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Elliott v. Genovese

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

November 29, 2017

BRIAN O'NEAL ELLIOTT, Petitioner,
v.
KEVIN GENOVESE, Warden, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. The petitioner is serving a sentence of 25-years' imprisonment, imposed by the Davidson County Criminal Court on October 24, 2012, after the petitioner pleaded guilty to second-degree murder. The respondent has filed an answer to the petition (ECF No. 16) stating that the petition should be denied because the petitioner's claims are without merit and are procedurally barred.

         The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). The respondent does not dispute that the petitioner's federal habeas petition is timely. (ECF No. 16 at Page ID# 1585.) The respondent states that the federal habeas petition at issue here appears to be the petitioner's first application for federal habeas relief. (Id.)

         Because a federal court must presume the correctness of a state court's factual findings unless the petitioner rebuts this presumption with “clear and convincing evidence, ” 28 U.S.C. § 2254(e)(1), and because the issues presented can be resolved with reference to the state-court record, the court finds that an evidentiary hearing is not necessary. See Schriro v. Landrigan, 550 U.S. 464, 474 (2007) (holding that if the record refutes a petitioner's factual allegations or otherwise precludes habeas relief, the district court is not required to hold an evidentiary hearing (citing Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998))). Upon review and applying the AEDPA standards, the court finds that the petitioner is not entitled to relief on the grounds asserted. Accordingly, the petition will be denied and this matter, dismissed.

         I. PROCEDURAL BACKGROUND

         The state prosecution arose from the April 16, 2010 shooting death of Miguel Tobias in the front yard of his home. On February 4, 2011, the petitioner was indicted by the Davidson County grand jury and charged with one count of first-degree murder. (ECF No. 14-1 at Page ID # 52.) On August 20, 2012, the day that trial was scheduled to commence, the petitioner accepted the state's plea offer and pleaded guilty to second-degree murder with the trial court to determine the appropriate sentence at a sentencing hearing. (Id. at Page ID## 61-63.) Following a sentencing hearing on October 24, 2012, the trial court sentenced the petitioner to 25 years' imprisonment. (ECF No. 14-3 at Page ID## 99-161.)

         The petitioner did not immediately appeal his sentence to the Tennessee Court of Criminal Appeals (“TCCA”). Rather, on February 28, 2013, the petitioner filed a pro se petition for post-conviction relief in the trial court. (ECF No. 14-14 at Page ID## 278-87.) The trial court appointed counsel, who filed an amended petition. (Id. at 301-03, 306-12.) Following an evidentiary hearing, all parties agreed that the petitioner was entitled to file a delayed appeal of his sentence, and the trial court held the post-conviction petition in abeyance pending a ruling on the petitioner's appeal. (ECF No. 14-15 at Page ID# 402-05.)

         The petitioner filed his delayed notice of appeal on January 10, 2014. (ECF No. 14-1 at Page ID## 73-74.) On October 15, 2014, the TCCA issued an unpublished opinion denying relief and affirming the petitioner's sentence. (ECF No. 14-7 at Page ID## 207-10; see also State v. Brian Oneal Elliot, No. M2014-00083-CCA-R3-CD; 2014 WL 5242610, at *1 (Tenn. Crim. App. Oct. 15, 2014) [Elliot I].) The petitioner filed an application for permission to appeal to the Tennessee Supreme Court (“TSC”), which was denied on January 15, 2015. (Id.)

         On March 8, 2015, the petitioner filed a notice of his intent to rest on the proof adduced at the post-conviction evidentiary hearing. (ECF No. 14-14 at Page ID## 328-29.) On September 15, 2015, the trial court issued an order denying relief. (ECF No. 14-14 at Page ID## 330-42.)

         The petitioner appealed to the TCCA, which denied relief on July 26, 2016. (ECF No. 14-15 at Page ID## 1558-62; see also Brian ONeal Elliot v. State, No. M2015-02000-CCA-R3-PC, 2016 WL 4039586, at *1 (Tenn. Crim. App. July. 26, 2016) [Elliot II].) The petitioner filed an application for permission to appeal to the TSC, which was denied on October 19, 2016. (ECF No. 14-24 at Page ID# 813.)

         II. STATEMENT OF FACTS

         The TCCA reiterated the facts the State set forth in establishing a factual basis for the petitioner's guilty plea:

[O]n April 16th, 2010, the victim Miguel Tobias (phonetic) was on the porch of 3710 Ezell Road in Davidson County with another individual. It was mid afternoon, and a car approached the house and stopped. Mr. Tobias went to see what the individuals wanted. When he got close to the car, the front passenger rolled down the window and shot multiple times killing Mr. Tobias. The victim's wife was in the house and heard the shots as did the couple's three young children. The police responded and began their investigation. They learned the make, model, and partial plate number of the car. They later determined that it belonged to Trevarius (phonetic) Maples. As the investigation continued, the detective assigned to the murder learned that there had been a report of a rape at that location. Sex abuse detectives confirmed that the rape had been reported at that same location on or about April 12th . . . . The victim of that rape was fourteen-year old [P.E.]. After learning this information, the homicide detectives spoke with [P.E.] and her mother. [P.E.] told the detectives that on April 12th, 2010, she and a friend skipped school and went to 3710 Ezell Road where a cousin of [P.E.'s] friend resided. While they were there [P.E.] was raped by a man. She reported the rape to the police immediately, and the police determined that the man who raped [P.E.] was Romel Roberto Guafarro (phonetic).
On April 16th, 2010, [P.E.'s] uncle, [the appellant], picked her up from middle school. Trevarius Maples was driving the vehicle. When [P.E.] got in the car, [the appellant] instructed her to show them where the rape occurred. They drove down Ezell Road, and [P.E.] pointed out the house at 3710 Ezell. They drove past the house, and [the appellant] then instructed Maples to stop the car. [The appellant] got out of the car and retrieved a gun. Maples then drove back to 3710 Ezell. When the car pulled up to the house, there were two men on the porch, one of which was the victim, Miguel Tobias. As Mr. Tobias was walking up to the car, [P.E.] cried out that he was not the man who had raped her. [The appellant] nonetheless rolled down the window and shot Tobias causing his death.
I would note that if the case had gone to trial today the State would have severed the two defendants. Maples would have testified as [P.E.] would have testified, that [P.E.] clearly told [the appellant] the man was not her rapist before he was murdered. The proof would also show that the victim looked nothing like the rapist. The victim was an average height and weight whereas the rapist weighed over 250 pounds.

Elliott I, 2014 WL 5242610, at *1.

         The TCCA then summarized the evidence presented at the sentencing hearing:

Damaris Santiago, the victim's wife, testified at the sentencing hearing that she and the victim had three children, whose ages were twelve, ten, and seven years. At the time of the shooting, she and the children were inside the house at 3710 Ezell Road. Mrs. Santiago heard two gunshots but did not think anything was wrong until one of the victim's friends came inside and told her to come outside. She walked outside and saw the victim lying on the ground.
Mrs. Santiago said that the victim was friendly, funny, and sweet and that he loved his children. After the victim's death, the children required therapy. Their ten-year-old son continued to have trouble in school and feared that he also might lose his mother.
Ernesto Castro, the victim's brother, testified that he lived in California. On Friday afternoon after the shooting, Mrs. Santiago called and informed him of the victim's death. Mr. Castro had eight brothers and sisters but was closest to the victim. He described the victim as honest and hard-working.
Stacy Walling, P.E.'s mother, testified that the appellant was P.E.'s paternal uncle. Walling acknowledged that she was testifying only because the State subpoenaed her. At the time of the shooting, P.E. was fifteen years old, and she had a close relationship with the appellant. P.E. promptly disclosed the rape to her mother, who in turn reported it to the police. P.E. did not like to talk about the shooting; however, she eventually told Walling that she was present when it occurred. Walling said that P.E. was depressed because of the rape, that P.E. blamed herself for the appellant's being in jail, and that P.E. was in counseling.
Walling said that P.E. had been subpoenaed to testify at the appellant's trial. P.E. did not want to testify and indicated that “she would rather go to jail than [the appellant].” P.E. had cried after “certain people” pressured her not to testify against the appellant; however, Walling did not know who tried to intimidate P.E.
On cross-examination, Walling said that P.E. told her about the rape the day it happened. Afterward, Walling took P.E. to the hospital. Walling said that she thought the appellant knew about the rape, noting, “I'm sure everybody found out. It just spreads fast.” On redirect examination, Walling acknowledged that P.E. had said that she told the appellant just before he shot the victim that the victim was not the man who raped her.
On recross-examination, Walling stated that she did not know whether the appellant heard P.E.'s statement.
The thirty-four-year-old appellant testified that he wanted to apologize to the victim's family for his mistake. He said that he thought he was killing the man who had raped P.E. He did not recall P.E. saying the victim was not the rapist but did not deny that she could have made that statement; instead, he recalled her saying “that's them.” On cross-examination, the appellant said that Maples was driving the car. The appellant knew a gun was in the trunk of the car but could not recall who put it there. The appellant retrieved the gun before confronting the victim. He explained, “I was going into a situation where I didn't know if I was going to have to defend myself against whoever did this or not.” The appellant denied that he intended to shoot and kill the person who raped his niece. He acknowledged that he did not say a word to the victim before shooting him, maintaining that he “lost control.” Ricky Waller, a community minister, testified that he had spoken with the appellant since the appellant's incarceration. Waller believed the appellant was remorseful and wanted to change his life.
Prior to imposing the sentence, the court explicitly considered the purposes and principles of the sentencing act and the facts and circumstances of the offense. The court noted that as a Range I, standard offender, the appellant was subject to a sentence of fifteen to twenty-five years for his Class A felony conviction. See Tenn.Code Ann. §§ 39-13-210(a); 40-35-112(a)(1). The court observed that the appellant had a prior history of criminal convictions, noting that he had one prior felony conviction of aggravated assault and eight prior misdemeanor convictions. Tenn.Code Ann. § 40-35-114(1). The court further found that the appellant was leader in the commission of the offense. Tenn.Code Ann. § 40-35-114(2). The court also found that the appellant had failed to comply with the conditions of a sentence involving release into the community, as evidenced by at least two prior probation violations. Tenn.Code Ann. § 40-35-114(8). Finally, the court found that the appellant employed a firearm during the commission of the offense. Tenn.Code Ann. § 40-35-114(9). The court afforded the greatest weight to enhancement factors (1) and (9).
Regarding mitigation, the court noted the appellant's claim that he was provoked. Tenn.Code Ann. § 40-35-113(2). The court stated, however, that “[t]he problem is that there was no provocation on the part of this victim or anyone else there at the time.” Accordingly, the court found that no mitigating factors were applicable and imposed a sentence of twenty[-]five years.

Elliott I, 2014 WL 5242610, at *2-3.

         The TCCA summarized the evidence presented at the post-conviction hearing as follows:

[T]he Petitioner testified that his father retained Counsel to represent him at trial. He testified that Counsel visited him in jail one time to discuss his case. The Petitioner received a plea offer from the State on the day of his trial, and he testified that Counsel informed him on that day that his sentence would be fifteen to twenty-five years for second degree murder, and that he would serve 30% of his sentence. When the trial court informed the Petitioner that he would serve his sentence at 100%, the Petitioner said he was not aware of that fact and asked for time to speak with Counsel about his sentence. The Petitioner testified that he felt he had no choice but to plead guilty because he was facing a fifty-one year sentence if his case proceeded to trial. However, the Petitioner then testified that if he had known he could stop the plea proceeding at any time, he would have done so because he felt “coerced” into pleading guilty by the fact that he could be found guilty at trial.
The Petitioner testified that, on the day of the plea, Counsel informed him that he would be eligible for parole after serving eight years. The Petitioner described Counsel as being “hung up” on the State's offer and thought Counsel was unprepared for trial. The Petitioner said he was not given ample opportunity to weigh the “pros and cons” of going to trial.
On cross-examination, the Petitioner stated that he would seek a trial if his plea was withdrawn. The Petitioner stated that Counsel did not discuss going to trial and that he felt like Counsel was not going to “fight for him” at trial and did not want to “chance it.” The Petitioner told Counsel that the State's proposed witnesses would not testify against him. Counsel told the Petitioner that his case was a “clear case” of manslaughter and told the Petitioner he would try to negotiate the best sentence possible for him.
The Petitioner stated that after learning that the State's offer had a release eligibility of 100% during the guilty plea hearing, the Petitioner talked about it with Counsel and decided to plead guilty because the Petitioner “didn't know what else to do.” He said he was concerned about the possibility of a fifty-one-year sentence if convicted at trial. The Petitioner agreed that he understood everything the trial court said during the guilty plea hearing. The Petitioner agreed that he told the trial court that he had thoroughly discussed the case with Counsel. The Petitioner repeatedly testified that certain facts were not brought to light that would have changed his decision not to go to trial, but he was unable to articulate any specific facts.
Counsel testified that he had been licensed to practice law in Tennessee since 1956 and that 80% of his practice involved criminal cases. He agreed that he represented the Petitioner in this matter. Counsel agreed that he erroneously told the Petitioner that the State's offer to plead guilty to second degree murder had a 30% release eligibility. When Counsel and the Petitioner left the courtroom to discuss his error after it had been clarified by the trial court, Counsel made it clear to the Petitioner that he was wrong about the 30% release eligibility. He recalled that the trial court corrected him in open court as well.
Counsel stated that, “under the facts of the case, ” he advised the Petitioner to accept the State's plea bargain offer and, stated that, in hindsight, he would give him the same advice again in order to avoid a first degree murder conviction.
Counsel testified that he was prepared to go to trial and had discussed the case with the Petitioner, although he could not recall their specific discussions. Counsel was convinced that the Petitioner had a 90% chance of being convicted of first degree murder if he went to trial. Counsel had no indication that the proposed witnesses would not testify at trial as the Petitioner alleged. He testified that the Petitioner did not have a lot of time to consider the State's plea offer because it was made the morning of trial. He denied telling the Petitioner that he would receive the minimum sentence if he pleaded guilty and stated that he never guaranteed that the Petitioner would get a plea offer for manslaughter.
On cross-examination, Counsel agreed that a notice of appeal of the Petitioner's sentence was not filed in this case and that Counsel did not discuss filing one with the Petitioner. Counsel could not recall any of his discussions with the Petitioner about trial strategy and could not recall going over the facts of the case with the Petitioner, although he was confident he had done so. Counsel specifically recalled that there was no pressure on the Petitioner in terms of time as to whether or not he should plead guilty after he learned of the 100% release eligibility percentage.

Elliott II, 2016 WL 4039586, at *2-3.

         III. ISSUES PRESENTED FOR REVIEW

         In his pro se petition, the petitioner claims that his counsel was ineffective for:

1. failing to adequately investigate the case and inform the petitioner of his purported trial strategy;
2. failing to adequately represent the petitioner's interests at the sentencing hearing;
3. failing to fully explain to the petitioner the nature and ...

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