United States District Court, E.D. Tennessee
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
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]. Petitioner filed a reply
[Doc. 18]. Petitioner has also filed a motion to ascertain
status of the case [Doc. 20] that will be
GRANTED to the extent that this memorandum
opinion and a judgment order will enter and Respondent filed
a motion to substitute attorney [Doc. 21] that will be
GRANTED for good cause shown therein. For
the reasons set forth below, however, Petitioner's §
2254 petition [Doc. 1] will be DENIED and
this action will be DISMISSED WITH
October 26, 2007, a Hamilton County jury found Petitioner
guilty of two counts of first degree murder and one count of
especially aggravated robbery [State Court Record, Attachment
1 p. 101');">1 p. 101]. Petitioner appealed this conviction, raising only
the argument that the trial court should have suppressed his
statement to police, as Petitioner asserted that the
statement violated his Fifth Amendment right against
self-incrimination because he had invoked his right to
counsel before giving the statement. State v. Nash,
No. E2008-00951-CCA-R3-CD, 2009 WL 2461178, at *1 (Tenn.
Crim. App. Aug. 12, 2009), perm. app. denied (Tenn.
Jan 25, 2010). The Tennessee Court of Criminal Appeals
(“TCCA”) confirmed Petitioner's conviction.
Id. at 5.
later filed a petition for post-conviction relief and an
eighty-four page memorandum in support thereof, which the
state post-conviction court denied [State Court Record
Attachment 18 p. 2-86]. In his appeal of this denial,
Petitioner argued that trial counsel was ineffective for
failing to pursue suppression of Petitioner's statement,
not objecting to certain statements during the
prosecution's closing argument, and failing to develop
duress as a defense for Petitioner. Nash v. State, No.
E2012-02511-CCA-R3, 2013 WL 5314599, at *5-8 (Tenn. Crim.
App. Sept. 20, 2013), perm. app. denied (Tenn. Feb.
12, 2014). The TCCA affirmed the post-conviction court's
denial of relief. Id. at *8.
following factual background is taken from the TCCA's
opinion on direct appeal of Petitioner's conviction and
it is limited only to the issue raised therein:
hearing on the defendant's first motion to suppress,
Detective Ralph Kenneth Freeman with the Chattanooga Police
Department testified that on February 25, 2006, he was
investigating both Ms. Brown's death and another robbery
and that the defendant's “name came up” in
connection with both offenses. The defendant's father
told Detective Freeman where the defendant would be found;
after Detective Freeman found the defendant, he transported
the defendant to the police station. The two men spoke on the
way to the station, but they did not talk about either of the
thirty to forty-five minutes after the defendant arrived at
the police station, Detective Freeman and Detective Joe Shaw
interviewed the defendant. The interview began, in pertinent
part, as follows:
[DET. FREEMAN]: Charles, before I ask you any questions[, ]
you must understand your rights:
[Reading from the rights waiver form:] You have the
right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to an [sic] lawyer
for advice before we ask you any questions and to
have him or her with you during questioning.
If you cannot afford a lawyer one will be appointed for
you before any questioning if you wish.
If you decide to answer questions now without a lawyer
present you will still have the right to stop
answering questions at any time.
You also have the right to stop answering questions at
any time until you talk to a lawyer.
Do you understand your rights? Can you read and write?
Answer yes for me if ... if you understand your rights.
[DET. FREEMAN]: Okay, can you read and write?
[DET. FREEMAN]: What's your education Charles?
[DEFENDANT]: Hmm, two (2) years of college.
[DET. FREEMAN]: Two (2) years of college. Here's the
rights waiver form showing you, just read over that like I
just read it and if you want to talk to me just initial
every place right there and then sign and date it right
[DET. FREEMAN]: I explained to you also that we were gonna
fingerprint you and take your pictures and stuff like that,
right? Okay. And you stated that you would like to do that
first? Or do you want to continue with this right now?
[DET. SHAW]: Hey, I want to go to the john first.
[DET. FREEMAN]: Okay. Hold on just a second, let me see if
he's gonna sign that Rights Waiver Form.
[DEFENDANT]: Is it ... uh ... it ain't possible that I
could have a lawyer?
[DET. FREEMAN]: Yeah, That's ... and if you want to
answer some questions now you can always get a lawyer then
or now, whatever, just like what it's saying here but
if you want to start talking and then if you decide if you
want to stop that's fine too.
[DEFENDANT]: I just want to get on tape that I ain't
kill that lady.
[DET. FREEMAN]: Okay. Well, I would like for you to initial
and ... and then sign first.
[DEFENDANT]: Uh ...
[DET. SHAW]: The way ... the way this law works, it's
called the Miranda Law, okay.
[DEFENDANT]: Uh-hum (yes).
[DET. SHAW]: This guy that got arrested ... he confessed to
a crime and then when it came time for court he said well I
didn't know I didn't have to say anything so
that's why they make us read this to you now.
[DET. SHAW]: Just so you understand that basically you
don't have to answer every question that we ask you.
You can answer some of them and not others. You don't
have to answer any questions if you don't want but if
you want to answer some of them and not others or if you
want to tell your side of the story and not answer any
questions you can do that too. But before we can listen to
you or anything else you have to sign saying you understand
what your rights are and you're willing to speak about
it even if it's just to tell your side of the story and
not to answer questions that's your ... prerogative.
defendant then signed the rights waiver form and spoke with
police. During the interview, he admitted his involvement in
the robbery and shooting at the convenience store.
cross-examination, Detective Freeman testified that he did
not interpret the defendant's comment, “it
ain't possible that I could have a lawyer, ” as an
indication that the defendant did not understand his rights.
He also claimed that the defendant said that he understood
his rights. Furthermore, Detective Freeman said that
Detective Shaw's statement, “before we can listen
to you or anything else you have to sign, ” did not
mean that the defendant had to sign the form even if he did
not wish to waive his rights. Detective Freeman said that the
defendant “didn't indicate to me that he wanted a
lawyer at that time, he indicated to me he wanted to answer
questions without a lawyer.” The detective said that
had the defendant requested counsel, the interview would have
conclusion of the first suppression hearing, the trial court
denied the defendant's motion. Although the defendant did
not argue during the first suppression hearing that he
unequivocally requested counsel, the trial court commented
that the defendant's statement regarding a lawyer
“certainly does look equivocal, because it does look
like Detective Freeman and Detective Shaw did make it clear
to him that he didn't have to answer anything.” In
its written order denying the defendant's second motion
to suppress, the trial court stated,
Clearly the defendant ... did not make an unequivocal request
for an attorney as is required under the United States and
Tennessee Constitutions and as such the Chattanooga Police
[o]fficers were free to continue to talk to him and any
subsequent statement given by the defendant, Charles Nash,
was freely and voluntarily given.
State v. Nash, 2009 WL at *1-3.
following factual background is taken from the TCCA's
opinion on appeal of Petitioner's petition for
convicted the Petitioner of first degree murder and
especially aggravated robbery in October 2007. These charges
arose out of the Petitioner's February 2006 armed robbery
of the Okie Dokie Market in Chattanooga in which the clerk
was shot and killed. The trial court sentenced the Petitioner
to life imprisonment for the murder conviction and to a
concurrent term of twenty-five years for the especially
aggravated robbery conviction. This Court affirmed the
Petitioner's convictions and sentence on direct appeal.
See State v. Charles Nash, No.
E2008-00951-CCA-R3-CD, 2009 WL 2461178, at *5 (Tenn.Crim.App.
Aug.12, 2009), perm. app. denied (Tenn. Mar. 1,
the direct appeal addressed only the trial court's denial
of the Petitioner's motion to suppress, this Court's
opinion does not contain a summary of the proof adduced at
trial. The record of the trial is before us, however, and
contains the Petitioner's statement to the police, which
was admitted into evidence. The Petitioner explained that he
robbed the store because a drug dealer had threatened to kill
his grandmother if the Petitioner did not pay him $10, 000.
During the robbery, he placed his gun on the store counter,
and the clerk “tried to grab it.” The Petitioner
stated that the gun then “started going off, ”
and he asserted that he “didn't even know the gun
was loaded.” The Petitioner thought the gun fired
twice. He stated that he had had no intention of harming the
clerk but that he just intended to rob the store. The record
also includes testimony by Dr. Amy McMaster, who performed
the autopsy on the store clerk shooting victim. Dr. McMaster
testified that the victim had died as the result of multiple
gunshot wounds: three that entered her back, one that entered
her abdomen, and one that entered her left elbow. The three
gunshots that entered the victim's back were fatal
wounds. After his convictions were affirmed on direct appeal,
the Petitioner filed the instant petition for post-conviction
relief in August 2010. At the ensuing evidentiary hearing,
the following proof was adduced:
Petitioner's trial counsel (“Counsel”)
testified that he was licensed to practice law in both
Tennessee and Georgia and that his practice consisted of
“insurance defense litigation, business litigation and
criminal defense work.” As of the time of the hearing
in 2012, he had been licensed for twenty years. At the time
he was appointed to represent the Petitioner, he had
participated in over one hundred trials.
was appointed to represent the Petitioner after the
Petitioner developed a disagreement with his initial lawyer.
Counsel obtained the Petitioner's file, including
discovery, and gave copies of everything to the Petitioner to
review while the Petitioner was in custody.
recalled that the Petitioner claimed to have committed the
robbery in order to repay a debt. However, Counsel
“never got to the point of being able to establish that
as a factual matter.” Counsel also was concerned that
the debt resulted from illegal conduct, information which
might prove harmful to the Petitioner's case in the
cross-examination, Counsel acknowledged that the
Petitioner's statement to the police was
“damning” and stated that it “dictated
everything [they] did at trial.” For that reason, he
filed a motion to suppress, which was the second motion to
suppress because the Petitioner's initial lawyer also had
filed a motion to suppress. Counsel raised as grounds for
suppression that, during the custodial interrogation, the
Petitioner had requested counsel, but the interrogation
nevertheless had continued.
stated that he was familiar with the United States Supreme
Court case that ruled unconstitutional the police practice of
interrogating suspects in custody before issuing
Miranda warnings and then, after issuing the
Miranda warnings, obtaining a second incriminating
statement. Counsel also was aware that this practice had been
used by the local police department. Counsel did not recall
the Petitioner telling him that he had been interrogated
while in custody before being given his
Miranda warnings. Counsel testified, “it would
shock me that [the Petitioner] had discussed a fact scenario
just like that one in the Supreme Court and I had just walked
away from it. It would shock me.” Counsel added,
“I can't believe I would have had that conversation
and not taken note of that issue.” Counsel explained
that he was well aware of this issue because another police
officer “does exactly that.” Later in his
testimony, Counsel reiterated, “I don't recall [the
Petitioner] ever having discussion with me about him giving
an inculpatory statement on the way to the police station, an
un-Mirandized [statement].” Counsel acknowledged such a
discussion could have occurred but asserted, “I was
aware of the issue at the time and it boggles my mind to
believe that I would have been told that and ignored the
agreed that the prosecutor's argument to the jury that it
was “time to tell [the Petitioner] that, [they], as a
community, are not going tolerate this kind of
behavior” was objectionable. Counsel also agreed that
the prosecutor's argument that it was time for the jury
“to tell [the Petitioner] that he is a murderer and a
robber, the voice of this county, Hamilton County, the voice
of St. Elmo, these actions are against the law and
unacceptable” was objectionable. Counsel agreed that
argument aimed at inflaming the jury was improper. Counsel
acknowledged that he did not raise many objections during the
prosecutor's closing argument, explaining that he was
“more conservative with [his] objections than a lot of
other criminal lawyers.” Asked about other specific
statements the prosecutor made during closing arguments,
You know, these things, you deal with them as you hear them.
You hear it, you figure out what you think you need to do
about it, how you can deal with it most effectively. In each
instance, I dealt with what I heard in the way that I felt I
was being most effective in his case.
agreed that he began the defense's closing argument
“by pointing out that the [prosecution's] attempt
to elicit emotion showed holes in the State's
case.” Counsel stated that the defense strategy was to
pursue a conviction of a lesser-included offense of first
degree murder. He recalled discussing the potential defense
of duress with the Petitioner. He anticipated proof of the
Petitioner's claim that he committed the crime in
response to threats to be admitted through the
Petitioner's statement. He was not aware of other proof
available to substantiate the Petitioner's claim. He did
not recall discussing with the Petitioner the possibility of
hiring a defense expert to “explicate to the jury how
drug dealers operate when they've been ripped off or some
of the power dynamics and potential threats relating to
ripping off drug dealers.” Counsel explained, “I
understood what [the Petitioner] was saying and I understood
what he wanted the jury to hear, but the fact of the matter
is that as a legal defense, he wasn't close to
duress.” Counsel added, “I was not going to put
myself in a position of establishing his role as a drug
dealer by calling witnesses to that effect to present a
legally unsustainable defense.” Counsel testified that
he did not request a jury instruction on duress because
“[t]here was not factual proof in the record to support
duress and [he] didn't introduce proof to support duress
because it couldn't be legally supported.” As to
the elements of the duress defense, Counsel stated,
“There certainly wasn't an immediate threat.”
Petitioner testified that, after he determined to turn
himself in, he was picked up by Detective Freeman in an
unmarked car. Det. Freeman handcuffed the Petitioner, placed
him in the car, and then transported the Petitioner to the
police station, a trip that lasted thirty to forty minutes.
The Petitioner claimed that, during the drive, Det. Freeman
questioned him both about his personal life and
“regarding [the Petitioner's] activities in the
case.” Det. Freeman had not given the Petitioner his
Petitioner testified that Det. Freeman first asked him about
a previous robbery and whether he went into that store with a
gun. The Petitioner told him that he had participated in a
previous robbery and that he had been by himself. Det.
Freeman then asked him about the instant robbery and whether
the Petitioner had gone into the store with a gun. The
Petitioner told him that he did not remember. Det. Freeman
then asked him if he had left a water bottle on the counter
of the store, and the Petitioner told him that he had. Det.
Freeman continued to question him about the instant robbery,
and the Petitioner “told him that [he] did commit the
robbery.” He also told the detective that he had had a
gun. Det. Freeman asked the Petitioner about shooting the
victim, and the Petitioner told him that he shot the victim
twice. Upon further questioning, the Petitioner told Det.
Freeman that he took the cash register and the surveillance
tape out of the store; that he was wearing the clothes in
which he committed the robbery; and that he would give Det.
Freeman the gun and the items he had taken out of the store.
Once they arrived at the police station, Det. Freeman told
him that he “needed ... to just repeat everything that
[he] had said ... inside the car.” Inside the station,
the Petitioner was given his Miranda warnings, and
he signed a waiver.
Petitioner testified that he told Counsel about the initial
questioning during the car ride. According to the Petitioner,
Counsel did not ask him if he had been
“Mirandized ” but said, “oh,
that's something we might have to look into.”
Petitioner testified that, prior to the two robberies he
committed, a drug dealer had put a $10, 000 bounty on him. He
told Counsel about this and also provided the names of
several persons who could corroborate this information to
Counsel's private investigator. None of those persons
were called to testify on his behalf.
cross-examination, the Petitioner testified that he also told
his first trial lawyer about Det. Freeman questioning him
during the car ride. He stated that he did not know the name
of the person who had put a bounty on him. He explained that
the person threatened him directly but that he did not know
the person's name. The threat was made within a month
prior to the robbery.
Freeman, a long-time friend of the Petitioner's,
testified that, prior to the Petitioner's trial,
Counsel's private investigator spoke with him about the
Petitioner's charges. Freeman told the investigator the
from guys that was coming in the detention center [where
Freeman was] and from several phone calls that I was making
on the streets or whatever that [the Petitioner] was in
trouble with a guy from ... the south area of the city where
his grandma stayed at and he owed a lot of money and that if
he don't pay the money back, that they going to kill his
grandma, set the house on fire while she's in there, and
then they were going to get him.
stated that he advised the Petitioner about these threats
about two to three weeks before the robbery. The Petitioner
told him, “I got to get this money because I love my
grandmama.” Freeman explained that the Petitioner's
grandmother had raised him. The Petitioner sounded
“scared.” The investigator told Freeman that they
would contact him if they wanted him to testify, but they
never did. Freeman stated that he had been willing to
cross-examination, Freeman stated that he did not know who
was behind the threats, but “the guy that supposedly
had the threat was like, not going to say wealthy, but he had
enough money to make things happen if he wanted them to
At the conclusion of proof, the post-conviction court took
the matter under advisement and subsequently issued a
comprehensive written order denying relief. As to the
Petitioner's claim that Counsel was ineffective for
failing to pursue the suppression of the Petitioner's
statement on the grounds that it was taken in violation of
Missouri v. Seibert,542 U.S. 600, 124 S.Ct. 2601,
159 L.Ed.2d 643 (2004), the post-conviction court
specifically refused to accredit the Petitioner's
testimony that he told Counsel that Det. Freeman had
questioned him in the car prior to advising the Petitioner
about his Miranda rights. Accordingly, the
post-conviction court concluded that the Petitioner had
failed to establish by clear and convincing evidence that
Counsel had performed deficiently in this regard. As to the
Petitioner's claim that Counsel was ineffective in
failing to object to portions of the State's closing
arguments, the post-conviction court concluded that the
Petitioner had established neither deficient performance nor
prejudice. As to the ...