United States District Court, M.D. Tennessee, Columbia Division
The
Honorable Waverly D. Crenshaw, Jr., Chief Judge
REPORT AND RECOMMENDATION
ALISTAIRE. NEWBERN United States Magistrate Judge
Petitioner
Ricardo Davidson was convicted by a jury of possession of
over 300 grams of cocaine with intent to sell or deliver it
in a drug-free school zone and other drug-related offenses.
He is now serving a fifteen-year sentence imposed by the
Maury County (Tennessee) Circuit Court on August 13, 2010.
(Doc. No. 30-2, PageID# 282.) Davidson initially filed this
habeas corpus action pro se under 28 U.S.C. § 2254.
(Doc. No. 1.) This Court appointed counsel for Davidson and
ordered the filing of an amended petition (Doc. Nos. 16, 25).
Respondent has answered the amended petition (Doc. No. 31)
and filed the state court record (Doc. No. 30).
This
matter is now ripe for the Court's review, and the Court
has jurisdiction. Respondent does not dispute that
Davidson's petition is timely and that this is
Davidson's first habeas petition related to this
conviction. (Doc. No. 31, PageID# 1734.)
Davidson
requests discovery and an evidentiary hearing on the issues
raised in his petition. (Doc. No. 25, PageID# 122.) This
Court need not hold an evidentiary hearing where “the
record refutes the applicant's factual allegations or
otherwise precludes habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). In determining
whether an evidentiary hearing is necessary, the Court must
consider the “deferential standards prescribed by [the
Antiterrorism and Effective Death Penalty Act (AEDPA),
” under which a state court's factual findings are
presumed correct subject to rebuttal by clear and convincing
evidence. Id.; 28 U.S.C. § 2254(e)(1). Having
reviewed Davidson's arguments and the underlying record,
the Court finds that an evidentiary hearing is not required.
Davidson is not entitled to relief under AEDPA's
standards. The Magistrate Judge RECOMMENDS that his petition
be denied and this case dismissed.
I.
Procedural History
On June
17, 2010, Davidson was convicted by a jury in the Maury
County Circuit Court (hereinafter, the trial court) of four
drug offenses: possession of more than 300 grams of cocaine
with intent to sell in a drug-free school zone; conspiracy to
possess over 300 grams of cocaine in a drug-free school zone;
possession of over ten pounds of marijuana with intent to
sell or deliver in a drug-free school zone; and conspiracy to
possess over ten pounds of marijuana with intent to sell or
deliver in a drug-free school zone. (Doc. No. 30-2, PageID#
278, 282-291; Doc. No. 30-9). Davidson's charges arose
out of the delivery to his residence of a suspicious package
ultimately found to contain narcotics. Davidson received the
minimum sentence of fifteen years on each convicted offense,
to run concurrently. (Doc. No. 30-2, PageID# 282-291; Doc.
No. 30-9.) Davidson was represented at trial by attorney John
Colley.
As a
central part of Davidson's defense, trial counsel moved
to suppress evidence seized during a search of Davidson's
home. (Doc. No. 30-1, PageID# 144, 155-57.) Trial counsel
argued that the affidavit supporting the search warrant did
not state that the suspicious package was addressed to
Davidson or intended for delivery to Davidson's
residence. (Id. at PageID# 144.) Trial counsel also
argued that the affidavit supporting the warrant to search
the package itself did not contain adequate proof of the
alerting K-9's reliability and credibility to justify a
search based on the dog's positive alert. (Id.
at PageID# 156.) The trial court denied the motion to
suppress after a hearing. (Id. at PageID# 169-170.)
Davidson
appealed his conviction to the Tennessee Court of Criminal
Appeals (TCCA), represented by Ronald Freemon. Appellate
counsel only challenged the trial court's denial of the
motion to suppress in Davidson's direct appeal. (Doc. No.
30-14, PageID# 1176.) The TCCA affirmed the trial court's
judgment on May 17, 2012. State v. Davidson, No.
M2010-02002-CCA-R3-CD, 2012 WL 1795147 (Tenn. Ct. Crim. App.
May 17, 2012) (Davidson I); (Doc. No. 30-16.) The
Tennessee Supreme Court denied permission to appeal on August
16, 2012. (Doc. No. 30-19.)
On
October 18, 2012, Davidson filed a pro se petition for
post-conviction relief in the trial court. (Doc. No. 30-20,
PageID# 1285-1299.) The trial court construed Davidson's
petition as raising a “general allegation of
ineffective assistance of counsel” and asserting the
following claims:
(1) the convictions were based on use of evidence gained
pursuant to an unconstitutional search and seizure, (2) the
convictions were based on use of evidence obtained pursuant
to an unlawful arrest, and (3) the convictions were based on
illegal evidence. Additionally Petitioner alleges that his
due process rights were violated due to the following: (4) an
all white jury presiding in an African American
Defendant's trial; (5) selection of a jury in an
intentionally discriminatory manner; (6) the Court charging
the jury relative to criminal responsibility; (7) the Court
submitting the conspiracy counts to the jury; (8) the Court
misconstruing its authority as thirteenth juror; (9) the
Court failing to charge natural and probable consequence;
(10) the Court failing to charge entrapment; and (11)
disproportionate sentencing.
(Id. at PageID# 1340.) The trial court further
understood Davidson to claim the ineffective assistance of
his trial counsel for failing to raise or effectively
advocate these eleven issues, in addition to failing to call
Jason Coleman as a material witness at trial. (Id.
at PageID# 1340-43.) The court also understood Davidson to
claim the ineffective assistance of his appellate counsel for
failing to preserve all of Davidson's constitutional
claims and raising only one claim on appeal regarding the
denial of the motion to suppress. (Id. at PageID#
96-97.)
The
court appointed Seth Lasater as post-conviction counsel, and
Lasater filed an amended post-conviction petition on December
28, 2012. (Id. at PageID# 1334-35.) The amended
petition incorporated all of the allegations of
Davidson's pro se petition and clarified that
Davidson's claim regarding the jury panel and selection
raised due process and equal protection violations.
(Id.) The trial court held an evidentiary hearing on
May 24, 2013, at which Davidson, trial counsel, and appellate
counsel testified. (Doc. No. 30-21.) On June 20, 2013, the
trial court denied the petition for post-conviction relief on
all grounds. (Doc. No. 30-20, PageID# 1339-1344.)
On
December 4, 2013, post-conviction counsel appealed the denial
of Davidson's petition to the TCCA.[2] (Doc. No. 30-23.)
The appeal asserted that the post-conviction court erred in
denying relief on the following four ineffective assistance
of counsel claims: “Trial counsel failed to adequately
argue suppression of search warrant[;] [t]rial counsel failed
to argue issue of racial makeup on Motion for Acquittal or
New Trial[;] [t]rial counsel failed to make argument and
request jury instruction under the Natural and Probable
Consequences Rule[;] [and] [b]oth trial counsel and appellate
counsel failed to keep adequate communication with
[Davidson].” (Doc. No. 30-23, PageID# 1595.) On July
31, 2014, the TCCA affirmed the denial of post-conviction
relief on each of the four asserted grounds. Davidson v.
State, No. M2013-01645-CCA-R3-PC, 2014 WL 3765710 (Tenn.
Ct. Crim. App. July 31, 2014) (Davidson II); (Doc.
No. 30-25.) The Tennessee Supreme Court denied permission to
appeal on November 20, 2014. (Doc. No. 30-27.)
Davidson
timely filed this federal action pro se on December 15, 2014.
(Doc. No. 1.) The case was administratively closed to allow
Davidson to fully exhaust his state court remedies and was
reopened on April 10, 2015. (Doc. Nos. 9, 16.) The Court
appointed counsel, who filed an amended petition. (Doc. No.
25.)
II.
Statement of Facts
The
following summaries of facts are taken from the TCCA's
consideration of Davidson's suppression hearings and
trial on direct appeal, Davidson I, 2012 WL 1795147
at *1-7, and post-conviction evidentiary hearing,
Davidson II, 2014 WL 3765710 at *10-15.
A.
Motion to Suppress
This case arises from law enforcement officers'
interception of a mailed package that was believed to contain
drugs. After obtaining a search warrant to open the package,
the officers discovered it contained drugs. They then
delivered the package to the intended address, where they
also executed a second search warrant and found more drugs. A
Maury County grand jury indicted the Defendant for four
felony drug offenses and possession of drug paraphernalia.
The Defendant filed a motion to suppress the evidence
obtained as a result of the search warrants.
At the first hearing on the motion to suppress, neither party
presented evidence other than the search warrants themselves.
The parties offered the trial court arguments based upon the
warrants. The defense argued that there was no nexus between
the affidavit and the address searched. Defense counsel noted
that this case involved a suspicious UPS package that was
opened, and, based upon its contents, law enforcement
officers obtained a search warrant. Defense counsel assumed
that the address for which they obtained the search warrant
was the address to which the UPS package was addressed, but
defense counsel argued that nothing in the affidavit alleged
that fact.
The State conceded that the affidavit supporting the search
warrant never specifically stated that the address that law
enforcement officers sought to search was the same address as
that listed on the UPS package. The State asserted, however,
that when the search warrant was read as a whole, it was
obvious from the search warrant that such was the case. The
State further noted that the affidavit stated that the
officer swearing to the affidavit believed, based upon his
knowledge and experience, that the two people listed in the
affidavit, who were the occupants of 638 Mooresville Pike,
Columbia, Tennessee, were anticipated to take possession of
the package.
Defense counsel countered that the package was addressed to a
man named “Jerry Fryson” and not to the
Defendant. Defense counsel then asked to file an amended
motion based upon the law enforcement officer's alleged
“intentional” act of omitting the address of the
recipient of the package when seeking a search warrant for
the Defendant's residence. The trial court granted the
Defendant's request to file an amended motion and set a
hearing for a later date.
At the hearing on the amended motion to suppress, the parties
presented the following evidence: Michael Perez, a Nashville
Drug Task Force officer, testified that this investigation
began on July 2, 2007. On that day, he received a phone call
from “Andy, ” an officer with the Los Angeles
Police Department who worked in the parcel narcotics unit.
Andy advised Officer Perez that there was a package that he
suspected contained narcotics or narcotics proceeds coming to
Columbia, Tennessee, from the Los Angeles area. Based upon
this information, Officer Perez contacted Special Agent Mabry
with the Tennessee Bureau of Investigation and asked if he
had a law enforcement contact in the Columbia area. Agent
Mabry confirmed he did have a contact and called the Maury
County Sheriff's Department for assistance in a potential
controlled delivery of the package.
Officer Perez testified that he and Agent Mabry, along with
other officers, went to the UPS facility before the package
was placed on the outgoing delivery truck. The officers used
a K-9 drug dog, trained as a drug detector, to identify
whether the package may, in fact, be emanating odors of
narcotics. The drug dog indicated positively on the package,
which was addressed to Jerry Fryson. The address was listed
as 638 Mooresville Pike in Columbia, Tennessee. Officer Perez
said, based upon this information, the officers obtained a
search warrant to open the package. Inside the package, they
found foam under which was located marijuana. Officer Perez
said that, upon finding the marijuana, the officers did not
disturb the package further, hoping to successfully conduct a
controlled delivery of the package.
Officer Perez testified that he went with Maury County
Sheriff's Department officers as they executed “an
anticipatory search warrant” at the address listed on
the package. He said he did not personally identify who lived
at that address, and he was not involved further in the
investigation until after the execution of the second search
warrant.
On cross-examination, Officer Perez testified that he
attempted to determine whether Jerry Fryson was a real
person. He explained that he searched the Tennessee
driver's license files for a “Jerry Fryson.”
Officer Perez read from the affidavit requesting the search
warrant, wherein another officer, Officer Brian Cook, swore
that the search revealed that there was no person with the
name Jerry Fryson licensed in the State of Tennessee. The
affidavit further stated that individuals dealing in
controlled substances very often create false names for
parcels to conceal their true identities.
Officer Brian Cook, with the Maury County Sheriff's
Department, testified that he was assigned to the Drug Task
Force in 2007. He said that he was present on July 3, 2007,
when the suspicious box was opened at the UPS facility. Upon
opening the package, officers discovered that it contained
illegal narcotics, and they resealed the package for a
controlled delivery. Officer Cook said he typed an
“anticipatory search warrant” to serve on the
residence after delivery of the package. Officer Cook said he
listed “Jerry Fryson” as one of the people to be
searched, but he did not specifically indicate in the warrant
that the package was addressed to “Jerry Fryson.”
Officer Cook testified that the affidavit indicated that,
based upon Officer Cook's belief and training,
“Miss Malave and Mr. Davidson are the current
residen[ts] at 638 Mooresville Pike, and they are who the
said package is intended to be delivered.” The officer
agreed that the affidavit does not state in “plain
language” that the package was addressed to 638
Mooresville Pike.
On cross-examination, Officer Cook testified he did not
intentionally omit from the affidavit that the package was
addressed to Fryson but stated that he listed him as a person
to be searched. He further stated that, after learning the
package was addressed to 638 Mooresville Pike, he and another
officer, Lieutenant Bill Doelle, drove by that address and
ran the vehicle tags of the two cars parked at the residence.
One of the two cars was registered to Dana Malave. When the
officer ran Malave's name through law enforcement
computer programs, the programs listed the Defendant as her
acquaintance who also lived at the same address. Officer Cook
testified that the package was successfully delivered to 638
Mooresville Pike and that it contained around three pounds of
marijuana and a kilogram of cocaine.
On redirect examination, Officer Cook testified that he
checked to see if either Malave or the Defendant were
suspected drug traffickers, and they were not. He agreed that
the only link between Malave, the Defendant, and the package
was that they were residents of the address listed on the
package.
Upon questioning by the trial court, Officer Cook testified
that the marijuana contained in the box had a value of $3,
000 and the cocaine had a value of $26, 000.
The
trial court denied the Defendant's motion to suppress. In
so doing, it found:
The Fourth Amendment of the U.S. Constitution, and the
corresponding provisions of the State Constitution, do not
absolutely prohibit searches. They just prohibit unreasonable
searches and seizures.
In this case, State and local officers, based on reliable
information from fellow officers in California, began an
investigation. That investigation was of a package addressed
to 638 Mooresville Pike, they first p[erus]ed the interior of
the package to confirm whether it did contain controlled
substances, and they confirmed at least one controlled
substance in the package before we sought the second warrant,
and performed then the delivery and the eventual execution of
that second warrant.
I think the second warrant, as I said in February, on its
face, states or implies-and I'll have to say, mostly
implies-that the package is addressed to 638 Mooresville
Pike, and to one or more of those persons that resided there.
They had gone far enough to investigate the vehicles and who
those vehicles were registered to at that address, and naming
people that they believed to be living there, based on their
investigation, and that they had reason to believe, based on
their experience, which I think people with sufficient
experience may state opinions, in court, and certainly in
search warrants.
And that they had some reason to believe that Mr. Fryson may
not exist, but at the same time, there may be someone there
at the residence with that same spelling or a phonetic
similarity to that spelling. And the magistrate had probable
cause, based on what was contained within the four corners of
the second . . . affidavit, a part of Exhibit 1, to issue
that second warrant, which was a part of Exhibit 1.
If the magistrate has the authority to also consider what he
did an hour and 35 minutes earlier, at 8:55, before the 10:30
second warrant, there is even stronger proof that Jerry
Fryson . . . did not appear to exist, as a person licensed to
drive a vehicle in Tennessee, and that it was appropriate to
look at who might reside at that residence for probable cause
purposes.
[Defense Counsel], the reason I asked about the value of the
substance, there is pretty strong proof that someone is not
going to mail $39, 000.00 worth of controlled substances to
an address on Mooresville Pike if they have absolutely no
idea about who is going to get it. And the people that live
at that address are the most likely people to receive it.
So somebody that put that address on a box must have expected
the occupants of that residence to be the ultimate recipient
of the intended delivery. And I've not heard any evidence
in this record that anyone named Jerry Fryson or Jerry
Frierson, which we have a number of Friersons in Maury
County, lived at that address or that there was any mistaking
the 638 address, or that this package was intended for anyone
other than persons in possession of [the residence at] 638
Mooresville Pike.
. . . .
I believe you can make reasonable inference from the facts
stated, and the facts stated here are that they anticipate
delivering this box to 638 and that these two defendants are
the occupants of that residence. And that, therefore,
it's reasonable, under the Constitution, to conduct a
search of those premises and the people in charge or in
possession of those premises.
B.
Trial
After the trial court denied the Defendant's motion to
suppress, it held a trial. The Defendant does not appeal the
sufficiency of the evidence supporting his convictions,
limiting his appeal to whether the trial court erred when it
denied his motion to suppress, so we will briefly summarize
the facts presented at trial in the light most favorable to
the State.
On July 2, 2007, DEA Task Force Officer Michael Perez
received information from Los Angeles Police Department
Detective Andrew Smith that a suspicious package was coming
to Columbia, Tennessee, via UPS. The package was addressed to
Jerry Fryson and was to be delivered to 638 Mooresville Pike
in Columbia, Tennessee. Agent Mabry attempted unsuccessfully
to locate an individual by the name “Jerry
Fryson” in public databases. Agent Mabry was not
surprised by his failure to locate a “Jerry
Fryson” because, he said, packages of this nature often
bear a fictitious name.
Officers went to the UPS facility with a K-9 drug dog
officer. The K-9 officer smelled several packages and alerted
officers to a package addressed to “Jerry
Fryson.” Based upon the information from the Los
Angeles Police Department officer and the K-9 officer's
alert, officers obtained a search warrant to open the
package, and, when they did, they found a white foam
packaging material beneath which was a leafy green substance
that they deemed was narcotics. Once the officers confirmed
there were narcotics inside the box, they put the box back
together so it could be delivered to the address in order to
identify the intended recipients of the illegal drugs in a
controlled manner.
Officers applied for and were granted an “anticipatory
search warrant.” The warrant required that certain
events happen before the warrant could be executed. In this
case, the package had to be delivered to the house before the
warrant could be executed. The search warrant included the
names Jerry Fryson, Dana Malave, and the Defendant as the
potential people to be searched.
While other officers conducted surveillance, Officer James
Whitsett, who was assigned to the DEA in Nashville, delivered
the box. Officer Whitsett, dressed as a delivery man, took
the box to the residence. There, the Defendant approached him
and said that the package belonged to him. Officer Whitsett
handed the Defendant the package, and the Defendant set it
down and then picked it back up and took it to an
“outbuilding” or “little barn” that
was adjacent to the residence. Once the box was delivered,
officers executed a search warrant on the residence and the
outbuilding where the Defendant had taken the box. Officers
found the box and noted that it had not yet been opened. In
the shed, officers also found plastic baggies on a work
bench, a large box that contained scales, and a duffle bag
that contained large blocks of marijuana and a Bible. The
Bible contained writing that said that it had been presented
to “Jason Coleman.” Officers also found a pistol
inside the house on top of one of the kitchen cabinets. Also
in the kitchen, officers found a letter bearing the name
“Jay Coleman” and listing his address as Wasco
State Prison. The letters, written in April and August 2006,
were read into evidence and seemingly discussed some illicit
activity. Other mail found inside the residence linked Malave
and the Defendant to the residence.
In the master bedroom of the residence, officers found a
plastic tote that contained marijuana, plastic wrap, a set of
scales, paper plates with some loose marijuana, a utility
knife, and a bag that contained plastic baggies.
Officers interviewed the Defendant, who initially said that
he did not know what was in the package and that it belonged
to Malave. Later, the Defendant said that he had been
receiving packages for a man named “Jay Coleman.”
Officer Whitsett was familiar with Coleman and had previously
investigated him previously for carrying large sums of
currency. Coleman had been arrested on several occasions for
drug related activity in both Tennessee and California. The
Defendant told officers that he received $500 for accepting
each package, and, while he was unsure what the packages
contained, he believed they contained narcotics. Officers
attempted without success to contact “Jay
Coleman.” The Defendant also told police officers that
the marijuana discovered in his bedroom did not belong to
him. He said that he was waiting for someone to come and pick
it up.
TBI Agent Jennifer Sullivan analyzed the substances contained
in the package. She determined that the box contained 28.8
pounds of marijuana and 996.4 grams of cocaine, 6 tenths of a
gram less than a kilogram of cocaine. Agent Sullivan also
tested the digital scales found in the residence and found
cocaine on the scales. Lieutenant William Doelle testified
that the street value of the marijuana was almost $60, 000,
and the street value of the cocaine was $99, 640 if it
remained in the powder form and up to $400, 000 if the
cocaine was altered into crack cocaine.
Officers measured the distance from the Defendant's house
to a nearby child care facility. They determined that the
residence was less than 1000 feet from a licensed day care
facility.
The Defendant offered evidence that he raced motorcycles
locally and also fixed them in his shop. The defense
presented multiple police officers who testified that they
had paid the Defendant to work on their motorcycles either at
the Defendant's motorcycle shop or at the Defendant's
house. In order to obtain parts to fix the motorcycles, the
Defendant ordered and received many packages containing
motorcycle parts, which were usually delivered by UPS or
FedEx.
Regarding the events that surrounded the Defendant's
arrest, Sheila Duke testified that she and her children went
to a cookout at the Defendant's house on July 2, 2007, at
around 6:00 p.m. Her boyfriend, Mark Booker, met them there
later that night. Duke recalled that the Defendant, the
Defendant's girlfriend, Dana Malave, and a man named
“Jay” were present. Mark Booker testified that
“Jason Coleman” was at the Defendant's house
on July 2, 2007, while they were “cooking out.”
He said he knew Coleman through the Defendant and knew that
Coleman raced four-wheelers.
Dana Malave testified that she and the Defendant had three
children and that, in July 2007, the Defendant worked on
motorbikes out of a shed at their home. Malave said she knew
Jason Coleman. Coleman had purchased a motor bike from the
Defendant, and on July 2, 2007, Coleman was at their house
intermittently, leaving and returning several times. Coleman
ate dinner with them and left for the last time at around
9:30 p.m. Malave said that, when she went into her bedroom
after Coleman left, and there was a plastic tote in the
bedroom. The Defendant told her that Coleman had left the
tote and would return later that evening to retrieve it.
Coleman, however, never returned to retrieve the tote. Malave
claimed that neither she nor the Defendant knew the contents
of the tote.
The Defendant testified and explained that he often ordered
and received packages of motorcycle parts for his motorcycle
repair work. He said that he used plastic wrap to wrap
motors, and he used plastic bags to organize motorcycle
parts. He explained that he used scales to weigh nitrous
oxide, which he used to make motorcycle engines faster. The
Defendant said that he knew Jason Coleman and that the two
met approximately three years before the Defendant's
arrest when Coleman brought him a bike to repair. He said he
fed Coleman's dogs while Coleman was incarcerated. The
Defendant confirmed that Coleman brought a blue tote to his
house on July 2, 2007, saying he would return shortly to
retrieve it. The Defendant said Malave told him the tote
smelled and asked him to remove it. The Defendant said he was
expecting a package of motorcycle parts on July 3, 2007. They
were to be delivered by UPS, and, when ...