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Sydor v. Settles

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

March 21, 2018

STEVEN BERNARD SYDOR, Plaintiff,
v.
DARREN SETTLES, Acting Warden, Defendant.

          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 an effective sentence of 25 years imprisonment, imposed by the Davidson County Criminal Court on July 19, 2007, after a jury convicted the petitioner of second-degree murder and theft of property over $1, 000 but less than $10, 000. The respondent has filed an answer to the petition (ECF No. 15) stating that the grounds should be denied because they are not cognizable in federal habeas proceedings, 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. 15 at Page ID# 2546.) 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 death of April Anderson, the victim, who was the petitioner's live-in girlfriend at the time of her death, and the theft of the victim's car. On March 3, 2006, the petitioner was indicted by the Davidson County grand jury and charged with one count of first-degree murder and one count of theft of property valued at more than $10, 000 but less than $60, 000. (ECF No. 14-1 at Page ID ## 58-60.) The petitioner was tried before a jury, beginning on May 21, 2007 and concluding on May 24, 2007. (ECF Nos. 14-8 through 14-12.) At the conclusion of trial, the jury found the petitioner guilty of second-degree murder and theft of property in the amount of $1, 000 or more, but less than $10, 000. (ECF No. 14-12 at Page ID # 1025.) Following a sentencing hearing on July 19, 2007, the trial court sentenced the petitioner to 25 years for the second-degree murder conviction and 4 years for the theft conviction to run concurrently for a total effective sentence of 25 years imprisonment to be served at 100%. (ECF No. 14-15 at Page ID# 1294.)

         The petitioner appealed his judgment of conviction to the Tennessee Court of Criminal Appeals (“TCCA”), which rejected all appellate arguments and affirmed the petitioner's convictions and sentences in an unpublished opinion issued on February 2, 2010. (ECF No. 14-20 at Page ID## 1564-1582; see also State v. Steven Bernard Sydnor, No. M2007-02393-CCA- R3-CD; 2010 WL 366670, at *1 (Tenn. Crim. App. Feb. 2, 2010) [Sydnor I].)[1] The petitioner filed an application for permission to appeal to the Tennessee Supreme Court (“TSC”), which was denied on June 17, 2010. (Id.)

         On November 18, 2010, the petitioner filed a petition for post-conviction relief in the Davidson County Criminal Court. (ECF No. 14-24 at Page ID## 1684-1733.) On February 11, 2011, the trial court appointed counsel to assist the petitioner. (ECF No. 14-24 at Page ID# 1745.) On April 7, 2011, counsel filed an amended petition for post-conviction relief in the state court (ECF No. 14-24 at Page ID## 1746-61), and, on July 29, 2011, counsel filed a second amended petition (ECF No. 14-25 at Page ID## 1814-31). The matter was heard on August 21, 2011 and January 11, 2012, at which time it was denied. (ECF No. 14-25 at Page ID## 1882-83.) The trial court issued a memorandum opinion denying relief on March 10, 2015. (ECF No. 14-25 at Page ID## 1887-1903.)

         The petitioner appealed to the TCCA, which denied relief on January 26, 2016. (ECF No. 14-33 at Page ID## 2538-42; see also State v. Steven Bernard Sydnor, No. M2015-00651-CCA-R3-PC, 2016 WL 304415, at *1 (Tenn. Crim. App. Jan. 26, 2016) [Sydnor II].) The petitioner filed an application for permission to appeal to the TSC, which was denied on June 23, 2016. (Id.)

         II. STATEMENT OF FACTS

         The TCCA summarized the facts presented at trial as follows:

The State's first witness at trial was Savannah Singer, one of the victim's five sisters. Singer testified that in November 2004, the victim and the appellant lived near them in Culver City, California. The relationship between the victim and the appellant was tumultuous, and the victim's family urged her to move to Tennessee to get away from him and be near other family members.
Singer stated that in January 2005, the victim was staying with friends, not with the appellant, after spending a week visiting family in Montana. Singer said the victim gave her the code to access the voice mail on the victim's cellular telephone. Three of the voice mail messages Singer heard were from the appellant; two were messages for the victim and the other was for the victim's youngest son. In one message to the victim, the appellant told her that he knew she was back in town and that she should return his call. In the second message to the victim, the appellant said that he knew where the victim and her children were living. In the message to the victim's youngest son, the appellant said that he knew where the child went to school. Singer stated that all three messages were “sinister” and “threatening” in tone.
Singer said that because of the messages, she helped the victim get out of town. The victim moved to Tennessee and began living intermittently with her sisters, Holly Anderson and Tina Anderson. In October 2005, the victim began living with the appellant, who had also moved to Tennessee.
Singer testified that she last talked with the victim one week prior to her death. The victim mentioned that she was sad because of the death of their grandparents in October and that she was looking forward to being with family at the grandparents' memorial service, which was scheduled to be held in Pennsylvania on November 26, 2005. The victim planned to drive her car to Pennsylvania after Thanksgiving dinner on November 24, 2005, and several family members were scheduled to ride with her. Singer said that the appellant had not been invited to the memorial service.
Hillary Selvin, the partner of the victim's sister, Bonnie Anderson, testified that she first met the appellant one morning in February 2005. Selvin saw the victim and the appellant sitting in the victim's Honda Accord which was parked in the driveway of the home Selvin and Bonnie shared. The appellant and the victim were arguing, and the appellant would not get out of the victim's car. Shortly thereafter, the victim left to take the appellant to a bus station. The victim returned fifteen minutes later, visibly upset, crying, scared, and anxious. Selvin and Bonnie spoke with the victim for hours, suggesting places where she could get help dealing with “whatever issues she was dealing with.” Selvin said they also urged the victim to get out of town and go to Montana to stay with her mother and brother. The victim left for Montana about twenty-four hours later, putting her belongings in storage while she was away. When the victim returned to California approximately one week later, she gave away the items that had been in storage, preparing to move to Tennessee to stay with one of her sisters, Holly or Tina, who were living near Nashville.
Selvin testified that after the victim returned from Montana but before she left California for Tennessee, Selvin listened to the victim's voice mail messages and heard three messages from the appellant. Selvin said:
[T]here were a couple of messages, one in which [the appellant] said, “I know you dropped off the microwave at my sister's house, I know you're back in town, ” and “I know you're back in town and, you know, I know where your girls live. I know where you are and I'm going to take care of you.”
Selvin also heard a message the appellant left for the victim's youngest son, wherein the appellant said, “I know where you go to school . . . . I know your school route and I know where you live, and I know . . . what school you go to and I know how to get to you.” Selvin said all of the messages were “very threatening.” Selvin said that the victim moved to Nashville in March or April 2005, first staying with her sister Holly then with her sister Tina.
Officer Shane Fairbanks of the Metropolitan Nashville Police Department testified that on November 22, 2005, he was driving down Sylvan Street toward South Seventh Street when he saw the appellant walking down South Seventh Street. When the appellant saw Officer Fairbanks, he walked toward the officer with his hands in the air as if he were surrendering. Officer Fairbanks radioed dispatch that he was stopping, and he requested backup. After Officer Fairbanks stepped out of his car, the appellant continued to approach with his hands in the air.
The appellant told Officer Fairbanks that he wanted to turn himself in. Officer Fairbanks asked the appellant what was going on and why he wanted to turn himself in. The appellant, who was distraught and emotional, did not answer right away. Officer Fairbanks asked the appellant if he had done something, and the appellant replied that he “took it too far.” The appellant said that he and his girlfriend, the victim, often argued. The appellant maintained that when they argued, the victim “played like” she would commit suicide. The appellant said that a day and a half earlier, he and the victim argued. The appellant said that she “got a knife and told him that she wanted him to do it . . . . [H]e put his hands on the knife and they put the knife to her throat and they cut her throat together.” Officer Fairbanks asked if the appellant thought the victim was dead, and the appellant responded affirmatively.
Officer Fairbanks said:
[T]o be honest, I really wasn't sure if he was telling me the truth or not because no one's ever come up and told me that before, anything like that, but at the same time, you know, I wanted to make sure, I had to find out if it was true or not, so that's why I had dispatch[ ] send cars over to the address to check and see if anyone's there, and if so, if they're okay. Also, at the same time, at some point during my time with him, I did call Mobile Crisis, which, whenever we have somebody that's either suicidal or homicidal, like if somebody calls and says, “Hey, I'm going to take a bunch of pills, ” you know, if they're a danger to themselves or someone else, we'll call Mobile Crisis, and basically they're kind of an intervention and those people can get them help. So, based on what the [appellant] was telling me, I went ahead and called them just to see if they were familiar with him, if it's you know, something that he's gone through before or not, and they had never dealt with him.
Officer Fairbanks said that Officer Spain arrived as backup, and Officer Fairbanks continued to talk with the appellant:
Basically, I mean, we were just standing there having a conversation, you know, he's telling us things and we're trying to find out as much as we can to make sure nobody is in danger, you know, and also to try to verify or see if what we were being told is the truth.
Officer Fairbanks said that the appellant gave him the victim's name, telephone number, and address. Officer Fairbanks called dispatch and requested that officers proceed to the victim's address, apartment C-19 at the Brookwood Apartments in Madison, to investigate the appellant's allegations. The appellant told Officer Fairbanks that after the incident, he left the victim's apartment in the victim's car and that while he was driving on the freeway, he threw away the knife he had used on the victim. The appellant said that he parked the victim's car in a nearby alley, locked it, and threw the keys in the alley.
Officer Fairbanks said that the appellant asked to sit down, and he offered to let the appellant sit in the back of the patrol car. Officer Fairbanks handcuffed the appellant and placed him in the patrol car. Officer Fairbanks then drove to an alley off of South Seventh Street and Boscobel where the victim's car was located. Police could not find the keys to the car. While he was in the alley, Officer Fairbanks received a call from police dispatch informing him that the victim's body had been found at the address provided by the appellant.
Metro Officer Archie Spain testified that on November 22, 2005, he heard a radio report that Officer Fairbanks was with a suspect at Seventh Street and Sylvan. Officer Spain said the location was a “high crime area, ” so he went to the scene as backup. When he arrived, he saw Officer Fairbanks speaking with a black male, the appellant. The appellant said that two or three days earlier, he had accidentally killed his girlfriend with a knife, which he threw out on the interstate. The appellant said he had taken the victim's car, driven around for a while, parked her car in a nearby alley, and thrown the keys away. Officer Spain said the appellant was “crying like a baby” while he was talking with the officers. Officer Spain stated that he wondered if the appellant were telling the truth or if he were crazy. Officer Spain said the appellant gave accurate directions to where he had parked the victim's Honda in a nearby alley.
Metro Detective Matthew Filter testified that on November 22, 2005, he and Detective Terrence Bradley heard Officer Fairbanks radio for assistance from a detective. When Detective Filter arrived at the scene, he saw Officer Fairbanks and the appellant standing outside the patrol car. Officer Fairbanks told Detective Filter what the appellant had been saying. During their conversation, the appellant walked up and told Detective Filter that about a day and a half earlier, he and his girlfriend got into an argument. The appellant said that when they argued, the victim acted as if she were going to commit suicide. The appellant stated that on this occasion, the victim took a knife and put it to her throat. The appellant attempted to take the knife from her, and “they cut her throat together.” The appellant told Detective Filter that he thought the victim was dead, so he took the knife, got into the victim's car, and fled. The appellant said that he drove around on the interstate, tossed the knife, and later abandoned the car. Detective Filter said police found the victim's car in a nearby alley. Detective Filter said the appellant was very excited and anxious and seemed as if he wanted to talk. Detective Filter said his conversation with the appellant lasted two or three minutes.
Detective James Fuqua of the Metropolitan Police Department testified that he was one of the officers who responded to the victim's apartment at 714 Due West Avenue. Detective Fuqua saw the victim's body on a blanket in the back bedroom of the apartment. Her wrists were bound behind her back with a riveted black leather belt, her ankles were bound together with another black leather belt, and a black coaxial cable looped between the hand and foot bindings, drawing her limbs together behind her back in a “hog-tie” fashion. A shirt was wrapped around her face, and a cord from a cellular telephone charger protruded from under the shirt. Detective Fuqua saw “saturation blood on the neck area and on the shoulder, around the left eye area and around the throat area.” Blood was also on the carpet around the victim.
Detective Fuqua said that there was no furniture in the bedroom, only luggage and baggage containing clothing. Mattresses were on the floor in the living room. Men's and women's clothing was scattered around the apartment, and the appellant's business cards were on a counter.
Detective Fuqua left the victim's apartment and went to the north precinct to talk with the appellant. Upon request from Detective Fuqua, the appellant signed a form, consenting to a search of the apartment he shared with the victim.
Detective Fuqua said that police were unable to get fingernail scrapings from the appellant because his fingernails were chewed too short. However, Detective Fuqua noticed that the appellant “had some injuries to his hands, some cuts . . . like a knife cut.”
Two box cutters and a pair of scissors were found in the victim's car, but there was no blood on the items. Crime scene officers said that there was damage on the car from the middle of the front door to the back tire, as if the car had sideswiped something or had been sideswiped. Also in the car were papers bearing both the victim's name and the appellant's name, and a man's tie was in the backseat. However, there was no blood in the victim's car.
Dr. Amy R. McMaster, the medical examiner who performed the autopsy of the victim, testified that the thirty-nine-year-old victim was 5'1” tall and weighed 100 pounds. Dr. McMaster said that the victim was wearing a beige sweater with a green shirt underneath, blue jeans, and black boots. A pink or peach shirt was wrapped around her upper neck and lower mouth. Beneath the shirt, a black electrical cord was wrapped around her mouth and neck, securing a white sock which was stuffed in the victim's mouth. Dr. McMaster said that the victim's wrists were bound so tightly with the riveted black leather belt that blood was pushed to either side of the ligature and circular rust stains were left embedded in her skin. Dr. McMaster stated that the victim's body was showing signs of decomposition at the time of the autopsy.
Dr. McMaster said that the black cord around the victim's neck was tied tightly enough to constrict the airway. Additionally, the victim had a number of cuts to her throat; the cuts extended to the tissue beneath the skin but were not deep enough to damage any of the major blood vessels in the neck. Dr. McMaster said that if the victim were still alive when the cuts were made, the cuts would have bled a “great deal.” Dr. McMaster stated that there was not much blood at the scene. She opined that
the explanation for the fact that there wasn't more blood is one of two things; either she died shortly after those cuts were inflicted on her neck, and also because of the pink shirt wrapped tightly around her neck was pressure and it helped to stop the bleeding, so it could be a combination of those two things or one or the other independently.
Dr. McMaster said that the cause of the victim's death was a lack of oxygen, otherwise known as asphyxiation. Dr. McMaster opined that the gag in the victim's mouth made it difficult for her to get air. She explained that the shirt and cable wrapped around her neck impeded her ability to get oxygen and that the bleeding from the cuts on her neck contributed to the lack of oxygen. Dr. McMaster said that estimating the length of time before death was difficult because she did not know if the injuries contributing to the victim's death occurred at one time. However, Dr. McMaster said that a complete lack of oxygen would generally render a person unconscious in thirty seconds and would cause irreversible brain damage or death within a few minutes. Dr. McMaster estimated that the victim had been dead at least twenty-four hours prior to autopsy. Tests revealed that no drugs or alcohol were in the victim's body when she died.
Agent Charles Hardy, a forensic scientist with the Tennessee Bureau of Investigation Crime Laboratory, testified that the appellant's blood was found on his gray sweatshirt and in several spots on his blue jeans. The victim's blood was on the tongue end of the belt that was wrapped around her wrists, and DNA which did not match the victim or the appellant was on the belt buckle. There was “visible staining” on the buckle, waistband, and “middle back” of the belt that was around the victim's ankles. The blood on that belt was a mixture; the major contributor was the appellant and the minor contributor was the victim. Agent Hardy saw “questionable indentations on the tongue of the belt, ” which could have been from a person's teeth. Testing revealed the appellant's saliva on the tongue of the belt around the indentations. The cord around the victim's neck, an AC adaptor, was stained with the victim's blood. The appellant's DNA was on the coaxial cable which connected the victim's bound wrists and ankles.
Agent Hardy said that the appellant's sperm was found on swabs taken from the victim's vaginal and anal area. DNA consistent with the appellant was found on clippings taken of the fingernails of the victim's left hand. Blood from both the appellant and the victim was found on the beige sweater the victim was wearing. The victim's DNA was found on the pink shirt that was wrapped around her head; a second contributor's DNA was also found on the pink shirt and the appellant could not be excluded as the minor contributor. The victim's blood was also found on the toe area of the sock which was in her mouth.
The victim's sister, Holly Anderson, testified that she lived in White House, Tennessee, and that the victim moved in with her in March 2005. In mid-September 2005, the victim went to live with another sister, Tina Anderson. In October 2005, after the appellant came to Tennessee, the victim moved into an apartment with the appellant. Holly Anderson said that on November 26, 2005, the family was scheduled to leave for Pennsylvania to attend a memorial service for their recently deceased grandparents. The victim was one of the people slated to drive.
Holly Anderson said that she went to the victim's apartment after her death to gather some of the victim's belongings. Later, she went through the papers she had gathered from the kitchen counter and found a note which was signed by the appellant. The note said, “Mom, I have done it. I used today. Last night I was kind of fiending and I did it today, 11/20.” Detective Fuqua testified that Holly Anderson gave him the note after she found it. He said that “fiending . . . has something to do with drug usage, possibly wanting drugs . . . needing or wanting drugs.”
Singer and Selvin both testified that in April 2004 the victim bought a new, silver Honda Accord for her birthday. Selvin said that the victim paid “[o]ver $500 a month on the car.” Sydnor, 2010 WL 366670, at *1-6.

         III. ISSUES PRESENTED FOR REVIEW

         In his pro se petition, the petitioner raises the following grounds for relief:

A. The trial court erred in denying a motion to suppress the statements the petitioner made to the police; B. The trial court erred in admitting:
1. A photograph of the victim taken prior to her death; 2. Graphic photographs of the victim's face and body (post-mortem)
3. Testimony regarding alleged incidents of threatening conduct;
C. The trial court erred in imposing the maximum sentence on the petitioner's conviction for second-degree murder;
D. The evidence was insufficient to support the petitioner's convictions.

(ECF No. 1 Page ID## 5-25.)

         IV. STANDARD OF REVIEW

         This matter is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 132 S.Ct. 490, 491 (2011); Felkner v. Jackson, 562 U.S. 594, 597 (2011). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009). AEDPA prevents federal habeas “retrials” and “ensure[s] that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, this court may not rely on the decisions of lower federal courts. Lopez v, Smith, 135 S.Ct.1, 4 (2014); Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir. 2000). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38, 44 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Tennessee state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644-45 (6th Cir. 2014) (citing Greene, 132 S.Ct. at 44).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011); see Burt v. Titlow, 134 S.Ct. 10, 16 (2013); Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (2013); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Indeed. “habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Harrington, 562 U.S. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).

         Under AEDPA, 28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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.”

Davis v. Ayala, 135 S.Ct. at 2198; see also White v. Wheeler, 136 S.Ct. 456, 460 (2015) (explaining that the Supreme Court, “time and again, has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose ...


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