McCathern v. Lebo

• Decision Date: 24 September 2021
• Docket Number: 3:18-cv-00408
• Parties: ERIC MCCATHERN, Petitioner, v. JONATHAN LEBO, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

ERIC MCCATHERN, Petitioner,
v.
JONATHAN LEBO, Respondent.

No. 3:18-cv-00408

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

September 24, 2021

MEMORANDUM

ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

Eric McCathern, an inmate of the West Tennessee State Prison in Henning, Tennessee, filed an amended pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2011 convictions and sentence for aggravated burglary, possession of over 26 grams of cocaine with intent to sell or deliver within 1, 000 feet of a school zone, and possession of drug paraphernalia. (Doc. No. 1-2.) The respondent, Warden Jonathan Lebo, filed the state court record (Doc. No. 11) and an answer urging dismissal. (Doc. No. 12.) The petitioner filed a reply. (Doc. No. 14.) The petition is ripe for review on the merits, and this court has jurisdiction pursuant to 28 U.S.C. § 2241(d). Having fully considered the record, the court finds that an evidentiary hearing is not needed. For the following reasons, the petitioner is entitled to habeas relief on one claim. The petition will be granted.

I. Procedural History

On August 28, 2009, the petitioner was indicted in Davidson County, Tennessee, for aggravated burglary, possession of 26 grams or more of cocaine with intent to sell or deliver within 1, 000 feet of a school zone, and possession of drug paraphernalia. (Doc. No. 11-1 at 4-6.) The aggravated burglary charge expressly alleged that the petitioner entered a habitation “with the

1

intent to commit possession of a controlled substance containing cocaine with intent to sell or deliver” as separately charged in the indictment. (See id.) On August 9, 2010, after the indictment was read on the first day of trial, the petitioner stated that he would “plead guilty” to “the burglary” and not guilty to the other two counts. McCathern v. State, No. M2016-02143-CCA-R3-PC, 2017 WL 5462491, at *1 (Tenn. Crim. App. Nov. 14, 2017), perm. app. denied (Tenn. Mar. 14, 2018) (hereinafter “McCathern II”); (Doc. No. 11-1 at 15). The trial proceeded without further colloquy. McCathern II, 2017 WL 5462491, at *1. The trial court eventually charged the jury on all three counts because it concluded that the petitioner's plea was only to a lesser-included offense. Id. The jury failed to reach a verdict, and the trial court declared a mistrial on all counts. Id. at *2; (Doc. No. 11-1 at 17).

The petitioner's case was retried on April 4, 2011, before a different judge. McCathern II, 2017 WL 5462491, at *2. After the indictment was read on the first day of trial, the petitioner “pled guilty” to aggravated burglary and not guilty to the other counts. Id. Again, no colloquy was held, and, again, the trial court charged the jury on all three counts. Id. After testimony that “largely replicated” the first trial, the jury found the petitioner guilty on all counts. Id. The trial court denied the petitioner's motion for a new trial.^[1] (See Doc. Nos. 11-1 at 31-34; 11-8 at 2-3.)

On May 11, 2011, the trial court sentenced the petitioner to consecutive 10-year and 25-year terms of imprisonment on counts one (aggravated burglary) and two (possession of cocaine with intent to sell or deliver), and to a concurrent misdemeanor sentence of 11 months and 29 days on count three (drug paraphernalia). (Doc. No. 11-1 at 28-30); State v. McCathern, No. M2011-01612-CCA-R3-CD, 2012 WL 5949096, at *1 (Tenn. Crim. App. Nov. 16, 2012), perm. app. denied (Tenn. Feb. 25, 2013) (hereinafter “McCathern I”). Thus, the petitioner received a total

2

effective sentence of 35 years of imprisonment, with 15 years to be served at 100%. Id. The petitioner challenged the sufficiency of the evidence and his sentence on appeal. McCathern II, 2017 WL 5462491, at *2; McCathern I, 2012 WL 5949096, at *5; (Doc. No. 11-1 at 35). The Tennessee Court of Criminal Appeals (“TCCA”) affirmed, McCathern I, 2012 WL 5949096, at *5, and the Tennessee Supreme Court denied discretionary review. (Doc. No. 11-14.)

The petitioner filed a pro se petition for post-conviction relief in state court. (See Doc. No. 11-15 at 21-32.) The post-conviction court appointed counsel, held an evidentiary hearing, and, on October 18, 2016, denied relief. (Doc. Nos. 11-15 at 33-65, 70-96; 11-18.) In particular, the trial court concluded that trial counsel's advice to admit guilt on the aggravated burglary charge was a reasonable strategic decision. McCathern II, 2017 WL 5462491, at *3. On appeal, the TCCA concluded that trial counsel's advice constituted deficient performance, but affirmed nonetheless based on its conclusion that the petitioner was not prejudiced. Id., at *3-7. The Tennessee Supreme Court denied discretionary review. (Doc. No. 11-29.)

II. Evidence at Trial

On the night of May 23, 2007, a team of Metropolitan Nashville Police Department (“MNPD”) officers approached a hilltop area known for drug trafficking. McCathern II, 2017 WL 5462491, at *1. To avoid being seen, three officers parked several blocks away and approached on foot. Id. They observed the petitioner and another man approach a stopped vehicle for a “suspected a drug transaction.” Id. The petitioner and the other man then walked to an apartment that was “completely dark and appeared abandoned.” Id. The petitioner entered the apartment through a waist-high window. Id. As the other man followed, the officers called for him to stop. Id. The other man appeared to put something down and moved away from the window. Id. Within reach of the other man, officers discovered a gun, two digital scales, and a small quantity of cocaine. Id. The

3

petitioner then exited the apartment at the direction of officers. Id. The petitioner was carrying $163 and stated that he did not live at the residence. Id.

Officers searched the uninhabited apartment and found two plastic chairs, a jacket, trash, and feces. Id. There was no edible food, clothing, or personal items. Id. In the kitchen, officers found plastic sandwich baggies, and there was a large quantity of cocaine in a closed oven. Id. Officers did not hear the petitioner open the oven door during his “[m]aybe a minute, maybe two” in the apartment, and they made no attempt to take fingerprints from the oven. Id.

The manager of the apartment building testified that the apartment was rented but not occupied. Id. The manager told the tenants that they needed to move in, turn on utilities, and otherwise live there. Id. He testified that the tenants had “taken possession” of the apartment by putting a chair at a window, and that it appeared that the tenants were not living there.^[2] Id.

III. Standard of Review

A. Habeas Relief

A federal habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Cassano v. Shoop, 1 F.4th 458, 465 (6th Cir. 2021) (citing Woodford v. Garceau, 538 U.S. 202, 210 (2003)). AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences . . . and to further the principles of comity, finality, and federalism.” Woodford, 538 U.S. at 206 (internal citations and quotation marks omitted). It “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979)

4

(Stevens, J., concurring)). Under AEDPA, “[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system, ” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), and state courts are considered “adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (explaining that AEDPA “demands that state-court decisions be given the benefit of the doubt”) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omitted); 28 U.S.C. § 2254(a). AEDPA further restricts federal courts from providing relief on habeas claims that were previously “adjudicated on the merits” in the state courts unless the state-court adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cassano, 1 F.4th at 466 (quoting 28 U.S.C. § 2254(d)); Harrington, 562 U.S. at 100.

“Under the ‘contrary to' clause, a federal habeas court may grant the writ ‘if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'” Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies the law or bases its decision on an unreasonable determination of the facts, in light of the record before the state court.” Id. (citing

5

Harrington, 562 U.S. at 100; Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). An incorrect or erroneous application of clearly established federal law is not the same as an unreasonable one; “relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule...