United States District Court, E.D. Tennessee, Knoxville
REEVES, UNITED STATES DISTRICT JUDGE.
Turner (“Petitioner”), an inmate at the Turney
Center Industrial Complex, brings this pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254,
challenging the legality of his confinement pursuant to a
2010 judgment issued by the Knox County Criminal Court [Doc.
1]. Respondent filed a response in opposition thereto [Doc.
8], as well as a copy of the state record. Petitioner then
filed a reply to Respondent's response [Doc. 15].
Petitioner has also filed a motion for hearing [Doc. 31]. 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, Petitioner's motion for hearing
[Doc. 31] will be DENIED, and this action
will be DISMISSED.
2010, after a jury trial, Petitioner was convicted of one
count of aggravated robbery and one count of resisting
arrest, and was sentenced to 14 years in prison [State Court
Record, Attachment 1 p. 31-32]. The judgment was affirmed on
direct appeal by the Tennessee Court of Criminal Appeals
(“TCCA”), and the Tennessee Supreme Court
(“TSC”) denied permission to appeal. State v.
Tray Turner, No. E2010-2540-CCA-R3-CD, 2012 WL 1077153
(Tenn. Crim. App. Mar. 30, 2012), perm. app. denied
(Tenn. Aug. 16, 2012).
August 16, 2013, Petitioner filed his pro se petition for
post-conviction relief, pursuant to Tennessee Code Annotated
§ 40-30-101, et seq., in the Knox County
Criminal Court [State Court Record, Attachment 10 p. 416-75].
He was thereafter appointed counsel, and the petition was
amended [Id. at 485]. The Knox County Criminal Court
denied the amended petition on March 10, 2014 [Id.
at 495]. The TCCA subsequently affirmed this denial on
November 24, 2014. Tray D. Turner v. State, No.
E2014-00666-CCA-R3-PC, 2014 WL 665766 (Tenn. Crim. App. Nov.
24, 2014), perm. app. denied (Tenn. Feb. 12, 2015).
on November 3, 2014, Petitioner filed a motion to remove
counsel and to withdraw the brief submitted by his counsel
[Doc. 15-2 p. 1-3]. On December 8, 2014, Petitioner filed a
pro se petition to rehear, after the TCCA affirmed the denial
of post-conviction relief [See Doc. 33-1]. Then, on
December 30, 2014, the TCCA reviewed Petitioner's
“petition to rehear, which . . . include[d] a request
for leave to file a pro se appellant's brief in lieu of
the brief previously filed by counsel, ” and ordered
that “the court will further consider the petition to
rehear” upon Petitioner's filing of a pro se
appellate brief within 25 days [Doc. 15-2 p. 7]. But, on
February 19, 2015, the TCCA vacated its previous order and
denied the petition to rehear, as the TCCA was previously
unaware that on December 3, 2014, “[P]etitioner's
counsel had filed a Tennessee Rule of Appellate Procedure 11
application for discretionary appeal with the [TSC]”
[Doc. 33-1]. The TCCA held that “[t]he previous filing
of the Rule 11 application terminates this court's role
in the case” [Id.]. Then, the TSC denied
Petitioner's Rule 11 application on February 12, 2015.
Tray D. Turner v. State, No. E2014-00666-CCA-R3-PC,
2014 WL 665766 (Tenn. Crim. App. Nov. 24, 2014), perm.
app. denied (Tenn. Feb. 12, 2015).
March 6, 2015, Petitioner filed the instant petition for a
writ of habeas corpus in this Court [Doc. 1].
Respondent-Warden Debra Johnson-thereafter filed an answer to
the petition, arguing that Petitioner's claims were all
procedurally defaulted or without merit [Doc. 8]. Petitioner
then filed a reply to Respondent's response [Doc. 15].
This matter is now ripe for the Court's review.
following factual background is taken from the TCCA's
opinion on Petitioner's appeal of the denial of his
petition for post-conviction relief:
petitioner testified that trial counsel had met with him
prior to trial, and, with respect to plea offers, the
petitioner testified that trial counsel[:]
had come and visited me one time, and he had told me that the
State had offered me 10 years at 35 percent, and-but it also
included counter offers-offer, and, of course, me feeling
like I wasn't guilty of robbery, and I-wanted to do as
less time as possible, I went to the lower end, instead of
10, I went to six-I said six at 35. And he immediately told
me, well, she's not going to do that.
And then immediately after that he was like, but I think I
can beat an aggravated assault anyway, because I think I can
prove that this guy wasn't in fear because he ran out
right behind you.
And, you know, he's the attorney so I trusted what he
said. So I went on with it.
petitioner clarified that the offer of 10 years at 35 percent
was in exchange for a plea of guilty to aggravated assault.
The petitioner stated that, when trial counsel presented this
plea offer to him, counsel did not inform him that an
aggravated robbery conviction would require service at 100
percent. The petitioner also testified that he believed
aggravated assault meant that “you have to use a weapon
on somebody”; because he knew that he had not actually
harmed anyone during the K-Mart incident, he was under the
impression that he had not committed an aggravated assault.
The petitioner stated that, had he understood the elements of
aggravated assault, he would have “jumped on” the
State's offer of 10 years.
petitioner testified that trial counsel discussed trial
strategy with him “a lot, ” which is what
“made me trust [trial counsel] so much because he was
real adamant about how he believed I had . . . completed a
theft, and that I hadn't committed robbery.” With
respect to trial testimony, the petitioner stated that trial
counsel allowed the petitioner to decide whether he should
testify and that counsel neither told him not to testify nor
advised against his testifying. The petitioner acknowledged
that the trial court had advised him that any prior criminal
convictions could be used to impeach his credibility if he
chose to testify, and he recalled that, when the trial court
asked if he wished to testify, he responded that he had not
yet made a decision. The trial court informed the petitioner
that he could consider his decision with trial counsel for
“a few minutes.” The court took a break, during
which the attorneys discussed with the trial court which of
the petitioner's prior convictions could be admitted into
evidence. The petitioner recalled that, when the jury
returned to the courtroom, trial counsel informed the court
that the defense would not be presenting any proof. Because
the petitioner had never been involved in a trial, he was
unaware that “proof” included testimony, and he
“thought [he] was still going to testify.” The
petitioner stated that he was more concerned with telling the
jury his version of events than he was with any potential
repercussions from the exposure of his prior convictions
through his trial testimony.
petitioner stated that, if he had testified at trial, he
would have explained that the customer service desk employee
was his accomplice and that she had provided him with a
K-Mart bag and a “nail puller, ” a device used to
remove security tags from merchandise. According to the
petitioner, Mr. Grantham stopped him in the vestibule and
inquired about the stolen merchandise. The petitioner
insisted that he had paid for the merchandise and told Mr.
Grantham to check with the customer service desk employee.
After Mr. Grantham walked back into the store to speak with
that employee, the petitioner grabbed “like two
items” from his shopping cart and ran outside. When he
reached the getaway car, he discovered the passenger door was
locked, and Mr. Grantham was close behind him. At that point,
the petitioner produced the “nail puller” and
pointed it at Mr. Grantham in order “to protect”
himself. The petitioner then dropped all of the merchandise
before fleeing in the getaway car.
cross-examination, the petitioner conceded that, in the past,
he had pleaded guilty to several crimes, including aggravated
burglary, attempted aggravated robbery, aggravated robbery,
and theft of property valued at $1, 000 or more but less than
$10, 000. The petitioner denied that trial counsel had
explained to him that an aggravated robbery conviction would
necessitate sentencing as a Range II, multiple offender and
would require 100 percent service. The petitioner admitted,
however, that he recalled seeing the notice that the State
was seeking enhanced punishment based on his prior
convictions and that he understood the convictions could be
used against him if he had testified.
counsel testified that, given the petitioner's prior
criminal history, the issue of having to serve 100 percent of
a sentence was “one of the first things [he]
researched” in the petitioner's case, and counsel
remembered communicating to the petitioner the risk of
receiving a sentence to be served at 100 percent if he went
to trial. During trial preparation, trial counsel recalled
I remember going out to the detention facility, and if my
memory serves right, I remember the conversation because we
were in building two in the handicap, and we were talking
about 10 years at whatever percentage rate it was as a[n]
ag[gravated] assault, and [the petitioner] was always so
adamant, and it's because of his belief in his
intention-and I had no reason not to believe it-is that he
didn't commit a robbery.
And that the case law now-before we thought it was on our
side, and we believed-and I thought we had a good argument
for law about it not being a robbery, and that an offer of 10
years of an aggravated assault would be-if we got the robbery
dismissed would be what he would get anyway.
And that he was adamant about not going back to prison. That
he couldn't do it. And he would rather roll the dice, and
I remember that term being used. And I thought there might be
a chance that we could get the-that I could show that the
ag[gravated] robbery that there wasn't a weapon, because
it was almost like a screwdriver looking thing.
And also through the testimony at the preliminary hearing, I
never believed [Mr. Grantham] was scared whatsoever of [the
petitioner]. And so we thought we might have a chance to get
it down to a misdemeanor, and would be willing to roll the
dice on an aggravated assault, we believed that the
ag[gravated] robbery argument was so strong.
Trial counsel testified that the petitioner made the decision
to reject the offer of 10 years. With respect to the decision
of whether the petitioner should testify at trial, trial
counsel testified that it “was always [the
petitioner's] decision, ” and counsel recalled
“discussing many times about what would happen if the
judge ruled to let [the petitioner's] ... prior record
come in and what the jury would think about him if he took
the stand.” Trial counsel denied that he ever prevented
the petitioner from testifying and insisted that had the
petitioner “strongly felt like he wanted to testify, we
would've been prepping testimony two weeks before that
trial.” On cross-examination, trial counsel reiterated
that it was his belief and understanding that the petitioner
“was not going to testify” based on their
“game plan coming in” to trial. Counsel recalled
“discussing strategy on why or why not to testify, and
that [the petitioner] believed that if the [prior] robberies
came in that it would hurt him.”
With this evidence, the post-conviction court denied relief.
With respect to the plea offer of 10 years for aggravated
assault, the court accredited the testimony of trial counsel
and found that counsel and the petitioner “discussed
that issue at some length” but “decided they
would roll the dice.” Although the jury verdict was not
the result they were seeking, the court found that trial
counsel was not ineffective “merely because a different
procedural strategy might have produced a different
result.” The post-conviction court also accredited the
testimony of trial counsel that, had he known the petitioner
wished to testify, he would have begun preparing the
petitioner for his testimony two weeks prior to trial, which
was not done. The court stated that fact “supports the
proposition the defendant was fully advised of his right to
testify, and just did not testify.” Finally, the
post-conviction court specifically found no ineffective
assistance of counsel in the failure to request special jury
Turner, 2014 WL 6657566, at *2-5.
STANDARD OF REVIEW
Court must review Petitioner's request for habeas corpus
relief pursuant to the standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which allows state prisoners to seek
federal habeas corpus relief on the ground that they are
being held in custody in violation of the Constitution, laws,
or treaties of the United States. 28 U.S.C. § 2254;
Reed v. Farley, 512 U.S. 339, 347 (1994).
claims that have been adjudicated on the merits by the state
court, however, federal courts must utilize a “highly
deferential” standard of review. See, e.g.,
Harrington v. Richter, 562 U.S. 86, 88-89 (2011).
Under the AEDPA, 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. §
established federal law, ” for the purposes of §
2254(d)(1), refers to rulings of the United States Supreme
Court in place at the time of “the last state-court
adjudication on the merits.” Greene v. Fisher,
565 U.S. 34, 40 (2011); Lockyer v. Andrade, 538 U.S.
63, 71-72 (2003) (defining clearly established federal law as
“the governing legal principle or principles set forth
by the Supreme Court at the time the state court renders its
decision”). A decision is “contrary to”
clearly established federal law if “the state court
arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] on a set
of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). A state-court decision
unreasonably applies clearly established federal law if
“the state court identifies the correct governing legal
principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the
prisoner's case.” Id.
standards set forth in the AEDPA are “intentionally
difficult to meet.” Woods v. Donald, 135 S.Ct.
1372, 1376 (2015) (quoting White v. Woodall, 134
S.Ct. 1697, 1702 (2014)); see also Harrington, 562
U.S. at 102 (“If [§ 2254(d)] is difficult to meet,
that is because it was meant to be.”). 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). Ultimately, the AEDPA's highly
deferential standard requires this Court to give the rulings
of the state courts “the benefit of the doubt.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24
§ 2254 habeas petition, Petitioner generally alleges
that he received ineffective assistance of counsel, without
setting forth specific claims for relief [Doc. 1]. Respondent
has correctly detailed Petitioner's argument into
specific claims for relief, claiming some of which Petitioner
has procedurally defaulted [Doc. 8 p. 10-11]. The Court has
also reviewed Petitioner's habeas petition, and did not
uncover any additional claims. Also, in his reply to
Respondent's response, Petitioner failed to challenge
Respondent's depiction of his claims [Doc. 15].
Therefore, the Court will address the procedurally defaulted
claims before addressing the remaining claims in turn.