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Bowman v. Lee

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

October 7, 2019

JOSH L. BOWMAN, Petitioner,
v.
RANDY LEE, Warden, Respondent.

          MEMORANDUM OPINION

          Clifton L. Corker United States District Judge.

         Petitioner, Josh L. Bowman, a Tennessee inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging the legality of his confinement under three counts of first-degree felony murder, one count of especially aggravated kidnapping, one count of especially aggravated robbery, two counts of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. Having considered the submissions of the parties, the State-court record, and the law applicable to Bowman's claims, the Court finds that the petition should be denied.

         I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

         Bowman and Gary S. Holman entered the home of Bill and Vickie Graves and stole a safe on May 2, 2009. See State v. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *1-3 (Tenn. Crim. App. Aug. 29, 2013), perm. app. denied (Tenn. Feb. 11, 2014) (“Bowman I”). During the home invasion, Mr. Graves was shot by the first intruder, and Mrs. Graves engaged in a physical altercation with the second intruder. Id. at *3-4. Mr. Graves died as a result of the gunshot wound the following day. Id. at *4.

         Bowman was subsequently developed as a suspect and was arrested. Id. at *2. After his arrest, Bowman gave a statement to police admitting to breaking into the Graves home but claiming that his co-defendant shot Mr. Graves while he struggled with Mrs. Graves. Id. at *3.

         A Knox County Grand Jury returned an indictment charging Bowman and his co-defendant, Gary S. Holman, with two counts of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, one count of employing a firearm during the commission of a dangerous felony when Bowman had previously been convicted of a dangerous felony, one count of especially aggravated kidnapping, one count of especially aggravated robbery, and three counts of first-degree felony murder [Doc. 8-1 p. 6-10]. The defendants were separately tried. Bowman I, 2013 WL 4680402, at *1.

         Prior to trial, Bowman filed a motion to suppress his statement to police, alleging his statement was coerced and not voluntarily given [Doc. 8-1 p. 37-38]. Following a hearing, Bowman's motion to suppress was denied [Id. at 40].

         Following a jury trial, Bowman was convicted of two counts of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, one count of especially aggravated kidnapping, three counts of first-degree felony murder, and one count of aggravated robbery [Id. at 63-64]. In a bifurcated proceeding, Bowman pleaded guilty to the charge of employing a firearm during the commission of a dangerous felony while having prior convictions for dangerous felonies [Doc. 8-5 p. 65-69]. The trial court entered judgments and sentenced Bowman to life for each of his first-degree felony convictions [Doc. 8-1 p. 65-67]. Judgments for the remaining convictions were held pending a sentencing hearing [Id. at 63-64].

         After a sentencing hearing, the trial court merged Bowman's aggravated burglary convictions [Id. at 82-83]. It also merged Bowman's employing a firearm during the commission of a dangerous felony conviction while having prior convictions with his conviction for employing a firearm during the commission of a dangerous felony [Id. at 84-85]. The sentence for the employment of a firearm during the commission of a dangerous felony was set to run consecutively to Bowman's sentence for aggravated burglary [Id. at 84]. All of Bowman's sentences were set to run concurrently with his life sentences [Id. at 82-87].

         Bowman subsequently filed a motion for a new trial, arguing, in part, that the trial court should have suppressed his statements to police because he had been threatened [Id. at 71-72, 93-95]. The trial court denied Bowman's motion for a new trial [Doc. 8-2 p. 96, 100].

         On appeal, the Tennessee Court of Criminal Appeals (“TCCA”) held that the trial court properly denied Bowman's motion to suppress his statement to police. Bowman I, 2013 WL 4680402, at *10. However, the TCCA held that the trial court erred when it failed to instruct the jury on the charge of especially aggravated kidnapping pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012). Id. at *15. It reversed Bowman's conviction for especially aggravated kidnapping and remanded the case for a new trial on that offense. Id. at *16. The Tennessee Supreme Court denied Bowman's application for discretionary review [Doc. 8-13].

         On remand, Bowman pleaded guilty to especially aggravated kidnapping and was sentenced to 15 years to be served concurrently with his life sentence [Doc. 8-14 p. 29-30].

         Thereafter, Bowman filed a pro se petition for post-conviction relief [Id. at 4-19]. Appointed counsel subsequently filed an amended petition for post-conviction relief [Id. at 23-25]. Following a hearing, the post-conviction court found Bowman received ineffective assistance of counsel when trial counsel advised him to plead guilty to employing a firearm during the commission of a dangerous felony with prior convictions for dangerous felonies, and it set aside Bowman's conviction for that offense [Id. at 33-37]. The post-conviction court denied relief for all of Bowman's other claims [Id. at 37]. The State appealed to the TCCA, arguing that the post-conviction court erred when it found that trial counsel was ineffective for advising Bowman to plead guilty to employing a firearm during the commission of a dangerous felony while having prior dangerous felony convictions [Doc. 8-17 p. 12-16]. Bowman cross-appealed, arguing that trial counsel was ineffective for failing to investigate and object to the composition of the jury venire [Doc. 8-16 p. 16-18]. The TCCA affirmed the judgments of the post-conviction court. Bowman v. State, No. E2016-01028-CCA-R3-PC, 2017 WL 1449232, at *1 (Tenn. Crim. App. Apr. 24, 2017), perm. app. denied (Tenn. Aug. 16, 2017) (“Bowman II”). However, the TCCA found that Bowman's conviction for employing a firearm during the commission of a dangerous felony survived, even though the offense with which it was merged was dismissed, and it remanded the case for the post-conviction court to enter a judgment for that offense. Id. at *8. The Tennessee Supreme Court denied discretionary review of this decision [Doc. 8-20].

         On August 28, 2017, Bowman filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, raising the following claims for relief, as paraphrased by the Court:

Claim One: The trial court failed to suppress Bowman's coerced statement to police.
Claim Two: Trial counsel was ineffective for failing to object to the jury venire as being unrepresentative of the racial makeup of the county's population.

[Doc. 1 p. 5-6]. On April 10, 2018, the Court ordered Respondent to file a response to the petition, and Respondent complied by filing an answer on June 6, 2018 [Doc. 13]. Bowman filed a ...


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