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Turner v. Johnson

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

March 27, 2018

TRAY TURNER, Petitioner,
DEBRA JOHNSON, Warden, Respondent.

          GUYTON, JUDGE.



         Tray 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.


         In 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).

         On 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).

         However, 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).

         On 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.


         The following factual background is taken from the TCCA's opinion on Petitioner's appeal of the denial of his petition for post-conviction relief:

         The 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.

         The 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.

         The 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.

         The 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.

         On 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.

         Trial 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 the following:

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 instructions.

Turner, 2014 WL 6657566, at *2-5.


         The 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).

         For any 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. § 2254(d)(1)-(2).

         “Clearly 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.

         The 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 (2002)).

         IV. ANALYSIS

         In his § 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.

         A. Procedurally ...

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