Pittman v. Holloway, Case. No. 1:13-cv-01019-JDB-egb

Decision Date31 March 2016
Docket NumberCase. No. 1:13-cv-01019-JDB-egb
PartiesLARRY PITTMAN, Petitioner, v. JAMES HOLLOWAY, Respondent.
CourtU.S. District Court — Western District of Tennessee
ORDER DIRECTING CLERK TO MODIFY THE DOCKET, DENYING MOTION PURSUANT TO 28 U.S.C. § 2254, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE 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 ("§ 2254 Petition") filed by pro se Petitioner Larry Pittman, Tennessee Department of Correction number 103695, an inmate at the West Tennessee State Prison ("WTSP") in Henning, Tennessee. (§ 2254 Pet., Pittman v. Lester1 No. 2:12-cv-02931-STA-tmp (W.D. Tenn.), ECF No. 1.) For the reasons stated below, the Court DENIES the § 2254 Petition.

I. BACKGROUND
A. State Court Procedural History

On February 27, 2006, a grand jury in Madison County, Tennessee, returned a three-count indictment against Pittman and Joshua Irvin. (Indictment, State v. Pittman, No. 06-161 (MadisonCnty. Cir. Ct.), Page ID 83, ECF No. 9-1.) Count 1 charged Pittman and Irvin with aggravated robbery, in violation of Tennessee Code Annotated ("T.C.A.") § 39-13-402. Count 2 alleged Pittman and Irvin conspired to commit aggravated robbery, in violation of T.C.A. § 39-12-103. Count 3 charged Pittman with especially aggravated kidnapping, in violation of T.C.A. § 36-13-305. The events at issue occurred on or about November 27, 2005.

On April 11, 2006, the State filed a notice seeking an enhancement punishment for Pittman, citing the following previous convictions:

1. Pled guilty to Armed Robbery (Incident date 10/7/71).
2. Pled guilty to Robbery with deadly weapon (Incident date 9/18/72) and was sentenced to 20 years.
3. Pled guilty to Assault & Battery & Possession of Deadly Weapon (Incident date 8/3/78).
4. Pled guilty to 1st Degree Burglary, Attempt to Commit Felony with use of firearm, & Possession Illegal Weapon (Incident date 12/3/78).
5. Pled guilty to Larceny of Vehicle (Incident date 4/15/80).
6. Pled guilty to 2nd Degree Burglary (incident date 9/3/80).
7. Pled guilty to Armed Robbery & Aggravated Assault w/ gun with intent to Murder (Incident date 3/14/84) and was sentenced to life.
8. Pled guilty to Armed Robbery (Incident date 6/15/84).

(Not. of Request for Enhanced Punishment, id., Page ID 91, ECF No. 9-1.)

On May 2, 2006, Pittman, through his counsel, Joseph Howell, filed a Motion to Suppress, arguing that the "all statements, objects, and evidence seized and/or obtained by the State during and following the warrantless arrest of his person" should be suppressed, as violating the Fourth Amendment of the United States Constitution and Article I, Section 7 of the Tennessee Constitution. (Mot. to Suppress, id., Page ID 94-99, ECF No. 9-1.) After a hearing held on June6, 2006, the trial court entered an order denying the motion on June 16, 2006. (Order Denying Mot. to Suppress, id., Page ID 103-104, ECF No. 9-1.)

On August 9, 2006, the State filed a second notice requesting an enhanced punishment for Petitioner, citing the following incidents as reasons for the enhancement:

1. Pled guilty to Robbery by use of a deadly weapon (Incident date 4/71) and sentenced to 15 years.
2. Pled guilty to Robbery by use of a deadly weapon (Incident date 10/71) and sentenced to 20 years.

(Second Not. of Request for Enhanced Punishment, id., Page ID 107, ECF No. 9-1.)

On September 11, 2006, a Consent Order to Withdraw and Substitute Counsel was entered and Benjamin C. Mayo was retained as counsel for Pittman. (Consent Order to Withdraw and Sub. Counsel, id., Page ID 108, ECF No. 9-1.) On October 4, 2006, Petitioner, through his new counsel, filed a Motion for Continuance of Trial, arguing that new exculpatory evidence had been discovered and needed to be examined before trial. (Mot. for Continuance for Trial, id., Page ID 112-113, ECF No. 9-1.) A jury trial on the charges against Pittman commenced in the Circuit Court of Madison County on October 4, 2006. Before jury selection, the trial judge conducted a hearing on the motion for continuance, and at its conclusion, denied the motion. (Trial Tr., id., Page ID 183-85, ECF No. 9-2). On October 5, 2006, the jury returned a guilty verdict on all three counts. (Trial Tr., id., Page ID 744-45, ECF No. 9-5.)

On October 10, 2006, the State filed a motion for consecutive sentencing, requesting that Counts 1-3 be served consecutive to each other and also consecutive to the sentence Pittman was currently serving (Mot. for Consecutive Sentencing, id., Page ID 114, ECF No. 9-1); a motion toapply enhancement factors2 (Mot. to Apply Enhancement Factors, id., Page ID 115, ECF No. 9-1); and a motion to deem Pittman a "dangerous offender" (Mot. to Deem Def. "Dangerous Offender," id., Page ID 116, ECF No. 9-1). On November 1, 2006, Pittman filed a Notice of Mitigating factors, arguing that his conduct did not cause or threaten serious bodily injury. (Not. of Mitigating Factors, id., Page ID 140, ECF No. 9-1.) At a sentencing hearing on November 11, 2006, the trial judge sentenced Pittman to nineteen years for aggravated robbery, nine years for conspiracy to commit aggravated robbery, and thirty-eight years for especially aggravated kidnapping; all to be served consecutively. (Sentencing Hr'g Tr., id., Page ID 1116-26, ECF No. 9-10.) Judgment was entered on November 15, 2006. (J., id., Page ID 141-43, ECF No. 9-1.)

On December 18, 2006, Pittman filed a motion for judgment of acquittal or for a new trial. (Mot. for J. of Acquittal or New Trial, id., Page ID 144, ECF No. 9-1.) A hearing was held on January 31, 2007, and at its conclusion, the judge overruled the motion. (Mot. for New Trial Hr'gTr., id., Page ID 1155, ECF No. 9-11; Order Denying Mot. for J. of Acquittal or New Trial, id., Page ID 150, ECF No. 9-1.) Pittman filed a notice of direct appeal to the Tennessee Court of Appeals ("TCCA") on March 7, 2007. (Not. of Appeal, id., Page ID 152, ECF No. 9-1.) On November 27, 2007, Pittman filed his brief to the TCCA, arguing the following:

1. Whether the trial court erred by denying the motion to suppress the fruits of the unlawful seizure and search of the defendant's person, where such was performed without a warrant and without probable cause?
2. Whether plain error was committed when the trial court refused to grant Defendant's Motion for Continuance when new and potentially exculpatory evidence was disclosed on the eve of trial?
3. Whether the evidence was sufficient to support a finding of guilt, where the proof failed to establish the identity of the culprit beyond a reasonable doubt?
4. Whether the court improperly sentenced the defendant by failing [to] require proof of sentencing factors beyond a reasonable doubt?

(Br. on Appeal of Right, id., Page ID 1178-97, ECF No. 9-12.) The TCCA affirmed Pittman's convictions. State v. Pittman, No. W2007-00589-CCA-R3-CD, 2009 WL 1025870 (Tenn. Crim. App. Apr. 7, 2009), appeal denied (Tenn. Nov. 12, 2010).

In upholding the convictions, the TCCA summarized the evidence as follows:

At trial, Officer Richard Newbill with the Jackson Police Department testified that at around 11:30 p.m. on November 27, 2005, he was dispatched to a robbery call at a Lone Star Steakhouse in Jackson. Officer Newbill said that he was the first police officer to arrive at the restaurant. Upon arriving at the restaurant, the officer interviewed the restaurant manager, Micki Rhodes, who had been present when the restaurant was robbed. According to Officer Newbill, the victim's demeanor was "shaken up" and "scared," but she was still able to relate that after the restaurant had closed, a man dressed in black and carrying a knife "grabbed her by the neck area and took her . . . to the office or wherever they keep the money" and had her remove the money from the safe. The assailant then placed the victim in the restaurant's walk-in cooler, where she remained for some time before calling 911. According to Officer Newbill, the victim said that the robber was wearing "[a] black ski mask, black like large-type black jacket, [and]black pants." Officer Newbill testified that he observed bruises on the victim's neck; the victim told the officer that she received those bruises when the robber grabbed her by the neck. The victim also said that the robber took approximately $5200 from the restaurant's safe.
On cross-examination, Officer Newbill said that in his police report, he indicated that the robbery occurred between 11:10 and 11:20 that evening. He said that in his report, he described the black mask the robber wore over his face as a ski mask, which was the description provided by the victim. He indicated that he did not recall whether the victim described the robber's black jacket as a "bomber jacket," and he also admitted that in his report he described the jacket as a "black jacket" rather than a "bomber jacket" or a "large black jacket." Officer Newbill initially said that the victim related that she had been locked in the cooler, staying there for ten to fifteen minutes, although the officer later said that the victim was not in the cooler when he arrived on the scene.
Officer Steven Story with the Jackson Police Department testified that he arrived at the restaurant with Officer Newbill. Upon arriving, Officer Story searched the restaurant while Officer Newbill began interviewing the victim. After Officer Story completed his search, he also spoke with the victim. He asked her if she recognized the robber. The victim said she did not. Officer Story then asked if anybody had been fired from the restaurant recently; when asked why he posed this question, Officer Story replied, "in my experience sometimes that's the way it happens. I've worked other robbery cases where that was the case." The victim replied that the defendant had been fired "about a week or so" before the robbery for drinking on the
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