Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Buford v. Lindamood

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

September 25, 2017

KEVIN L. BUFORD, SR. #229649, Petitioner,
v.
CHERRY LINDAMOOD, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Kevin L. Buford, Sr. is incarcerated in the South Central Correctional Center in Clifton, Tennessee, serving an effective 60-year sentence for facilitation of first degree felony murder and attempted especially aggravated robbery. (Doc. No. 1; Doc. No. 12-1 at 127.) He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) His petition will be denied for the reasons set forth below.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A Davidson County jury convicted Petitioner on February 12, 2010, of facilitation of first degree felony murder and attempted especially aggravated robbery. (Doc. No. 12-1 at 127.) The trial court found that Petitioner had an extensive criminal history, including two previous aggravated robberies, and sentenced him to consecutive terms of 40 and 20 years in prison. (Doc. No. 12-1 at 143-44; Doc. No. 12-3 at 60-63.) The Tennessee Court of Criminal Appeals (TCCA) affirmed the convictions and sentences on direct appeal (Doc. No. 12-18), and the Tennessee Supreme Court denied the Petitioner's application for review on October 17, 2012. (Doc. No. 12-21 at 49.)

         On April 29, 2013, Petitioner filed a pro se petition for post-conviction relief. (Doc. No. 12-21 at 50-57.) The post-conviction court appointed counsel, [1] who filed an amended petition. (Doc. No. 12-21 at 74-78). The court held a hearing on May 28, 2014, and denied relief by order entered July 11, 2014. (Doc. No. 12-21 at 95-102; Doc. No. 12-22.) The TCCA affirmed on August 11, 2015. Buford v. State, No. M2014-01534-CCA-R3-PC, 2015 WL 4735661, at *14 (Tenn. Crim. App. Aug. 11, 2015), appeal denied (Tenn. Dec. 11, 2015). The Tennessee Supreme Court denied discretionary review on December 11, 2015. Id. at *1.

         Petitioner now seeks the federal writ of habeas corpus pursuant to 28 U.S.C. § 2254, and Respondent acknowledges that the petition is timely. (Doc. No. 13 at 2.)

         II. STATEMENT OF FACTS

         The state presented evidence at Petitioner's trial that a robbery attempt by Petitioner, along with his brother, his two sons, and a friend of his sons, resulted in the victim's death. The TCCA summarized that evidence at length on direct appeal, but only the following summary of the codefendant Raymond Pirtle's testimony is relevant to the claims before this Court:

The State's next witness was Mr. Raymond Pirtle, one of the defendant's codefendants. Mr. Pirtle testified that he had been a friend of the defendant's sons, D'Angelo Buford and Kevin Buford Junior, for many years but that he met the defendant for the first time on the day of the shooting. Mr. Pirtle testified that some weeks before the incident, he had bought a gun “off the streets” for his own protection. This gun was a 9mm Smith & Wesson. Mr. Pirtle testified that about three weeks before the incident, he gave this gun to D'Angelo Buford and Kevin Buford Junior, after they had asked him to borrow it. He testified that on the day of the incident, Kevin Buford Junior came to his house and asked him if he wanted to commit a robbery. Mr. Pirtle replied that he did. When he went outside, the defendant and D'Angelo Buford were also present, waiting for him in a gold SUV. Mr. Pirtle testified that the defendant was driving the vehicle. Mr. Pirtle testified that after he got inside the SUV, all four of them drove to a Burger King. He testified that at some point during this drive he heard D'Angelo Buford cock a gun.
When they arrived at the Burger King, the defendant told Mr. Pirtle that a friend of his had told him about a car lot that they could rob. Mr. Pirtle testified that the defendant told the other three to act as if they wanted to buy a car, and then, when the owner let them in, to rob him.
Mr. Pirtle testified that he, Kevin Buford Junior, and D'Angelo Buford all got out of the SUV to rob the car lot, and he saw D'Angelo Buford carrying a gun at that time. He testified that as they approached the car lot, he told Kevin Buford Junior and D'Angelo Buford that he had a bad feeling. They appeared to agree, and after about three minutes all the three of them went back to the SUV. Mr. Pirtle testified that after they got back into the SUV, the defendant continued to urge them to rob the car lot, describing various methods the three might use to get in. He testified that the three of them did not respond, and the defendant got angry and sped away.
Next, Mr. Pirtle testified that the defendant drove them to an Auto Zone, and told them to wait in the SUV while he went inside to see if there were any surveillance cameras. Mr. Pirtle testified that the defendant returned about five minutes later and drove away from the Auto Zone. During this drive, the defendant made a phone call to someone and asked the person on the other end of the call about robbing some white guy. Then the defendant pulled into a gas station. The defendant told the rest of the group that they did not have enough money to buy gas to return home, and he appeared unhappy about the situation. Mr. Pirtle testified that the group then left to go pick up some marijuana from one of Mr. Pirtle's friends, known by the street moniker “Little E, ” who lived in some nearby apartments. He testified that he got out of the SUV alone, went to his friend's house, and bought twenty dollars worth of marijuana.
Following this, the group drove to pick up Robert Buford, the defendant's brother, from his workplace. After picking him up, the defendant drove all five individuals to a liquor store ... for the purpose of robbing one of the many people frequenting a nearby business. Mr. Pirtle testified that the defendant told the group that he knew “a place where a lot of Mexicans cash their checks, ” and that he suggested that they all stay in front of the liquor store, pretending to drink liquor. Mr. Pirtle testified that the defendant told the group that he was going to tell them which individual to rob after he watched them cash their checks. Mr. Pirtle testified that the defendant went into the liquor store and purchased some vodka, which was sampled by the entire group. Mr. Pirtle testified that the group had been waiting for about thirty minutes when the defendant stated that a woman who was cashing her check was about to come out and instructed him, D'Angelo Buford, and Kevin Buford Junior to rob her. Mr. Pirtle testified that when this woman came out of the store, the three of them told the defendant that they were not going to rob her, and the defendant drove away.
After the group left, various members put forward different suggestions concerning the next place they should go to commit a robbery. Mr. Pirtle testified that eventually the defendant told his son D'Angelo to call back “Little E” and request to buy some additional marijuana so that the group could rob him. D'Angelo did so. Mr. Pirtle testified that the defendant drove to a prearranged meeting location near a convenience store, and that Robert Buford got out of the SUV carrying a gun. According to Mr. Pirtle's testimony, the plan was to allow “Little E” to approach the SUV, and then Robert Buford (whom the dealer had not met) would come from behind and rob him-thereby fooling the dealer into believing that he had been robbed by a random person. Mr. Pirtle testified that the group executed this robbery as planned. Afterward, the defendant drove the SUV a short distance away and picked up Robert Buford, who now had marijuana and some money.
Following this robbery, Mr. Pirtle testified that ... the defendant then calmly told the group “now I got 15 minutes to do a robbery before I go and pick up my wife from work.” Mr. Pirtle testified that at that point Kevin Buford Junior started acting “hyped up”-talking louder than normal and “swaggering.” Mr. Pirtle testified that D'Angelo Buford tried to calm Kevin Buford Junior down, but the defendant discouraged his efforts. Mr. Pirtle testified that the defendant pulled into a car wash on Clarksville highway and parked the SUV. Mr. Pirtle testified that they saw the victim walking by, and the defendant stated that the victim looked like he had some money. Mr. Pirtle testified that the defendant told the others to go rob him. After the victim walked past the SUV, Kevin Buford Junior and Robert Buford got out of the car and followed him. Mr. Pirtle testified that Robert Buford had the gun with him at this time. Mr. Pirtle testified that he also got out of the SUV and followed the other two to assist them.
Mr. Pirtle testified that the victim walked into a grocery store, and they waited for him to come out. Mr. Pirtle testified that when the victim walked out of the store, Kevin Buford Junior ran over and hit the victim in the head with a gun.
Mr. Pirtle testified that the victim turned around and swung at Kevin Buford Junior, and then Kevin Buford Junior shot the victim. The victim ran toward the nearby car wash. Mr. Pirtle testified that he, Kevin Buford Junior, and Robert Buford all got back into the SUV, and then the defendant drove them away.
Mr. Pirtle testified that during this car ride, the group was yelling at Kevin Buford Junior for shooting the victim. Mr. Pirtle testified that Kevin Buford Junior responded “he hit me, I did not know what to do.” The defendant drove D'Angelo Buford and Kevin Buford Junior home. After dropping them off, the defendant drove Mr. Pirtle to a small market. Mr. Pirtle testified that he gave the defendant five dollars, and the defendant went into the store and bought him a cigarillo so that he could smoke the rest of his marijuana. The defendant then drove Mr. Pirtle home. Mr. Pirtle testified that when he left, the defendant and Robert Buford were still in the front seat of the SUV.
Mr. Pirtle testified that ... he did not have the gun [when the police arrested him], and the last time he saw it, it was in D'Angelo Buford's possession as he was being dropped off after the shooting.
Mr. Pirtle testified that ... he had not been offered anything from the State in return for his testimony, but he was hoping for some sort of leniency. He testified that he had been in trouble at school, and sometimes suspended, for cutting classes, fighting, and possessing a weapon. In conclusion, Mr. Pirtle testified that the defendant was the person who had directed all of the various participants to do the various robberies on the day in question, including the attempted robbery of the victim.
....
Mr. Pirtle also admitted that in January of 2008, he was a member of the Gangster Disciples and was living a “gangbanger's life.” He admitted that he willingly joined Kevin Buford Junior, D'Angelo Buford, and the defendant on the day in question for the purpose of committing robberies, and he was a willing participant in the robbery and attempted robberies that were committed that day. He admitted that he had been previously arrested, that he had been disciplined at school on numerous occasions, and that he had been disciplined while in police custody for committing various criminal and antisocial acts.... He claimed to have left the Gangster Discipl[es] the year before, and he testified that he would not lie to protect his former gang members.
Mr. Pirtle testified that the defendant never held the gun on the day of the robberies. He testified that he never saw Kevin Buford Junior tell the victim to give him any money and never saw the victim give anything to him. He testified that Kevin Buford Junior did not get anything from the victim. He testified that the defendant did not know that anyone had been shot until the group returned to the SUV after the shooting.
Mr. Pirtle testified that although he had smoked marihuana and drunk vodka on the day of the robberies, this combination had not made it difficult for him to remember events as they happened that day. He admitted that he had probably told a doctor something to the contrary-that he had “blacked out” on the day in question- during his mental health evaluation but offered no explanation for why he had done so. Defense counsel also impeached Mr. Pirtle with numerous prior statements he had made-both to police during the investigation and under oath at an earlier hearing-that were inconsistent with his trial testimony. Mr. Pirtle testified that he did not know why the defendant had stated that the group did not have enough money for gas to return home, given that the defendant had enough money to purchase vodka at the liquor store and that the defendant had driven them home after the shooting without filling up the SUV.
On redirect examination, Mr. Pirtle pointed out that the drug dealer the group had robbed on the day of the shooting was a fellow Gangster Disciples member.
Mr. Pirtle also testified that D'Angelo Buford and Kevin Buford Junior were members of the Gangster Disciples. Mr. Pirtle explained that when he was answering questions posed by his doctor and the police, he was not under oath, as he was when he gave his direct testimony. Next, the prosecutor went over statements made by Mr. Pirtle at the earlier hearing in detail and generally attempted to explain away the apparent inconsistencies-partly on the basis that Mr. Pirtle's testimony at the earlier hearing was much more brief and less detailed. The prosecutor also emphasized the numerous statements made by Mr. Pirtle during his direct testimony that were consistent with his earlier testimony.

State v. Kevin L. Buford, Sr., No. M2010-01618-CCA-R3-CD, 2012 WL 1895953, at *8-12 (Tenn. Crim. App. May 24, 2012), appeal denied (Tenn. Oct. 17, 2012).

         III. ISSUES PRESENTED FOR REVIEW

         The amended petition identifies a single ground for relief - “[t]he state court erred by dismissing Petitioner's petition for post-conviction relief” - and goes on to complain of trial counsel's failure to preserve an issue related to alleged improper argument by the prosecutor and of appellate counsel's failure to assert plain error in connection with that argument. (Doc. No. 1 at 4-7.) The Court construes the amended petition to allege that the state post-conviction court unreasonably rejected two claims:

1. Trial counsel was ineffective for failing to include in his motion for new trial the claim that the prosecutor improperly vouched for Mr. Pirtle's credibility during closing argument (Doc. No. 1 at 5-6); and
2. Appellate counsel was ineffective for failing to assert on direct appeal that the trial court committed plain error in allowing the prosecutor to vouch for Mr. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.