Washington v. Tennessee

ANTHONY DEWIGHT WASHINGTON, Petitioner, v. STATE OF TENNESSEE, Warden Respondent.

NO. 3:17-cv-00263

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

December 22, 2017

CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner Anthony Dewight Washington is serving a term of 30 years' imprisonment imposed by the Davidson County Criminal Court on October 7, 2011, after a jury convicted him of possession with intent to sell or deliver 0.5 grams of cocaine within a drug free zone, possession of marijuana and possession of drug paraphernalia. (Doc. No. 1 at Page ID# 1.) Respondent has filed an answer to the petition (Doc. No. 16) stating that the grounds should be denied because they are procedurally defaulted and without merit.

The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). Respondent does not dispute that Petitioner's federal habeas petition is timely. (Doc. No. 14 at Page ID# 954.) Respondent states that the federal habeas petition at issue here appears to be Petitioner's first application for federal habeas relief. (Id.)

Because a federal court must presume the correctness of a state court's factual findings unless the petitioner rebuts this presumption with 'clear and convincing evidence," 28 U.S.C. § 2254(e)(1), and because the issues presented can be resolved with reference to the state-court record, the court finds that an evidentiary hearing is not necessary. See Schriro v. Landrigan, 550 U.S. 464, 474 (2007) (holding that if the record refutes a petitioner's factual allegations or otherwise precludes habeas relief, the district court is not required to hold an evidentiary hearing (citing Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998))). Upon review and applying the AEDPA standards, the Court finds that Petitioner is not entitled to relief on the grounds asserted. Accordingly, the petition will be denied and this matter dismissed.

I. PROCEDURAL BACKGROUND

The state prosecution arose from the execution of a search warrant at the Petitioner's residence in the early morning hours of May 14, 2010. On July 30, 2010, Petitioner was indicted by the Davidson County Grand Jury and charged with one count of possession with intent to sell or deliver 0.5 grams of cocaine within a drug free zone, one count of possession of marijuana and one count of possession of drug paraphernalia. (Doc. No. 15-1 at Page ID## 68-73.) Petitioner was tried before a jury on August 15, 2011. (Doc. No. 15-1 at Page ID# 94; see also Doc. No. 15-2.) On August, 16, 2011, the jury found Petitioner guilty as charged. (Doc. No. 15-1 at Page ID# 94.) Following a sentencing hearing conducted on October 7, 2011, Petitioner was found to be a range-three persistent offender with 45% release eligibility, except that Petitioner was required to serve the first 20 years at 100% as a result of the Drug Free Zone law. (Doc. No. 15-4; see also Doc. 15-13 at Page ID# 515.)

Petitioner appealed his judgment of conviction to the Tennessee Court of Criminal Appeals ("TCCA"), which rejected all appellate arguments, and affirmed Petitioner's conviction and sentence in an unpublished opinion issued on December 10, 2012. (Doc. No. 15-9; see also State v. Anthony Dewight Washington, No. M2011-02678-CCA-R3-CD; 2012 WL 6115589, at *1 (Tenn. Crim. App. Dec. 10, 2012) [Washington I].) Petitioner filed an application forpermission to appeal to the Tennessee Supreme Court, which was denied on March 5, 2013. (Doc. No. 15-12; see also Washington I, 2012 WL 6115589 at *1.)¹

On May 20, 2013, Petitioner timely filed a petition for post-conviction relief in the Davidson County Criminal Court. (Doc. No. 15-13 at Page ID## 424-57.) On September 9, 2013, the trial court appointed counsel. (Id. at Page ID## 494-96.) Thereafter, the trial court held status hearings approximately every 30 days. Having concluded that appointed counsel had not taken any action on Petitioner's behalf, on January 13, 2015, the trial court appointed new counsel. (Id. at Page ID## 497-99.) On May 8, 2015, counsel filed an amended and supplemental petition for post-conviction relief. (Id. at Page ID## 500-10.) The matter was heard in the trial court on May 27, 2015, and on November 24, 2015, the court issued an order denying relief. (Doc. No. 15-13 at Page ID## 513-34.)

Petitioner appealed to the TCCA, which denied relief on September 22, 2016. (Doc. No. 15-19; see also Anthony Dewight Washington v. State, No. M2015-02309-CCA-R3-PC, 2016 WL 5266620, at *1 (Tenn. Crim. App. Sept. 22, 2016) [Washington II].) Petitioner filed an application for permission to the appeal to the Tennessee Supreme Court, which was denied on December 15, 2016. (Doc. No. 15-23; see also Washington II, 2016 WL 5266620, at *1.)

II. STATEMENT OF FACTS

The TCCA summarized the facts presented at trial as follows:

At the trial, David Kline of the Metropolitan Nashville Planning Department testified that his office was responsible for preparing maps for various governmental uses. He identified an aerial photograph depictingBordeaux Gardens Park and its vicinity. The photograph contained computer-generated lines marking the park's boundaries and other lines marking the distance of 1000' from the park's boundaries. On cross-examination, he acknowledged that he would recognize visually if the 1000' line was off by 500' but that he would not recognize a five-foot variance. He said there was no calibration of the computer to ensure its accuracy in determining the 1000' measurement.

Metro Nashville Police Officer Byron Carter testified that on May 14, 2010, he and several other officers executed a search warrant at a house at 3244 Crow Drive. He marked the address on the aerial photograph, which showed the residence was within the 1000' border surrounding Bordeaux Gardens Park. He said the warrant permitted a search of the house, vehicles, and people at the residence. He said that a metal storm door was closed but a wood door was open and that he saw the Defendant inside. He said that the Defendant closed the wood door and ran. He said the police entered forcibly after trying to open the door and discovering it was locked. He said that before forcing open the door, they knocked and announced that they were police officers. He said that patrol car blue lights were activated in front of the house and that a loud speaker was used to announce that the police were there to execute a search warrant. He said that when they entered the home, the Defendant and a woman stood about five feet from the door. The Defendant's mother was upstairs.

Officer Carter testified that Officer Grindstaff searched the Defendant and found a clear bag containing a white rock weighing 5.7 grams in the Defendant's right front pants pocket. The rock field tested positive for cocaine. Officer Grindstaff also found a clear bag of white powder in the pocket. The powder weighed one and one-half grams and field tested positive for cocaine. Officer Carter said the weights were approximate. He said that a marijuana grinder and a "blunt" splitter were found upstairs where the Defendant's mother was. He said there was marijuana residue inside the grinder. He said Officer Grindstaff found a clear bag of marijuana and a black digital scale with white residue inside the console of a Hummer H3 in the driveway. He said the white residue field tested positive for cocaine. He identified photographs of the items found. He also identified as exhibits the bag containing the rock, the bag containing the powder, the bag containing the marijuana, the marijuana grinder, the blunt splitter, and the scale. He said no crack pipe was recovered during the search.

Officer Carter testified that he recorded a conversation with the Defendant. He did not think the Defendant knew the conversation was recorded. He said that he advised the Defendant of his rights and that the Defendant agreed to talk to him. The recording was played for the jury. In it, OfficerCarter inquired whether the marijuana in the Hummer belonged to the Defendant. He told the Defendant he knew that either the Defendant or the Defendant's mother drove the Hummer. When asked whether Officer Carter should charge the Defendant or the Defendant's mother for the marijuana, the Defendant replied that he should be charged. The Defendant also said he should be charged for the marijuana grinder. The Defendant claimed he drove a Jeep Cherokee to pick up an unidentified woman and said he moved the Hummer to park the Cherokee in front of it. The Defendant asked where the marijuana grinder and blunt splitter were found, and Officer Carter said, "Table right in front of her." The Defendant offered to "give" the police a person called "Trouble." When asked about a gun, the Defendant denied having one. Officer Carter asked which car he should seize, the Hummer or the Cherokee. Officer Carter said he would have to seize both cars unless the Defendant told him which was used to transport drugs. Officer Carter said he told the Defendant he saw the Defendant driving the Hummer the previous day. Officer Carter said the Defendant's mother denied any knowledge of the drugs in the Hummer. When asked about buying drugs from Trouble, the Defendant said he purchased an "eight ball" or four grams of rock cocaine at a time. When asked if he cooked cocaine to make it hard, the Defendant said it was cooked when he bought it and that he just bagged it.

Officer Carter testified that he sometimes said things that were not true when interviewing suspects in order to get information. He said he had not actually seen the Defendant drive the Hummer the previous day. He said an eight ball referred to one-eighth of one ounce or 3.5 grams of cocaine. He said that powder cocaine was sometimes cooked in a pan or microwave to make crack cocaine. He said the Defendant had a microwave in the basement. Officer Carter said Officer Grindstaff

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