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Tarter v. McCallister

United States District Court, E.D. Tennessee, Greeneville

September 27, 2017

JERMEIL TARTER, Petitioner,
v.
GERALD MCCALLISTER, Respondent.

          MEMORANDUM OPINION

          Thomas W. Phillips. Senior United States District Judge.

         Jermeil Tarter (“Petitioner”), by counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1], challenging the legality of his confinement under a 2005 judgment of conviction from the Sullivan County Criminal Court. Warden General McCallister (“Respondent”) has filed an answer to the habeas petition, arguing that relief is not warranted with respect to Petitioner's claims and, in support of those arguments, he has filed copies of the state court record [Doc. 17, 18]. Petitioner subsequently filed a motion to amend his petition [Doc. 19], which the Court denied [Doc. 21]. Petitioner has not filed a reply to Respondent's answer and the time for doing so has passed. See E.D. Tenn. L.R. 7.1(a), 7.2.

         For the reasons set forth below, the Court determines that no evidentiary hearing is warranted in this case, Petitioner's § 2254 petition [Doc. 1] will be DENIED, and this action will be DISMISSED.

         I. PROCEDURAL HISTORY

         On January 20, 2005, a Sullivan County jury convicted Petitioner of the sale of more than .5 grams of cocaine within a school zone, delivery of more than .5 grams of cocaine within a school zone, and possession of more than .5 grams of cocaine within a school zone. The trial court initially merged the convictions for delivery and possession but later dismissed those charges. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the convictions and sentence, but reversed the judgment of the trial court dismissing the convictions for delivery and possession, ordering that those convictions and sentences be merged into one judgment. The Tennessee Supreme Court denied Petitioner's application for permission to appeal.

         On August 15, 2007, Petitioner filed a petition for post-conviction relief. The post-conviction court found that Petitioner failed to state a colorable claim in his pro se filing and dismissed the petition. On September 26, 2007, Petitioner filed a “Motion to Vacate Judgment Alternatively a Notice of Appeal.” The post-conviction court treated the motion as a motion to reopen and denied the same on October 24, 2007. The TCCA affirmed the dismissal. In an order entered September 8, 2010, the Tennessee Supreme Court granted permission to appeal, reversed TCCA's judgment and remanded the case for appointment of counsel and the opportunity to amend the petition. An amended petition was filed on September 1, 2011. Following an evidentiary hearing on the petition, the post-conviction court entered its written order denying relief. On appeal, the TCCA affirmed the dismissal, and the Tennessee Supreme Court denied Petitioner's application for permission to appeal. There followed this timely § 2254 habeas corpus application.

         II. FACTUAL BACKGROUND

         The following summary of the factual background is taken from the TCCA's opinion on direct appeal of Petitioner's conviction.

On November 14, 2003, Officer Freddie Ainsworth of the First Judicial District Drug Task Force participated in an investigation conducted by the Second Judicial District Drug Task Force. Officer Ainsworth, who was working undercover with a confidential informant, Doris Salyers, testified that he was provided $100 in marked bills and directed to a residence on Sevier Street in Kingsport. Other officers near the residence set up audio and video recording equipment. Upon their arrival at the residence, Ms. Salyers approached a white male, asked for “Cathy, ” and learned that she was not there. At that point, the defendant, a black male, approached them and Officer Ainsworth asked the defendant for “a buck, ” which he described as street slang for “a Hundred Dollars ($100.00) worth.” According to the officer, the defendant then “pulled a medicine bottle out of one of his pockets and he shook out . . . four rocks.” Officer Ainsworth recalled that “[t]here was still 20, 25 rocks . . . in the medicine bottle, the same color and shape as what he had put into my hand.” He gave the defendant $100 and then left. The officer later gave the substances to Agent Eddie Nelson.
Afterward, Officer Ainsworth selected the defendant, a black male, from a photographic lineup, explaining that he was ninety percent certain of the identification. He stated that later, when he eventually saw the defendant in person at the preliminary hearing, he became one hundred percent certain of his identification.
Officer Cliff Ferguson of the Kingsport Police Department, who had known the defendant for approximately eight years and was familiar with his physical appearance, viewed the videotape of the transaction and identified the defendant as the individual who sold cocaine to Officer Ainsworth. Officer Ferguson also saw a digitally enhanced version of the videotape which “took some of the glare off of” the images. He expressed certainty that the defendant was the perpetrator.
Officer Eddie Nelson of the Second Judicial District Drug Task Force, who had provided Officer Ainsworth with money to make the controlled purchase, confirmed his receipt of the cocaine from Officer Ainsworth. He recalled that he placed it in a sealed envelope and mailed it to the Tennessee Bureau of Investigation Lab in Knoxville. Officer Nelson testified that at the request of the assistant district attorney, he sent the original videotape recording of the transaction to the Regional Organized Crime Information Center to have the quality enhanced.
Steven Hobbs of the Regional Organized Crime Information Center in Nashville testified that he reviewed and digitized the videotape. He stated that he reduced the gamma settings in order to remove some of the glare. Hobbs explained that he used a video editing system to isolate certain frames of the video and create photographs.
Officer Bryan Bishop, Director of the Second Judicial District Drug Task Force, who supervised the investigation, testified that he operated the surveillance equipment during the transaction. He explained that he made no attempt to recover the “buy” money because he did not want to compromise the “ongoing investigation.” Celeste White, a forensic chemist with the Tennessee Bureau of Investigation, testified that she received the package containing the rocks collected by Officer Nelson, weighed the substance, and then used an ultraviolet spectrophotometer and an infrared spectrophotometer to determine its chemical composition. Testing established that the substance was cocaine base and weighed .54 grams.
Tyler Fleming, Director of Student Services for Kingsport City Schools, testified that at the time of the offenses, the New Horizon School, which housed an alternative school program and several other programs, was located at 520 Myrtle Street. Jake White, an employee of the City of Kingsport Geographic Information System Division, compiled a map which showed the New Horizon School and shaded a one-thousand-foot buffer zone around the school. The map established that the residence on Sevier Street was within one thousand feet of the New Horizon School. White testified that the distance from the center of the New Horizon School building to the residence on Sevier Street was 905 feet.
Doris Ann Salyers, who was called as a witness for the defense, testified that she was unable to identify the individual who sold the drugs to Officer Ainsworth. It was her recollection that the perpetrator was a black male wearing a hooded sweatshirt. During cross-examination by the state, Ms. Salyers acknowledged that she had medical problems which affected her memory and her ability to identify people, including her own family members.

State v. Tarter, No. E2005-01013-CCA-R3CD, 2006 WL 568158 *2-3 (Tenn. Crim. App. Mar. 8, 2006), perm. app. denied (Tenn. Aug. 21, 2006).

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28 U.S.C. § 2254, et. seq., a court considering a habeas claim must defer to any decision by a state court concerning the claim, unless the state court's judgment: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2).

         A state court's decision is “contrary to” federal law when it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or resolves a case differently on a set of facts, which cannot be distinguished materially from those upon which the precedent was decided. Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the “unreasonable application” prong of 2254(d)(1), the relevant inquiry is whether the state court decision identifies the legal rule in the Supreme Court cases which govern the issue, but unreasonably applies the principle to the particular facts of the case. Id. at 407. The habeas court is to determine only whether the state court's decision is objectively reasonable, not whether, in the habeas court's view, it is incorrect or wrong. Id. at 411.

         The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (noting that “§ 2254(d), as amended by AEDPA, is a purposefully demanding standard . . . ‘because it was meant to be'”) (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)). Further, where findings of fact are supported by the record, they are entitled to a presumption of correctness which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         IV. ANALYSIS

         Petitioner's § 2254 habeas corpus petition raises seven grounds for relief. In his supporting memorandum, Petitioner alleged (1) that the evidence contained in the record is insufficient as a matter of law to sustain a conviction for the offenses; (2) that there is no credible evidence contained in the record to support the verdict returned by the jury; and (3) that the verdict is contrary to the law and the evidence. As all three of these claims relate to legal insufficiency of the evidence to support his conviction, the Court finds it to be efficient, as did the parties, to consolidate these three claims into one issue for analysis. Next, Petitioner argues (4) that the trial court erred by admitting the video recording of the offence at trial; (5) prosecutorial misconduct during closing argument; (6) ineffective assistance of counsel during the jury voir dire; (7) ineffective assistance of counsel in regard to counsel's failure to advice Petitioner concerning the advantages and disadvantages of testifying at trial; and (8) ineffective assistance of counsel in regard to counsel's failure to fully explain Petitioner's range of punishment and the state's plea offer.

         In his response, Respondent argues that Petitioner is not entitled to relief on any of the claims alleged because the state court decision rejecting the claims on their merits is entitled to deference under 28 U.S.C. § 2254. He also reasoned that the claims should be dismissed because the state court decision was not an unreasonable determination based on the facts presented at trial.

         A. INSUFFICIENT EVIDENCE

         In his first three claims, Petitioner contends that the evidence produced at trial was insufficient to support a conviction for the sale, delivery, and possession of more than .5 grams of cocaine within one thousand feet of a school. According to Petitioner, “the State failed to prove every element of the offenses . . . beyond a reasonable doubt” and thus, the conviction should be reversed [Doc. 5 p. 8]. Specifically, Petitioner avers that there was not sufficient evidence produced at trial to prove that he was the person who sold the crack-cocaine to Ainsworth [Id. at 9]. He argues that the surveillance video was not clear and that there was no witness at trial that could say with absolute certainty that Petitioner was, in fact, the individual who sold, delivered, and possessed the cocaine [Id.].

         1. APPLICABLE LAW

         The United States Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307 (1979), provides the controlling authority for resolving claims of insufficient evidence. See Gall v. Parker, 231 F.3d 265, 287-88 (6th Cir. 2000) (identifying Jackson as the governing precedent for all claims of insufficient evidence, superseded by statute on other grounds as recognized by Parker v. Matthews, 132 S.Ct. 2148');">132 S.Ct. 2148 (2012)). In Jackson, the Supreme Court held that evidence, when viewed in the light most favorable to the prosecution, is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. Resolving conflicts in testimony, weighing the evidence, and drawing reasonable inferences from the facts are all matters, which lie within the province of the trier of fact. Id.; see also Cavazos v. Smith, 132 S.Ct. 2, 6 (2011) (“[A] reviewing court ‘faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'” (quoting Jackson, 443 U.S. at 326)).

         A habeas court reviewing an insufficient evidence claim must apply two levels of deference. Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). Under Jackson, deference is owed to the fact finder's verdict, “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (citing Jackson, 443 U.S. at 324 n.16). Under AEDPA, deference is also owed to the state court's consideration of the fact finder's verdict. Smith, 132 S.Ct. at 6 (noting the double deference owed “to state court decisions required by § 2254(d)” and “to the state court's already deferential review.”). Hence, a petitioner bringing a claim of insufficient evidence “bears a heavy burden.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).

         2. ...


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