United States District Court, W.D. Tennessee, Eastern Division
MILTON L. KIRK, JR., a/k/a MELTON L. KIRK, Petitioner,
JONATHAN LEBO, Respondent.
ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING
§ 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
April 30, 2015, Petitioner, Milton L. Kirk, Jr., a Tennessee
state prisoner, filed a pro se habeas corpus
petition under 28 U.S.C. § 2254
(“Petition”). (ECF No. 1.) For the reasons that
follow, the Petition is DENIED.
following background summary is drawn from the state court
record (ECF No. 22), and the decision in Kirk's state
post-conviction appeal. See Kirk v. State, No.
W2013-00544-CCA-R3-PC, 2014 WL 12651042, at *1 (Tenn. Crim.
App. July 29, 2014).
Trial and Guilty Pleas
federal habeas claims arise from Kirk's three Tennessee
2009, Kirk was indicted by the Dyer County, Tennessee, grand
jury of one count of the sale of 0.50 grams or more of
cocaine and one count of the sale of 0.50 grams or more of
cocaine in a drug-free zone (“Case 1”). (ECF No.
22-4 at 5.) In 2011, “[t]he two charges . . . were
tried separately, with the charge for sale of cocaine in a
school zone resulting in a hung jury.” Kirk,
2014 WL 12651042, at * 4.
jury trial on the sale of cocaine charge, Sergeant Todd
Thayer of the Dysersburg Police Department testified that, on
March 10, 2009, with the help of confidential informant
Brenda McElroy, he coordinated a controlled buy of cocaine
from Petitioner. The purchase was captured on video, which
was played for the jury. McElroy took the stand and described
the transaction. A special agent with the Tennessee Bureau of
Investigation (“TBI”) testified that the
substance the defendant sold to McElroy contained cocaine
base. Id. at *1-2. An investigator who served as an
evidence custodian testified that he searched McElroy's
vehicle before and after the purchase and “retrieved
the sealed evidence envelope . . . and transported it to the
TBI.” Id. at *2.
the jury returned a guilty verdict on the charge of selling
cocaine, the trial court sentenced Kirk to twelve years'
imprisonment. (ECF No. 22-2.) See also Kirk, 2014 WL
12651042, at *2.
2 and 3
2010, Petitioner was charged with tampering with evidence,
resisting arrest, and evading arrest (“Case 2”).
The offenses occurred on December 9, 2009, while Kirk was out
on bond in Case 1. (ECF No. 22-4 at 7-8.) See also
Kirk, 2014 WL 12651042, at *2.
day, a Dyersburg police officer stopped a truck in which Kirk
was a passenger. As the officer's canine unit walked
around the vehicle, “one of the other officers pointed
out that [the Petitioner] appeared to have a bulge in his
mouth.” Id. at *2 (alterations in original).
When questioned, Kirk said he had an abscessed tooth. When
the officer looked into his mouth, however, he observed
“what appeared to be a small baggie of cocaine.”
Id. Petitioner then fled the scene. When he was
taken into custody he no longer had the baggie, and he
insisted that it had contained marijuana, not cocaine.
2011, Petitioner was indicted for possessing less than 0.50
grams of cocaine with intent to sell on August 12, 2009
(“Case 3”). (ECF No. 22-4 at 9.) The cocaine was
discovered in Kirk's shoe during a search incident to his
arrest on the charges in Case 1. Kirk, 2014 WL
12651042, at *2. With him at that time of his arrest
“was Amber Henson, the mother of [his] child.”
Id. at *8. Ms. Henson was found to have
“secreted drugs in her vagina.” Id.
learned of the indictment in case 3 one day before his
scheduled trial in case 2. “[A]pproximately thirty
minutes” after being informed of the indictment,
Petitioner entered a guilty plea in Case 2 on the tampering
with evidence charge, and a guilty plea on the sole count of
the indictment in Case 3. Id. In exchange for
Kirk's guilty pleas and a waiver of his appeal rights,
the government nolle prossed the charge of sale of cocaine in
a drug-free zone in Case 1 and the Case 2 charges of
resisting and evading arrest. Id. at *2.
result of his guilty pleas, Petitioner was sentenced as a
Range I offender, rather than a Range II offender. (ECF No.
22-3 at 4; ECF No. 22-4 at 11.) He received a sentence of
“four years [of incarceration] for his tampering with
evidence conviction and six years for his possession with
intent to sell or deliver cocaine conviction.”
Kirk, 2014 WL 12651042, at *2. (See also
ECF No. 22-4 at 11, 12, 16.) The “tampering with
evidence [sentence] was to run consecutively to his sale of
cocaine [sentence] but concurrently to his possession
[sentence], . . . for a total effective sentence of sixteen
years.” Kirk, 2014 WL 12651042, at *2.
filed a state pro se post-conviction petition for
each of his three cases. (ECF No. 22-4 at 17-39.) The
post-conviction proceedings were consolidated, and appointed
counsel filed an amended petition. (Id. at 47-48).
The court held an evidentiary hearing on Petitioner's
numerous claims, at which Petitioner and his trial counsel
testified. (ECF No. 22-5.) The court denied relief, finding
that Petitioner's testimony regarding his attorney's
conduct was not credible, and concluding that counsel had not
provided ineffective assistance. (ECF No. 22-4 at 62-67.)
appeal, Kirk raised the claims that his guilty pleas in Cases
2 and 3 were not voluntary and knowing due to time
constraints and the actions of his trial counsel, and that
counsel rendered ineffective assistance by failing to give
him discovery materials and to communicate with him. (ECF No.
22-8 at 4, 9-10). See also Kirk, 2014 WL
12651042, at *1, 7, 8. The TCCA affirmed the lower
court's decision, id. at *9, and the Tennessee
Supreme Court denied Petitioner's application for
permission to appeal, (ECF No. 12-13).
Federal Habeas Petition
2015, Kirk filed his federal habeas Petition. He subsequently
indicated that he would file an amended petition,
(see ECF Nos. 18, 19, and 21), but he did not do so.
Petition asserts the following claims:
Claim 1: Trial counsel was ineffective by failing to provide
Petitioner with discovery in Case 1. (ECF No. 1 at 11, 19.)
Claim 2: Petitioner's guilty pleas in Cases 2 and 3 were
involuntary because he had little time to consider the
government's plea offer and because his attorney failed
to provide him with discovery in those cases and to
communicate adequately with him. (Id. at 5, 32.)
Claim 3: Petitioner's trial counsel was ineffective in
the plea context in Cases 2 and 3 by failing to provide
Petitioner with discovery in those cases and communicate
adequately with him. (Id. at 17, 31, 72.)
Claim 4: Petitioner did not knowingly waive his appellate
rights because, due to time constraints and counsel's
ineffective assistance, he “did not understand the
nature and consequences of waiving [his] right to a direct
appeal.” (Id. at 5, 17, 32.)
Claim 5: Trial counsel was ineffective by failing to ensure
that Petitioner understood the nature and consequences of his
waiver of direct appellate rights. (Id. at 5, 17,
Claim 6: Trial counsel was ineffective by not allowing
Petitioner to assist in jury selection in ...