United States District Court, E.D. Tennessee, Greeneville
W. Phillips. Senior United States District Judge.
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.
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
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.
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
following summary of the factual background is taken from the
TCCA's opinion on direct appeal of Petitioner's
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
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
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
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
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).
STANDARD OF REVIEW
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. §
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.
§ 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 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.
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.
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.].
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)).
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).