Ross v. Parker

• Decision Date: 25 July 2013
• Docket Number: No. 10-1093-STA-egb,10-1093-STA-egb
• Parties: LAMAR ROSS, Petitioner, v. TONY PARKER, Respondent.
• Court: U.S. District Court — Western District of Tennessee

LAMAR ROSS, Petitioner,

v.TONY PARKER, Respondent.

No. 10-1093-STA-egb

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

Dated: July 25, 2013

ORDER OF DISMISSAL

ORDER DENYING CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

AND

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On April 19, 2010, Petitioner Lamar Ross, Tennessee Department of Correction prisoner number 367106, an inmate at the Northwest Correctional Complex ("NWCX") in Tiptonville, Tennessee, filed a pro se petition pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On April 26, 2010, Ross paid the filing fee. (ECF No. 3.) On May 4, 2010, United States District Judge J. Daniel Breen transferred the petition to the Western Division of this district and directed the Respondent to file the state-court record and a response to the petition. (ECF No. 4.) Respondent filed an answer to the petition and the state-court record on June 28, 2010. (ECF Nos. 8 & 9.)

I. STATE COURT PROCEDURAL HISTORY

On October 17, 2002, a grand jury sitting in Shelby County, Tennessee, indicted Petitioner Ross on two counts ofaggravated rape. (Indictment, ECF No. 9-1 at 7.)¹ On September 24, 2003, following a jury trial in the Criminal Court for Shelby County, Tennessee, Petitioner was convicted of both counts which the trial court merged into a single judgment of conviction. (ECF No. 9-1 at 17-18.) Ross was sentenced to twenty-four years in prison as a Range I, violent offender. (Notice of Enhancement Factors, ECF No. 9-1 at 19-22; Judgment, ECF No. 9-1 at 40.) The Tennessee Court of Criminal Appeals modified the conviction on count two to rape, a Class B felony, the actual offense charged; concluded that two of the four enhancement factors were inapplicable under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and reduced Ross' sentence to twenty-two years in prison. State v. Ross, No. W2003-02823-CCA-R3-CD, 2004 WL 2715348 (Tenn. Crim. App. Nov. 22, 2004), perm app. denied (Tenn. May 31, 2005).

On December 13, 2005, Ross filed a pro se petition pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122, in the Criminal Court for Shelby County. (Pet. for Relief from Conviction or Sentence, ECF No. 9-7 at 20-57.) Counsel was appointed to represent Ross (Order, id. at 68), and an amended and supplemental petition was filed on September 28, 2007. (Am. Pet. For Post-Conviction Relief, id. at 69-78.) An evidentiary hearing was held, and on May 20, 2008, the post-conviction court issued an order denying relief. (Order, id. at 81-92.) The Tennessee Court of Criminal Appeals affirmed. Ross v. State, No. W2008-01130-CCA-R3-PC, 2009 WL 2568202 (Tenn. Crim. App. Aug. 20, 2009), perm. app. denied (Tenn. Jan. 25, 2010).

The facts underlying Petitioner's conviction are set forth in the opinion of the Tennessee Court of Criminal Appeals on direct appeal:

The victim in this case, J.F.,² is a resident of the Barry Homes, a Memphis public housing development reserved for the physically and mentally disabled. At approximately 11:50 p.m. on July 1, 2002, the victim reported to Carolyn Delbridge, a Memphis Housing Authority criminal investigator assigned to the building, that earlier in the day a man had enticed him into walking with him to a nearby abandoned public housing complex, where he had forced the victim at knifepoint to perform oral sex and had penetrated him anally with his penis. From the victim's description, Delbridge recognized Lamar Ross, who was a regular visitor in the Barry Homes, and whom she had seen in the building earlier that afternoon.

The victim subsequently led Delbridge, her supervisor, and a group of Memphis police officers to the abandoned housing complex and pointed out the room in which the rape occurred. There, the officers discovered Ross asleep on the floor, a gray knife matching the victim's description of the weapon used in the attack underneath a blanket beside his left hand. In addition, the victim immediately identified Ross as the perpetrator when the officers removed him from the room. As a result, Ross was arrested and charged with two counts of aggravated rape, based on his use of a weapon in the attack and his rape of a victim he knew or had reason to know was mentally defective.

At Ross' September 22-24, 2003, trial, the victim testified he was forty-one years old and had lived in theBarry Homes Housing Development in downtown Memphis for the past two years and four months. He said he was sitting outside the building on July 1, 2002, when a man dressed in blue jeans and a black shirt with a black design approached and asked him to accompany him to where he was living, saying something about wanting to show the victim a "cat hole" and also about having the victim play basketball with him. The victim said he declined, but the man grabbed him by the arm and told him to come with him, repeating that he had something to show him. As they walked together down the street, the man introduced himself to the victim as "Lamar Ross."

After leading the victim into an upstairs vacant room inside the nearby abandoned Lauderdale Court housing project, the man suddenly pulled down his clothes, telling the protesting victim that he had to "do [his] job." The victim said he refused and tried to leave, but the man grabbed him by the neck, pulled out a gray knife, and threatened that he would be "a dead sucker" if he did not "suck his penis." Because he was afraid the man would hurt him, the victim complied. He said that afterwards, the man forced him to lower his pants and then penetrated his rectum with his penis four times, which hurt him. When finished, the man forced him to wait and walk back toward the Barry Homes complex with him, threatening that the victim was "gonna get [his] butt kicked again" if he refused.

The victim testified that when he returned home he first related the incident to the manager of his building, who refused to help, and later to Ms. Delbridge, the building's security officer, who called her supervisor and the police. After describing the rapist, he led officers to the abandoned housing complex, where the police discovered a man fitting the rapist's description asleep in the room where the incident occurred. The victim testified he immediately recognized and identified the man as the perpetrator when the police brought him out of the room. However, the victim was unable to identify Ross at trial.

On cross-examination, the victim testified he completed the eleventh grade but did not graduate. He was unsure of the exact time the incident occurred, but was confident it was before dark. He was also confident that Ross told him his name was "Lamar Ross." He acknowledged he had reported the time of the incident as 4:00 p.m. inhis statement to police, and had said that Ms. Delbridge told him the perpetrator's name was Lamar. He testified he described the perpetrator as a tan or "khaki-skinned" man with facial hair, shorter than he was, and dressed in blue jeans, a black shirt, and white tennis shoes. The victim said he did not think Ross had been wearing a condom, and he did not ejaculate in his mouth. He denied having told anyone that Ross ejaculated, but said he had mentioned that he saw "some white stuff caked around [Ross'] penis," which had an "ill smell to it." The victim acknowledged he told police that he was 5' 6" and thought his assailant was six feet tall. He was unable to say whether six feet was taller than his height, but indicated that the man who raped him came up to his ear. On redirect, he affirmed that he had been able to point out Ross to the judge in an earlier court proceeding in the case.

Carolyn Delbridge testified she was working at the Barry Homes as a criminal investigator for the Memphis Housing Authority on July 1, 2002, when the "crying-shaken-real distraught" victim came to her at 11:50 p.m. and reported that "somebody made him put their nasty thing in his mouth." She said the victim related that he had been sitting on the stoop when a man wearing dark jeans, a black long-sleeved shirt with white writing on it, and white tennis shoes asked him for a beer. The victim told her that he refused to buy him a beer, and the man asked him to accompany him to the store. However, when they reached the abandoned Lauderdale Court Apartments, the man "pushed ... and shoved him" inside an apartment, pulled a gray knife, forced him to go upstairs into a room with a folded blanket on the floor and a pink candle in the window, and then made him perform oral sex and anally penetrated him. Delbridge stated that the victim did not know what a condom was, but answered in the affirmative when she asked if he had been wet where the man penetrated him. She agreed that the victim was mentally disabled, or "a little slow."

Delbridge testified that the victim led her, her supervisor, and several Memphis police officers to the apartment, where they found Ross asleep on some folded blankets on the floor. She said the victim had previously described the perpetrator's foot odor, and she and the other officers were able to smell Ross' feet "as soon as [they] hit that bedroom." She confirmed that the victim identified Ross as his rapist at the scene, and testifiedthat a gray knife was discovered near Ross' left hand on the floor under a blanket. On cross-examination, Delbridge testified that Ross checked into the Barry Homes for a visit at 5:00 p.m. and left around 5:30 or 5:40 p.m. She said the victim told her that the rape occurred between 8:00 and 8:30 p.m. She acknowledged she recognized Ross from the victim's initial description of his rapist, but was confident she did not tell the victim his name. On redirect, she testified she recognized Ross from the victim's description of his perpetrator's bad case of acne and his clothing.

Memphis Police Officer Christopher Patterson testified that shortly after midnight on July 2, 2002

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