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Blocker v. Mays

United States District Court, E.D. Tennessee, Chattanooga

September 30, 2019

DELIVETRICK D. BLOCKER, Petitioner,
v.
TONY MAYS, Respondent.

          MEMORANDUM

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         Petitioner Delivetrick D. Blocker is a Tennessee inmate proceeding pro se on a successive federal habeas petition pursuant to 28 U.S.C. § 2254, in which he seeks to challenge the legality of his confinement under judgments of conviction from the Hamilton County Criminal Court. Having considered the submissions of the parties, the State-court record, and the law applicable to Petitioner’s claims, the Court finds that the petition should be denied.

         I. RELEVANT BACKGROUND & PROCEDURAL HISTORY

         The Tennessee Court of Criminal Appeals (“TCCA”) summarized the facts of Petitioner’s crime as follows:

[T]he proof at trial showed that [Petitioner] and his severed co-defendants, cousin Robert Blocker and Calvin Trammell, who were all juveniles at the time of this crime, called for a taxicab from a Hamilton County convenience store. When it arrived, they instructed the driver to take them approximately one-half mile, to a location that the State characterized as wooded and secluded, along a street with several vacant homes. As the perpetrators exited the car, [Petitioner] heard Robert Blocker demand money from the driver, who reached over between the seats. [Petitioner] told police that he believed the driver was reaching for a gun, so he pulled a sawed-off shotgun from his pants and pointed it at the driver. He then shot the driver at a range between six and twelve inches from his head. All three perpetrators fled the scene, and an area homeowner discovered the victim when the taxicab crashed into her patio.

State v. Blocker, No. 03C01-9803-CR-00120, 1999 WL 124223, at *1 (Tenn. Crim. App. Mar. 10, 1999). Petitioner was seventeen years old at the time. Id.

         Following a jury trial, Petitioner was convicted of first-degree felony murder and especially aggravated robbery. Id. The jury imposed a sentence of life imprisonment without the possibility of parole for the first-degree murder conviction. Id. At a subsequent sentencing hearing, the trial court imposed a consecutive sentence of twenty-two years for the especially aggravated robbery conviction. Id.

         On direct appeal, the TCCA modified the underlying felony conviction to attempted especially aggravated robbery, and it imposed a consecutive sentence of nine years. Id. at *7–10. The Tennessee Supreme Court denied discretionary review on October 4, 1999. Id. at *1.

         In 2004, Petitioner sought habeas relief under 28 U.S.C. § 2254 in this Court, challenging his confinement under the State-court judgments. Blocker v. Lewis, No. 1:04-CV-32 (E.D. Tenn. May 23, 2005). On May 23, 2005, this Court dismissed the petition [Id. at Doc. 17].

         Thereafter, on at least two occasions in State court, Petitioner unsuccessfully challenged his convictions through State habeas petitions. See Blocker v. Worthington, No. E2008-00881-CCA-R3-HC, 2009 WL 304022 (Tenn. Crim. App. Feb. 9, 2009); Blocker v. Osborne, No. E2011-02723-CCA-R3-HC, 2012 WL 2513980 (Tenn. Crim. App. June 29, 2012), perm. app. denied (Tenn. Oct. 17, 2012).

         On November 13, 2012, Petitioner filed a second or successive habeas petition, which was transferred to the Sixth Circuit for authorization. See Blocker v. Osborne, 1:12-CV-374-CLC-WBC (E.D. Tenn. Nov. 16, 2012) [Doc. 4]. On October 16, 2013, the Sixth Circuit denied Petitioner authorization to file a second or successive petition. In re: Delivetrick D. Blocker, No. 12-6552 (6th Cir. Oct. 16, 2013).

         On or about December 2, 2016, Petitioner filed a motion to reopen his post-conviction petition under Tennessee Code Annotated § 40-30-117, arguing that his life sentence without the possibility of parole is unconstitutional because Montgomery v. Louisiana, 136 S.Ct. 718 (2016), established that Miller v. Alabama, 567 U.S. 460 (2012) precluded his life sentence without the possibility of parole for a crime he committed as a juvenile [See, e.g., Doc. 22-4]. The trial court denied the motion, and the TCCA denied discretionary review of that decision on March 31, 2017 [Doc. 22-8]. In doing so, the TCCA court noted that Miller has no application to a Tennessee sentence of life imprisonment without the possibility of parole, because such a sentence is not mandatory, but rather, it is imposed “by a jury only after presentation and consideration of mitigating factors, including those specific to the petitioner’s youth” [Id. at 3]. The Tennessee Supreme Court denied discretionary review on July 20, 2017 [Doc. 22-9].

         While Petitioner’s application for permission to appeal was pending before the TCCA, he filed a second application for permission to appeal from the same order denying the motion to reopen [Doc. 22-10]. In the second application, he raised the same Eighth Amendment claim under Miller and Montgomery [Id.]. The second application was denied on the same day as the first [Doc. 22-13]. The Tennessee Supreme Court denied discretionary review of the second application on July 18, 2017 [Doc. 22-14].

         On February 1, 2018, Petitioner filed another application for authorization to file a second or successive petition [Doc. 6]. On August 7, 2018, the Sixth Circuit granted authorization, and the instant habeas petition was filed on the same day [Docs. 7 and 8]. In his federal habeas petition, Petitioner raises a single ground for relief, as paraphrased by the Court:

Whether Petitioner’s sentence of life imprisonment without the possibility of parole as a juvenile offender violates Miller v. Alabama, 567 U.S. 460 (2012).

[Doc. 8]. Pursuant to this Court’s order to respond to the petition, Respondent filed an answer on January 22, 2019 [Doc. 23]. Petitioner submitted two additional amendments to the petition and a supplemental pleading in support of his petition [Docs. 21, 25, and 34].[1] Thereafter, Respondent submitted a response to Petitioner’s supplemental pleading [Doc. 37]. Petitioner’s subsequently attempted to further amend his petition to add a new ...


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