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Moore v. Nixon

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

April 30, 2018

DARRYL J. MOORE, Petitioner,
STEVENSON NIXON, Warden, Respondent.



         Darryl Moore, an inmate at Lois M. DeBerry Special Needs Facility in Nashville, Tennessee, initiated this action by filing a pro se petition for a writ of habeas corpus. (Doc. No. 1.) Moore is serving an effective sentence of ninety-three years after having pleaded guilty in the Davidson County Criminal Court to multiple drug-related offenses. Respondent answered Moore's pro se petition arguing that Moore's claims are without merit and should be dismissed. (Doc. No. 18.) Moore has retained counsel and filed an amendment to his petition that this Court allowed only for the purpose of supplementing his original claims. (Doc. Nos. 38, 46.)

         This matter is ripe for review and the Court has jurisdiction under 28 U.S.C. § 2254(d). Upon review of the parties' filings, the Court finds that Moore is not entitled to relief on the grounds he asserts. His petition, therefore, will be denied and this action will be dismissed.

         I. Background

         A. Procedural History

         Moore retained attorney Glenn Funk to serve as lead counsel for his trial proceedings and co-counsel Kimberly Hodde to litigate suppression motions regarding electronic surveillance evidence and the search of his residence. The trial court denied those motions after evidentiary hearings. (Doc. No. 19-1, PageID# 373-443; Doc. Nos. 19-3, 19-4, 19-7.) On December 3, 2007, Moore entered a conditional guilty plea in the Davidson County (Tennessee) Criminal Court to charges of conspiracy to deliver 300 grams or more of cocaine; conspiracy to deliver 300 pounds or more of marijuana; possession with intent to deliver 300 grams or more of cocaine; possession with intent to deliver 10 pounds or more of marijuana; money laundering; and unlawful possession of a weapon. (Doc. No. 19-2, PageID# 454.) Moore was sentenced on February 19, 2008, to an effective term of ninety-three years as a Range One standard offender: twenty-five years for each of the conspiracy and possession counts; twelve years for money laundering; four years for possession with intent to deliver; and two years for unlawful possession, with the sentences to be served consecutively. (Id. at PageID# 454, 483-488.) Moore's plea reserved the right to appeal the denial of his motions to suppress. (Doc. No. 19-2, PageID# 457-58.)

         Funk was appointed to represent Moore on direct appeal. In the Tennessee Court of Criminal Appeals (TCCA), Moore argued that the trial court erred in denying his motion to suppress electronic surveillance evidence because:

the three relevant wiretap applications lacked probable cause as required by Tennessee Code Annotated section 40-6-304(c)(1); (2) those wiretap applications failed to demonstrate the necessity of electronic surveillance as required by Tennessee Code Annotated section 40-6-304(a)(3); (3) the wiretap applications failed to particularize probable cause for the interception of direct connect communications in addition to normal phone calls and were thus overbroad to the extent that such interception was authorized; (4) law enforcement failed to follow appropriate minimization procedures, as required by Tennessee Code Annotated section 40-6-304(e), including a failure to minimize calls using call waiting and call forwarding features; and (5) the State violated the sealing and confidentiality rules contained in Tennessee Code Annotated section 40-6-304(f). The Defendant also contends that the trial court erred in denying his motion to suppress the fruits of a search of his residence because: (1) police impermissibly searched areas of the residence without a warrant; and (2) the police's subsequently obtained warrant for further search of his residence did not contain probable cause. Finally, the Defendant argues that the trial court erred in ordering consecutive sentencing. After our review, we affirm the Defendant's convictions and sentences.

State v. Moore, 309 S.W.3d 512, 516-17 (Tenn. Crim. App. 2009).

         The TCCA affirmed the trial court on all issues. Id. at 522-29. The Tennessee Supreme Court denied Moore's application for further review. (Doc. No. 19-15.)

         Moore then filed a pro se petition seeking post-conviction relief in state court, and the trial court appointed David Hirschberg as post-conviction counsel. Moore raised the following post-conviction claims:

(1) Trial counsel was ineffective at Moore's sentencing hearing in his arguments and failure to call witnesses Moore requested;
(2) Trial counsel was ineffective for failing to request a Franks hearing;
(3) Trial counsel coerced Moore into pleading guilty; and
(4) Trial counsel was ineffective for failing to properly argue the suppression of the wiretap.

(Doc. No. 19-16, PageID# 1884.)

         After an evidentiary hearing, the trial court denied Moore's post-conviction claims (Doc. No. 19-16, PageID# 1882-1922), and the TCCA affirmed that decision (Doc. No. 19-21). The Tennessee Supreme Court denied Moore's application for review. (Doc. No. 19-23.)

         On January 30, 2014, Moore timely filed a pro se petition for a writ of habeas corpus and an accompanying memorandum in this Court. (Doc. Nos. 1, 2.) He requested the appointment of counsel and permission to proceed in forma pauperis, (Doc. Nos. 3, 4), which the Court denied, (Doc. Nos. 5, 9). The Court conducted a preliminary review of Moore's petition and found that Moore stated at least one colorable claim for relief. (Doc. No. 9, PageID# 223.) The Court accordingly ordered a response to the petition. (Id. at PageID# 223-24.) The response was filed on April 17, 2014. (Doc. No. 18.)

         Moore subsequently retained counsel, who moved to amend Moore's pro se petition. (Doc. No. 37.) In reviewing the motion to amend, Magistrate Judge Bryant found that Moore's pro se petition asserted the following claims:

(1) Error in denying Moore's Motion to Suppress Electronic Surveillance Evidence due to the illegal issuance of the wiretaps in violation of due process, Tenn. Code Ann. 40-6-304(a)(3), and Title III 18 U.S.C. 2518(1)(c);
(2) Ineffective assistance of trial counsel based on counsel's failure to request a Franks hearing to challenge the factual basis of the search warrants;
(3) Ineffective assistance of trial counsel based on “[t]rial counsel's failure to properly argue wiretapping suppression motions;” and,
(4) Error of the trial court in applying consecutive sentencing for the crimes of conviction.

(Doc. No. 42, PageID# 2451-52.)

         Magistrate Judge Bryant found that the proposed amended petition included three additional claims for relief: (1) a claim of ineffective assistance of appellate counsel; (2) a claim of ineffective assistance of post-conviction counsel; and (3) a claim that the cumulative effect of trial, appellate, and post-conviction errors resulted in an unconstitutional conviction and sentence. (Id. at PageID# 2453.) Magistrate Judge Bryant recommended that Moore's motion for leave to amend be granted in part to allow him to supplement the original petition and denied in part to prohibit Moore from adding the new claims. (Doc. No. 42, PageID# 2458.) The Court adopted the Report and Recommendation in full. (Doc. No. 46.)

         Respondent did not answer the supplemental information provided by Moore's amended petition. Accordingly, before the Court are Moore's original petition and memorandum (Doc. Nos. 1, 2), supplemented by his amended petition (Doc. No. 38), and Respondent's answer to Moore's original petition (Doc. No. 18).

         B. Statement of Facts

         Hearing Moore's case on direct appeal, the TCCA summarized the facts related to the suppression issues as follows:

Non-sentencing testimony in this case was presented at two hearings on defense motions to suppress evidence. The first hearing took place on March 28, 2007, and dealt with the Defendant's motion to suppress the fruits of electronic surveillance the police had conducted using wiretaps on cell phones owned by the Defendant and others. Officer Philip Taylor, an investigator with the Twentieth Judicial District Drug Task Force, served as the affiant on the wiretaps in this case and described himself as “the paperwork guy.” He introduced into evidence a chart depicting all of the phone numbers wiretapped by police in the investigation underlying this case. Police first obtained an order on November 28, 2005, to wiretap a phone subscribed to by DeWayne Pollard but used by a co-defendant, Timothy Brown. Based on information received through that wiretap, on December 12, 2005, the Task Force obtained a wiretap on another phone subscribed to and used by Brown and then another used by Brown but subscribed to by Lavonzel Adams on December 29, 2005.
Based on conversations intercepted on those wiretaps, on January 23, 2006, the Task Force obtained another wiretap on a phone subscribed to and used by Charles Farrar. David Moore, the Defendant's brother, was intercepted on that wiretap and on previous wiretaps, leading to a January 24, 2006 wiretap on a phone subscribed to by Barbara Moore but used by David Moore. The Defendant and his phone number were intercepted on that wiretap on March 17, 2006, leading to a wiretap on his phone beginning on March 23, 2006. This case predominantly concerns the wiretaps on Brown, David Moore, and the Defendant. All targeted phones in this case are cellular phones.
Judge Monte Watkins issued the wiretap orders in this case. Officer Taylor described the procedures followed to intercept communications and ensure compliance with Judge Watkins' orders. The police maintain a secure wiretap room containing computers designed to intercept and record any communications to or from a target phone. The computer allows the person monitoring a call to note a synopsis of its contents and the parties involved in the communication. If a call is deemed to be non-pertinent to the targeted criminal activity and therefore outside the scope of the wiretap order, the monitor is to click a particular button on the screen, thereby minimizing the audio feed and ceasing to record. Any monitored conversation or portion thereof is recorded to a write-only hard drive.
The minimization practices in this case provided monitors with a “spot-monitoring” interval. Officer Taylor explained that these intervals typically range from fifteen to sixty seconds. A monitor is allowed to temporarily re-engage a previously minimized audio feed as each spot-monitoring interval passes in order to confirm that the intercepted conversation still involves the same parties and is still non-pertinent. Officer Taylor then described the problems that can be caused by target phones with call waiting and call forwarding features:
[Officer Taylor]: Call forwarding and call waiting are features that cause problems if they're used extensively by the target. If you're off a call for thirty seconds, some targets that use it extensively can have a call come in for fifteen or twenty seconds during that time or any portion of that time you've got it minimized. And that, of course, is lost. It will show the call record that that call came in, but the audio on it will not appear anywhere in the system. So that's one of the considerations we have to weigh out when we're deciding how long and when to minimize and whether they use that feature, whether they were expecting a call from somebody, from a co-conspirator that may just be, hey, I'm at the hotel, which wouldn't take but fifteen or twenty seconds, and you could miss it if ... you've got the call minimized for a minute or so. In forty-five seconds to a minute you could miss the call.
Officer Taylor noted that most of the phones targeted in the investigation had a call waiting feature, including the Defendant's. He also testified that the police tended to develop monitoring practices based on their determination of whether a particular target frequently used such features, not based merely on the presence of such features. Police thus fully developed minimization procedures after surveillance began.
On cross-examination, Officer Taylor also discussed another service enabled on the Defendant's phone called “push-to-talk, ” “direct connect” or “chirping.” The direct connect feature allows a phone to act as a walkie-talkie, meaning that the phone can transmit a one-sided message to a similarly-enabled phone and then wait for a response. Rather than taking place across a connection between two phone numbers, a direct connect device is contacted through the use of a separate direct connect number. Officer Taylor testified that the wiretap application for the Defendant's phone included its native ESN number, meaning any communications from that device would be intercepted. The application did not, however, specifically mention interception of communications made using the direct connect function.
Officer Taylor also noted his awareness that members of the news media retrieved and broadcast recordings of certain communications intercepted during the Task Force's investigation.
The trial court then, on May 9, 2007, held a second hearing in order to rule on the Defendant's motion to suppress the fruits of a warrantless entry onto his property and a subsequent warrant-supported search. The events at issue in this second hearing occurred on April 1, 2006. On that day, Edward Rigsby, a Metro Nashville Police Department officer assigned to the Twentieth Judicial District Drug Task Force, was charged with operating the wire room and intercepting calls to and from the Defendant's phone. After recording pertinent calls, he would review them and pass information on to field officers.
Officer Rigsby's testimony, as well as his affidavit in support of the warrant eventually used in this case, establish a sequence of pertinent phone calls to and from the Defendant's cell. On March 28, 2006, the Defendant made a call to an unknown Hispanic subject and said that his “dude from Kentucky” would not arrive until Friday. The unknown subject asked the Defendant “how many” he wanted him to send. The Defendant replied, “20 or 30.” Two days later, on March 30, 2006, the Defendant received a call from the same unknown subject. He advised the Defendant that “Felix” would arrive at 6:00 or 7:00 p.m. The Defendant responded that the “dude from Kentucky, ” who “owed him for like 10 or 8” would not arrive until after that time, and he asked to have Felix delay until Saturday.
Officer Rigsby intercepted a number of calls on April 1, 2006. The first came at 8:58 a.m. from Rodney Gilbert, who, receiving no answer from the Defendant, left a message asking the Defendant to call so he could “give [the Defendant] what he got from him.” Between 9:03 and 9:05 a.m., the Defendant received two calls from the unknown subject, during which the Defendant arranged to meet “Felix” in one hour. At 9:06 a.m., the Defendant called Gilbert and arranged to meet in thirty minutes. The Defendant's destination was “pop's house, ” a term known by police to refer to the Defendant's father's residence at 1001 West Delmas. No phone call indicated the type of vehicle in which the drug delivery would arrive.
Based on this information, police set up surveillance of 1001 West Delmas on April 1. Sergeant James McWright testified that his and two other unmarked police cars sat near railroad tracks about two blocks away from the driveway and near the intersection of West Delmas and Cherokee Road. Other unmarked cars were positioned some distance down West Delmas, on the other side of the residence. Tennessee Bureau of Investigation Agent Joey Clark provided aerial surveillance from a circling aircraft. Sergeant McWright had a good view of the driveway, but the layout of the residence and surrounding grounds made it impossible to set up surveillance with a clear view of the house. Sergeant McWright also judged that anyone placed around the back of the house would have been discovered.
After some time, Sgt. McWright and the other surveillance officers observed a tan Nissan Pathfinder turn onto West Delmas and proceed into the driveway. No officer could see into the Pathfinder, and therefore, they could not determine whether it carried a delivery of drugs. It was believed that two men were in the Pathfinder, but no officer could confirm whether they were Hispanic. Sergeant McWright had never seen the Pathfinder before, although he had not conducted extensive surveillance on the house before and was not familiar with all of the vehicles normally present at the house. From his aircraft, Agent Clark informed Sgt. McWright that the Pathfinder had driven inside the detached garage behind the house and had closed the garage door behind it. This occurred at about 11:17 a.m.
Shortly thereafter, Sgt. McWright saw a red Corvette convertible turn from Cherokee onto West Delmas directly in front of his surveillance location. Sergeant McWright knew from previous wiretaps that one of the Defendant's associates, Lorenzo Roberts, had just purchased a red Corvette. Driving by, Roberts “looked dead at” Sgt. McWright and “did a double take.” Roberts then proceeded down West Delmas but drove past the house, eventually disappearing from view.
Officer Rigsby then, at 11:22 a.m., intercepted the following conversation between the Defendant and Roberts:
[The Defendant]: Hello.
[Roberts]: D-Money.
[The Defendant]: What up my niggs?
[Roberts]: Man D I just seen some of the ... D for real dude. Is this line good.
[The Defendant]: Yeah, I'm good.
[Roberts]: Naw D, I just seen some of the weirdest shit D. I ain't even ...

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