United States District Court, W.D. Tennessee, Eastern Division
ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING
§ 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
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
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.
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
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.
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.
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.
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).
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.
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).
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
Habeas Review and Procedural Default
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).
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)).
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.
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).
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).
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)).
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)).