Alston v. Genovese

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

LARRY J. ALSTON, )

) Case No. 3:19-cv-234

Petitioner, )

) Judge Travis R. McDonough

v. )

) Magistrate Judge Debra C. Poplin

KEVIN GENOVESE, )

)

Respondent. )

MEMORANDUM OPINION

Petitioner Larry J. Alston, an inmate proceeding pro se, has filed a federal habeas petition

pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement under Knox County,

Tennessee convictions for especially aggravated kidnapping, aggravated burglary, and

aggravated robbery. Having considered the submissions of the parties, the state-court record,

and the law applicable to Petitioner’s claims, the Court finds that the petition should be denied.

I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

Carolyn Sue Maples was in front of her Knoxville residence on the afternoon of April 15,

2010, when three armed men confronted her, demanded her purse, and ordered her inside her

home. State v. Alston, Young, and Webb, No. E2012-00432-CCA-R3-CD, 2013 WL 2382589, at

*1 (Tenn. Crim. App. May 30, 2013) (“Alston I”), perm. app. granted (Tenn. Jan. 17, 2014). A

neighbor witnessed the incident and telephoned police. Id. Petitioner and his co-defendants

were apprehended at the victim’s residence. Id.

The following evidence was presented at trial. Ms. Maples’s neighbor, Ashley Dawn

Hill, testified that, at approximately 1:45 p.m. on April 15, 2010, she was sitting on the front

porch when she saw two black men with dreadlocks and a white man with glasses walking down

the street toward the victim’s residence. Id. Ms. Hill witnessed the victim walk around her car,

which was parked in front of Ms. Hill’s house, to get in the vehicle. Id. The men approached the

victim and said, “Excuse me.” Id. Ms. Hill heard the victim scream and saw one of the black

men grab the victim’s purse. Id. The victim got out of her car and ran toward her house, and the

men followed her inside. Id. Ms. Hill telephoned 9-1-1. Id.

Ms. Maples testified that, at approximately 1:45 p.m. on April 15, 2010, she went outside

to get in her car when she saw three men — two black and one white — walking toward her. Id.

She stated that, just as she began to get into her car, the “big” black man asked if she knew a

particular girl. Id. Ms. Maples stated that she did not and went to get in the car. Id. She

testified, “The next thing I know[,] there were guns to my head.” Id.

Ms. Maples stated that the two black men pointed guns at her, and that one of the men

demanded that she give him her purse and then “get to the house.” Id. She stated that the men

pushed her toward the door of the home, which she had difficulty opening due to her terror. Id.

Once inside the home, the men pushed her to the couch and began ransacking her home for

money, jewelry, and “anything [she] had.” Id. She testified that the men took $140 from her

wallet, along with her bank card. Id. She stated that “the big” perpetrator demanded her “bank

number.” Id. Ms. Maples also recalled that the white perpetrator had a sawed-off shotgun stuffed

down his pants, while the two black men had pistols. Id.

While Ms. Maples remained on the couch, one of the men took two flat screen televisions

and walked to the door before stating, “Oh f***, there’s the law.” Id. at 2. The man ran toward

another man in the kitchen, at which point Ms. Maples escaped through the open front door. Id.

When she got outside, a female officer told her to “[g]o somewhere and . . . get where nobody

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can see you.” Id. She identified Petitioner and his co-defendants as the perpetrators at trial,

designating Defendant Kris Young as “the big one.” Id.

Knoxville Police Department (“KPD”) Officer Amanda Bunch testified that, at

approximately 1:41 p.m., she responded to the victim’s residence to investigate a report that

“three males force[d] a lady back into her house at gunpoint.” Id. Officer Bunch took position

near the home and waited for backup to arrive. Id. Two other officers arrived nearly

simultaneously to one another and, at that point, the front door opened and a black male carrying

a television began to exit. Id. Officer Bunch saw the individual drop the television and run back

into the house. Id. She testified that the other two officers went to the back of the house while

she moved to the driveway of the residence. Id.

Officer Bunch stated that the other officers placed one subject in custody at the back of

the house. Id. An officer and his police dog arrived, and the dog was released inside the home.

Id. The dog drove the other two suspects onto the back deck, where they were placed into

custody. Id. Officer Bunch handcuffed a white male, identified as Joshua Webb, and performed

a search of his person, where she discovered “[t]wo five-dollar bills, a lighter, his wallet, . . . a

gold kind of bracelet chain type thing, and . . . a pill bottle” with the victim’s name on it. Id.

KPD Officer Tim Riddle was another of the responding officers, and he testified that he

took cover next to a tree where he could see both the front and rear exits of the victim’s home.

Id. Officer Riddle observed a black male carrying something out of the home, and he saw the

individual drop what he was carrying and go back in the house when the officers “began to give

verbal commands.” Id. He then saw an elderly white woman run from the front door and a

black male “trying to run out the back door.” Id. That man was apprehended by Officer John

Stevens, who was in the back alley. Id. Officer Riddle radioed for K-9 assistance, and after the

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K-9 officer arrived and warned the home’s occupants that the dog was going to be released, a

white male and a black male exited the rear of the home and surrendered. Id. Officer Riddle

placed the second black male, identified as Kris Young, into custody. Id.

KPD Officer John Stevens, another responding officer, recalled that Petitioner was the

first to exit the victim’s home, followed quickly by Webb and Young. Id. at *3. Petitioner

cooperated with officers’ commands and got down on the ground immediately. Id. Officer

Stevens placed Petitioner in custody and searched him, finding $110 in cash and the victim’s

automatic teller machine (“ATM”) card on his person. Id.

A KPD forensic officer took photographs and collected evidence at the scene, which

included a Ruger pistol, a nine-millimeter pistol, and a .20-gauge sawed-off shotgun, all of which

were loaded. Id.

At the conclusion of the State’s proof, Petitioner and his co-defendants elected not to

present any proof. Id. A Knox County Criminal Court jury convicted Petitioner of aggravated

robbery, aggravated burglary, especially aggravated kidnapping, and possession of a firearm with

the intent to go armed during the commission of a dangerous felony. (See Doc. 5-6, at 91–92.)

Following the verdict, the trial court set aside the guilty verdicts for especially aggravated

kidnapping and aggravated burglary. (See Doc. 5-2, at 57–59, 69–70.) The trial court also

dismissed the firearms convictions, reasoning that the firearms convictions could not survive the

dismissal of the especially aggravated kidnapping and aggravated burglary convictions, as they

were the predicate dangerous felonies for the firearms offenses. (See Doc. 5-7, at 21); see also

Alston I, 2013 WL 2382589, at *3. The State appealed, and the Tennessee Court of Criminal

Appeals (“TCCA”) reversed and reinstated the verdicts. Alston I, 2013 WL 2382589, at *1.

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Petitioner sought and was granted discretionary review by the Tennessee Supreme Court

(“TSC”), and the TSC remanded the case back to the TCCA for consideration in light of State v.

Cecil, 409 S.W.3d 599 (Tenn. 2013). (Doc. 5-22.) On remand, the TCCA reached the same

result. State v. Alston, Young, and Webb, No. E2012-00431-CCA-R3-CD, 2014 WL 585859

(Tenn. Crim. App. Feb. 13, 2014) (“Alston II”), perm. app. granted (Tenn. Jun. 20, 2014).

Petitioner again sought discretionary review by the TSC, which was again granted. (Doc.

5-26.) After review, the TSC affirmed the TCCA’s conclusions and reinstated Petitioner’s

convictions for especially aggravated kidnapping and aggravated burglary and remanded the case

for resentencing. State v. Alston, Young, and Webb, 465 S.W.3d 555, 568 (Tenn. 2015) (“Alston

III”). Upon resentencing, Petitioner was sentenced to an effective sentence of twenty years’

imprisonment. (See Doc. 1, at 1.)

On May 2, 2016, Petitioner filed a pro se petition for post-conviction relief that he later

amended twice with the assistance of appointed counsel. (Doc. 6-2, at 4–36, 45–47, 48–49.)

Following a hearing, the post-conviction petition was denied. (Id. at 86–88.) The TCCA

affirmed the post-conviction court’s decision on November 27, 2018. Alston v. State, No.

E2017-02528-CCA-R3-PC, 2018 WL 6992435 (Tenn. Crim. App. Nov. 27, 2018) (“Alston IV”),

perm. app. denied (Tenn. Mar. 27, 2019). The TSC denied discretionary review. (Doc. 6-14.)

On June 24, 2019, Petitioner filed the instant federal habeas petition, raising the

following claims, paraphrased:

Ground 1: Whether the denial of a jury instruction pursuant to State v. White,

362 S.W. 3d 559 (Tenn. 2012), was harmless beyond a reasonable

doubt.

Ground 2: Whether Petitioner’s convictions for especially aggravated

kidnapping and aggravated burglary violated the Double Jeopardy

Clause.

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Ground 3: Whether the evidence was sufficient to convict Petitioner of

especially aggravated kidnapping.

(Doc. 1.) The Court ordered Respondent to respond to the petition, and Respondent complied on

August 22, 2019. (Doc. 7.) After obtaining an extension of time, Petitioner filed a reply to the

response, along with a motion to amend his petition to add a legal argument. (See Docs. 11–14.)

Respondent failed to respond to the motion to amend, which the Court granted by order entered

on November 19, 2019. (Doc. 15.) This matter is now ripe for review.

II. LEGAL STANDARD

The Court’s review of the instant petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any

claim adjudicated on the merits in a state court unless that adjudication (1) “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established” United

States Supreme Court precedent; or (2) “resulted in a decision that was based on an unreasonable

determination of facts in light of the evidence presented.” See 28 U.S.C. § 2254(d)(1), (2);

Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Federal habeas relief may be granted under the “contrary to” clause where the state court

(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or

(2) decides a case differently than the Supreme Court on a set of materially indistinguishable

facts. See Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the “unreasonable

application” clause, a federal court may grant relief where the state court applies the correct legal

principle to the facts in an unreasonable manner. See id. at 407–08; Brown v. Payton, 544 U.S.

133, 141 (2005). “The question under AEDPA is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was unreasonable—a

substantially higher threshold.” Schriro, 550 U.S. at 473; see Williams, 529 U.S. at 410–11.

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This standard will allow relief on a federal claim decided on its merits in state court only where

the petitioner demonstrates that the state ruling “was so lacking in justification that there was an

error understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating the evidence

presented in state court, a federal habeas court presumes the correctness of the state court’s

factual findings unless the petitioner rebuts the presumption by clear and convincing evidence.

See 28 U.S.C. § 2254(e)(1).

The doctrine of procedural default also limits federal habeas review. See O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999) (holding that prisoner’s procedural default forfeits his

federal habeas claim). A procedural default exists in two circumstances: (1) where the petitioner

fails to exhaust all of his available state remedies, and the state court to which he would be

required to litigate the matter would now find the claims procedurally barred, and (2) where a

state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that

rule provides an independent and adequate basis for the dismissal. See, e.g., Coleman v.

Thompson, 501 U.S. 722, 731–32, 735 n.1 (1991). A procedural default may be circumvented,

allowing federal habeas review of the claim, only where the prisoner can show cause for the

default and actual resulting prejudice, or that a failure to address the merits of the claim would

result in a fundamental miscarriage of justice. Id. at 750; see also Wainwright v. Sykes, 433 U.S.

72, 87, 90–91 (1977). “Cause” is established where a petitioner can show some objective

external factor impeded defense counsel’s ability to comply with the state’s procedural rules, or

that trial counsel rendered ineffective assistance. Coleman, 501 U.S. at 753–54. The prejudice

demonstrated to overcome the default must be actual, that is, the error must have “worked to

[Petitioner’s] actual and substantial disadvantage, infecting his entire [proceeding] with error of

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constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in

original). A fundamental miscarriage of justice of occurs “where a constitutional violation has

probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477

U.S. 478, 496 (1986).

As noted above, ineffective assistance of counsel can serve as “cause” for a defaulted

claim. Coleman, 501 U.S. at 753. In contrast, errors of post-conviction counsel cannot generally

serve as “cause” to excuse a procedural default. Id. at 752. An exception to this rule was

established in Martinez v. Ryan, 566 U.S. 1 (2012), which held that inadequate assistance of

post-conviction counsel or the absence of such counsel may establish cause for a prisoner’s

procedural default of an ineffective assistance of trial counsel claim under certain circumstances.

Id. at 9. The Supreme Court has described the requirements of the Martinez exception:

[The exception] allow[s] a federal habeas court to find “cause,” thereby excusing

a defendant's procedural default, where (1) the claim of “ineffective assistance of

trial counsel was a “substantial” claim; (2) the “cause” consisted of there being

“no counsel” or only “ineffective” counsel during the state collateral review

proceeding; (3) the state collateral review proceeding was the “initial” review

proceeding in respect to the “ineffective-assistance-of-trial-counsel claim;” and

(4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be

raised in an initial-review collateral proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 13–14, 16–17).

III. DISCUSSION

A. Jury Instruction

As to his first ground for federal habeas relief, Petitioner argues that the trial court erred

by not issuing a jury instruction pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012). (Doc.

1, at 5.) Specifically, Petitioner argues that his jury was not instructed, pursuant to White, “that,

in order to convict the defendant of the kidnapping offense, it must find that the State proved

beyond a reasonable doubt the removal or confinement was to a greater degree than that

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necessary to commit the accompanying felony.” (Id. at 5.) Petitioner contends that the proof in

this case demonstrates that any alleged kidnapping of the victim was incidental to the

commission of the robbery, not separate from it. (Id. at 6.)

Petitioner’s claim of error relies on a misapplication of state law. However, there is no

general federal right to a properly instructed jury; jury instructions are ordinarily a state-law

issue. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions.”); Pulley v. Harris,

465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error

of state law.”). As such, errors in jury instructions in a state-court trial do not warrant federal

habeas relief unless the incorrect or omitted instruction denies a petitioner a fundamentally fair

trial by “so infect[ing] the entire trial that the resulting conviction violates due process.” Estelle,

502 U.S. 72–73 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)); Henderson v. Kibbe, 431

U.S. 145, 154 (1977). The category of errors that violate fundamental fairness has been

narrowly defined by the United States Supreme Court, which has noted that an omitted or

incomplete instruction “is less likely to be prejudicial than a misstatement of the law.” Kibbe,

431 U.S. at 155.

In this case, the Court finds that Petitioner was not denied a fundamentally fair trial by

the failure to provide the challenged instruction, as the State presented sufficient evidence

showing that Petitioner’s removal and confinement of the victim was beyond that necessary to

accomplish the aggravated robbery. See Alston III, 465 S.W.3d at 567. The aggravated robbery

indictment specified the taking of the victim’s purse, and once that action was taken, the

aggravated robbery was complete. Id. Thereafter, Petitioner committed kidnapping by ordering

the victim into her house and confining her to her couch. Id. Accordingly, the Court finds that

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Petitioner’s claim is not cognizable on federal habeas review, as it relies upon an alleged error of

state law, and the Court otherwise determines that the denial of the challenged instruction did not

deprive Petitioner of due process.

B. Double Jeopardy

In his second federal habeas claim, Petitioner asserts that his convictions for especially

aggravated kidnapping and aggravated burglary violate the United States Constitution’s

guarantee against double jeopardy, because “the chain of events never broke from the initiating

felony (Aggravated Robbery)” and, therefore, “the subsequent entering of the house and

gathering of the victim[’]s belongings and aggravated kidnapping are all incidental to the

accompanying felony.” (Doc. 1, at 8.)

Petitioner did not raise this claim on direct appeal. (See Doc. 5-15, at 3, 7, 13–22.)

Rather, on direct appeal, he raised a similar argument challenging his convictions for aggravated

burglary and aggravated robbery as violative of double jeopardy. (Id.) Thereafter, Petitioner did

argue his federal habeas claim to the post-conviction trial court (see Doc. 6-2, at 10–12), but he

failed to carry his double-jeopardy claim forward on appeal to the TCCA after the post-

conviction petition was denied. (Doc. 6-7, at 2.)

To satisfy the AEDPA’s exhaustion requirement, a claim must be “fairly presented” to

the state’s highest court so that the appellate court has a “fair opportunity” to address the

constitutional claim. O’Sullivan v. Boerckel, 526 U.S. 838, 845–47 (1999). In Tennessee, a

claim must be presented to the TCCA in order to be exhausted under 28 U.S.C. § 2254(b). See

Adams v. Holland, 330 F.3d 398 (6th Cir. 2003); see also Tenn. S. Ct. R. 39 (establishing

presentation of claim to TCCA is sufficient to exhaust state remedies). The claim of double

jeopardy that Petitioner raises on federal habeas review relies upon a different theory than that

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which was presented on direct appeal to the TCCA. See Prather v. Rees, 822 F.2d 1418, 1420–

21 (6th Cir. 1987) (holding federal claim must be presented on same legal theory that was

presented in state court for proper exhaustion). Therefore, by failing to present his federal

habeas claim to the TCCA, Petitioner failed to properly exhaust it. See O’Sullivan, 526 U.S. at

845 (holding that proper exhaustion requires petitioner to pursue claim through “one complete

round of the State’s established appellate review process”).

Petitioner would now be barred from presenting his federal habeas claim to the TCCA,

and, therefore, the claim is technically exhausted but procedurally defaulted. See Jones v.

Bagley, 696 F.3d 475, 483 (6th Cir. 2012) (“When a petitioner has failed to present a legal issue

to the state courts and no state remedy remains available, the issue is procedurally defaulted.”);

see also Tenn. Code Ann. § 40-30-102(a) (one-year limitation period), § 40-30-102(c) (“one

petition” rule), and § 40-30-117 (requirements for reopening postconviction actions). In his

amended petition, Petitioner argues that he can demonstrate “cause” for the default of this claim,

as his post-conviction attorney failed to raise it. (Doc. 16, at 1]. Under Martinez, ineffective

assistance of post-conviction counsel may provide cause to excuse the default of certain claims.

566 U.S. at 9. However, the Martinez exception is limited to substantial and defaulted claims of

ineffective assistance of trial counsel. Id. at 16; see also Davila v. Davis, 137 S. Ct. 2058, 2063

(2017). Accordingly, Martinez has no application to Petitioner’s double-jeopardy claim. The

Court additionally finds that there is no cognizable cause for Petitioner’s default or

demonstration of resulting prejudice. Therefore, this claim is procedurally defaulted and barred

from review. See Coleman, 501 U.S. at 750.

Even in the absence of a procedural default, Petitioner’s double-jeopardy claim is without

merit. The Double Jeopardy Clause of the Fifth Amendment, which applies to the states through

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the Fourteenth Amendment, provides that a person may not “be subject for the same offense to

be twice put in jeopardy of life or limb.” U.S. Const. amends. V, XIV; see also Benton v.

Maryland, 395 U.S. 784, 794 (1969) (holding Double Jeopardy Clause of Fifth Amendment

applies to the States through the Fourteenth Amendment). It protects, among other things,

“against multiple punishments for the same offense” in a single proceeding. Missouri v. Hunter,

459 U.S. 359, 366 (1983) (citation omitted). The test to determine whether the punishment of

one course of conduct under two different statutes violates double jeopardy is whether each

provision requires proof of a fact which the other does not. Id. (quoting Blockburger v. United

States, 284 U.S. 299, 304 (1932)). The offenses of especially aggravated kidnapping and

aggravated burglary unquestionably require proof of at least one different fact, as especially

aggravated kidnapping requires that a defendant knowingly move or confine another so as to

interfere with the other’s liberty, which is not an element of aggravated burglary. Compare

Tenn. Code Ann. §§ 39-13-302, 39-13-305 (elements of especially aggravated kidnapping), with

Tenn. Code Ann. §§ 39-14-402, 39-14-403 (elements of aggravated burglary). Because the

elements of the offenses do not completely overlap, there was no double-jeopardy violation in

this case. Accordingly, the Court finds this claim procedurally defaulted and otherwise without

merit.

C. Sufficiency of Evidence

Finally, Petitioner claims that the “prosecution failed to prove all the elements of

especially aggravated kidnapping beyond a reasonable doubt.” (Doc. 1, at 11–14.) Petitioner

concedes that this claim has never been presented to the state courts. (Id. at 11.)

Because this federal habeas claim has never been presented to the TCCA, and he is now

incapable of presenting this claim to the TCCA, the claim is technically exhausted but

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procedurally defaulted. See Jones, 696 F.3d at 483 (“When a petitioner has failed to present a

legal issue to the state courts and no state remedy remains available, the issue is procedurally

defaulted.”); see also Tenn. Code Ann. § 40-30-102(a) (one-year limitation period); id. § 40-30-

102(c) (“one petition” rule); id. § 40-30-117 (requirements for reopening postconviction actions).

In his amended petition, Petitioner argues that he can demonstrate “cause” for the default

of this claim, as his attorneys failed to raise it. (Doc. 16, at 1–2.) As the Court noted above, the

ineffective assistance of post-conviction counsel may provide cause to excuse the default of a

substantial ineffective-assistance-of-trial-counsel claim, but only for substantial and defaulted

claims of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9, 16; see also Davila

v. Davis, 137 S. Ct. 2058, 2063 (2017). Accordingly, Martinez has no application to Petitioner’s

claim regarding the sufficiency of the evidence, and it is procedurally defaulted and barred from

review. See Coleman, 501 U.S. at 750.

IV. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability (“COA”) before he may appeal this

Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue

unless a petitioner makes “a substantial showing of the denial of a constitutional right” of any

claim rejected on its merits, which a petitioner may do by demonstrating that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.” 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim

that has been rejected on procedural grounds, a petitioner must demonstrate “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack, 529 U.S. at 484. Applying this standard, the Court

concludes that a COA should be denied in this case.

V. CONCLUSION

For the reasons set forth above, the instant petition for a writ of habeas corpus will be

DENIED, and this action will be DISMISSED WITH PREJUDICE. A certificate of

appealability from this decision will be DENIED.

Further, the Court will CERTIFY that any appeal from this action would not be taken in

good faith and would be totally frivolous. Fed. R. App. P. 24.

AN APPROPRIATE JUDGMENT WILL ENTER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE

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