Jarrett v. Cooper

• Decision Date: 23 September 2013
• Docket Number: No. 10-1192-JDB-egb,10-1192-JDB-egb
• Parties: DENNIS JARRETT, Petitioner, v. ROBERT E. COOPER, JR., Respondent.
• Court: United States District Courts. 6th Circuit. Western District of Tennessee

DENNIS JARRETT, Petitioner,
v.
ROBERT E. COOPER, JR., Respondent.

No. 10-1192-JDB-egb

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

Dated: September 23, 2013

ORDER TO MODIFY THE DOCKET, DENYING PETITION PURSUANT TO 28 U.S.C. § 2254, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), filed by Petitioner, Dennis Jarrett, who currently resides in Jackson, Tennessee. (Docket Entry ("D.E.") 1.)¹ For the reasons stated below, the Petition is DENIED.

I. BACKGROUND

A. State Court Procedural History

On February 2, 2004, a grand jury in Madison County, Tennessee, returned a three-count indictment against Jarrett. (D.E.

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13-1 at 10—13.) The first count charged that, on or about October 3, 2003, he unlawfully operated and/or physically controlled a motor vehicle upon a public highway and/or an area frequented by the public at large after having been previously adjudged to be a habitual motor vehicle offender ("HMVO"), in violation of Tennessee Code Annotated § 55-10-616. The second count charged him with violating the open container law, Tenn. Code Ann. § 55-10-416, and the third count involved a violation of the seatbelt law, id. § 55-9-603. On April 2, 2004, the State filed a Notice of Request for Enhanced Punishment pursuant to Tennessee Code Annotated § 40-35-202. (D.E. 13-1 at 15—16.)

Following a jury trial on February 25, 2005, Jarrett was convicted of driving while a HMVO and of violating the open container law. He was acquitted of the seatbelt charge. (D.E. 13-3 at 128—29.) The jury imposed a $3,000 fine on the HMVO count and a $50 fine on the open container count. (D.E. 13-3 at 128—29) At a hearing on March 29, 2005, Petitioner was sentenced to a term of imprisonment of six years as a career offender for driving while a HMVO and ordered to pay the $3000 fine imposed by the jury. (D.E. 13-4 at 50.) No jail time was assessed for the open container law violation, but Jarrett was ordered to pay the $50 fine. (D.E. 13-4 at 49—50.) The trial court directed that the sentence for the HMVO count run consecutively to an undischarged sentence imposed by the Hardeman County, Tennessee Circuit Court and to sentences that were

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previously imposed in that proceeding for contempt of court. (D.E. 13-4 at 52—53.) Judgments were entered on April 4, 2005. (D.E. 13-1 at 31—32.) The Tennessee Court of Criminal Appeals affirmed. State v. Jarrett, No. W2005-02157-CCA-R3-CD, 2007 WL 1215047 (Tenn. Crim. App. Apr. 24, 2007), appeal denied (Tenn. Aug. 13, 2007).

On December 11, 2007, Jarrett filed a pro se petition pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122, in the Madison County Circuit Court. (D.E. 13-9 at 4—14.) Counsel was appointed for Petitioner and following an evidentiary hearing held on July 14, 2008 (D.E. 13-9 at 40—41; D.E. 13-10) the post-conviction court denied the petition (D.E. 13-9 at 54—55). The Tennessee Court of Criminal Appeals affirmed. Jarrett v. State, No. W2008-01644-CCA-R3-PC, 2010 WL 58925 (Tenn. Crim. App. Jan. 8, 2010), appeal denied (Tenn. May 12, 2010).

The factual basis for these charges was as follows:

Trooper Claude Cain with the Tennessee Highway Patrol testified that he received a "tip" about Defendant from an unidentified individual on October 30, 2003. A few minutes later, Trooper Cain spotted Defendant's vehicle and pulled him over. Trooper Cain stated that he ran a computer check of Defendant's driver's license and confirmed that Defendant had previously been declared a habitual motor vehicle offender. Trooper Cain stated that a habitual motor vehicle offender status entailed the loss of driving privileges in Tennessee. Trooper Cain identified a certified copy of an order from Hardeman County signed by Judge Blackwood declaring Defendant to be a habitual motor vehicle offender. At the State's request, the order was entered into evidence as Exhibit One without objection by defense counsel. Although a copy of the order is not included in the record on appeal, Trooper Cain's testimony and the trial

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court's findings are sufficiently clear to determine the content of Exhibit One.
Trooper Cain testified that an open can of beer which was two-thirds full was between the front bucket seats of Defendant's vehicle. On cross-examination, Trooper Cain stated that Defendant was the only individual in the vehicle when he was pulled over and acknowledged that he did not observe Defendant commit any moving violations prior to the stop.

State v. Jarrett, 2007 WL 1215047, at *1.

B. Procedural History of Jarrett's § 2254 Petition

On July 28, 2010, Jarrett filed his pro se Petition, accompanied by a legal memorandum. (D.E. 1.) Petitioner paid the habeas filing fee on August 4, 2010. (D.E. 3.) The Court issued an order on October 4, 2010, directing Respondent to file the state-court record and a response to the petition. (D.E. 4.) On November 21, 2010, Respondent filed his Answer to the Petition for Writ of Habeas Corpus ("Answer") (D.E. 12), and filed the state court record on November 29, 2010 (D.E. 13).² Petitioner did not file a reply.

On April 30, 2012, Jarrett filed a Motion for Ruling on the Pleadings or in the Alternative, Permission to File Reply to the Answer. (D.E. 15.) In an order issued on May 22, 2012, the Court denied the motion for a ruling on the pleadings, granted leave to file a reply to the Answer, directed Respondent to file a

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supplemental memorandum addressing various issues, and directed Petitioner to file a reply, if he chose to do so, within twenty-eight days after the date on which Respondent's supplemental brief was filed. (D.E. 16.) On June 21, 2012, Respondent filed his supplemental response (D.E. 17) but Petitioner did not submit a reply.

II. PETITIONER'S FEDERAL HABEAS CLAIM

In his Petition, Jarrett contends that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment, by improperly failing to challenge the traffic stop under the Fourth Amendment. (D.E. 1 at 5; D.E. 1-1.)

III. THE LEGAL STANDARD

The statutory authority for federal courts to grant habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

A. Waiver and Procedural Default

28 U.S.C. §§ 2254(b) and (c) provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has exhausted available state remedies by first presenting the same claim sought

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to be redressed in a federal habeas court to the state courts. Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011), reh'g denied, __ U.S. __, 131 S. Ct. 2951, 180 L. Ed. 2d 239 (May 31, 2011). A petitioner must "fairly present"³ each claim to all levels of state court review, up to and including the state's highest court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349, 158 L. Ed. 2d 64 (2004), except where the state has explicitly disavowed state supreme court review as an available state remedy, O'Sullivan v. Boerckel, 526 U.S. 838, 847—48, 119 S. Ct. 1728, 1733—34, 144 L. Ed. 2d 1 (1999). Tennessee Supreme Court Rule 39 eliminated the need to seek review in the Tennessee Supreme Court in order to "be deemed to have exhausted all available state remedies." Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003), reh'g and suggestion for reh'g en banc denied (Aug. 27, 2003), cert. denied, 541 U.S. 956, 124 S. Ct. 1654, 158 L. Ed. 2d 392 (2004); see also Smith v. Morgan, 371 F. App'x 575, 579 (6th Cir. 2010) (the Adams holding promotes comity by requiring that state courts have the first opportunity to review and evaluate claims and by mandating that federal courts respect the duly promulgated rule of the Tennessee

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Supreme Court that recognizes that court's law and policy-making function and its desire not to be entangled in the business of simple error correction).

The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446, 452—53, 120 S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an independent and adequate state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 87—88, 97 S. Ct. 2497, 2506—07, 53 L. Ed. 2d 594 (1977), reh'g denied, 434 U.S. 880, 98 S. Ct. 241, 54 L. Ed. 2d 163 (Oct. 3, 1977); see also Coleman v. Thompson, 501 U.S. 722, 729—30, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991) (a federal habeas court...