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McAlpin v. Lee

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

October 7, 2019

RODERICK MCALPIN, Petitioner,
v.
RANDY LEE, Warden, Respondent.

          MEMORANDUM OPINION

          Clifton L. Corker United States District Judge.

         Petitioner Roderick McAlpin, a Tennessee inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his Tennessee judgments of conviction for criminal trespass and possession with intent to sell more than 0.5 grams of crack cocaine in a school zone. Having considered the submissions of the parties, the State-court record, and the law applicable to McAlpin's claims, the Court finds that the petition should be denied.

         I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

         At around 3:30 a.m. on September 11, 2012, Knoxville Police Department Officer Joel Ascencio was patrolling the area of the Western Heights housing project when he observed McAlpin walking between some buildings [Doc. 11-2 p. 23');">2 p. 23, 26-27]. The housing project maintains a “no trespass list” to keep non-residents off the property, so Officer Ascencio approached McAlpin to ask if he lived there [Id. at 27]. Upon doing so, Officer Ascencio saw McAlpin make a throwing motion with his hand, and the officer noted a strong odor of alcohol on McAlpin's breath [Id. at 27-28]. He subsequently learned that McAlpin was on the “no trespass list” and had been served with notice not to trespass [Id. at 28-29]. Officer Ascencio told McAlpin to sit on the curb in front of his cruiser while the officer waited for backup to arrive [Id. at 29-30].

         Officer Ascencio walked over to the area where McAlpin had been standing and found a bag of crack cocaine lying on top of the grass [Id. at 29-30, 49]. Fewer than 10 minutes had elapsed between the time he saw McAlpin make the throwing motion and the time he found the crack cocaine [Id. at 53]. Officer Ascencio did not see any other pedestrians or motorists in the area at the time [Id. at 52, 60]. McAlpin did not have any drug paraphernalia on his person, indicating to Officer Ascencio that McAlpin did not intend the drugs for personal use [Id. at 31, 57]. Further, the consistency and size of the individual rocks indicated to Officer Ascencio that they were intended to be sold or delivered [Id. at 37]. Officer Ascencio used a field test kit to weigh the crack cocaine, which weighed 2.8 grams [Id. at 38]. McAlpin was arrested [See id. at 36].

         Knoxville Police Department Sergeant Joshua Shaffer, a supervisor of the repeat offender unit, examined the crack cocaine found by Officer Ascencio and determined it was “probably freshly cooked” because of what “appear[ed] to be particles sticking probably from the moisture” [Id. at 65, 77]. The bag contained a “larger chunk” and “some smaller individual pieces that ha[d] been broken off” [Id. at 77]. Sergeant Shaffer testified that an individual “rock, ” weighing 0.1 to 0.2 grams would be worth $20 [Id. at 77-78]. He estimated the value of the crack cocaine found by Officer Ascencio, once broken into individual rocks, would be worth between $280 and $560 [Id. at 78]. Sergeant Shaffer agreed with Officer Ascencio that, based on his examination of the evidence, the crack cocaine was intended for sale or delivery [Id. at 82-83].

         A Knox County Criminal Court jury convicted McAlpin of criminal trespass and possession with intent to sell more than 0.5 grams of a Schedule II controlled substance within 1000 feet of a school [Doc. 11-1 p. 60, 64][1]. He received an effective sentence of 16 years [Id.]. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the judgments on October 2, 2014. State v. McAlpin, No. E2013-02267-CCA-R3-CD, 2014 WL 4952790, at *1 (Tenn. Crim. App. Oct. 2, 2014), perm. app. denied (Tenn. Jan. 16, 2015) (“McAlpin I”). The Tennessee Supreme Court denied discretionary review on January 16, 2015.

         McAlpin filed a timely pro se petition for State post-conviction relief in the Knox County Criminal Court [Doc. 11-8 p. 4-15]. The post-conviction court appointed counsel, and counsel filed an amended petition on May 11, 2016 [Id. at 28-29, 37-42]. Following an evidentiary hearing, the post-conviction court denied the petition [Id. at 44-49]. McAlpin appealed, and the TCCA affirmed the judgment of the post-conviction court on April 21, 2017. McAlpin v. State, No. E2016-01482-CCA-R3-PC, 2017 WL 1437169, at *2-3 (Tenn. Crim. App. Apr. 21, 2017) perm. app. denied (Tenn. Aug. 16, 2017) (“McAlpin II”). The Tennessee Supreme Court denied discretionary review on August 16, 2017.

         McAlpin filed the instant petition for writ of habeas corpus on or about September 7, 2017, raising the following claims, as paraphrased by the Court:

Claim One: The convictions were not supported by legally sufficient evidence.
Claim Two: The trial court should have suppressed evidence collected from an illegal stop.
Claim Three: Trial counsel rendered ineffective assistance in failing to:
1. Challenge a sentence enhancement;
2. Call an important witness;
3. Cross-examine State witnesses;
4. Object to inadequate jury instructions; and
5. Examine physical evidence.

[Doc. 1]. The Court ordered Respondent to answer or otherwise respond to the petition, and Respondent complied by filing an answer on July 27, 2018 [Doc. 13]. ...


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