Cross v. Lee

          BROWN MAGISTRATE JUDGE

          ORDER

          WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE

         Pending before the Court is a Report and Recommendation from the Magistrate Judge (Doc. No. 26) recommending (1) no evidentiary hearing be held in this matter; (2) petitioner's petition for habeas corpus relief under 28 U.S.C. § 2254 be denied; (3) this action be dismissed with prejudice; and (4) a certificate of appealability should not issue. Petitioner filed objections to the Report and Recommendation. (Doc. Nos. 27 and 29).

         After a de novo review, and for the following reasons, Plaintiff's objections are OVERRULED and the Report and Recommendation is ADOPTED. Accordingly, Petitioner's petition for habeas corpus relief (Doc. No. 1) is DENIED and this action is dismissed with prejudice.

         I. BACKGROUND

         Petitioner was one of several defendants charged in connection with an aborted drug deal. (Doc. No. 11-1 at 73). He was a passenger in a vehicle in which Laura Carter was found to be in possession of a quantity of cocaine, which she said Defendant had handed to her at the time of the stop. (Id.) Petitioner was indicted on one count of possession with intent to sell cocaine, and one count of possession with intent to deliver cocaine. (Id.) On October 2, 2014, Defendant pleaded guilty to the charge for possession with intent to sell, and the state dismissed the remaining charge. (Id.) Co-defendant Laura Carter pleaded guilty to facilitation of possession. (Id. at 71). Another co-defendant was tried and convicted. (Id. at 73).

         Petitioner filed a pro se state post-conviction petition with the Marshall County Circuit Court and was appointed counsel. (Doc. No. 11-1 at 3, 56-57). On March 11, 2016, the circuit court held an evidentiary hearing and heard testimony from Petitioner and his trial attorneys. (Doc. No. 11-1 at 64-70).

         On June 16, 2016, before the circuit court ruled on the post-conviction petition, Petitioner filed a Motion to Reconsider Post Conviction, submitting a notarized statement by Carter, dated February 17, 2016, in which Carter claimed the drugs as hers. (Id. at 71). She wrote, “I claim the ounce as mine, I'm doing time for it. It was on ME and I'm writing you this to let you know I'm the guilty on facilitation possession …You not guilty on having an ounce - I am.” Relying upon the Carter statement, Petitioner argued that his plea was not knowing and voluntary, and that counsel were ineffective for allowing him to enter the plea agreement. (Id. at 65-69).

         On June 30, 2016, the circuit court denied Petitioner's state post-conviction petition. The court found that Petitioner's trial counsel never made the threatening statements attributed to her and that Petitioner failed to show he pled guilty because of the statements. (Id. at 79). The circuit court then dismissed Petitioner's pro se motion to reconsider because it did not demonstrate grounds for reopening the evidence at a post-conviction proceeding.^[1] (Doc. No. 1 at 14).

         On June 27, 2017, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the denial of Petitioner's state post-conviction petition. (Doc. No. 11-6). The TCCA stated that the only issue raised on appeal was Petitioner's claim that counsel “terrorized” him with threats of an all-white jury, that these statements constituted ineffective assistance of counsel, and that they caused him to involuntarily plead guilty.^[2] (Id. at 2). The TCCA held that there was no proof in the record to preponderate against the findings of the circuit court that the statements alleged by Petitioner were never made. (Id.)

         Petitioner, proceeding pro se, brought this action on July 17, 2017, seeking federal habeas corpus relief, under 28 U.S.C. § 2254, asserting the following grounds for relief: (1) representation of appointed counsel was deficient; (2) his guilty plea was not knowing and voluntary; and (3) he is innocent of the offence to which he pleaded guilty. (Doc. No. 1). The Magistrate Judge found Petitioner was not entitled to relief on any of these grounds.

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 636(b)(1) and Local Rule 72.03(b)(3), a district court reviews de novo any portion of a report and recommendation to which a specific objection is made. United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory objections are insufficient. See Zimmerman v. Cason, 354 Fed.Appx. 228, 230 (6th Cir. 2009). Thus, “only those specific objections to the magistrate's report made to the district court will be preserved for appellate review.” Id. (quoting Smith v. Detroit Fed'n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         In conducting the review, the court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Arguments not raised before the Magistrate Judge will not be considered. Swain v. Comm'r of Soc. Sec., 379 Fed.Appx. 512, 517-18 (6th Cir. 2010) (citing Ward v. United States, 208 F.3d 216 (table) (6th Cir. 2000) (“[A] claim raised for the first time in objections to a magistrate judge's report is deemed waived.”).

         III. ...