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Valentine v. Genovese

United States District Court, M.D. Tennessee, Nashville Division

November 12, 2019

KEVIN GENOVESE, Warden, Respondent.



         Gregory Valentine filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”) (Doc. No. 1), Respondent filed a response (Doc. No. 7), and Petitioner filed a reply (Doc. No. 13). Petitioner then filed a motion to amend (Doc. No. 18), to which Respondent filed a response (Doc. No. 27), and Petitioner filed a reply (Doc. No. 28). Petitioner also filed a motion for discovery. (Doc. No. 23.) As explained below, the Petition will be denied, the motion to amend will be denied as moot, and the motion for discovery will be denied as well. This action will be dismissed.

         I. Procedural Background

         In December 2009, a Sumner County grand jury indicted Petitioner and five co-defendants for “twenty counts of identity theft, six counts of criminal simulation, one count of forgery, one count of theft of property valued at $10, 000 or more but less than $60, 000, and one count of money laundering.” State v. Valentine, No. M2012-02487-CCA-R3-CD, 2013 WL 4068607, at *1 (Tenn. Crim. App. Aug. 13, 2013) (“Valentine II). The grand jury also indicted just Petitioner for “one count of filing a false police report.” Id.

         As part of a plea agreement negotiated by counsel, Petitioner entered “best interest” pleas to these counts. (Doc. No. 6-1 at 3-6, 8-33 (judgments); Doc. No. 6-3 at 13 (plea agreement).) The parties agreed that Petitioner would receive “an effective sentence of twelve years and eight months, with service of thirty-two months at seventy-five percent in confinement at the county jail followed by service of ten years at thirty percent on state probation.” Valentine II, 2013 WL 4068607, at *1. On October 14, 2010, Sumner County Judge Dee David Gay held a hearing and accepted the plea agreement. (Doc. No. 6-3 at 54, 60, 64, 69 (transcript).)

         In a pro se motion dated October 15, 2010-one day after the plea hearing-Petitioner requested to withdraw his pleas. (Doc. No. 6-1 at 34-36.) He filed two more similar motions dated October 17 (id. at 39-40) and October 18 (id. at 37-38). Judge Gay denied the motions without a hearing. (Id. at 41.) Petitioner appealed. (Id. at 42-44.) The Tennessee Court of Criminal Appeals (“TCCA”) reversed the trial court's judgment and remanded for an evidentiary hearing. State v. Valentine, No. M2010-02356-CCA-R3-CD, 2012 WL 3263117, at *1 (Tenn. Crim. App. Aug. 10, 2012) (“Valentine I”). Judge Gay held an evidentiary hearing, at which Petitioner was represented by counsel, and again denied the motions at the conclusion of the hearing. (Doc. No. 6-7 at 116-23 (transcript).) Petitioner appealed, and the TCCA affirmed the trial court's judgment. Valentine II, 2013 WL 4068607, at *1, 14. The Tennessee Supreme Court denied discretionary review on December 12, 2013. (Doc. No. 6-14.)

         In April 2014, Petitioner filed a pro se petition for post-conviction relief. (Doc. No. 6-15 at 3-16.) He asserted three claims: “(1) his guilty plea was unlawfully induced or involuntary, (2) his conviction was based on the use of a coerced confession, and (3) he received ineffective assistance of counsel.” Valentine v. State, No. M2014-00977-CCA-R3-PC, 2015 WL 274181, at *5 (Tenn. Crim. App. Jan. 21, 2015) (“Valentine III”). Judge Gay summarily dismissed the petition. (Doc. No. 6-15 at 71-73.) In doing so, he concluded that Petitioner's first and third claims were previously raised and rejected, and that his second claim was waived. (Id.) The TCCA agreed with the disposition of the first and second claims, but not the third. Valentine III, 2015 WL 274181, at *7. That is, the TCCA concluded that Petitioner's claim for ineffective assistance of counsel should not have been dismissed without an evidentiary hearing. Id. The TCCA, therefore, reversed the judgment on this claim and “remanded for appointment of counsel and the opportunity to amend the petition for post-conviction relief pursuant to Tennessee Code Annotated section 40-30-107.” Id. On remand, Judge Gay appointed counsel (Doc. No. 6-19 at 97), allowed an opportunity to amend (id. at 101), and set an evidentiary hearing (id.).

         On May 8, 2015-before the evidentiary hearing and acting through counsel-Petitioner filed a motion requesting that Judge Gay recuse himself from any further proceedings involving Petitioner. (Doc. No. 6-19 at 102-03.) On June 26, Judge Gay held a hearing and denied the motion. (Doc. No. 6-22 at 11-15) (transcript).)

         Meanwhile, Petitioner did not amend the pro se post-conviction petition. (Doc. No. 6-23 at 52-53 (transcript of March 11, 2016 evidentiary hearing).) Accordingly, Judge Gay held an evidentiary hearing limited to the ineffective assistance of counsel claim remaining from Petitioner's original petition. (Id.) He denied the petition in a written order. (Doc. No. 6-20 at 3- 8.) On appeal, Petitioner argued that the court erred by denying both his motion for recusal and his post-conviction petition. (Doc. No. 6-27 at 5 (Petitioner's appellate brief).) The TCCA affirmed. Valentine v. State, No. M2016-00854-CCA-R3-PC, 2017 WL 716015, at *10 (Tenn. Crim. App. Feb. 23, 2017) (“Valentine IV”). The Tennessee Supreme Court denied Petitioner's application for permission to appeal on May 18, 2017. (Doc. No. 6-30.) Petitioner then filed a timely pro se habeas corpus Petition in this Court. (Doc. No. 1.)

         II. Factual Background

         At the plea hearing, the Assistant District Attorney (“ADA”) provided a factual basis for Petitioner's “best interest” plea. The ADA stated that Maurice Reed, one of Petitioner's co-defendants who was “eventually dismissed in favor of Federal prosecution, ” opened an account with Bank of America under the name “Greg Shapiro” around 9:30 a.m. on September 30, 2009. (Doc. No. 6-3 at 55-56.) Soon thereafter, Reed went to a Madison branch, and the bank “made a transfer from the real Greg Shapiro's account to the bogus Greg Shapiro account [Reed] had just created.” (Id. at 56-57.) According to the ADA, the bank “transferred $16, 000” and Reed “withdrew $7, 500.” (Id. at 57.) Reed also “withdrew another $7, 500” from a Hendersonville branch “later that day.” (Id.)

         Yolanda Carter, another one of Petitioner's co-defendants later “taken for Federal prosecution, ” entered the Hendersonville branch around 2:00 p.m. that afternoon. (Id. at 56-57.) Carter “attempted to start an account under the name of Gail Shapiro.” (Id. at 57.) Bank of America notified the Hendersonville branch of fraudulent activity, and someone at the branch called the Hendersonville Police Department (“HPD”). (Id. at 55, 57.) The caller reported a female “member of a fraud ring who had perpetrated identity theft” in the branch, and eventually said that the suspect “was leaving the bank and fleeing the premises.” (Id. at 55.)

         HPD officers driving by the branch “saw the woman fleeing the bank, ” and “heard the call almost immediately.” (Id. at 55-56.) The officers saw her get into a “rental van out of California” that contained a total of six people, including Carter, Reed, and Petitioner. (Id. at 56-58.) The police questioned the suspect, and she said that her name was “Gail Shapiro, which [was] the name on the identification” she used at the bank. (Id.) The five other people in the van stated that they “didn't know her” and “had just picked her up.” (Id.) The HPD's subsequent investigation, however, established these six individuals “had been together for days and had been traveling across the country.” (Id.) In the van, police later found “numerous false identifications, ” as well as scraps of paper with “bank account holder's names, social security numbers, account number[s], date[s] of birth, sometimes mother's maiden name[s].” (Id. at 57.)

         The ADA stated that, “according to the State's information, ” Petitioner was “the leader of this enterprise, at least the highest ranking person of the enterprise that was in the van.” (Id. at 58.) The ADA connected these facts to Petitioner's charges as follows:

Criminal Simulation for the fake IDs. Identity Theft for the information on the many pieces of paper regarding the individual account holders. False Report for saying that the defendant who was later determined to be Yolanda Carter was Gail Shapiro. Theft over $10, 000 relating to the $15, 000 that was removed from Greg Shapiro's bank account. Forgery for Maurice Reed signing the name of Gregory Shapiro on the bank documentation to open the false bank account that morning in Hendersonville, and identity theft for his use of Greg Shapiro's name at that time, and one Identity Theft count for Yolanda Carter using Gail Shapiro's name. . . .
There is a money laundering charge that is Money Laundering by Promotion of a Criminal Enterprise by Reinvesting Criminal Proceeds . . . under [Tennessee Code Annotated section 39-14-]903(b) of the money laundering [statute]. That is for the deposit of $100 that went in to start the bogus account on that morning in the name of Greg Shapiro.

(Id. at 57-58.)

         III. Asserted Claims

         Petitioner asserts two claims. The first claim is “[w]hether the Court of Criminal Appeal[s] erred in affirming the trial court[']s denial of [Petitioner's] motion to recuse.” (Doc. No. 1 at 5.) The second claim is “[w]hether the Court of Criminal Appeals erred in affirming the trial court[']s denial of [Petitioner's] motion.” (Id. at 7.)

         IV. Standard of Review

         The authority for federal courts to grant habeas relief to state prisoners is provided by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). Under AEDPA, a habeas claim “adjudicated on the merits” in state court cannot be the basis for federal relief unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Thus, “[t]he question under AEDPA is not whether a federal court believes the state court's ...

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