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Turner v. Genovese

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

June 24, 2019

AUTHOR RAY TURNER, Petitioner,
v.
KEVIN GENOVESE, Warden, [1] Respondent.

          MEMORANDUM

          Aleta A. Trauger United States District Judge

         The petitioner, Author Ray Turner, is a state prisoner incarcerated at the Turney Center Industrial Complex in Only, Tennessee. He has filed a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The respondent has filed an answer to the petition (Doc. No. 21) and the state court record (Doc. No. 20). The petitioner has filed a reply to the respondent's answer. (Doc. No. 28.)

         The matter is ripe for the court's review, and the court has jurisdiction. The respondent does not dispute that the petition is timely, that this is the petitioner's first § 2254 petition related to these convictions, and that the claims of the petition have been exhausted. (Doc. No. 21 at 1- 2.)

         Having reviewed the petitioner's arguments and the underlying record, the court finds that an evidentiary hearing is not required. As explained below, the petitioner is not entitled to relief under § 2254, and his petition will therefore be denied.

         I. Procedural History

         In July 1995, the petitioner was indicted on, and subsequently entered a negotiated plea of guilty to, charges of especially aggravated kidnapping, aggravated robbery, and two counts of aggravated rape. (Doc. No. 20-19 at 10.) Following his sentencing to an effective 40-year prison term (id.), the petitioner unsuccessfully pursued post-conviction relief through the state trial and appellate courts, as well as habeas relief in this court. After the Sixth Circuit Court of Appeals affirmed this court's denial of habeas relief based on the statute of limitations, Turner v. Mills, 219 Fed.Appx. 425 (6th Cir. 2007), the petitioner filed two successive petitions for writ of habeas corpus in state court. The second of these petitions was ultimately granted because the petitioner's sentences for aggravated rape were ordered to be served at a bargained-for release eligibility percentage (30%) that varied from the state statutory requirement of one hundred percent. On April 25, 2012, the Tennessee Court of Criminal Appeals affirmed the trial court's judgment allowing the petitioner to withdraw his guilty plea because of this illegal sentence and remanded the case for further proceedings. Turner v. Mills, No. E2011-00074-CCA-R3-HC, 2012 WL 1431220 (Tenn. Ct. Crim. App. Apr. 25, 2012).

         Thereafter, in August 2012, the petitioner was tried and convicted by a Davidson County jury on charges of especially aggravated kidnapping, aggravated robbery, attempted aggravated rape, and four counts of aggravated rape. On October 5, 2012, he was sentenced to an effective term of 70 years' imprisonment. (Doc. No. 20-19 at 12.)

         On direct appeal, the petitioner argued as follows:

1. The trial court erred in denying the defendant's motion to suppress his statements to police.
2. The trial court erred in denying the defendant's motion to dismiss due to the State's destruction of evidence.
3. The trial court erred in ruling that whether DNA evidence matched the defendant was irrelevant, and that if the defendant argued or presented evidence that no DNA match was proven, the State would be allowed to present evidence that the defendant had previously pleaded guilty in this case.
4. The evidence contained in the record is insufficient to support the defendant's convictions for aggravated rape in counts 6 and 7 because the State did not prove beyond a reasonable doubt that the defendant was armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon.
5. The trial court erred in allowing separate convictions for aggravated rape in counts 3 and 4 and attempted aggravated rape in count 5 because separate convictions violate the defendant's protections against double jeopardy.
6. The trial court erred in imposing partial consecutive sentences, and in sentencing the defendant to serve one hundred percent of his sentence on his conviction for especially aggravated kidnapping.

(Id. at 9.)

         The Tennessee Court of Criminal Appeals affirmed the conviction on May 28, 2014. (Doc. No. 20-21.) The Tennessee Supreme Court denied the petitioner's application for permission to appeal.

         The petitioner filed a timely petition for post-conviction relief in the convicting court on December 29, 2014. He was appointed post-conviction counsel, and an amended post-conviction petition was filed. Following an evidentiary hearing, the trial court denied the post-conviction petition. On post-conviction appeal to the Tennessee Court of Criminal Appeals, the petitioner raised the following issues:

1. Whether or not trial counsel failed to provide effective assistance of counsel by not using available impeachment evidence regarding a potential misidentification of the defendant by the State's chief witness/victim at trial.
2. Whether or not trial counsel failed to provide effective assistance of counsel by not investigating the physical and mental health history of the State's chief witness/victim at trial regarding support for impeachment regarding identity and a defense of misidentification.
3. Whether or not trial counsel failed to provide effective assistance of counsel by not exploring the possibility for the need to seek recusal of the trial judge due to his employment at the Office of the Davidson County District Attorney General during the time when the case was originally being investigated and prosecuted in 1995.

(Doc. No. 20-29 at 5.) Post-conviction appellate counsel also argued in his brief that trial counsel was ineffective for failing “to raise the issues advanced by the petitioner before and after trial in 2012 regarding a potential violation of his constitutional rights after his conviction was vacated and he was placed back into the custody of the Davidson County Sheriff without a new charging instrument.” (Id. at 11.) The Court of Criminal Appeals addressed each of these ineffective-assistance arguments (Doc. No. 20-31 at 5) and affirmed the decision of the post-conviction trial court on July 22, 2016. (Doc. No. 20-31.) The petitioner did not seek permission to appeal this decision to the Tennessee Supreme Court.

         The petitioner filed his § 2254 petition in this court on September 23, 2016.

         II. Statement of Facts

          After the petitioner was allowed to withdraw his guilty plea, he returned to Davidson County Criminal Court and, on March 16, 2012, filed a motion to suppress his statements to police. At a hearing on the motion, the following evidence was presented:

Charles Thomas, a detective with the Rutherford County Sheriff's Office, testified that he was dispatched to 7822 Clearwater Court on March 16, 1995, and there he encountered the Defendant. Detective Thomas said that, when he arrived at the house he knocked on the door, and a woman named Tanya Johnson answered the door. The Defendant was asleep in the bedroom. The detective asked the Defendant to step outside, where he read the Defendant his Miranda warnings. After so doing, the detective offered the Defendant an opportunity to tell him his side of the story. Detective Thomas documented the Defendant's statement.
The Defendant told Detective Thomas that he needed a ride to Rutherford County, so he kidnapped a lady, put her in the trunk, and brought her to Rutherford County. Another detective, Commander Acton, asked the Defendant if he had raped the woman, and the Defendant stated that he had. The Defendant told the detectives that he planned to release the woman.

(Doc. No. 20-21 at 4-5.) Detective Thomas testified that he was one of four officers that responded to the call at this house near the location of the victim, due to the call being regarded as a possible emergency. (Id. at 5.) Amanda Preble Acton, a commander with the Rutherford County Sheriff's Department, also testified at the hearing that she responded to the call in this case. (Id.) Acton “confirmed Detective Thomas's account of the events, ” and that she “was present when the Defendant made a statement to police admitting that he had ‘taken a lady.” (Id.) “Commander Acton asked the Defendant if he had raped the victim, and the Defendant responded, “[Y]es.” Commander Acton testified that she never saw anyone use any signs of threat or coercion to induce the Defendant to make these statements.” (Id.)

         The petitioner gave an entirely different account of this encounter. He testified that he was eighteen years old at the time of his arrest, and that once the officers led him from the house of his girlfriend, Ms. Johnson, he got on the ground as he was instructed and the officers formed a semicircle around him with their guns pointed at him. (Id. at 6.) The petitioner testified that he denied raping anyone despite aggressive and suggestive questioning from “the female detective.” (Id. at 6-7.) He testified that he only confessed when he saw an officer with a shotgun lead Ms. Johnson around to the back of the house and push her to the ground. (Id. at 7.) At that point, he testified that he was again asked by the female detective whether he had raped the victim, and he responded in the affirmative, saying “I . . . did whatever you said I did, please don't kill her.” (Id.) He conceded that the officers did not touch him, but stated they did not have to because they had their guns pointed at his head. (Id.) The petitioner testified that the female officer “read him his rights after she ‘got him to admit to raping the woman.'” (Id.)

         The petitioner subsequently gave a video-recorded statement, before which he was read his Miranda rights by Detective Kim Gooch. (Id.) Detective Gooch had been in the hospital with the victim when she was examined, and testified (by deposition) that she had obtained samples as a result of the victim's examination, which she turned in to the Tennessee Bureau of Investigation's crime laboratory. (Id. at 8.)

The detective said that, after interviewing both the victim and the Defendant, she created a photographic lineup, which she showed to the victim. The victim identified a photograph of the Defendant as the man who had kidnapped and raped her.
Detective Gooch testified that the victim told her that the Defendant had approached her at the Hermitage Fitness Center with a weapon, forced her into the passenger seat of her car, and then drove to another location. At that location while the two were in or near the car, he raped her orally, anally, and vaginally, and then he put her in the trunk of her car. The Defendant, she said, transported her to another location, a building in the Rivergate area, and he took her out of the trunk and then raped her again.

(Id. at 8-9.)

         The trial court denied the motion to suppress, finding that the petitioner was not a credible witness, that the officers informed him of his Miranda rights before he made any incriminating statements and did not threaten him, and that he “made an intelligent, knowing, and voluntary waiver of his Miranda rights that was not given as a result of threats of force or coercion.” (Id. at 9-10.)

         The petitioner next filed a motion to dismiss the indictment due to the destruction of the “rape kit” that was administered to the victim at the hospital, which contained biological evidence that could have been subjected to DNA testing but was not. Sergeant Wilford Klotzback testified at the hearing on the motion to dismiss, stating that his records indicated that the rape kit was marked destroyed on February 15, 2000, despite the fact that the court order authorizing its destruction was signed on February 25, 2000. (Id. at 10-11.) Another sergeant, Phillip Sage, supervised the property room at the time the rape kit was destroyed and testified as follows:

The property room officers would check and verify that the case had been adjudicated in court and that there were no appeals pending, which would cause them to ...

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