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Evans v. Lindamood

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

July 11, 2019

ELZA EVANS, Petitioner,
v.
CHERRY LINDAMOOD, Warden, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Elza 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).

         This 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 at 1-2.)

         Having 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 denied.

         I. Procedural History

         Petitioner 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.)

         On 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.)

         Petitioner 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.)

         II. Statement of Facts

         A. Evidence at Trial

         The 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.

         Becker 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.

         The 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.

         Lisa 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 follows:

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 the wind.”

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.

         The Tennessee Court of Criminal Appeals further summarized the evidence concerning the scene of the crime and its planning, as follows:

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.

         The 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.

         B. ...


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