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Kuot v. Lindamood

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

July 5, 2019

GAI KUOT, Petitioner,
v.
CHERRY LINDAMOOD, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE.

         Gai Kuot, an inmate of the South Central Correctional Facility in Clifton, Tennessee, filed a pro se petition for writ of habeas corpus challenging his 2012 conviction and sentence for first degree murder, felony murder, and especially aggravated robbery for which he is currently serving a sentence of life imprisonment in the Tennessee Department of Correction. (Doc. No. 1).

         The respondent has filed a response to the habeas petition. (Doc. No. 11). The petition is ripe for review, and this court has jurisdiction pursuant to 28 U.S.C. § 2241(d). Having fully considered the record, the court finds that an evidentiary hearing is not needed, and the petitioner is not entitled to relief. The petition therefore will be denied and this action will be dismissed.

         I. Procedural History

         On June 18, 2012, a Davidson County jury convicted the petitioner of first degree murder, felony murder, and especially aggravated robbery. (Doc. No. 8, Attach. 1 at PageID# 86-88). The court merged the murder convictions and sentenced the petitioner to life imprisonment on those two counts. (Id. at PageID# 86-87). The court also sentenced the petitioner to sixteen years' imprisonment for especially aggravated robbery, to run concurrently with his life sentence. (Id. at PageID# 88).

         The petitioner appealed, and the Tennessee Court of Criminal Appeals affirmed the judgment of the lower court on August 26, 2013. State v. Kuot, No. M2012-01884-CCA-R3-CD, 2013 WL 4539020, at *1 (Tenn. Crim. App. Aug. 26, 2013), perm. app. denied (Dec. 11, 2013). The Tennessee Supreme Court denied the petitioner's application for discretionary review. Id.

         The petitioner filed a timely petition for post-conviction relief in the Davidson County Circuit Court. (Doc. No. 8, Attach. 16 at PageID# 1261-74). The post-conviction court appointed counsel, who filed an amended petition. (Id. at PageID# 1275-76, 1281-86). Following an evidentiary hearing, the post-conviction court denied the petition. (Id. at PageID# 1291-94).

         The petitioner filed a timely notice of appeal, and the Tennessee Court of Criminal Appeals affirmed the denial of post-conviction relief. Kuot v. State, No. M2016-00485-CCA-R3-PC, 2016 WL 7395687, at *1 (Tenn. Crim. App. Dec. 21, 2016), perm. app. denied (Apr. 13, 2017). The Tennessee Supreme denied the petitioner's application for discretionary review. Id.

         On July 3, 2017, the petitioner filed the instant pro se petition for writ of habeas corpus.[1](Doc. No. 1 at 15). By order entered on July 26, 2017, the court directed the respondent to file an answer, plead or otherwise respond to the petition in conformance with Habeas Rule 5. (Doc. No. 3). The respondent filed a response to the petition on September 22, 2017, conceding that the petition is timely and urging the court to dismiss the petition. (Doc. No. 11). The petitioner filed a reply to the respondent's response. (Doc. No. 12). The petitioner subsequently sought to amend his petition (Doc. No. 16) and, by order and memorandum opinion entered on September 7, 2018, the court denied leave to file an amended petition (Doc. Nos. 18 and 19).

         In his Section 2254 petition, the petitioner asserts the following claims:

1. Claim 1: Whether the Tennessee Court of Criminal Appeals erroneously concluded that Sammy Sabino's testimony was admissible as an exception to the hearsay rule;
2. Claim 2: Whether the Tennessee Court of Criminal Appeals erroneously determined that Petitioner's right to a speedy trial was not violated;
3. Claim 3: Whether the State failed to provide Petitioner with exculpatory materials under Brady v. Maryland;
4. Claim 4: Whether the trial court erroneously permitted a witness to testify regarding cellular telephone evidence;
5. Claim 4A: Whether trial counsel provided ineffective assistance of counsel by failing to prevent Detective Dean Haney from testifying as an expert about the petitioner's cellular telephone records;
6. Claim 5: Whether trial counsel provided ineffective assistance by failing to call Teresa Bostic as a witness; and
7. Claim 6: Whether trial counsel provided ineffective assistance of counsel by failing to request an interpreter for the petitioner during trial. (Doc. No. 1).

         III. Summary of the Evidence

         A. Trial Proceedings

         The Tennessee Court of Criminal Appeals summarized the proof adduced at the petitioner's jury trial as follows:

On June 11, 2010, the defendant was charged with premeditated first degree murder, first degree felony murder, and especially aggravated robbery, arising out of the shooting death of the victim, Malith Wiek, in the early morning hours of April 21, 2010.
At trial, David Norton, facility manager for Montgomery Bell Academy, “MBA, ” testified that the victim, a “Lost Boy” refugee from Sudan, obtained employment at MBA as a custodial worker though [sic] Catholic Charities and World Relief Refugee Resettlement Programs on June 1, 2004. The victim maintained his employment until his death in April 2010. Norton was the victim's direct supervisor and noted that the victim “got along with everybody.”
Norton testified that the victim's shift began at 1:00 p.m. and ended at 10:00 p.m., and he received an annual salary of $23, 000. The victim also had a side business of selling long distance phone cards to other members of the refugee community in Nashville. As a result, the victim carried a large roll of cash in his pocket. Norton was never aware of an occasion when the victim was in need of financial assistance. The morning of April 21, 2010, Norton was notified by authorities that the victim was dead. He met with investigators and provided them with the victim's work schedule from the previous night.
Sergeant Mitch Kornberg with the Metro Nashville Police Department testified that he responded to an injured person call at 42nd Avenue North and Indiana Avenue on April 21, 2010. When he arrived, Sergeant Kornberg saw a black male sitting on the ground, leaning against a chain-link fence. The individual had been shot multiple times and was deceased. The body was located in the corner of an L-shaped part of the fence outside a business, and Sergeant Kornberg surmised that the victim had been trapped in this portion of the fence. The victim was wearing a maroon MBA shirt with tan pants and a name tag on a lanyard around his neck. Sergeant Kornberg noticed calling cards or credit cards on the victim's lap.
William Deng testified that he immigrated to the United States in 1995, and he was reacquainted with the victim, his cousin, when the victim moved to the United States in 2004 from Sudan. Deng knew the victim's father, as they were from the same village in Sudan. In 2009, Deng relinquished his apartment and visited Sudan for three months. When he returned to the United States, Deng moved in with the victim and the defendant in their apartment at 5800 Maudina Avenue. The victim and the defendant each occupied a bedroom, and Deng slept on the couch. Deng gained employment at Standard Candy Company about two months after moving in with the victim and the defendant. After he got a job, Deng started paying rent to live in the apartment.
Deng testified that, before his return trip to Sudan, he worked in a security job, which required that he carry a gun. He bought a PT 92 Beretta nine-millimeter at Gun City USA, and he had two magazines for it-one he kept in the weapon and one in the glovebox of his Nissan Pathfinder. Deng stored the gun between the driver's and passenger's seats, hidden from view. On April 12 or 13, 2010, Deng discovered that his gun was missing and called the police. His car was locked and showed no signs of forced entry. Whoever took Deng's gun did not take its holster or the magazine in the glovebox. The police informed Deng that he had to have the serial number in order to file a report, so he went to Gun City and paid them to retrieve his serial number. After a phone call and visit by Deng, Gun City had still not provided the serial number, although an employee informed Deng that “[t]hey ha[d] a lot of leads[.]” Deng noted that he always placed his keys on the kitchen table when he entered the apartment, as did both the victim and the defendant. He said that he and the victim got along well.
Deng testified that the victim bought calling cards in bulk and sold them to members of the Sudanese community in Nashville, often at a coffee shop on Murfreesboro Road popular amongst the Sudanese men. When the victim received cash for the cards, he either took it to the bank or put it in his pocket. Deng noted that the victim “sometimes” had cash on him. The victim carried the phone cards in a black computer bag that he kept with him or in his room.
Deng testified that, during this time period, he was studying Criminal Justice at Strayer University and attended classes on Monday and Tuesday evenings from 6:00 to 10:00 p.m. On April 20, 2010, Deng got out of class early, around 9:00 or 9:20 p.m., and went home and watched a basketball game. No. one else was home at the time, and Deng fell asleep on the couch and did not hear either of his roommates come home that night.
Deng testified that, the next morning, two or three detectives came to the apartment and spoke with him. The detectives knocked on the door to the defendant's bedroom and, although Deng had not heard the defendant come home, the defendant exited his room wearing street clothes. Deng thought it was unusual that the defendant was not wearing “sleeping clothes” like he normally did. After seeing that the defendant was home, Deng expected the victim to be home as well and was surprised that the victim was not in his room.
Deng testified that the officers asked them to come to the police station, and Deng drove himself and the defendant there to be interviewed. Deng recalled that the victim drove a Nissan Sentra, and he showed the police where the victim had bought the car. Afterwards, Deng and the defendant went back to their apartment. Deng asked the defendant if he had spoken with the victim the previous night, and the defendant said, “No.” Deng recalled that a funeral service was held for the victim, and the defendant did not attend.
Deng testified that the defendant did not have a job at the time of the murder and had not had one for approximately two years. He said that the defendant had ridden in his car before and knew that he kept a gun in his car. Deng recalled that the victim had loaned money to people, but he was not aware of the victim loaning the defendant any money.
On cross-examination, Deng denied that the victim told him that he would have to leave the apartment because his name was not on the lease. Deng also denied that he tried to borrow money from the victim when he returned from Sudan and the victim refused to lend it to him. Deng said that he did not meet the defendant in 2007 and that he had only known the defendant for about a year.
Sammy Sabino testified that he was a co-worker of the victim's at MBA. On April 20, 2010, Sabino worked from 5:13 p.m. to 2:07 a.m., and he saw the victim during a work break. Noting that he should have gotten off work already, Sabino asked the victim what he was still doing at work. The victim indicated that he was going to a Kroger store to meet someone, and he was waiting at work until that person's shift started. The victim also told him that he was going to be picking up a roommate in Gallatin later that evening but did not identify which roommate. Around 11: 15 p.m., the victim said he was going to Kroger and left in his black Nissan Sentra. Sabino did not see the victim with a jacket that evening. Sabino was aware that the victim sold telephone calling cards and had seen the victim with large sums of money on his person. Sabino had warned the victim that it was not safe to carry around large amounts of cash.
Michael Owens, an employee of the Belle Meade Kroger store, supplied officers with the April 20, 2010 footage from the store's surveillance cameras. The officers asked Owens if Abraham Malook had been working that night and the hours he worked. Owens informed the officers that Malook had stocked items in the dairy department and had worked his entire shift of 11:00 p.m. to 7:00 a.m. The surveillance footage showed a tall, Black man wearing a red shirt and khaki pants leaving a black car and entering the store at 11:31 p.m. The footage showed the same man leaving the store alone at 11:35 p.m.
Stacey Newman testified that she lived at 620 41st Avenue North, which was in close proximity to 42nd Avenue North, in April 2010, and she heard two or three gunshots around 12:30 a.m. on April 21, 2010.
Officer William Kirby with the Metro Nashville Police Department's Identification Unit testified that he responded to the scene at 42nd Avenue North and Indiana Avenue at 8:45 a.m. on April 21, 2010. He took photographs, diagramed the crime scene, and collected evidence. He retrieved four spent nine-millimeter shell casings and one unfired nine-millimeter round from the scene. Two of the spent rounds were located near the victim's feet, as was the unfired projectile, and two spent rounds were located a distance to the east on Indiana Avenue. The location of the two spent rounds on Indiana Avenue led Officer Kirby to believe that the shooter fired as he was moving to the west in pursuit of the victim. In addition, Officer Kirby found various items scattered around the victim's body, one of which was a prepaid phone card. Officer Kirby noted that there was also an empty cell phone case attached to the victim's belt. The officer recovered an additional projectile from the warehouse that stood approximately 150 to 200 feet behind the victim's body. Detective Tim Codling with the Metro Nashville Police Department testified that he responded to the scene where the victim's body was found on April 21, 2010. Detective Codling canvassed the area and also interviewed the bus driver who first saw the victim's body. No. one he spoke to heard shots fired or saw anyone fleeing the scene.
Officer Charles Linville with the Metro Nashville Police Department Technical Investigation Section responded to the crime scene at 42nd Street and Indiana Avenue on April 21, 2010, and took photographs of the area. The following day, Officer Linville went to the victim's apartment to collect a sample of the defendant's fingerprints. He also photographed items detectives pointed out while searching two vehicles, William Deng's dark-colored Toyota Pathfinder and the defendant's white Volvo, outside of the apartment and collected some of those items as evidence. Evidence retrieved from the Pathfinder included a magazine of Independence brand nine-millimeter ammunition. Evidence collected from the Volvo included four phone cards and two Western Union receipts. The Western Union receipt indicated that Gai Deng wired $ 100 to Uganda at 2:30 p.m. on April 20, 2010. The Western Union used by “Gai Deng” was located at the Charlotte Pike Kroger.[2]
Officer Nathaniel Ward with the Metro Nashville Police Department Crime Scene Unit was dispatched to a scene at 1118 Sharpe Avenue on April 21, 2010, to process a black Nissan Sentra parked in the alley that was believed to have been involved in a homicide. There were two bullet holes in the driver's side of the car that appeared to have been fired from the interior of the vehicle, and a cartridge casing was located on the front passenger's side. The driver's side rear window had been shattered by a gunshot, but it could not be determined whether the shot was fired from inside or outside of the car. The victim's wallet was found in the grass near the vehicle. The wallet's contents were found on the ground beside it.
Felicia Evans with the Metro Nashville Police Department Crime Scene Unit testified that she was involved with Officer Ward in processing the black Nissan Sentra recovered from Sharpe Avenue. She noted that the magazine of unfired bullets recovered from the car were Independence nine-millimeter Lugers, a brand that was not “very common to our area.” She elaborated that “it is a very rare occasion that you find an entire magazine full of Independence.” She recalled that the cartridge casing recovered from the passenger's side of the car between the seat and the door was also Independence brand. Evans stated that the evidence indicated that two shots had been fired from inside the vehicle and exited the vehicle on the driver's side.
Linda Wilson, an expert in latent print examination with the Metro Nashville Police Department, testified that a fingerprint lifted from the back of a camera found in the victim's car belonged to the defendant. On cross-examination, Wilson acknowledged that she had no way of knowing when the fingerprint was placed on the camera.
Dr. Amy McMaster, an expert in forensic pathology, conducted an autopsy of the victim and determined that the victim received a total of eight gunshot wounds. Among these wounds were one to the larynx, a grouping of three to the torso, another to the left lower chest area, one to the left forearm, one to the upper left thigh, and one to the right knee. She said that the gunshot wound to the victim's knee would have made running very difficult and painful. Dr. McMaster did not observe any gunshot residue or soot on the victim's wounds or clothing.
Paul Remijo, a native Kenyan, testified that he met the defendant through his former roommate and had known him for about five months. In April 2010, Remijo lived at 2548 Willow Branch in Antioch. Remijo said that the defendant and Dennis Ogwang were at his house playing cards on April 18, 2010 until about midnight. They did not play cards on April 20, 2010.
Dennis Ogwang testified he last played cards with the defendant on Sunday night, April 18, 2010, at Remijo's house. On Tuesday night, Ogwang was actually playing poker at Bailey's Sports Bar, and the defendant was not there. Ogwang recalled that, before he went to the police station to talk to the police, the defendant called him and asked if the police had called him. Ogwang asked the defendant, “Why, ” and the defendant responded that he was being investigated for something. The defendant then said to Ogwang, “Hey, if the police ask you, can you tell them that we played cards on Tuesday?” The defendant said that the police would be asking Ogwang if he played cards with him on Tuesday, and the defendant wanted Ogwang to tell them that he had. Ogwang told the police about his conversation with the defendant, and he called the defendant on speaker phone while with the police.
Yvonne Claybrooks testified that, on April 21, 2010, she and her neighbor were sitting on her front porch on DeMoss Road when they saw a white, four-door Volvo with a yellow marking on one of its tires stop in front of the vacant lot next to her house. She saw a black arm reach out the window and throw a red jacket over the car and into the ditch. However, the car's windows were so tinted Claybrooks could not see the driver's face. After the car left, Claybrooks and her neighbor walked down to the ditch to see what had been thrown out. Using a stick, they found a stack of phone cards held together with a rubber band in the middle of the jacket.
Claybrooks testified that the police were in the area the next day searching the location where the jacket had been thrown. As they were searching, Claybrooks saw the Volvo drive down her street. Claybrooks walked over to the police and told them everything that she had seen. The next day, Claybrooks saw a man wearing flip-flops walk completely up and back down her street, talking on his cell phone and looking in the ditch. Claybrooks did not recognize the man, and she thought it was strange that he was wearing flip-flops because most people wore sneakers when they walked on the street for exercise. She thought it was “so strange” to see this individual that she called Detective Truitt. The detective came to her house and showed her a photographic array, from which she identified the defendant as the man she saw walking down the street searching in the ditch.
Royce Cavender testified that he was walking his dog on DeMoss Road around 5:00 p.m. on April 21, 2010 when he noticed a red jacket lying in the ditch with a stack of cards beside it. The jacket looked “out of place, ” so he called the police.
Officer James Rowland with the Metro Nashville Police Department testified that he responded to “a found property call” on April 21, 2010 on DeMoss Road. After his investigation, he collected a maroon jacket and some calling cards from the ditch beside the road.
Agent Jennifer Shipman, a forensic scientist with the Tennessee Bureau of Investigation, “TBI, ” testified that one of the exhibits she tested in this case was the red jacket recovered from DeMoss Road. There was blood on the right cuff of the jacket, and the DNA profile was a match to the victim. She later swabbed inside the cuff and the collar of the jacket and was unable to exclude the victim or the defendant as the contributor of the partial profile of DNA she obtained.
Detective Dean Haney with the Metro Nashville Police Department reviewed the victim's cell phone records and tracked which cell phone towers the victim's phone used on the night of the murder. The victim's cell phone was used in the Chickamauga area of East Nashville. Detective Haney testified that when he went to the victim's apartment on April 21, 2010, as part of the investigation, William Deng was present, as was the defendant, who gave the name of Gai Deng. He said that the defendant appeared to be dressed in street clothes. The jury was shown the surveillance footage from the Kroger store during Detective Haney's testimony. Detective Haney said that the subject in the video was wearing similar clothing to what the victim was wearing that night, but the quality of the video prevented a positive facial identification.
Detective Russell Thompson with the Metro Nashville Police Department detailed his actions in investigating the case, including interviewing the defendant twice on April 21, 2010. On April 22, 2010, Detective Thompson was on DeMoss Road looking into some personal property that had been found there. He noted that DeMoss “was kind of a cut-through to M[audina] Avenue, which is where the defendant lived at that time.” While there, Detective Thompson saw the defendant drive by in a white Volvo. He later assisted in a third interview of the defendant.
Detective Thompson testified that, in his first interview of the defendant, the defendant said that he had not talked to the victim in person or on the phone since 12:30 p.m. on April 20, 2010, when the victim was going to work. During the second interview of the defendant, the defendant maintained that he had not spoken to the victim on his cell phone. After Detective Thompson received the victim's cell phone records, he learned that there had been several calls between the victim's and the defendant's phones from around 10:30 p.m. until shortly after midnight on the night of the murder, which was contrary to what the defendant had told them.
Detective Thompson testified that the defendant told them that he was playing cards with “Dennis” in Antioch the evening of April 20, 2010. Detective Thompson noted that the defendant had given Detective Truitt permission to look through his cell phone, and Detective Truitt had written down the phone number for Dennis. When the detectives asked the defendant for Dennis' number, the defendant took his phone back, looked through it, handed it back, and said that the number was not in there. Detective Thompson said that they discovered that Dennis' number had been erased.
Detective Thompson testified that the defendant initially told him that he did not know of the victim's having a checking or savings account. However, during his investigation, he learned that checks made out to the defendant had been written from the victim's bank account. The defendant initially told them that the victim had written the checks. During his second interview, the defendant said that the victim had given him the checks.
Detective Thompson testified that they recovered a book from the victim's car. One of the pages had the name “Abraham Malook, ” next to two dates, “2/27/10 and 3/27/10.” Written next to Malook's name was “$400.” Detective Thompson stated that the dollar sign in that entry could be a dollar sign or the number eight.
On cross-examination, Detective Thompson acknowledged that the defendant gave them the phone number for the person he was allegedly playing cards with on the night of the murder. He admitted that he did not have a gunshot residue test performed on the defendant even though he interviewed him less than twelve hours after the murder occurred, but he explained that he chose not to do one because “[a]t that point, he [was] just a roommate.” Detective Thompson recalled that Abraham Malook owed the victim some money. On redirect, after refreshing his recollection, Detective Thompson stated that Abraham Malook told the police that the victim had come to the Kroger store where he was employed on April 20 to “ask him about four hundred dollars that he borrowed.”
Detective Stanley Truitt with the Metro Nashville Police Department testified regarding the actions he took as lead investigator in this case. He visited the crime scene, then went to the victim's apartment and had both of the victim's roommates go to the police station and interviewed them. After learning from the victim's phone records that the defendant was the last person the victim talked to, Detective Truitt interviewed the defendant a second time because the defendant had originally said that he had not talked to the victim.
Detective Truitt testified that, after the second interview of the defendant, he learned about the recovery of the red jacket and calling cards on DeMoss Road. While on-site speaking with Yvonne Claybrooks, Detective Truitt saw a white Volvo drive by that Claybrooks identified as being the vehicle from which the items were thrown. Detective Truitt could see the driver of the car, whom he identified as the defendant.
Detective Truitt testified that a group of Sudanese lived at 1149 Sharpe Avenue, “in very close proximity” to where the police found the victim's car. Detective Truitt also recalled listening to Ogwang's conversation with the defendant over speaker phone, the “gist” of the conversation being the defendant telling Ogwang to “[j]ust tell them that I was with you playing cards.”
Detective Truitt testified that he interviewed the defendant a third time. At some point during the interview, the defendant was asked to write his name and the victim's name, and the defendant changed portions of his name after he had written it but denied doing so. Detective Truitt said that the defendant never admitted that he was not in Antioch or that he wrote and forged the victim's checks.
Detective Truitt testified that he interviewed the defendant's girlfriend, Teresa Bostic, and, based on information she provided, he went to a pawnshop at 801 Gallatin Pike and obtained the store's video surveillance footage from March 29, 2010. The video showed the defendant looking at, among other things, the gun section of the pawnshop. The detective stated that papers were retrieved from the defendant's vehicle that indicated he owed the state for overpayment of unemployment benefits and also had an outstanding debt to a college in Michigan. They also found a request for emergency travel in the defendant's car. ...

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