and go back to the apartment to get the defendant because “he's going to kill somebody.” Mr. Delancy said that when they pulled into the parking lot, he saw “two individuals on down inside the apartments along where the cars are parked and one other individual and Swett. The one individual is walking up on Swett, walking towards Swett. Swett keeps backing up; walking up on him.” Mr. Delancy said that he pulled “right next to both of them, ” and Mr. Hargrove told the defendant to “quit f* * *ing around, get in the car.” The defendant backed away and the other individual kept walking toward him. Mr. Delancy rolled the car forward to the point where both individuals were behind it. At that point, the defendant shot the other individual.
Mr. Delancy testified that when he pulled out of the apartment complex, he “almost hit” the defendant, so he “slow[ed] down from snagging [the defendant] and [the defendant] opened [the] car door and gets in the car.” The three returned to Mr. Hargrove's house, and Mr. Hargrove removed the gun from Mr. Delancy's car. Mr. Delancy said that he spoke briefly with Mr. Hargrove's mother and then left.
Mr. Delancy recalled that at some later date, Mr. Hargrove called Mr. Delancy and said, “[Y]ou need to come over to my house and you need to get this story together so what I said to the detectives and what you're going to say to the detectives hopefully coincides together and doesn't make it look like he was leaving anything out of his story.” According to Mr. Delancy, Mr. Hargrove also told Mr. Delancy to tell police that they did not pick the defendant up after the shooting.
During cross-examination, Mr. Delancy admitted that he lied to police in his first two statements and only changed his story one month before the defendant's case was scheduled to go to trial. Mr. Delancy described the defendant as “a ...

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