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Nolan v. Holloway

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

August 8, 2017

DAMEION NOLAN, Petitioner,



          REEVES JUDGE

         This is a pro se prisoner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1]. Respondent filed a response in opposition thereto, as well as a copy of the state record [Docs. 11 and 12]. For the reasons set forth below, Petitioner's § 2254 petition [Doc. 1] will be DENIED and this action will be DISMISSED.


         On July 28, 2008, Petitioner signed a “waiver of trial by jury and request for acceptance of plea of guilty” for five counts of especially aggravated kidnapping, three counts of aggravated rape, and two counts of burglary [State Court Record Attachment 3, Exhibit 2 to transcript of hearing on petition for post-conviction relief]. Petitioner did not appeal the resulting convictions, but did file a petition for post-conviction relief, which the post-conviction court denied [State Court Record p. 105-110]. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed this denial. Nolan v. State, No. E2012-0429-CCA-R3-PC, 2013 WL 335333, at *8 (Tenn. Crim. App. June 28, 2013), perm. app. denied (Tenn. Feb. 12, 2014).


         The following factual background is taken from the TCCA's opinion on Petitioner's appeal of the denial of his petition for post-conviction relief:

At the July 28, 2008, guilty plea hearing, the State explained to the trial court the factual basis for the pleas. The State said that shortly after 1:00 a.m. on June 3, 2007, the petitioner and his two codefendants, Shavon Page and Michael McMahan, entered the Knox County residence of the victims, W.P. and T.P., by forcing open the rear, basement door of the residence. All three defendants, armed with handguns, went into the victims' bedroom where they were sleeping. As the victims began to awaken, one of the defendants “pistol whipped” W.P. At gunpoint, the defendants made T.P. remove her clothing and ordered both victims to lie down on the floor. The defendants bound the victims with belts and other items from the victims' bedroom. The defendants took the jewelry that was in the bedroom, removed T.P.'s wedding ring from her finger, and demanded to know where the victims kept their money. W.P. revealed that his credit cards were in his downstairs office. After two defendants took W.P. downstairs, he gave them the cards and the pin number for one of the cards. The two defendants put W.P.'s collection of state quarters, which had an approximate value of $3, 000, in one of W.P.'s camera bags and took the bag with them.
While the two defendants and W.P. were downstairs, the defendant with T.P. forced her at gunpoint to perform fellatio on him. When the two defendants and W.P. returned to the bedroom, the defendants made W.P. lie on the floor and watch as they forced T.P. to perform fellatio on all three defendants. The petitioner's co-defendants also attempted to vaginally rape T.P. T.P. became nauseous after the rapes, and the defendants threatened to shoot her if she vomited. The defendants took T.P. downstairs at gunpoint and made her turn off the power to the residence's surveillance camera. During the incident, the defendants repeatedly threatened that if the victims “move[d] or talk[ed], . . . [the defendants] would blow [the victims'] heads off.”
Shortly before 4:00 a.m., the defendants left the residence by a patio door and got into an awaiting car. At 4:04 a.m., a security camera at the SunTrust Bank on Cedar Bluff Road recorded the petitioner in a car with at least two other individuals, using the victim's ATM card to withdraw $500 in cash.
Greg Faulkner of the Knox County Sheriff's Office later spoke with the petitioner, and the petitioner revealed the names of his co-defendants, Page and McMahan. Police searched the car the petitioner was driving and found the victims' jewelry in the glove compartment. On June 5, 2007, McMahan's mother, Tracie Bennet, went to Charlie's Pawn Shop on Kingston Pike, where she pawned a diamond heart-shaped pendant that belonged to T.P. DNA testing of samples from the defendants were compared with swabs taken from the victim during a rape kit, revealing sperm from Page and McMahan.
The petitioner entered guilty pleas to five counts of especially aggravated kidnapping and three counts of aggravated rape, Class A felonies, and for each conviction received a twenty-five-year sentence to be served at one hundred percent. The petitioner also pled guilty to two counts of aggravated robbery, a Class B felony, and was sentenced as a Range I, standard offender to twelve years, with release eligibility after serving thirty percent of the sentence in confinement. Finally, the petitioner pled guilty to one count of aggravated burglary, a Class C felony, and received a six-year sentence as a Range I, standard offender, with release eligibility after serving thirty percent of the sentence. The trial court ordered the sentences to be served concurrently, for a total effective sentence of twenty-five years at one hundred percent.
On June 4, 2009, the petitioner, acting pro se, filed a petition for post-conviction relief, and amended the petition on June 26, 2009. Thereafter, counsel was appointed, and four additional amended petitions were filed. On January 27, 2012, the post-conviction court held an evidentiary hearing on the petitions.
Before the petitioner testified at the hearing, post-conviction counsel asked that trial counsel be excluded from the courtroom during the petitioner's testimony based upon Tennessee Rule of Evidence 615, which governs the sequestration of witnesses. The State responded, “No, I'm asking him to stay. I think he's-he's the State's designated witness under the rule. He's the complained on lawyer, I think he's entitled to hear what the complaints are and respond to them.” The post-conviction court overruled the petitioner's motion.
The twenty-two-year-old petitioner testified that he was seventeen years old when he was arrested. He said that he was never informed that he would be transferred from juvenile court to criminal court. He said that he did not want a preliminary hearing or transfer hearing in juvenile court because his main goal was to be released on bond.
The petitioner said that he met with trial counsel “[a] few times, a couple of times, maybe a handful or less than a handful of times” and that they discussed the facts of the case. During a meeting at the county jail on June 26, 2008, trial counsel advised the petitioner of a plea offer that would require him to serve twenty-five years in confinement. Counsel said that “due to some law or something, ” the petitioner would have to serve only seventeen years. The petitioner agreed to accept the plea. The petitioner asserted that trial counsel never advised the petitioner that he would be subject to community supervision for life or that he would be placed on the sexual offender registry.
The petitioner said that his guilty plea hearing took place on June 28, 2008, and that he signed the written plea agreement the same day. The written plea agreement did not include the provision that the petitioner was subject to community supervision for life or that he would be placed on the sexual offender registry.
The petitioner asserted that he would not have pled guilty had he known of the lifetime community supervision requirement. He had believed that after completing his term of incarceration, he “would be done with this case.” The petitioner said that after his guilty pleas, he sent trial counsel a letter saying that he was not ...

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