United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
Evans is currently serving an effective sentence of life in
prison without the possibility of parole, based on his
November 4, 2010 conviction by a Davidson County, Tennessee
jury of one count of aggravated burglary, two counts of
especially aggravated kidnapping, and one count of aggravated
robbery. On September 8, 2017, he filed his pro se
petition for the writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. No. 1.) Respondent thereafter filed her
answer to the petition (Doc. No. 8) and the state court
record (Doc. No. 7), and Petitioner filed a reply to
Respondent's answer (Doc. No. 9).
matter is ripe for the Court's review, and the Court has
jurisdiction. Respondent does not dispute that
Petitioner's petition is timely, that this is his first
§ 2254 petition related to these convictions, and that
the claims of the petition have been exhausted. (Doc. No. 8
reviewed Petitioner's arguments and the underlying
record, the Court finds that an evidentiary hearing is not
required. As explained below, Petitioner is not entitled to
relief under § 2254, and his petition will therefore be
and three co-defendants were indicted on June 5, 2009, on one
count of aggravated burglary, two counts of especially
aggravated kidnapping, and one count of aggravated robbery.
(Doc. No. 7-1 at 4-9.) Petitioner moved for a severance from
his co-defendants for purposes of trial, but the trial court
denied the motion to sever and set the matter for jury trial
of all defendants. (Id. at 47.) On November 4, 2010,
the jury found Petitioner guilty as charged in the
indictment. (Id. at 77.) At his February 4, 2011
sentencing, Petitioner was found to be a persistent offender
with multiple prior convictions, and a repeat violent
offender based on a previous second-degree murder conviction.
(Id. at 86). Consecutive sentences of life
imprisonment without the possibility of parole were therefore
imposed for his two especially aggravated kidnapping
convictions. (Id. at 87-88.) The trial court also
imposed a sentence of fourteen years for the aggravated
burglary conviction and a sentence of twenty-six years for
the aggravated robbery conviction, both to be served
concurrently with the life sentences for especially
aggravated kidnapping. (Id. at 87-88, 89-93.)
direct appeal, Petitioner argued that: (1) the trial court
erred by denying his motion to sever; (2) the evidence was
insufficient to support his convictions; and (3) the trial
court erred in its sentencing determinations for aggravated
burglary and aggravated robbery. State v. Mathis,
No. M2011-01096-CCA-R3-CD, 2013 WL 4774130, at *1 (Tenn.
Crim. App. Sept. 5, 2013), perm. app. denied (Tenn.
Dec. 12, 2013). The Tennessee Court of Criminal Appeals
concluded that Petitioner failed to prepare an adequate
record on appeal to resolve the severance issue because he
did not include a transcript of the severance hearing, but
nonetheless found that the trial court's denial of the
severance was not an abuse of discretion. Id. at *7.
The court further concluded that the evidence was legally
sufficient to support the convictions and that
Petitioner's sentences were properly imposed.
Id. at *11, 15. The Tennessee Supreme Court denied
discretionary review through an order entered on December 12,
2013. (Doc. No. 7-16.)
subsequently filed a pro se petition for
post-conviction relief on December 11, 2014. (Doc. No. 7-17
at 36-44.) Following an evidentiary hearing, the
post-conviction court denied relief. (Id. at 81-84.)
On appeal, the Tennessee Court of Criminal Appeals affirmed
the denial of the post-conviction petition. Evans v.
State, No. M2016-02332-CCA-R3-PC, 2017 WL 3600474, at *1
(Tenn. Crim. App. Aug. 21, 2017). The Tennessee Supreme Court
denied Petitioner's application for permission to appeal
on October 4, 2017. (Doc. No. 7-26.) While that application
was pending, Petitioner filed his pro se petition in
this Court on September 8, 2017. (Doc. No. 1.)
Statement of Facts
Evidence at Trial
facts adduced at Petitioner's trial were summarized by
the Tennessee Court of Criminal Appeals in State v.
Mathis, No. M2011-01096-CCA-R3CD, 2013 WL 4774130, at
*1-5 (Tenn. Crim. App. Sept. 5, 2013). The court first
described the trial testimony of the victims, Terry Becker
and Lisa Lewis, who in 2009 were engaged to be married and
were renting a two-bedroom house together. Becker testified
that Petitioner's co-defendants, Emily Turner and Danny
Lee Sams, visited the house on the night of February 25,
2009. He testified that Turner was friends with Lewis, that
Turner and Sams had visited the house in the past, and that
Turner had spent the night in the guest bedroom on occasion.
Becker further testified that he had previously loaned money
to Turner and Sams and had helped Sams secure various odd
jobs. Id. at *1.
testified that, during the visit at his home with Turner and
Sams on February 25, 2009, the couple (Turner and Sams) got
into an argument, as a result of which Sams stormed out of
the house and drove away in Turner's car, leaving her
stranded. Although Becker offered to help Turner retrieve her
car, Turner decided not to pursue the matter but to stay the
night in Becker and Lewis's guest bedroom. Id.
events of the following morning, February 26, 2009, were
described in Terry Becker's testimony, and summarized by
the Tennessee Court of Criminal Appeals, as follows:
The next morning, Mr. Becker awoke at approximately 7:45 a.m.
Mr. Becker testified that he saw Turner standing in the
doorway of the guest bedroom. Mr. Becker asked Turner if she
had let the dogs out, and she replied that she was about to.
Mr. Becker then went to his kitchen to make some coffee. As
Mr. Becker was making his coffee he saw two African-American
men standing in his living room. Both men were dressed in
“dark colored” clothes, had bandanas over their
faces, wore sunglasses, and had plastic gloves on their
hands. Both men were also wearing baseball caps and had the
hoods from their sweatshirts up. Both men had guns and
pointed them at Mr. Becker.
Mr. Becker testified that one of the men told him to get
“all of the way down” on the ground. Mr. Becker
complied, and the men duct taped his hands behind his back.
The men then moved Mr. Becker to a dining room chair where
they “strapped [him] to the chair around [his] chest
and [his] upper arms” with duct tape. The men also
taped Mr. Becker's arms to the chair. After Mr. Becker
was taped to the chair, one of the men brought co-defendant
Turner into the room and had her lie down on the floor. Mr.
Becker testified that one of the men then went into the
bedroom, woke Ms. Lewis up, brought her into the dining room,
and had her lie down next to Turner. According to Mr. Becker,
one of the men said, “Lisa we've been looking for
you for a long time.” The man said that Ms. Lewis
“owed them $18, 000.” The man also nudged Turner
with his foot several times and repeatedly said, “We
don't know who this b---h is, ” to the point that
Mr. Becker thought that they were overemphasizing it.
The men made Ms. Lewis kneel down in front of Mr. Becker, and
one of them asked Ms. Lewis if she loved Mr. Becker. When Ms.
Lewis stated that she did, the man said that Mr. Becker would
write two checks for $9, 000, one made out to Ms. Lewis and
one made out to co-defendant Turner, and that the women would
cash the checks and return with the money in thirty minutes
or they would kill Mr. Becker. While the man was explaining
the plan he had a gun pointed at Ms. Lewis, and the other man
pointed his gun at Mr. Becker. One of the men got Mr.
Becker's checkbook and brought it back to the dining
room. The men freed one of Mr. Becker's hands, and Mr.
Becker wrote the checks as instructed. Sometime after the
women left, the branch manager from a nearby Regions Bank
called Mr. Becker. Mr. Becker testified one of the men put a
gun to his head and leaned in so he could overhear the
conversation. The branch manager told Mr. Becker that he was
calling to verify that he had written the checks, and Mr.
Becker told the branch manager to cash the checks.
A short time after the phone call from the bank manager, one
of the men left the room to answer a cell phone call. When
the man came back into the room he said that the police were
at the bank, that they needed to leave, and told the other
man to “take care” of Mr. Becker. The other man
gagged Mr. Becker and bound him with more duct tape. The men
broke Mr. Becker's cell phone, took the battery out of
his home phone, and then fled the house. After they left, Mr.
Becker was able to free himself. Mr. Becker testified that
the skin on his arms was torn and bleeding from the duct
tape. Mr. Becker also testified that at least one of the men
stayed with him at all times during the ordeal and that the
men kept their guns out the entire time they were there. Mr.
Becker recalled that one of the men did most of the talking
and that the other man stayed with him the majority of the
time. Mr. Becker later inspected the house and found no
evidence of forced entry.
Mathis, 2013 WL 4774130, at *1-2.
Lewis testified consistently with Becker concerning the
circumstances of their visit from Turner and Sams, adding
that she and Turner had used drugs the night of February 25,
2009. She further confirmed Becker's testimony about the
events of the following morning, adding that before she and
Turner left to cash the checks written by Becker, she
witnessed one of the masked men stealing $300.00 in cash and
a debit card out of a bedroom nightstand. Id. at
*2-3. Lewis's testimony concerning the events that
transpired after she and Turner left the house on February 26
was summarized by the Tennessee Court of Criminal Appeals, as
Ms. Lewis testified that co-defendant Turner drove to the
bank. According to Ms. Lewis, Turner repeatedly said that she
wanted to stop somewhere and call co-defendant Sams. At some
point while they were driving to the bank, Turner told Ms.
Lewis, “[T]hey know you're wanted, they don't
think you'll call the police.” Ms. Lewis testified
that when they arrived at the bank she “came
unglued” and explained to a bank employee what was
happening. The employee had Ms. Lewis call the police on his
cell phone while the bank manager called Mr. Becker to
“buy him a little bit of time.” Ms. Lewis
recalled that Turner continued to talk about how she needed
to call Sams. The bank employees who helped Ms. Lewis
testified at trial that she was “hysterical”
while Turner was “real calm” and
“distant.” While they were at the bank, Turner
pulled out her cell phone and made a phone call. Turner told
the person she called that she was not at Mr. Becker's
house, that she was at the bank, and whoever was going to
pick her up should not go to Mr. Becker's house.
Ms. Lewis admitted that when she called the police and
initially spoke with the responding officers she used a fake
name. Ms. Lewis explained that, at the time, she had a drug
problem and an outstanding warrant for a probation violation.
Ms. Lewis testified that she was afraid of being arrested by
the police. Ms. Lewis was arrested later that day after the
police had completed their investigation into the robbery.
Ms. Lewis testified that she gave the check made out to her
to the police when they arrived. However, the police could
not locate the check made out to co-defendant Turner. The
bank employee who assisted Ms. Lewis testified that he had
seen two checks both made out for $9, 000 when the women
arrived at the bank. Turner told the police that she had
given the check to Ms. Lewis, but Ms. Lewis testified that
she did not remember Turner ever giving her the check. The
detective who responded to the bank testified that Turner
told him her check “must've gotten blown away in
Mathis, 2013 WL 4774130, at *3. Turner and Sams were
subsequently arrested while attempting to pass a check from
Becker's checkbook. Id. at *4.
Tennessee Court of Criminal Appeals further summarized the
evidence concerning the scene of the crime and its planning,
Based upon Ms. Lewis's 911 call, officers from the
Metropolitan Nashville Police Department surrounded Mr.
Becker's house. Officers observed two men dressed in
“all black, dark clothing” exit the house and
begin hurriedly walking away from the house. When an officer
approached the men they began running in opposite directions.
Officers subdued both men. Defendants Mathis and Evans were
identified at trial as the two men caught fleeing from Mr.
Becker's house. Officers saw the Defendants
“dropping stuff” as they ran and collected trails
of evidence from each of the Defendants leading back toward
Mr. Becker's house.
On the ground where Defendant Evans had been running, police
found a wig, a black baseball cap, a cigarette lighter, a
cell phone, and a .380 caliber pistol. Defendant Evans had
“long black” wig hairs on his neck and head. A
search of Defendant Evans revealed a roll of duct tape, a
black bandanna, and a cell phone. On the ground where
Defendant Mathis had been running, police found a cell phone,
a black baseball cap, a wig, a pair of sunglasses, three
plastic gloves, and Mr. Becker's debit card. An officer
saw Defendant Mathis throw a gun over a fence into a
neighbor's yard and a .9mm pistol was later recovered
from the neighbor's yard. Both of the recovered guns were
fully loaded and ready to fire. When Defendant Mathis was
stopped, he had on plastic gloves with pieces of duct tape
stuck to them and a hairnet for a wig on his head. A search
of Defendant Mathis revealed a bandanna, the key to a Jeep
Cherokee, and $341 in cash.
A Jeep Cherokee was found a block away from Mr. Becker's
house. Fingerprints belonging to Defendant Mathis and
co-defendant Turner were found on the outside of the vehicle.
Inside the vehicle was a receipt for the purchase of two
pairs of sunglasses, two bandanas, and a “hoodie,
” timestamped at 3:09 a.m. on February 26, 2009. . . .
Co-defendant Sams testified that he had pled guilty in this
case and was awaiting sentencing. Sams testified that at the
time of the robbery he was dating co-defendant Turner.
According to Sams, Turner came up with the idea to rob Mr.
Becker, and he helped her plan the robbery. Sams testified
that Turner introduced him to Defendant Mathis and that they
approached him about helping them with the robbery because
they knew he had a gun. Defendant Mathis agreed to help them,
but he said “that he wanted to do it his way; that he
had a friend from his hometown that he could trust.”
They agreed that they would force Mr. Becker to write two
checks totaling $18, 000 and that they would split the money
three ways: Sams and Turner would get $6, 000; Defendant
Mathis would get $6, 000; and Defendant Mathis's
“partner” would get $6, 000.
Co-defendant Sams testified that the plan was for
co-defendant Turner to stay the night at Mr. Becker's
house and leave the backdoor unlocked. Sams also testified
that he drove by Mr. Becker's house with Defendant Mathis
so he could get an idea of how he would enter the house.
According to Sams, on the night of February 25, 2009, he
pretended to have an argument with Turner so she could stay
the night at Mr. Becker's house. Sams testified that
Turner later called him and told him that Mr. Becker and Ms.
Lewis had believed them. The next day Turner called him from
the bank to tell him that the police were on their way and
not to go to Mr. Becker's house. Sams testified that he
called Defendant Mathis and told him to get out of the house
because the police were on their way. Sams claimed that he
did not know Defendant Evans and that Defendant Evans was not
involved in the planning of the robbery.
Mathis, 2013 WL 4774130, at *4-5.
jury convicted Petitioner and his co-defendants of all
charged offenses. In sentencing Petitioner, the trial court
noted that he had prior convictions for second degree murder,
facilitation of attempted first degree murder, especially
aggravated robbery, aggravated robbery, and burglary.
Id. at *6. Accordingly, the court found that
Petitioner was a dangerous, repeat violent offender and gave
him “an effective sentence of two lifetimes without the
possibility of parole.” Id.