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Kirk v. Lebo

United States District Court, W.D. Tennessee, Eastern Division

June 13, 2018

MILTON L. KIRK, JR., a/k/a MELTON L. KIRK, Petitioner,
v.
JONATHAN LEBO, Respondent.

          ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING § 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         On 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”).[1] (ECF No. 1.) For the reasons that follow, the Petition is DENIED.

         BACKGROUND

         The 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).

         1. Trial and Guilty Pleas

         Petitioner's federal habeas claims arise from Kirk's three Tennessee criminal cases.

         Case 1

         In 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.

         At the 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.

         After 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.

         Cases 2 and 3

         In 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.

         On that 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. Id.

         In 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.

         Petitioner 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.

         As a 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.

         2. Post-conviction Proceedings

         Kirk 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.)

         On 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).

         3. Federal Habeas Petition

         In 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.

         The 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, 32.)
Claim 6: Trial counsel was ineffective by not allowing Petitioner to assist in jury selection in ...

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