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Fisher v. Lee

United States District Court, E.D. Tennessee, Greeneville

August 6, 2019

JASON LEE FISHER, Petitioner,
v.
RANDY LEE, Warden, Respondent.

          Clifton L. Corker, Magistrate Judge.

          MEMORANDUM OPINION

          TRAVIS R. McDONOUGH, UNITED STATES DISTRICT JUDGE.

         Petitioner Jason Lee Fisher is a Tennessee inmate proceeding pro se on a federal habeas petition pursuant to 28 U.S.C. § 2254. Having considered the submissions of the parties, the state-court record, and the law applicable to Fisher's claims, the Court finds that the petition should be denied.

         I. SUMMARY OF EVIDENCE AND PROCEDURAL HISTORY

         Four separate homes located less than a quarter mile apart on Woodbridge Drive in Marshall County, Tennessee, were burglarized between September 26 and October 2, 2011. (Doc. 10-3, at 82-84, 94.) As a result of their investigation of the crimes, police officers determined that the burglar most likely lived in the neighborhood. (Id. at 93, 195-96.) On October 3, 2011, Detective Jimmy Oliver, a detective with the Marshall County Sheriff's Department, along with Captain Bob Johnson, were leaving the home of one of the burglary victims when they noticed Fisher driving a car without tags. (Id. at 96-102.) Detective Oliver initiated a stop based on the missing tags and spoke with Fisher, who did not have a valid driver's license. (Id. at 102-03.) Fisher was arrested, and the officers performed an inventory search of Fisher's car, where they found a camera later identified by one of the burglary victims as the one stolen from her home. (Id. at 104-08.)

         Fisher, who sometimes stayed on Woodbridge Drive in his mother's home, became a suspect in the burglaries. (See Doc. 10-3, at 115.) Officers went to Fisher's residence, where his mother gave consent for a search of her home. (Id.) During that search, officers found items from each of the four burglarized homes. (Id. at 115-17.)

         On September 13, 2012, a Marshall County Criminal Court jury convicted Fisher of four counts of aggravated burglary, three counts of theft of property valued at more than $1, 000 but less than $10, 000, one count of theft of property valued at more than $500 but less than $1, 000, and three counts of vandalism valued at $500 or less. (Doc. 10-1, at 76-90.) Fisher was sentenced as a career offender to an effective sentence of 45 years in prison. State v. Fisher, No. M2013-0220-CCA-R3-CD, 2013 WL 5827652, at *1 (Tenn. Crim. App. Oct. 29, 2013) (“Fisher I”). The Tennessee Court of Criminal Appeals (“TCCA”) affirmed Fisher's convictions and sentence on October 29, 2013. Id. Fisher did not file an application for permission to appeal with the Tennessee Supreme Court.

         On February 13, 2014, Fisher filed a pro se petition for post-conviction relief alleging counsel's ineffectiveness in failing to suppress the evidence seized from his vehicle. (Doc. 10-13, at 3-9, 20-21). On October 13, 2014, following an evidentiary hearing, the petition was denied by the post-conviction court. (Id. at 66-68.) Aggrieved, Fisher filed an appeal, arguing that his trial lawyers were deficient when they failed to file a motion to suppress the evidence found during the inventory search of his car. (Doc. 10-15, at 6.) In affirming the post-conviction court's denial of relief, the TCCA summarized the issues and evidence at the post-conviction hearing as follows:

The Petitioner subsequently filed a Petition for Post-Conviction Relief alleging that he received ineffective assistance of counsel because trial counsel and co-counsel failed “to competently argue to suppress evidence” found during the search of his car [FN2]. No. amended petition was filed. At the post-conviction hearing, the Petitioner testified that he spoke with both trial counsel and co-counsel seven or eight times before trial. He stated that he did not feel good about their representation. The Petitioner explained that he had concerns about the search of his car because he never gave consent for Detective Oliver and Captain Johnson to search the trunk of the car. However, he never expressed those concerns to trial counsel or co-counsel because he “didn't know much about the law at the time or think even to question them....” On cross-examination, the Petitioner said he was standing outside of his car when the officers searched the trunk and that he was not given an option to leave. The Petitioner agreed that, at the time, he was under arrest. The Petitioner said he was not present when his car was towed. The Petitioner explained that he was concerned about the search because “[he] believe[d] they had no reason to go in the trunk. [He] was arrested for driving on suspended, not anything to do with the trunk of the vehicle.”
FN2 In his petition for post-conviction relief, the Petitioner also alleged that the search of his vehicle was not a valid search incident to arrest and that he received ineffective assistance of counsel when trial counsel and co-counsel did not file a motion to suppress the evidence found in the Petitioner's mother's house. However, the only issue raised on appeal is whether trial counsel and co-counsel were ineffective for failing to file a motion to suppress the evidence found during the inventory search of the Petitioner's car. We will review only the facts relevant to the issue presented on appeal. See Tenn. R. App. P. 13(b).
Trial counsel testified that he discussed the search of the car with the Petitioner. Trial counsel acknowledged that the Petitioner was not pulled over in connection with the burglaries and that he was not a suspect in the burglary investigation until officers searched his car. However, trial counsel did not file a motion to suppress the evidence found in the car. Trial counsel explained that the police arrested the Petitioner for driving on a suspended license and that there was no passenger in the Petitioner's car that could drive the car from the scene. Based on these facts, trial counsel concluded that the officers performed a valid inventory search before they towed the car. On cross-examination, trial counsel also stated that he did not know of any way that he could have suppressed the evidence. On re-direct examination, trial counsel said he did not know of any law that would prevent officers from searching a locked trunk during an inventory search. Trial counsel also stated that he did not know whether it was common practice for the police to offer an arrestee the opportunity to make arrangements for someone to pick up their vehicle before the police performed an inventory search and towed the vehicle.
Co-counsel testified that he spoke with the Petitioner about the stop of his vehicle and the search of his vehicle. Co-counsel explained that “[t]here was no non-frivolous way to try to suppress the stop.” Co-counsel stated that the officers conducted an inventory search, but he did not recall seeing the inventory sheet. However, even without seeing the inventory sheet, co-counsel concluded based on the preliminary hearing testimony and his conversations with Detective Oliver that the police had conducted an inventory search.
At the conclusion of the hearing, the Petitioner argued that the search of his vehicle was not a valid inventory search. The State argued that the Petitioner had not presented any proof to show that the inventory search was invalid. The post-conviction court noted that, had a motion to suppress been filed prior to trial, the State would have had to prove that the search of the vehicle fell within a valid exception to the warrant requirement. However, because this issue arose during post-conviction proceedings, the burden of proof “flip[ped]” to the Petitioner to show that the search was invalid.
In a written order, the post-conviction court accredited the testimony of trial counsel and co-counsel. Regarding the search of the vehicle, the post-conviction court found that the Petitioner had failed to show that there was a reasonable probability that a motion to suppress would have been granted. The post-conviction court noted that neither side presented proof as to the road conditions or whether the Petitioner knew of anyone who could readily move his vehicle to avoid towing. Accordingly, the post-conviction court denied relief, concluding that the Petitioner had failed to show that the search was not a valid inventory search and “it would be sheer speculation to find that there is a reasonable probability that a motion to suppress the search of the trunk would have prevailed.” This timely appeal followed.

Fisher v. State, No. M2014-02327-CCA-R3-PC, 2015 WL 5766521, at *2-3 (Tenn. Crim. App. Oct. 2, 2015), perm. app. denied (Tenn. Feb. 18, 2016) (“Fisher II”). The Tennessee Supreme Court denied Fisher's applications for permission to appeal on February 18, 2016. Id.

         On or about October 28, 2016, Fisher filed the instant habeas petition raising the following grounds for ...


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