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Abdi v. Lindamood

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

August 19, 2019

ELMI ABDI
v.
CHERRY LINDAMOOD, WARDEN

          REPORT AND RECOMMENDATION

          Barbara D. Holmes, United States Magistrate Judge.

         TO: Honorable Aleta A. Trauger, District Judge

         By Order entered December 2, 2016 (Docket Entry No. 42), the above captioned Petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 was referred to the Magistrate Judge for further proceedings under 28 U.S.C. § 636(b)(1) and Rule 72 (b) of the Federal Rules of Civil Procedure.

         After review of the Petition and Respondent's Answer, the undersigned respectfully recommends that the Petition be denied and this action be dismissed.

         I. BACKGROUND

         Elmi Abdi (“Petitioner”) is a state inmate of the Tennessee Department of Correction who is confined at the South Central Correctional Facility in Clifton, Tennessee. On September 22, 2009, a jury in Davidson County, Tennessee, found him guilty of one count of attempted aggravated robbery. For this crime, he was sentenced to ten years of imprisonment, to be served consecutive to sentences for others crime of which Petitioner had been previously convicted.[1]

         The conviction at issue arose out of events that occurred on the morning of January 1, 2008, when Petitioner entered a hotel in Nashville, Tennessee, acted as if he had a gun in his pocket, and attempted to rob the hotel.[2] Petitioner did not testify at trial, and the evidence against him consisted primarily of the victim's testimony, the testimony of the police officer who interviewed Petitioner, and parts of the video of Petitioner's police interview. The Tennessee Court of Criminal Appeals hearing Petitioner's direct appeal from his conviction provided the following summary of the evidence presented at Petitioner's trial:

The victim testified that on January 1, 2008, she was the front desk clerk at the Extended Stay America Hotel located at 2525 Elm Hill Pike, Nashville, Tennessee. On that day, she arrived at work at 7:00 a.m. Before she could remove money from the hotel's safe to put in her register for the day, she heard the door open and went to the front desk. The victim testified that the defendant was standing at the counter, wearing a stocking cap, a gray fleece jacket, and dark sunglasses. She said that he demanded that she give him all of the money. He had his hand in a pocket of his jacket, and she said that “he lifted his hand up towards my head like he had a gun.” She told him that she had not taken the money out of the safe yet and showed him the empty register drawer. He demanded that she let him behind the counter and said, “I ought to kill you.” The victim testified that after he said that, she began moving to the side door and then turned and ran through the back door. She said that she was afraid that he would shoot her in the back when she turned to run. She went up to the third floor, and knocked on a guest's door. The guests let her in, and they called the police. When the police arrived, she told them what happened. The following day, a detective at the Hermitage Precinct showed her a set of photographs. She identified a photograph of the defendant as the person who tried to rob her. She also identified the defendant in the courtroom.
On cross-examination, the victim denied that the man who tried to rob her was black. She said that she recalled the description that she gave to the police but did not recall telling the police that the man was black.
On re-direct examination, the victim stated that she was “a hundred percent” certain that the defendant was the person who tried to rob her. She said that she would not describe the defendant as a black man.
Metropolitan Nashville Police Officer Geoffrey Thiede testified that he responded to an attempted robbery call at 2525 Elm Hill Pike on January 1, 2008. He spoke with the victim and filled out an incident report. He said that the description he recorded was “a generic description of a male black, approximately twenty-five to thirty years old, 5# 9#, 185 pounds.” Officer Thiede noted in his report that the suspect had “his left hand ... in the pocket of the fleece jacket to possibly give [the victim] the inference that maybe he had a weapon in his hand.”
On cross-examination, Officer Thiede agreed that the victim described the suspect as a black male. He further agreed that he indicated in his report that there was no weapon involved. He recalled that the victim told him that the hotel had video surveillance but that she did not have access to it. He did not know whether detectives followed up on the video surveillance.
Metropolitan Police Detective James Chastain testified that he prepared a photographic lineup including the defendant's photograph.
Metropolitan Nashville Police Detective Jeff Ball testified that he was the lead detective in this case. He spoke with the victim on January 2, 2008, and showed her a photographic lineup. She identified the defendant as the person who tried to rob her. He learned that the hotel had video surveillance, and the police collected a videotape from the hotel. Detective Ball testified that the Tech Support Unit viewed the videotape, but the attempted robbery was not captured on the videotape. He said that the police received an anonymous call that the defendant was at the Breckinridge Apartments on Plus Park Boulevard. The police arrested the defendant in that area. Detective Ball spoke to the defendant at the Hermitage Precinct. The defendant signed a rights waiver. He told the detective that he did not take any money and that it was his hand in his pocket. The defendant said he might have attempted it and that he was drunk. He explained that he lost his memory when he was drunk. Detective Ball said that he had a surveillance video from a business three to four miles away from the hotel that captured the defendant at 9:08 a.m., according to the time on the videotape. The detective said that, based on his investigation, the clock on the videotape was one hour off. The defendant identified himself in the video. The detective testified that the clothing worn by the defendant in the video matched the description given by the victim.
On cross-examination, Detective Ball agreed that the defendant never specifically said that he attempted to rob anyone at the hotel.
The state recalled the victim, who testified that the defendant did not smell of alcohol, speech was not slurred like a drunk person, nor did he walk abnormally.

State v. Abdi, 2011 WL 2570404, at *1-2 (Tenn.Crim.App. June 29, 2011) (“Abdi I”).[3]

         II. STATE POST-TRIAL PROCEEDINGS

         Upon direct appeal, Petitioner's conviction was affirmed by the Tennessee Court of Criminal Appeals, and his request for permission to appeal to the Tennessee Supreme Court was denied. Abdi I. The state appellate court found no merit in Petitioner's assertion (1) that there was insufficient evidence to support his conviction and (2) that the trial court erred in his sentencing. Abdi I, at *3-5. The court also found that Petitioner, by failing to file a timely motion for a new trial, had waived his claim that the trial court erred by admitting a video of his interview with the police. Id. at *4.

         Petitioner then filed a pro se petition for post-conviction relief, raising five allegations of ineffective assistance of trial counsel.[4] He was appointed counsel and filed an amended petition, raising allegations of ineffective assistance of trial and appellate counsel.[5] After an evidentiary hearing, the post-conviction court denied relief, and Petitioner sought an appeal. Abdi v. State, 2013 WL 6081461 (Tenn.Crim.App. Nov. 18, 2013) (“Abdi II”).[6] In his appeal, Petitioner argued that his trial counsel was ineffective for: (1) failing to compel the production of a surveillance video of the crime scene; (2) failing to adequately challenge the admission at trial of the video of his interview with police; and (3) failing to file a timely motion for new trial. Id. at *1. The state appellate court found that Petitioner's first two grounds failed to support post-conviction relief but granted Petitioner relief on his third ground, finding that his trial counsel was deficient in failing to file a timely motion for new trial and that Petitioner was presumptively prejudiced by that deficiency because it resulted in a waiver on appeal of Petitioner's claim that the trial court erred by admitting a video of his interview with the police. Id. at ** 6-9. Petitioner was granted relief in the form of a remand in order to permit him to pursue a delayed appeal. Id. at 10.

         Upon Petitioner's delayed appeal, his conviction was affirmed by the Tennessee Court of Criminal Appeals, and his request for permission to appeal to the Tennessee Supreme Court was denied. State v. Abdi, 2015 WL 894830 (Tenn.Crim.App. Mar. 2, 2015) (“Abdi III”).[7] In the delayed appeal, Petitioner argued that the trial court erred by admitting into evidence a redacted version of the video of Petitioner's police interview instead of the full version. Petitioner contended that the redacted video was played in five separate clips, which did not give the jury the full context of his interview and which made it unclear which offense Petitioner was discussing in the interview. Id. at *4. The appellate court found that Petitioner was not entitled to relief on this ground because the trial court, which had weighed the possibility of that prejudice to the Petitioner would occur if the full video was played because of his references in the full video to other robberies, had not abused its discretion by admitting only the redacted video. Id. at ** 4-5.

         III. FEDERAL HABEAS CORPUS PETITION

         After failing to obtain relief in the state courts, Petitioner filed the instant pro se petition on November 4, 2015, seeking habeas corpus relief under 28 U.S.C. § 2254. See Petition (Docket Entry No. 1-1). He lists three grounds for relief.

         Petitioner's first ground for relief is that he was not provided with effective assistance of counsel “both at trial and in state collateral proceeding(s).” Id. at 4-5. Although Petitioner's assertions of ineffective assistance are not clearly identified as separate claims, he appears to set out four claims, each of which involved counsel's conduct with respect to the video of Petitioner's police interview:

(a) trial counsel failed to file a motion “to timely obtain [Petitioner's] video-recorded statement to adequately challenge its introduction into evidence.” Petitioner contends that counsel's failure to obtain the video also prevented counsel from “further investigation” and from impeaching “any false, contradictory, or misleading statements by police interview of witnesses.” Id. at 4.;
(b) trial counsel failed “to argue that, pursuant to Rule 106, ” that the entire video, rather than just portions of the video, should have been admitted. Id.;
(c) trial counsel failed to request a jury-out hearing to attempt to refresh the police interviewer's recollection by ...

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