United States District Court, M.D. Tennessee, Nashville Division
KEVIN L. BUFORD, SR. #229649, Petitioner,
CHERRY LINDAMOOD, Respondent.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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.
BACKGROUND AND PROCEDURAL HISTORY
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.)
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,  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
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.)
STATEMENT OF FACTS
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
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
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
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
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
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
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
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,
ISSUES PRESENTED FOR REVIEW
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. ...