Claudale Renaldo Armstrong v. State of Tennessee

09/27/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 13, 2017

CLAUDALE RENALDO ARMSTRONG v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County

No. 16-CR-130-PCR, 16-CR-132-PCR, 16-CR-133-PCR Franklin L. Russell,

Judge

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No. M2016-02539-CCA-R3-PC

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The Petitioner, Claudale Renaldo Armstrong, appeals the post-conviction court’s denial

of his petition for post-conviction relief in which he challenged his conviction for the sale

of 0.5 grams or more of a Schedule II Controlled Substance, his conviction for the sale of

less than 0.5 grams of a Schedule II Controlled Substance, and his effective sentence of

twenty-six years in the Department of Correction. On appeal, the Petitioner contends that

trial counsel rendered ineffective assistance by failing to file a motion seeking recusal of

the trial judge after the Petitioner filed a federal lawsuit and complaints with the Board of

Professional Responsibility and the Board of Judicial Conduct against the judge. Upon

reviewing the record and the applicable law, we affirm the judgment of the post-

conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Taylor E. Brandon, Lewisburg, Tennessee, for the appellant, Claudale Renaldo

Armstrong.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Robert J. Carter, District Attorney General; and Weakley Edward

Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

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This appeal arises from two separate drug transactions between the Petitioner and

a confidential informant. In case numbers 12-CR-170 and 12-CR-172, the Petitioner was

indicted for the sale of 0.5 grams or more of cocaine base; delivery of 0.5 grams or more

of cocaine base; sale of less than 0.5 grams of cocaine; and delivery of less than 0.5

grams of cocaine. These cases were consolidated for a jury trial, in which the jury found

the Petitioner guilty of all four counts as charged. A summary of the evidence presented

at trial is included in this court’s opinion on direct appeal. See State v. Claudale Renaldo

Armstrong, No. M2014-01041-CCA-R3-CD, 2015 WL 1947024, at *1-4 (Tenn. Crim.

App. Apr. 30, 2015), perm. app. denied (Aug. 14, 2015).

At a subsequent sentencing hearing, the trial court merged the alternative counts

into two convictions and sentenced the Petitioner as a Range II, multiple offender to

eighteen years and eight years for each respective transaction. The sentences were

aligned consecutively for an effective term of twenty-six years’ imprisonment. The

convictions and sentences were affirmed on appeal in this court, and permission to appeal

was denied by the Tennessee Supreme Court on August 14, 2015. See id.

The Petitioner also entered a guilty plea in a separate case, case number 12-CR-

173. Although the indictment is not included in the record on post-conviction appeal, the

Presentence Report in the record on direct appeal of the jury trial stated that Petitioner

was charged in case 12-CR-173 with the sale of over 0.5 grams of cocaine and the

delivery of over 0.5 grams of cocaine. According to the State’s Response to the Petition

for Post-Conviction Relief and the post-conviction court’s order, the Petitioner’s guilty

plea was entered on June 3, 2014. No judgment form is included in the record.

The Petitioner filed a pro se petition for post-conviction relief in which he alleged

that his trial counsel was ineffective at trial. The post-conviction court held a hearing on

the petition and entered an order denying relief. Because this appeal involves only the

claim of ineffective assistance of counsel based on trial counsel’s failure to file a motion

to recuse, we summarize the evidence presented during the hearing relevant only to this

issue.

At the post-conviction evidentiary hearing, the Petitioner testified that he filed a

federal lawsuit against the trial judge while his case was still pending. The Petitioner

stated that after the Petitioner’s trial, the federal court dismissed his suit because judges

are immune from monetary damages and instructed him to contact the Court of Criminal

Appeals. The Petitioner also testified that he submitted complaints against the trial judge

with the Board of Professional Responsibility and the Board of Judicial Conduct. Both

boards dismissed the complaints and recommended the Petitioner contact the Court of

Criminal Appeals. The Petitioner did not testify as to what claims he raised against the

judge in either the federal suit or the complaints.

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The trial judge also presided over the post-conviction evidentiary hearing. At the

evidentiary hearing, the trial judge stated on the record that he was never aware of any

federal suit and was never served with any process. He also stated that he was never

required to respond to either of the complaints filed with the Board of Professional

Responsibility or the Board of Judicial Conduct.

Trial counsel testified at the evidentiary hearing that it was possible he discussed

the Petitioner’s federal suit and complaints with the Petitioner prior to his trial, but that he

could not be certain of the timing of any discussions. Trial counsel did confirm,

however, that after the Petitioner’s trial, trial counsel received a letter from the Petitioner

regarding the suit and complaints against the trial judge. Trial counsel responded in a

letter to explain why trial counsel did not believe a motion to recuse the trial judge was

necessary. This letter was read into the record. In his letter, trial counsel stated that he

believed it was fairly common for criminal defendants to file suits or complaints against

judges and that judges are used to these types of complaints. Trial counsel noted that if

recusal based on the filing of judicial complaints were mandatory, then defendants could

simply file complaints in an effort to find the most favorable forum.

Trial counsel also testified that federal lawsuits have been previously filed against

trial counsel without his knowledge since the suits are dismissed before any process is

served. Trial counsel stated that he was familiar with this situation, and thus, did not

believe there was any need to file a motion to recuse the trial judge presiding over the

Petitioner’s cases. Furthermore, trial counsel testified that even if the judge had been

aware of the federal suit and complaints before the Petitioner’s trial, trial counsel did not

believe the pending suit and complaints would bias the trial judge. Trial counsel was not

certain as to what the claims in the suit and complaints were, but believed they may have

involved the setting of bond for the Petitioner.

Following the hearing, the post-conviction court entered an order denying the

Petitioner’s post-conviction petition, finding that trial counsel was not deficient in any of

the bases raised by the Petitioner. The post-conviction court found that the proof at the

evidentiary hearing did not adequately show that a motion to recuse would have been

granted or that a recusal would have changed the outcome of the Petitioner’s case had it

been granted. In its written memorandum, the post-conviction court noted that frivolous

judicial complaints are routinely filed and dismissed without requiring the judge to file a

response and that the filing of such complaints appears to be a part of an effort to forum

shop.

ANALYSIS

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The Petitioner maintains that trial counsel was ineffective by not seeking the

recusal of the trial judge after the Petitioner filed a federal lawsuit and complaints with

the Boards of Judicial Conduct and Professional Responsibility against the trial judge.

The State responds that the Petitioner has failed to meet his burden. We agree with the

State.

To be granted post-conviction relief, a petitioner must establish that his conviction

or sentence is void or voidable due to the abridgement of any constitutional right. T.C.A.

§ 40-30-103. The petitioner has the burden of proving the allegations of fact by clear and

convincing evidence. Id. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.

2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt

about the correctness of the conclusions drawn from the evidence.’” Grindstaff, 297

S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).

Factual findings by the post-conviction court are conclusive on appeal unless the

evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).

This court may not substitute its inferences for those drawn by the trial judge, and

“questions concerning the credibility of witnesses, the weight and value to be given their

testimony, and the factual issues raised by the evidence are to be resolved by the trial

judge.” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Claims of ineffective

assistance of counsel in post-conviction petitions are regarded as mixed questions of law

and fact. Grindstaff, 297 S.W.3d at 216. Thus, our review is de novo with no

presumption of correctness. Pylant v. State, 263 S.W.3d 854, 867-68 (Tenn. 2008)

(citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)).

The Sixth Amendment to the United States Constitution and article I, section 9 of

the Tennessee Constitution guarantees the accused the right to effective assistance of

counsel. To prevail on a claim for ineffective assistance, a petitioner must prove “that

counsel’s performance was deficient and that the deficiency prejudiced the defense.”

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)).

To demonstrate deficiency, a petitioner must show “‘that counsel made errors so

serious that counsel was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment.’” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting

Strickland, 466 U.S. at 687). A petitioner “‘must show that counsel’s representation fell

below an objective standard of reasonableness’ guided by ‘professional norms’ prevailing

at the time of trial.” Id. (quoting Strickland, 466 U.S. at 688) (internal quotations

omitted). On review, counsel’s performance is not to be measured by “20-20 hindsight.”

Id. at 277. Instead, there is a “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. (citing State v. Burns, 6 S.W.3d

453, 462 (Tenn. 1999)). The court must presume that counsel’s acts might be “‘sound

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trial strategy,’” and strategic decisions are “‘virtually unchallengeable’” when made after

a thorough investigation. Id. (quoting Strickland, 466 U.S. at 689).

To establish prejudice, “a petitioner must establish ‘a reasonable probability that,

but for counsel’s unprofessional errors, the results of the proceeding would have been

different.’” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. A petitioner must

show that counsel’s performance was so deficient that it deprived the petitioner “of a fair

trial and called into question the reliability of the outcome.” Finch v. State, 226 S.W.3d

307, 316 (Tenn. 2007) (citing Burns, 6 S.W.3d at 463). “Failure to establish either

deficient performance or prejudice necessarily precludes relief.” Felts, 354 S.W.3d at

276.

The Petitioner argues that trial counsel was ineffective by failing to file a motion

to recuse the trial judge after the Petitioner filed a federal lawsuit, a complaint with the

Board of Professional Responsibility, and a complaint with the Board of Judicial Conduct

against the trial judge. The Petitioner argues that because trial counsel failed to file a

motion, the trial judge was not able to make a determination as to whether the pending

lawsuit and complaints impaired the trial judge’s impartiality. The Petitioner further

argues that an ordinary person in the trial judge’s circumstances could find a reasonable

basis to believe the judge was not impartial. The State disagrees.

The impartiality of judges has been “of fundamental importance to the

administration of justice and the judicial system.” Smith v. State, 357 S.W.3d 322, 339

(Tenn. 2011). Judges must be unprejudiced and unbiased if the public is to maintain

confidence in the judicial system. Id. Thus, recusal of a trial judge “is warranted ‘when a

person of ordinary prudence in the judge’s position, knowing all of the facts known to the

judge, would find a reasonable basis for questioning the judge’s impartiality.’” State v.

Reid, 213 S.W.3d 792, 815 (Tenn. 2006) (quoting Alley v. State, 882 S.W.2d 810, 820

(Tenn. Crim. App. 1994)).

It was not established at the post-conviction evidentiary hearing that either the trial

counsel or the trial judge were aware of the filings prior to the Petitioner’s jury trial.

Although trial counsel acknowledged that it was possible he discussed the filings with the

Petitioner prior to trial, trial counsel was not certain as to the timing of any such

discussions. It was established, however, that trial counsel received a letter from the

Petitioner after the trial, in which the Petitioner raised his concerns regarding the

impartiality of the trial judge. The trial judge noted on the record that he was not aware

of any federal suit because he was not served process and that he was never required to

respond to any complaints with the Board of Professional Responsibility or the Board of

Judicial Conduct.

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Moreover, the filing of a suit against a trial judge is insufficient to mandate

recusal. See State v. Cedric Jones, No. M2015-00720-CA-R3-CD, 2016 WL 3621513, at

*8 (Tenn. Crim. App. June 29, 2016) (noting that “neither the trial court’s adverse rulings

nor the federal lawsuit against the judge are sufficient grounds to disqualify the judge”),

perm. app. denied (Sep. 22, 2016); State v. Antonio Freeman, No. M2012-02691-CCA-

10B-CD, 2013 WL 160664, at *4 (Tenn. Crim. App. Jan. 15, 2013) (holding that a trial

judge properly denied a motion to recuse after the defendant filed a federal lawsuit

against the trial judge); State v. William Everett Chouinard, No. 03-C-01-9310-CR00340,

1994 WL 318984, at *2 (Tenn. Crim. App. June 30, 1994) (holding that the trial court

was correct in not recusing itself after the defendant filed a federal lawsuit against the

trial judge); State v. Parton, 817 S.W.2d 28, 29-30 (Tenn. Crim. App. 1991) (upholding

the denial of a motion to recuse after the appellant filed a grievance against the trial judge

with the Court of the Judiciary and the Tennessee Supreme Court). Were this not the

case, a criminal defendant could “automatically disqualify a judge by the filing of a

frivolous suit and would set a dangerous precedent inviting additional frivolous litigation,

manipulation of the judicial system, and forum shopping.” Antonio Freeman, 2013 WL

160665, at *4.

Trial counsel, knowing that a motion to recuse a judge on such grounds would be

unsuccessful, properly weighed the benefits of whether a motion requesting the recusal of

the trial judge would be necessary and reasonably concluded that it was not. The

Petitioner submitted no evidence at the post-conviction hearing that there was a valid

reason to request recusal. Accordingly, the Petitioner has failed to establish that trial

counsel was deficient in failing to file a motion to recuse. Because the Petitioner has

failed to show deficiency, he is not entitled to relief and we need not reach the issue of

prejudice. See Felts, 354 S.W.3d at 277. We conclude that trial counsel was not

ineffective in failing to file a motion to recuse the trial judge in case numbers 12-CR-170

and 12-CR-172.

Although case number 12-CR-173 was listed in the Petitioner’s petition for post-

conviction relief, he does not allege that the plea was involuntary or otherwise challenge

his guilty plea on appeal.

CONCLUSION

For the foregoing reasons, we affirm the post-conviction court’s denial of the

Petitioner’s post-conviction petition.

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JOHN EVERETT WILLIAMS, JUDGE

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