Davidson v. Lindamood

          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 ...