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Robinson v. Phillips

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

August 17, 2017



         This is a pro se prisoner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1]. Petitioner also filed a memorandum in support of his § 2254 petition [Doc. 2]. Respondent filed a response in opposition thereto, as well as a copy of the state record [Docs. 14 and 16]. Petitioner filed a reply [Doc. 19]. Petitioner has also filed a motion to ascertain status of the case [Doc. 24] that will be GRANTED to the extent that this memorandum opinion and an order will enter. For the reasons set forth below, however, the Court determines that no evidentiary hearing is warranted in this case, Petitioner's § 2254 petition [Doc. 1] will be DENIED, and this action will be DISMISSED.


         On June 23, 2011, Petitioner entered a plea of guilty to a charge of second-degree murder [State Court Record, Exhibits 1 and 2 to Post-Conviction Hearing]. Petitioner did not appeal the resulting conviction, but did file a petition for post-conviction relief raising claims of ineffective assistance of counsel based on counsel's (1) failure to move for a change of venue, recusal of Sevier County judges, and disqualification of prosecutors; (2) failure to fully investigate the case;

         (3) failure to inform Petitioner of the defense of necessity; (4) failure to inform Petitioner of a police/prosecution fabrication defense [State Court Record p. 48-75]; and (5) failure to inform Petitioner of all of the essential elements of the relevant offenses prior to his guilty plea [State Court Record, Amendment to Petition for Post-Conviction Relief]. Petitioner also raised claims based on allegations of suppression of exculpatory evidence and an allegation that his guilty plea was not knowing and voluntary due to the alleged ineffective assistance of counsel and/or judicial and prosecutorial misconduct [Id. at 75-88]. The state post-conviction court denied relief [State Court Record p. 121].

         Petitioner appealed this denial to the Tennessee Court of Criminal Appeals (“TCCA”), raising claims for ineffective assistance of counsel based on allegations that counsel (1) raised a dishonest defense; (2) failed to prepare for trial; and (3) coerced Petitioner into a guilty plea [Id., Brief of Appellant p. 4]. Petitioner also raised a claim that the post-conviction court erred by finding that Petitioner's guilty plea was made intelligent and voluntarily [Id.].[1] The TCCA affirmed the post-conviction court's denial of relief. Robinson v. State, No. E2013-01163-CCA-R3-PC, 2014 WL 1285502, at *7-9 (Tenn. Crim. App. March 31, 2015), perm. app. denied (Tenn. Aug. 26, 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:

The Petitioner pleaded guilty on June 23, 2011, to second[-]degree murder as a lesser included offense to the charged offense of first
degree premeditated murder. At the plea hearing, the State set forth the factual basis for the plea as follows:
[T]he facts in this case the State would expect to prove are the following, first through Leah Brackins, the mother of the victim, James Jason Hicks.
He was born in 1979 and grew up and in 2003 met Wendy Robinson, the [Petitioner's] daughter.
Thereafter, he and Wendy had . . . three children. Ethan, born August 24, 2005, Samuel and Jake are twins born April 9, 2007.
Subsequently, there was an order of protection filed by Ms. Robinson against the victim. Subsequently he filed a divorce. That case was pending and was a hotly contested divorce and custody dispute. That case was proceeding in both this court and the juvenile court until April 8 and 9 of 2009 when Judge Strand ordered that the victim, who had been separated from his children would be given the right to start . . . visitation.
Thereafter, on April 19, according to the testimony of Ms. Brackins-well, actually on the 20th, she had went [sic] to her son's house and found him killed in his carport and driveway.
Thereafter, Detectives Brown and Bush, along with Lieutenant Hinson of the Sevierville Police Department conducted an investigation. During the course of their investigation the body was autopsied. Dr. Steven Cogswell, who was the medical examiner at UT Hospital would testify that the victim died from three gunshot wounds to the head, two on the right side and one on the back left.
The detectives investigated. They were able to locate several witnesses, including Marlene Forrester, and she would testify that the [Petitioner] made statements that he intended to ensure that the children would never see their father again. Allen Adams and Don McFalls would further testify that [the Petitioner] made statements along those lines. Mr. McFalls discovered a gun on the morning of April 20th in his car and it was arranged that that would be destroyed by him and that was in fact done and that would be his immunized testimony in this case.
The detectives located projectiles, or a projectile. That was tested and compared with the projectiles found in the victim, and they matched.
Taking all this information, the detectives were able to locate [the Petitioner]. [The Petitioner] made statements to them after being Mirandized implicating himself in this killing. As the Court is aware from a motions hearing, he stated his reasons for doing that.
At the evidentiary hearing on the Petitioner's claim for post-conviction relief, the Petitioner testified that he retained trial counsel to assist him in defending against the first[-]degree murder charge that the State brought against him. He retained trial counsel no more than two months prior to the scheduled trial date. He thought they met approximately five times. After the first several meetings, trial counsel claimed to have developed “a strategy that was not going to fail.” The Petitioner testified that trial counsel wanted to conduct the case in a manner so as to allow the jury to conclude that the Petitioner's daughter had shot and killed the victim. The Petitioner refused to cooperate with this strategy “because it was not true.” The Petitioner also was dissatisfied with trial counsel's attitude about the abuse that the Petitioner claimed that the victim had inflicted on the Petitioner's grandchild.
The Petitioner testified that, about six days before trial, there was a hearing that impacted negatively the Petitioner's defense of necessity. After the hearing, trial counsel told the Petitioner that he would have to take a plea bargain or he would “never get out of prison.” Subsequently, they went to court, and the Petitioner signed the plea agreement at the podium. The Petitioner did not recall reviewing the agreement with trial counsel prior to signing it. The Petitioner did not recall trial counsel's explaining second[-]degree murder to him. He testified that trial counsel “always told me it [the facts of the case as related by the Petitioner] rose at best to manslaughter, two to six years.” However, trial counsel did not explain the elements of manslaughter to the Petitioner, either.
The Petitioner recalled telling trial counsel that, right before the Petitioner killed the victim, the Petitioner's grandson asked him “if he would have to put [the victim's] pee-pee in his mouth again.” According to the Petitioner, trial counsel's response to this reported conversation was, “that's too F-ing pat.” On cross-examination, the Petitioner acknowledged that he was not indicted and arrested for the killing of the victim until almost one year after he killed the victim. In the meantime, he had told the police that “there might be some bikers that had it out for” the victim. Ultimately, however, he confessed to the killing.
The Petitioner stated that he was sixty-seven years old at the time he entered his plea. He knew at the time he went to court on the day of the plea that he was going to plead guilty to second[-]degree murder and that he was going to be sentenced to seventeen and one-half years. He knew that he would be going to prison that day. He did not remember any specifics from the plea hearing because he was “in a fog.” Crystal Piarrot testified that, during the State's prosecution of the Petitioner, she had been employed with the Department of Children's Services (“DCS”) as a child protective services investigator. She investigated a matter involving a child that was relevant to the Petitioner's prosecution. Trial counsel did not interview her.
On cross-examination, Piarrot stated that the victim was never charged with a crime.
On re-direct examination, she stated that a detective had been assigned to the case to determine if the victim ...

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