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Crawford v. Perry

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

September 27, 2019

JERRY CRAWFORD, also known as Jerry Fenner, Jr., Petitioner,
v.
GRADY PERRY, Respondent.

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

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Jerry Crawford, also known as Jerry Fenner, Jr., 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.[1]

         BACKGROUND

         In 2011, a Madison County, Tennessee, grand jury charged Crawford with the aggravated robbery of a convenience store. (ECF No. 11-1 at 6-7.) At the jury trial, store manager Jane Long testified that in the early morning hours of November 6, 2010, the defendant entered the store and “handed her a note which read ‘My gun is pointed at you. Give me the money.’” State v. Crawford, No. W2012-02729-CCA-R3CD, 2014 WL 296014, at *1 (Tenn. Crim. App. Jan. 28, 2014). Long opened the cash register, but the defendant waved his hand from inside his pocket. Id. Long believed that the defendant was pointing a gun at her as she heard metal from inside the pocket hit the cash register. Id. When Long handed Crawford a few dollars, he said “B****, I know you got more f****** money than this, ” and “B****, I’ll kill you.” Id. Because Long believed the defendant was armed, she gave him money from a second register. Id. The defendant then quickly left the store. Id. The entire episode was recorded by a security camera.

         Officer Thomas Brea of the Jackson Police Department testified that he spoke with Long after the robbery and retrieved the note Crawford had handed to her. Id. at *2. Long later identified Crawford in a photo lineup. Id. “[A] forensic latent print examiner with the [police department] testified” that the one of the fingerprints on the note belonged to Crawford. Id. “On cross-examination, [the examiner] acknowledged that three fingerprints and one palm print on the note did not belong to the defendant, and he was unable to determine the origin of those prints.” Id. Another law enforcement officer testified that the film from the security camera revealed that “a kelly green sedan with the word ‘Celtics’ printed on the passenger side doors . . . was visible in front of the store moments before the defendant entered.” Id. at *3. The car “was owned by Dominique Mitchell, the defendant's girlfriend.” Id.

         During his pretrial detention, Crawford wrote several letters to Mitchell, in which he confessed to the robbery and urged her to “take the charge” for him. Id. at *3. He wrote similar letters to his friend Erika Brooks. Id. at *4-5.

         Mitchell testified that she loaned her car to the defendant on the date of the offense. Id. “On cross-examination, [she] admitted that, when she initially spoke with someone from the [Jackson Police Department], she denied that the defendant had possession of her car on the morning of the robbery.” Id. She “acknowledged that she later visited the [police department] and admitted that the defendant ‘had [her] car on November the 6th.’” Id.

         Crawford testified that he and Long knew each other prior to November 6, 2010, because Long had purchased Xanax pills from him on several occasions. Id. at *6. He stated that Long would call his cell phone to arrange purchases. Id. “With respect to the events of November 6, the defendant claimed that Ms. Long contacted him at approximately 10:00 p.m. on November 5 and requested some pills ‘on credit.’” Id. After “[t]he defendant explained that he could not comply because he had to have money to feed his children and because Ms. Long had not paid for pills that she had previously purchased on credit, ” Long “told the defendant that she ‘got a way that [he could] get paid and get a little bit extra on top.’” Id. Crawford testified that Long proposed that the two of them steal money from the convenience store by pretending that Crawford was robbing the place. Id. Long told him that he was to put the pills “in a piece of paper” on which he should write ‘This is a stickup.’” Id. Petitioner testified that he agreed to the plan and carried it out. Id. He stated that, “approximately five seconds after he left the store[, ] Ms. Long called his cellular telephone to inquire whether [he] had managed to leave the parking lot next to the store.” Id. “The defendant stated that he recognized the number because Ms. Long had called him [previously] about ‘20 times’ and that he would ‘never forget that number.’” Id.

         Crawford admitted that he had asked Mitchell to confess to the crime, and “stated that he ‘should have never [have done] that.’” Id. at *7. On cross-examination, he explained that he never “told any law enforcement officers about Ms. Long's involvement in the robbery [because] they never came and talked to [him].” Id. (last alteration in original).

         “[T]he jury convicted the defendant as charged of aggravated robbery.” Id. At sentencing, the court found that Crawford qualified as a career offender, and sentenced him to thirty years’ incarceration, to be served consecutively to his sentence in an unrelated matter. Id. at *7, 10. The Tennessee Court of Criminal Appeals affirmed the conviction but remanded the case for resentencing. Id. at *11. The circuit court resentenced the defendant to twenty-five years, to be served consecutively to the unrelated sentence. (ECF No. 11-11 at 161.) No. direct appeal from resentencing was taken.

         Crawford subsequently filed a pro se state petition for post-conviction relief (ECF No. 11-12 at 3-9), which was amended by appointed counsel (id. at 19-20). Following an evidentiary hearing, the post-conviction trial court denied relief and the TCCA affirmed. See Crawford v. State, No. W201500882CCAR3PC, 2016 WL 7799282, at *1, 10 (Tenn. Crim. App. Mar. 31, 2016).

         DISCUSSION

         In July 2016, Crawford filed his Petition, asserting prosecutorial misconduct, ineffective assistance of counsel, and a sentencing error. (ECF No. 1 at 5-10.) Respondent, Grady Perry, filed the state-court record (ECF No. 11) and his Answer (ECF No. 12) to the Petition. Crawford filed a Reply (ECF No. 14), to which Respondent filed a Sur-reply (ECF No. 17). Petitioner thereafter filed a Response to the Sur-reply. (ECF No. 19.) Respondent argues that Claims 1, 3, and 4 are procedurally defaulted, and that Claims 2, 3, and 4 are non-cognizable in this federal habeas proceeding. Crawford maintains that his claims are properly before this Court and are meritorious.

         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 F.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 F.App'x 441, 448 (6th Cir. 2014) (citing House v. Bell, 547 U.S. 518, 536 (2006)).

         B. Ineffective ...


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