United States District Court, E.D. Tennessee, Greeneville
Clifton L. Corker, Magistrate Judge.
R. McDONOUGH, UNITED STATES DISTRICT JUDGE.
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
SUMMARY OF EVIDENCE AND PROCEDURAL HISTORY
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.)
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.)
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.
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
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
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.
about October 28, 2016, Fisher filed the instant habeas
petition raising the following grounds for ...