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Sanders v. Ford

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

September 6, 2017

TERRY DONELLE SANDERS #205630, Petitioner,
v.
TAMMY FORD, Respondent.

          MEMORANDUM

          Victoria A. Roberts United States District Judge.

         Petitioner Terry Donelle Sanders has filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas corpus. (ECF No. 1.) Respondent has filed an answer, along with portions of the state court record. (ECF Nos. 28, 29.) For the reasons set forth below, the petition will be denied.

         I. BACKGROUND AND PROCEDURAL HISTORY

         After his first trial ended in a mistrial, [1] Petitioner was retried, and a Houston County jury convicted him on January 14, 2010, of two counts of sale of less than .5 grams of cocaine. (ECF No. 28-1, at 47, 48.). The trial court imposed a sentence of 15 years in prison on each count, to be served consecutively, for a total effective sentence of 30 years. (Id.) Petitioner appealed, raising three grounds for relief: (1) the trial court should have granted his motion for mistrial after a prosecution witness testified that Petitioner was on community corrections at the time of the cocaine sales; (2) the trial court should have granted his motion for new trial based on a juror's familial relationship with the district director of community corrections; and (3) his right to a fair trial was violated by the same juror's attorney-client relationship with defense counsel. (ECF No. 28-9.) The Tennessee Court of Criminal Appeals (TCCA) affirmed (id.), and the Tennessee Supreme Court denied permission to appeal. (ECF No. 28-11.)

         Petitioner filed a pro se petition for state post-conviction relief, in which he raised three claims of ineffective assistance of trial counsel [IATC], and one claim of ineffective assistance of appellate counsel: (1) trial counsel was ineffective for failing to communicate or discuss trial strategy with Petitioner before trial; (2) trial counsel was ineffective during trial for failing to move to suppress evidence, for failing to move the judge to recuse himself, and for allowing his client and the sister of Petitioner's “correctional officer” to serve on the jury; (3) trial counsel was ineffective with regard to the motion for new trial for failing to amend the written motion to include the issue about the juror; and (4) appellate counsel was ineffective for failing to raise claims of insufficient evidence, excessive sentencing, “and other important issues.” (ECF No. 28-12, at 3-12.) Counsel was appointed and filed an amended petition that alleged nine IATC claims:

a. Trial Counsel failed to adequately conduct any meaningful pre-trial investigation.
b. Trial Counsel failed to adequately communicate with Petitioner in preparation for trial.
c. Trial Counsel failed to properly and thoroughly voir dire the jury panel, resulting in a petit jury that was unconstitutionally selected and impaneled.
d. Trial Counsel neglected to request the recusal of the trial Judge, who had on several occasions both prosecuted and presided over criminal proceedings against the Petitioner.
e. In inducing and/or allowing certain testimony to be heard by the petit jury, both Trial Counsel and the trial Judge failed to provide the Petitioner with due process of the law.
f. Trial Counsel failed to properly and thoroughly investigate the biases and deliberative behaviors of the improperly seated jurors post-trial.
g. Trial Counsel failed to suitably review and perfect the record for transmission to the court of criminal appeals.
h. Trial Counsel did not ensure that the Petitioner received and was able to review the pre-sentence report before its introduction to the Court.
i. The Petitioner was sentenced to an enhanced range, which was founded upon constitutionally infirm convictions, prior pre-sentence reports and judgments, and therefore the sentencing range is voidable.

(ECF No. 28-12, at 19-20.) The state court held an evidentiary hearing and denied post-conviction relief. (ECF No. 28-12, at 27-61.) The TCCA affirmed, and the state supreme court denied permission to appeal. (ECF Nos. 28-20, 28-23.)

         There is no dispute about the timeliness of the current petition.

         II. STATEMENT OF FACTS

         The TCCA summarized the facts of the case as follows:

The defendant was the subject of a drug investigation in which police sent a confidential informant to buy crack cocaine from the defendant at his home. The defendant was on house arrest at the time as part of his participation in a community corrections program. The confidential informant was wired for sound and video at a location close to the defendant's residence and then drove to the defendant's residence to buy the drugs. The confidential informant was furnished with $60 on one occasion and $40 on another occasion to use in the purchase of the drugs, and he received $100 on each occasion as payment for his participation. The confidential informant received payment only if he was successful in purchasing drugs from the defendant. On the occasion of the first drug purchase, a police officer followed the informant to a location close to the defendant's house, but did not follow him down the defendant's street because it was a dead end and the officer did not want to raise suspicions regarding the informant. The informant testified that, on the way, he made a telephone call to the defendant to let him know he was coming to purchase drugs. The informant and his vehicle were searched before and after both purchases. At trial, the police officer who had conducted the search acknowledged that an object the size of the rocks of cocaine which the confidential informant turned over to police would not necessarily be found in the type of search conducted on the informant.
Although the informant was wired for video and sound, the video equipment malfunctioned during the second purchase. The remaining video did not capture any image of the defendant during the purchase, and neither audio recording captured the defendant saying anything. The confidential informant testified that, on the occasion of the first purchase, he arrived and told the defendant he had the money. “At that point in time he told me-put his finger up to his mouth telling me that I needed to be quiet and pointed down towards his ankle.” At the commencement of the trial, the trial court noted outside the jury's presence that this testimony had previously been ruled admissible, but the court would not allow the informant to mention that the defendant was on community corrections at the time. The defense objected to the admission of the testimony that the defendant pointed to his ankle but did not challenge it in the motion for a new trial. The informant testified he did not say anything further after the defendant pointed to his ankle and did not speak during the subsequent buy because the defendant had shushed him on the first occasion. The informant acknowledged that in the second audio recording, his knocking on the defendant's door was also not audible. The informant was cross-examined regarding the fact that in the recording, the informant did not mention to police that the defendant had pointed to his ankle, but instead stated that the defendant had indicated he should be quiet and speculated that the defendant had company.
During the vigorous cross-examination, the confidential informant referred to the defendant's participation in the community corrections program:
Q. Okay.
Now if you didn't call Terry Sanders until you were on your way and there was no discussion of the amount of drugs to be bought or the amount of money you were going to take, how much money did you know to take or to ask the agents for?
A. That was just a decision that was made-once I met up with [the police officer], he made a decision as to how much to carry and that's what we carried.
Q. So [the defendant] would have no idea of knowing how much money you're coming with or how much crack cocaine he needed to have ready for you.
A. Correct.
Q. You just showed up and that's the way it went down.
A. Yes, sir.
Q. That's the way a professional drug buyer does it, he just shows up, doesn't set up anything ahead of time.
A. Because you don't call and set things like that up ahead of time.
Q. You don't?
A. You might call them and let them know that you're on your way and that's it.
Q. With no phone call ahead of time to even know that he was home.
A. [The defendant] had to be home.
Q. He had to be home?
A. He was on community corrections.
The defendant moved for a mistrial, and the court denied the motion, finding that “[y]ou didn't sling the door wide open but you sort of cracked it.” After a recess, the court gave a curative instruction, admonishing the jury that although the witness had mentioned community corrections, the jury was “to disregard that and ... not consider that at all for any reason in ... deliberations.” The jury found the defendant guilty on both counts.

State v. Sanders, No. M2011-00426-CCA-R3CD, 2012 WL 5948885, at *1-2 (Tenn. Crim. App. Nov. 15, 2012).

         III. ISSUES PRESENTED FOR REVIEW

         Petitioner raises three claims for relief:

1. The trial court erred in failing to declare a mistrial. (ECF No. 1, at 5; ECF No. 1-2, at 1.)
2. Trial counsel was ineffective for the following reasons (ECF No. 1-2, at 3-15):
1) Trial Counsel failed to adequately conduct any meaningful pre-trial investigation.
2) Trial Counsel failed to adequately communicate with Petitioner in preparation for trial.
3) Trial Counsel failed to properly and thoroughly voir dire the jury panel, resulting in a petit jury that was unconstitutionally selected and impaneled.
4) Trial Counsel neglected to request the recusal of the trial Judge, who had on several occasions both prosecuted and presided over criminal proceedings against the Petitioner.
5) In inducing and/or allowing certain testimony to be heard by the petit jury, both Trial Counsel and the trial Judge failed to provide the Petitioner with due process of the law.
6) Trial Counsel failed to properly and thoroughly investigate the biases and deliberative behaviors of the improperly seated jurors post-trial.
7) Trial Counsel failed to suitably review and perfect the record for transmission to the ...

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