641 Fed.Appx. 541 (6th Cir. 2016), 14-6214, Thorne v. Lester

Docket Nº:14-6214
Citation:641 Fed.Appx. 541
Opinion Judge:JAMES G. CARR, Senior District Judge.
Party Name:GLENARD THORNE, Petitioner-Appellant, v. JERRY LESTER, Warden, Respondent-Appellee
Attorney:For GLENARD C. THORNE, Petitioner - Appellant: Melissa M. Salinas, Michigan Clinical Law Program, University of Michigan, Ann Arbor, MI; John Lin, Federal Appellate Litigation Clinic, University of Michigan, Ann Arbor, MI. GLENARD C. THORNE, Petitioner - Appellant, Pro se, Nashville, TN. For JERR...
Judge Panel:BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; CARR, District Judge.[*]
Case Date:February 10, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 541

641 Fed.Appx. 541 (6th Cir. 2016)

GLENARD THORNE, Petitioner-Appellant,

v.

JERRY LESTER, Warden, Respondent-Appellee

No. 14-6214

United States Court of Appeals, Sixth Circuit

February 10, 2016

NOT RECOMMENDED FOR PUBLICATION

Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE.

For GLENARD C. THORNE, Petitioner - Appellant: Melissa M. Salinas, Michigan Clinical Law Program, University of Michigan, Ann Arbor, MI; John Lin, Federal Appellate Litigation Clinic, University of Michigan, Ann Arbor, MI.

GLENARD C. THORNE, Petitioner - Appellant, Pro se, Nashville, TN.

For JERRY LESTER, Warden, Respondent - Appellee: Nicholas White Spangler, Office of the Attorney General of Tennessee, Nashville, TN.

BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; CARR, District Judge.[*]

OPINION

Page 542

JAMES G. CARR, Senior District Judge.

A Tennessee jury concluded that Glenard Thorne, armed with a gun and aided by three accomplices, broke into a residential apartment, stole some recording equipment, and kidnapped and facilitated the rapes of the man and woman who lived there. State v. Sandifer, 2010 WL 5343202 (Tenn.Crim.App. Dec. 21, 2010). The trial court sentenced Thorne to fifty-two years' imprisonment for especially aggravated kidnapping, aggravated robbery, aggravated burglary, and facilitation of aggravated rape.

The Tennessee courts affirmed the convictions on direct appeal and rejected a collateral attack. Thorne then petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254. The court denied relief but certified for appeal two claims challenging Thorne's kidnapping convictions. Thorne v. Holloway, 2014 WL 4411680 (M.D. Tenn. Sept. 8, 2014).

I.

Thorne's first claim is that the evidence was insufficient to prove him guilty of especially aggravated kidnapping.

A.

Tennessee law defines especially aggravated kidnapping as the offense of " false imprisonment . . . [a]ccomplished with a deadly weapon[.]" Tenn. Code Ann. § 39-13-305(a)(1) (2006). False imprisonment, in turn, consists of " knowingly remov[ing] or confin[ing] another unlawfully so as to interfere substantially with the other's liberty." Tenn. Code Ann. § 39-13-302(a) (2006).

On direct appeal in state court, Thorne did not dispute that the evidence established each of these elements. Rather, he argued that the kidnappings were not legally independent of the armed robbery of the victims' apartment.

Thorne's argument rested on a line of Tennessee Supreme Court cases defining when separate convictions for kidnapping and an accompanying felony were permissible under the Tennessee Constitution's Due Process Clause. In State v. Anthony, 817 S.W.2d 299, 300 (Tenn. 1997), the court held that separate convictions are impermissible if the " detention of the [kidnapping] victim is merely incidental to the commission of another felony[.]" Separate convictions are permissible, however, if the " movement or confinement was beyond that necessary to consummate" the accompanying felony and either " (1) prevented the victim from summoning help; (2) lessened the defendant's risk of detection; or (3) created a significant danger or increased the victim's risk of harm." State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997); see also State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008).

When Thorne went to trial in 2008, " the 'essentially incidental' inquiry required by Anthony [wa]s not one of the elements of the kidnapping statute,'" and thus not an issue for the jury's consideration; it was a question of law for the court to decide after the jury returned its verdict. State v. Cozart, 54 S.W.3d 242, 247 (Tenn. 2001). In 2012, however, the Tennessee Supreme Court overruled Anthony and Cozart, holding that juries, not judges, must decide

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whether " the removal or confinement of a victim is independently significant from an accompanying felony." State v. White, 362 S.W.3d 559, 578 (Tenn. 2012).

B.

The Tennessee Court of Criminal Appeals rejected Thorne's claim that the kidnappings were merely incidental to the armed robbery of the victims' apartment.

At the outset, the court observed that Thorne had not argued that " the State failed to prove the statutory elements necessary to support the convictions for especially aggravated kidnapping." Sandifer, 2010 WL 5343202, at *11. Relying on Criminal Appeals Rule 10(b), which states that " [i]ssues which are not supported by argument . . . will be treated as waived," Tenn. R. Ct. Crim. App. 10(b), the court held that Thorne had waived any claim that the evidence was insufficient to convict.

It then explained why the kidnapping convictions were permissible under Anthony.

C.

Relying on Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Thorne asks us to grant habeas relief because there was no evidence that he, as opposed to his accomplices, moved or confined the victims. He also contends that any movement or confinement that occurred was part and parcel of the accompanying armed robbery and thus insufficient to support separate kidnapping convictions.

Thorne's claim...

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