United States District Court, E.D. Tennessee, Greeneville
Clifton L. Corker United States District Judge.
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.
SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
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].
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.
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].
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]. 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,
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.
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
Claim Two: The trial court should have suppressed evidence
collected from an illegal stop.
Claim Three: Trial counsel rendered ineffective assistance in
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]. ...