United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2254 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD
NOT BE TAKIN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN
THOMAS ANDERSON UNITED STATES DISTRICT JUDGE
Small, a Tennessee state prisoner, has filed a petition under
28 U.S.C. § 2254 seeking habeas corpus relief. (Pet.,
ECF No. 1.) For the reasons that follow, the petition is
following background summary is drawn from the state court
record (Index, ECF No. 15) and the state appellate
court's recitation of the evidence at Small's trial.
See State v. Small, No. W2010-00470-CCA-R3-CD, 2011
WL 1137061, at *1 (Tenn. Crim. App. Mar. 28, 2011), perm.
appeal denied (Tenn. July 15, 2011).
was indicted on two charges of aggravated robbery in
connection with an incident at a Shop-N-Go store in Memphis,
Tennessee. (Indict., ECF No. 15-1 at 4-6.) At his trial, the
store's cashier, Rita Pafford, testified that two men
entered the store on the morning of April 13, 2000, and asked
for some meat from the deli. As Pafford placed the meat on
the counter, the shorter and more heavy-set of the two men
pointed a long black gun at her forehead. He then pointed the
gun at the back of her head and ordered her to open the cash
register and hand him the store's surveillance video. She
complied. The man also took a gun belonging to Pafford's
son-in-law. He then forced the cashier to the back of the
store. After a short while, Pafford went to the front of the
store, pressed a panic button, and waited for the police to
arrive. She spoke to the police about what had happened but
could not identify the man who had pointed the gun at her
when shown a photographic lineup.
Young testified that, on April 13, 2000, as she was about to
enter the Shop-N-Go, she saw two men exiting the store. She
was about ten feet from the men, and noticed that one of them
had a long gun inside his coat and money in his coat and
clothes pockets. After the men left, Young called the police
and then entered the store to talk to Pafford. On April 20,
2000, Young picked-out Small from a photographic lineup as
the man she saw leaving the store with a gun and money. At
trial, Young identified Small as the same individual.
lead detective on the case, Colonel Jeff Clark of the Memphis
Police Department, testified that he interviewed Small on
April 20, 2000. Small signed a written statement confessing
that he had held the cashier at gunpoint during the robbery.
The detective stated that he never said anything to Small
during the interview suggesting that a confession would lead
to a more lenient sentence.
testified that he did not have any involvement in the
robbery, despite his confession. He stated that he signed the
confession after the police threatened him and promised him
an eight-year sentence.
was convicted on both counts of aggravated robbery. The trial
court merged the convictions and sentenced the defendant to
twenty years imprisonment, consecutive to his effective
sentence of forty years for three previous convictions for
aggravated robbery. The TCCA affirmed the convictions and
sentence, and the Tennessee Supreme Court denied permission
to appeal. Small, 2011 WL 1137061, at *1.
September 28, 2011, Small filed a pro se petition
for post-conviction relief (P-C Pet., ECF No. 15-10 at
13-25), which was later amended through appointed counsel
(Am. P-C Pet., ECF No. 15-10 at 25-37). The post-conviction
court held an evidentiary hearing and denied the petition.
(P-C Order, ECF No. 15-10 at 41-48.) The TCCA affirmed, and
the Tennessee Supreme Court denied permission to appeal.
Small v. State, No. W2012-02101-CCA-R3-PC, 2014 WL
60966, at *1 (Tenn. Crim. App. Jan. 7, 2014), perm app.
denied (Tenn. Jan. 7, 2014).
Federal Habeas Petition
September 22, 2014, Small filed his pro se § 2254
petition, in which he raises three claims:
Claim 1: Petitioner was denied the effective assistance of
trial counsel (Pet., ECF No. 1);
Claim 2: The proof at trial was insufficient to support the
convictions (id. at 11);
Claim 3: The trial court erred by imposing consecutive
sentences (id. at 19).
February 20, 2015, Respondent filed its answer to the amended
petition. (Ans., ECF No. 14.) Respondent argues that Claim 1
is without merit, Claim 2 is procedurally defaulted, and
Claim 3 is non-cognizable. (Id. at 3-5.) Petitioner
filed a reply on April 27, 2015, in which he opposes
Respondent's arguments. (Reply, ECF No. 19.)
statutory authority for federal courts to issue habeas corpus
relief for persons in state custody is provided by §
2254, as amended by the AEDPA. See 28 U.S.C. §
2254. Under § 2254, habeas relief is available only if
the prisoner is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). A § 2254 claim challenging the
petitioner's custody or sentence on state-law grounds
thus fails to state a federal habeas claim. Moreland v.
Bradshaw, 699 F.3d 908, 926 (6th Cir. 2012) ...