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Pewitte v. Phillips

United States District Court, W.D. Tennessee, Eastern Division

September 26, 2019

SAIDRICK TIWON PEWITTE, Petitioner,
v.
SHAWN PHILLIPS, Respondent.

          ORDER DENYING § 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Saidrick Pewitte has filed a pro se habeas corpus petition (the “Petition”), pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the reasons that follow, the Petition is DENIED.

         BACKGROUND

         In September 2012, a Madison County, Tennessee, grand jury charged Pewitte with possession of cocaine with intent to sell or deliver, possession of a schedule III controlled substance with intent to sell or deliver, and possession of a deadly weapon with intent to employ the weapon in the commission of a dangerous felony. (ECF No. 13-1 at 6-12.) At the jury trial in January 2013, Jackson Police Department Investigator Samuel Gilley testified that, pursuant to a warrant, his team conducted a search of the defendant’s home on October 5, 2011. State v. Pewitte, No. W2013-00962-CCA-R3CD, 2014 WL 1233030, at *1 (Tenn. Crim. App. Mar. 25, 2014), perm. appeal denied (Tenn. June 20, 2014). Immediately prior to the search, Gilley observed Pewitte’s step-father Curtis Goyer and Pewitte’s cousin Christian Ellison enter the home. Id. The police then forcibly entered the house, and observed the defendant “sitting on his bed” in a room that was adjacent to, and down several steps from, the kitchen. Id. Police detained Ellison “on the small staircase that led into the kitchen” and detained Goyer near the front door. Id.

         During the search officers discovered the following items on the nightstand in Pewitte’s bedroom: “two bags of cocaine that were wrapped individually” in plastic bags, “a clear plastic bag that had nine Lortab pills and three Vicodin pills . . . tied up in like a sandwich baggy, ” and “a box of sandwich bags.” Id. at *1-2. Inside the nightstand drawer the police discovered “a loaded .38 [caliber] revolver, ” a holster, and “some bullets and a wallet with $667 in cash and the Defendant’s Social Security card.” Id. at *2. “The police also seized a plastic bag containing twenty-seven rounds of ammunition for a .38 caliber revolver from the Defendant’s bedroom cabinet, ” and “[n]ear these bullets, there was a Crown Royal bag containing $1, 395 in cash.” Id. “[T]wo large bags of cocaine [were] recovered from a kitchen cabinet.” Id. The police also found “a blue bag . . . on the stairs . . . going from th[e] bedroom area up to the kitchen that had digital scales, some spoons, [and] some plastic bags that had . . . the corners twisted off.” Id. “Some of the[se] items had [a] white powdery residue.” Id. On cross-examination, Gilley stated that “the Defendant reported having knee problems and required assistance from a wheelchair when the police took him out of the residence.” Id. A forensic scientist testified that the substances found in Pewitte’s home were cocaine and tablets containing “hydrocodone, a Schedule III controlled substance.” Id. at *3.

         Jackson police sergeant Phillip Kemper “testified that he . . . took a statement from the Defendant during the search of the residence.” Id. The statement, which was read into the record, “contained, in pertinent part, ” Pewitte’s assertions that “[t]he powder and pills on the table by my bed belonged to me because I am in a lot of pain and I have a drug problem, ” that the gun was for self-protection due to “some bad things [that] have gone on in my neighborhood, ” and that the money in the nightstand was from a “disability check.” Id.

         Ellison testified that immediately prior to the search he noticed the police outside the house that belonged to his uncle, and at which the defendant resided. Id. The witness “‘took off into the house’ to tell [Pewitte] that the police were outside.” Id. at *3. “[W]hen he told the Defendant about the police, the Defendant threw a purple Crown Royal bag at him, ” which “hit him in the chest and fell onto the steps” that led to the bedroom. Id. Ellison noticed that “[a] white compact substance fell out of the bag onto the floor along with some bags and a scale.” Id. “[B]ecause he wanted to help his cousin, ” he “grabbed the drugs and ‘threw them into the cabinet.’” Id. Ellison denied that “the drugs and other items . . . belong[ed] to him.” Id. He also testified that, as a result of knee surgery, Pewitte “was confined to the hospital bed in his room for months” and was taking medication to reduce pain. Id.

         Goyer testified that he owned and lived in the house that was searched and that the Defendant had been living with him for several years. Id. at *4. He confirmed that Pewitte had surgery on his legs and had been “stay[ing] in a hospital bed in the den.” Id. Although “he was not aware of drugs in his house on the day of the search, ” he stated that “he had previously observed the Defendant use small packets of cocaine on at least two occasions.” Id. Goyer also testified that Pewitte “obtained [the gun] after his injury” and that he was receiving “monthly disability check[s] of ‘$800 or $900’” and had secured a loan for “about $1, 500” prior to the search. Id. The witness “was also aware that the Defendant took ‘lots of medication.’” Id.

         “The Defendant chose not to testify and the defense did not present any proof at trial.” Id. The jury returned guilty verdicts on all counts, and Pewitte was sentenced as a multiple offender to “an effective sentence of twenty-eight years in the Department of Correction.” Id. On direct appeal, he challenged the sufficiency of the evidence to convict him of the offenses. Id. at *5. After the Tennessee Court of Criminal Appeals affirmed the judgment, see Id . at *8, the Tennessee Supreme Court denied permission to appeal (see ECF No. 13-20).

         Petitioner filed a pro se post-conviction petition in state court asserting claims of attorney ineffective assistance (ECF No. 13-13 at 3-34), which was amended several times by appointed counsel (id. at 49-50, 53-54, 57-58). Following an evidentiary hearing (ECF No. 13-16), the post-conviction trial court denied relief in a written decision. (ECF No. 13-13 at 63-66.) The Tennessee Court of Criminal Appeals affirmed the judgment, and the Tennessee Supreme Court denied permission to appeal. Pewitte v. State, No. W201500883CCAR3PC, 2016 WL 1719432, at *8 (Tenn. Crim. App. Apr. 27, 2016), perm. appeal denied (Tenn. Aug. 19, 2016).

         DISCUSSION

         In September 2016, Pewitte filed his Petition, asserting that the Tennessee Court of Criminal Appeals was unreasonable in rejecting his evidence-sufficiency and attorney-ineffective-assistance claims. (ECF No. 1 at PageID 5-7.) Respondent, Shawn Phillips, filed the state-court record (ECF No. 13) and an answer (ECF No. 14) to the Petition, in which he argues that Petitioner’s claims are without merit. Pewitte filed a reply, maintaining that he is entitled to relief. (ECF No. 23.)

         I. Legal Standards

         A. Habeas Review and Procedural Default

         The statutory authority for federal courts to issue habeas corpus relief for persons in state custody is provided by § 2254, as amended by the Antiterrorisim and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. Under § 2254, habeas relief is available only if the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         The availability of federal habeas relief is further restricted where the petitioner’s claim was “adjudicated on the merits” in the state courts. 28 U.S.C. § 2254(d). In that circumstance, the federal court may not grant relief unless the state-court decision “‘was contrary to’ federal law then clearly established in the holdings of [the Supreme] Court; or that it ‘involved an unreasonable application of’ such law; or that it ‘was based on an unreasonable determination of the facts’ in light of the record before the state court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)-(2)) (citations omitted)).

         A state court’s decision is contrary to federal law when it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law, ” or when “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at” an “opposite” result. Williams v. Taylor, 529 U.S. 362, 405 (2000). An unreasonable application of federal law occurs when the state court, having invoked the correct governing legal principle, “unreasonably applies the . . . [principle] to the facts of a prisoner’s case.” Id. at 409.

         For purposes of § 2254(d)(2), a state court’s “factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Sixth Circuit construes § 2254(d)(2) in tandem with § 2254(e)(1) to require a presumption that the state court’s factual determination is correct in the absence of clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). A state court’s factual findings are therefore “only unreasonable where they are ‘rebutted by clear and convincing evidence and do not have support in the record.’” Moritz v. Woods, 692 Fed.App’x 249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks omitted).

         Before a federal court will review the merits of a claim brought under § 2254, the petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To be properly exhausted, a claim must be “fairly presented” through “one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999).

         The exhaustion requirement works in tandem with the procedural-default rule, which generally bars federal habeas review of claims that were procedurally defaulted in the state courts. Id. at 848. A petitioner procedurally defaults his claim where he fails to properly exhaust available remedies (that is, fails to fairly present the claim through one complete round of the state’s appellate review process), and he can no longer exhaust because a state procedural rule or set of rules have closed-off any “remaining state court avenue” for review of the claim on the merits. Harris v. Booker, 251 Fed.App’x 319, 322 (6th Cir. 2007). Procedural default also occurs where the state court “actually . . . relied on [a state] procedural bar as an independent basis for its disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). To cause a procedural default, the state court’s ruling must “rest[] on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Klinger v. Missouri, 80 U.S. 257, 263 (1871)).

         Only when the petitioner shows “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claim[] will result in a fundamental miscarriage of justice, ” will he be entitled to federal court review of the merits of a claim that was procedurally defaulted. Id. at 750. The ineffectiveness of post-conviction counsel may be cause to excuse the default of an ineffective-assistance-of-trial-counsel claim. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 14, 16-17 (2012)). A fundamental miscarriage of justice involves “a prisoner[’s] assert[ion of] a claim of actual innocence based upon new reliable evidence.” Bechtol v. Prelesnik, 568 Fed.App’x 441, 448 (6th Cir. 2014).

         B. Insufficiency of the Evidence

         The Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), provides the federal due process standard for evidentiary sufficiency in criminal cases. See Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (holding Jackson applies to sufficiency-of-the-evidence claims on habeas review under § 2254(d)). In Jackson, the Supreme Court announced that “the relevant question” “on review of the sufficiency of the evidence to support a criminal conviction, ” is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original).

         The Jackson standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to ultimate facts.” Id. at 319. See also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (holding that, under Jackson, “it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.”). Jackson’s evidence-sufficiency standard may be met with circumstantial evidence. See Desert Palace, Inc., v. Costa, 539 U.S. 9, 100 (2003) (“[W]e have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”); see also United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010) (“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”).

         The AEDPA adds a layer of deference to Jackson’s already deferential standard. By virtue of the AEDPA’s command that federal habeas relief may issue only if the state court’s decision is “contrary to” controlling federal law or “based on an unreasonable application” of the controlling federal law, 28 U.S.C. § 2254(d)(1)-(2), a state court determination that the evidence satisfied the deferential Jackson standard is itself “entitled to considerable deference” by the federal habeas court. Coleman, 566 U.S. at 656.

         C. Ineffective Assistance of Counsel

         A claim that an attorney’s ineffective assistance has deprived a criminal defendant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on such a claim, a petitioner must demonstrate two elements: (1) “that counsel’s performance was deficient”; and (2) “that the deficient performance prejudiced the defense.” Id. at 687. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

         To establish deficient performance, a petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. A court considering a claim of ineffective assistance must apply “a strong presumption” that the attorney’s representation was “within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks and citation omitted).

         An attorney’s “strategic choices” are “virtually unchallengeable” if based on a “thorough investigation of law and facts relevant to plausible options . . . .” Strickland, 466 U.S. at 690. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91.

         To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693) (citations omitted). Instead, “[c]ounsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687).

         The deference to be accorded a state-court decision under 28 U.S.C. § 2254(d) is magnified when a federal court reviews an ineffective assistance claim:

Under AEDPA, a state court must be granted a deference and latitude that are not in operation in a case involving direct review under Strickland. A state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded ...

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