United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2254 PETITION, CERTIFYING THAT
AN APPEAL WOULD NOT BE TAKIN IN GOOD FAITH, AND DENYING LEAVE
TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
Fuller, a Tennessee state prisoner, has filed a petition
under 28 U.S.C. § 2254 seeking habeas corpus relief
(“Petition”). (Pet., ECF No. 1.) For the reasons
that follow, the Petition is DENIED.
following background summary is drawn from the state court
record (St. Rec., ECF No. 8) and the state appellate
court's recitation of the evidence presented at
Fuller's trial. See Fuller v. State, No.
W2010-02582-CCA-R3-PC, 2012 WL 2115563, at *1 (Tenn. Crim.
App. June 12, 2012), perm. appeal denied (Tenn.
Sept. 27, 2012).
Petitioner's Trial and Delayed Direct Appeal
2007, Fuller was indicted by a Madison County, Tennessee,
grand jury of aggravated rape, aggravated robbery, and
violation of an order of protection, in connection with an
incident involving his ex-girlfriend. See Id. at *2.
At Fuller's trial in 2008, the victim testified that on
March 2, 2007, she heard someone “creeping” in
her house. Id. at *1. She walked into her living
room to find the defendant, whom she had previously dated and
against whom she had an order of protection. She asked Fuller
why he was there and demanded that he leave. Fuller refused.
The two struggled, and as the victim was trying to escape,
the defendant trapped her into a corner with a table. Fuller
then pulled out a knife and held it to the victim's neck
and dragged her to her bedroom. While there, the defendant
demanded that the victim take off the boxer shorts she was
wearing. Afraid that he was going to hurt her, she complied.
Fuller then forced her onto the bed, got on top of her, and
while holding her down and pressing his arm against her
throat, he penetrated her. After the defendant left, the
victim picked up her daughter at school, and then called the
police. She was taken to the hospital and a rape kit was
collected. Id. at *1-2.
officer from the Jackson Police Department, who had responded
to the victim's call, testified that the condition of the
victim's home was in disarray when he arrived and looked
like a struggle had taken place. The back door appeared to
have been forced open. A special agent with the Tennessee
Bureau of Investigation testified that sperm from the rape
kit matched the defendant's DNA profile. Id. at
*2. Fuller took the stand and testified that, although he and
the victim had been arguing in her living room on March 2,
2007, she had consensual sex with him in her bedroom. He also
testified that he had believed that the order of protection
had been dismissed. Id. at *3.
jury convicted Petitioner of rape, aggravated criminal
trespass, and violation of an order of protection.
Id. The court held a sentencing hearing on October
14, 2008, at which Petitioner presented no evidence.
Id.; see also State v. Fuller, No.
W2013-01244-CCA-R3-PC, 2014 WL 1101869, at * 1 (Tenn. Crim.
App. Mar. 19, 2014). He was sentenced as a Range I, standard
offender, receiving an effective sentence of twelve
years' incarceration. Fuller, 2014 WL 1101869,
at * 1. Petitioner, through counsel, failed to properly file
a notice of appeal. Fuller, 2012 WL 2115563, at *3.
Proceeding pro se, Fuller successfully secured
permission to file a delayed appeal and to represent himself
before the TCCA. Id. The TCCA affirmed the
convictions, and the Tennessee Supreme Court denied
permission to appeal. Id. at *1.
December 3, 2012, the defendant filed a pro se
petition for post-conviction relief. (PC Pet., ECF No. 8-8 at
4-45.) After appointing counsel, the post-conviction court
conducted an evidentiary hearing, at which Petitioner and his
trial attorney testified. Fuller, 2014 WL 1101869,
at *1-3. Upon consideration of the evidence, the court denied
the petition. (Order Den. Pet., ECF No. 8-8 at 64-65.)
Represented by counsel, Petitioner appealed the denial of his
post-conviction petition. (P-C Appellant Br., ECF No. 8-16.)
The TCCA rejected his arguments and affirmed the lower
court's decision. See Fuller, 2014 WL 1101869,
Federal Habeas Petition
September 24, 2014, Fuller filed his pro se §
2254 Petition, in which he asserts three claims and several
1: Trial counsel was ineffective at sentencing by:
A. Not reviewing the presentence report (“PSR”)
with the defendant until the morning of the sentencing
hearing and not asking for a continuance to allow more time
to review the PSR;
B. Not objecting to the admission of the PSR at the
sentencing hearing, despite mistakes in the PSR;
C. Making a “deal” with the prosecution for the
defendant to receive the maximum years of incarceration
within Range I without telling the defendant; and
D. Failing to investigate mitigating factors for sentencing.
(Pet., ECF No. 1 at 5, Pet. Ex. 1, ECF No. 1-1.)
Claim 2: Trial counsel was ineffective by failing to file a
notice of appeal from the judgment of conviction and sentence
(Pet., ECF No. 1 at 7; Pet. Ex. 2, ECF No. 1-4.)
Claim 3: Petitioner was “[d]eni[ed] . . . effective
appellate court review” when the “Court of
Criminal Appeals did wrongfully” determine that Fuller
had waived a challenge to his sentence. ...