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Nash v. Phillips

United States District Court, E.D. Tennessee

September 7, 2017

CHARLES NASH, Petitioner,
v.
SHAWN PHILLIPS, [1]Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT 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]. 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 PREJUDICE.

         I. PROCEDURAL HISTORY

         On 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.

         Petitioner 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[2] 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.[3] 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.

         II. BACKGROUND

         The 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:

         At the 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 pending investigations.

         Some 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.

[DEFENDANT]: Yes.

[DET. FREEMAN]: Okay, can you read and write?

[DEFENDANT]: Yes.

[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 there.

(silence )

[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.

[DEFENDANT]: Yeah.

[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.

         The 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.

         On 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 ended.

         At the 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.

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

         A jury 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, 2010).

         Because 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:

         The 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.

         Counsel 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.

         Counsel 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 jury's eyes.

         On 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.

         Counsel 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 issue.[”]

         Counsel 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, Counsel responded,

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.

         Counsel 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.”

         The 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 Miranda warnings.

         The 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.

         The 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.”

         The 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.

         On 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.

         Alex 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 following:

         I heard 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.

         Freeman 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 testify.

         On 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 happen.”

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 ...

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