Marvin Christopher Long v. State of Tennessee

11/17/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 29, 2020 at Knoxville
MARVIN CHRISTOPHER LONG v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2008-D-3274 Monte Watkins, Judge
No. M2019-02064-CCA-R3-PC
The petitioner, Marvin Christopher Long, appeals the denial of his petition for post-
conviction relief, which petition challenged his convictions of possession with intent to
deliver 300 grams or more of a substance containing cocaine in a drug-free school zone
and conspiracy to commit the same, alleging that he was deprived of the effective
assistance of trial counsel. Discerning no error, we affirm the denial of post-conviction
relief.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.
Manuel B. Russ, Nashville, Tennessee, for the appellant, Marvin Christopher Long.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Roger D. Moore,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
This case comes to us via a convoluted procedural history. In October 2008,
the Davidson County Grand Jury charged the petitioner and two co-defendants with one
count of possession with intent to deliver 300 grams or more of a substance containing
cocaine in a drug-free school zone and one count of conspiracy to possess with intent to
deliver 300 grams of a substance containing cocaine in a drug-free school zone. A jury
convicted the petitioner as charged, and the trial court sentenced him as a career offender
to an effective sentence of 60 years’ incarceration. State v. Marvin Christopher Long,
Desmond Shelton Spann, and Dontillus Williams, No. M2010-01491-CCA-R3-CD, slip
op. at 1 (Tenn. Crim. App., Nashville, Aug. 22, 2012). This court summarized the evidence
on direct appeal:
The evidence adduced at trial established that [the
petitioner] was driving a vehicle, in which [d]efendants
Williams and Spann were passengers, eastbound on I-40
toward Nashville when it was stopped by Agent Currie. [The
petitioner] gave Agent Currie false identification. Agent
Currie found digital scales with cocaine residue inside the
vehicle. He also found approximately $4,000 in cash, bound
by a rubber band, inside [d]efendant Spann’s shoe. After being
allowed to continue traveling, the defendants drove to Swett’s
Restaurant, where they parked in a private area behind the
building that was 559 feet away from a school. Within minutes
of their arrival, a man parked beside them and got inside the
defendants’ vehicle for only “seconds” before returning to his
vehicle and driving away. All three defendants were inside the
vehicle with the driver of the Dodge Charger. A reasonable
inference can be drawn from the evidence that the driver of the
Dodge Charger sold the cocaine to the defendants. The
defendants went inside the restaurant again, returned to their
vehicle with takeout food, and drove away. The defendants
were driving westbound on I-40 toward Jackson when they
were stopped by Officer Schmitz within 214 feet of an
elementary school. A search of the defendants’ vehicle yielded
the digital scale with cocaine residue and rolling papers. A
search of [d]efendant Williams revealed 334 grams of cocaine,
and [d]efendant Spann no longer had the $4,000 cash.
. . . . The evidence at trial shows that [the petitioner] had
constructive possession of the cocaine recovered from
[d]efendant Williams. [The petitioner] provided and drove the
vehicle. He was present in the vehicle while the man from the
green Dodge Charger was inside the vehicle. He provided law
enforcement with a false identification and a false story about
the defendants’ reason for traveling to Nashville. He initially
refused consent to search the vehicle, and agreed to allow
officers to search only after [d]efendant Williams had exited
the car with the bag containing the cocaine on [d]efendant
Williams’ person. It is reasonable to infer that [the petitioner]
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knew the drugs were inside the vehicle, assisted in acquiring
them, and attempted to conceal them from officers. . . .
There is also sufficient evidence to support the
conclusion that the offense took place within 1,000 feet of a
school. Mr. Kline testified that the parking lot behind Swett’s
Restaurant is 135 feet from McKissack Park and 595 feet from
Pearl Cohn Comprehensive High School. He also testified that
the location at which [the petitioner’s] vehicle was stopped on
I-40 is 775 feet from Gower Elementary School and 214 feet
from Brookmeade Elementary School. Mr. Keel testified that
all of these schools were in session on the date of the offense.
...
Id., slip op. at 14-15. On appeal, this court affirmed the petitioner’s convictions and his
classification as a career offender. Id., slip op. at 12-17.
In May 2013, the petitioner filed a timely petition for post-conviction relief,
arguing that he was deprived of the effective assistance of trial and appellate counsel.
Marvin Christopher Long v. State, No. M2017-01758-CCA-R3-PC, slip op. at 2 (Tenn.
Crim. App., Nashville, Dec. 3, 2018). The post-conviction court denied post-conviction
relief as to trial counsel but failed to address the petitioner’s claim that appellate counsel
had performed deficiently by failing to either move to withdraw or file a Rule 11
application. Id. On appeal, this court vacated the post-conviction court’s order, remanded
“for a determination of whether the [p]etitioner had been deprived of his right to file a Rule
11 application,” and ordered the post-conviction court to grant the petitioner a delayed
appeal and hold the post-conviction proceedings in abeyance pending the final disposition
of the appeal if the court found that the petitioner’s right to a Rule 11 application had been
violated. Id. On remand, the post-conviction court found that appellate counsel had
performed deficiently and granted the petitioner a delayed appeal but failed to hold the
remaining claims in abeyance and, instead, denied the petitioner’s claims against trial
counsel. Id. This court denied the petitioner’s late-filed notice of appeal of the post-
conviction court’s denial of his claims against trial counsel because the “post-conviction
court had failed to follow this court’s previous order,” and this court again “vacated the
post-conviction court’s order denying post-conviction relief on all grounds except the
[p]etitioner’s entitlement to file a delayed Rule 11 application.” Id. This court also
instructed the post-conviction court, “in the event the [p]etitioner’s delayed appeal was not
granted,” to appoint new post-conviction counsel and allow the petitioner to amend his
petition to include any grounds arising from counsel’s “handling of the delayed Rule 11
application.” Id., slip op. at 2-3.
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The petitioner filed a Rule 11 application, and our supreme court denied
review on June 23, 2016. Id., slip op. at 3. The post-conviction court appointed new
counsel in December 2016, and the petitioner filed a petition styled “Second Petition for
Post-Conviction Relief,” alleging the ineffective assistance of counsel in filing the Rule 11
application. Id. The post-conviction court dismissed the petition without a new evidentiary
hearing, “holding that the [p]etitioner’s previous post-conviction petitions were resolved
on the merits” and that the petitioner failed to “establish any circumstances to reopen the
petitions,” and finding that the petitioner failed to allege a constitutional violation that
could give rise to post-conviction relief. Id.
On appeal, this court found that the post-conviction court erred by classifying
the petitioner’s post-conviction petition as a second or subsequent petition because this
court had vacated the post-conviction court’s prior orders denying post-conviction relief,
and, consequently, no order ruling on the merits of the petitioner’s claim existed. Id., slip
op. at 3-4. This court concluded that the petitioner’s post-conviction petition was, in effect,
an amended petition in accordance with Tennessee Supreme Court Rule 29, section
9(D)(1)(b)(i). This court denied post-conviction relief as to the petitioner’s claims against
Rule 11 counsel but remanded, ordering the post-conviction court to address the merits of
the petitioner’s claims of ineffective assistance of trial counsel. Id., slip op. at 4.
On remand, the post-conviction court issued an order on April 22, 2019,
concluding that trial counsel performed deficiently but that the petitioner failed to establish
that he was prejudiced by counsel’s deficiencies. In its ruling, which is before us now on
appeal, the post-conviction court relied on the evidence adduced at the October 13, 2014
evidentiary hearing.1
At that evidentiary hearing, the petitioner testified that trial counsel was
appointed to represent him in November 2008, and, over the course of 19 months, trial
counsel met with him only three times. The petitioner stated that he never saw trial counsel
at any of his pre-trial proceedings. He filed a complaint with the Board of Professional
Responsibility (“BPR”) because trial counsel had not communicated with or visited him.
The petitioner said that trial counsel did not provide him with discovery materials until the
day of trial despite the petitioner’s requesting the materials several times. The petitioner
also asked that trial counsel file certain pre-trial motions, but counsel did not respond to
him. The petitioner filed a second complaint with the BPR in December 2009.
1
We took judicial notice of the archived records from the petitioner’s previous appeals, including
cases M2010-01491-CCA-R3-CD and M2017-01758-CCA-R3-PC. We also took judicial notice of the
record in case M2014-02568-CCA-R3-PC; however, that case number appears to be erroneous. We take
judicial notice now of the archived record in case M2014-02548-CCA-R3-PC to facilitate our review.
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During cross-examination, the petitioner stated that trial counsel and the co-
defendants’ attorneys at trial did not appear to get along, but he acknowledged that each
defendant was seeking suppression of the same evidence. He said that he was surprised at
trial by Agent Justin Fox’s testimony that the petitioner had stayed inside the restaurant for
10 to 15 minutes when the petitioner was actually inside for at least 35 to 40 minutes. Other
than Agent Fox’s testimony, no evidence arose at trial of which the petitioner was not
already aware.
On redirect examination, the petitioner clarified that his first complaint to the
BPR was in April 2009. He stated that he asked trial counsel to seek a severance of his
trial from that of his co-defendants, but counsel never filed the motion. Trial counsel also
failed to file a motion to suppress evidence. The petitioner stated that trial counsel did not
properly investigate the case despite the petitioner’s requesting him to do so. The petitioner
said that he never saw trial counsel until the day of trial.
The BPR’s October 27, 2010 petition for discipline against trial counsel and
the supreme court’s orders temporarily suspending trial counsel from the practice of law
on September 8, 2008, and April 22, 2010, were exhibited to the hearing.
In its written order denying post-conviction relief, the post-conviction court
found that “the petitioner had filed a complaint with the [BPR] which found ethical
misconduct regarding competence, diligence and communication among other violations”
in trial counsel’s representation. The post-conviction court concluded that the petitioner
established counsel’s deficient performance but failed to establish that he was prejudiced
by counsel’s actions, stating that counsel’s performance did not “rise to the level of a
violation of a constitutional right to render his conviction and sentence void or voidable.”
In this appeal, the petitioner renews his argument that he was deprived of the
effective assistance of trial counsel and that he suffered prejudice in the outcome of his
case. The State concedes that the record supports the post-conviction court’s finding that
trial counsel performed deficiently but contends that the petitioner failed to establish that
he was prejudiced by counsel’s performance.
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
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(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).
Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).
We agree with the post-conviction court that the petitioner established that
trial counsel performed deficiently. The petitioner’s testimony and the exhibited petition
for discipline, which enumerated trial counsel’s ethical violations, established that counsel
failed to meet with or provide the petitioner with discovery materials until, at most, three
days before trial. Counsel also failed to respond to the petitioner’s attempts to
communicate with him.
Although the post-conviction court’s findings of fact are limited, the court
found that the BPR found ethical violations in trial counsel’s representation of the
petitioner, and we agree with that court’s conclusion that the petitioner has failed to
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establish that he was prejudiced by trial counsel’s deficient performance. Trial counsel’s
deficient representation alone is not enough to warrant post-conviction relief. The
petitioner has not shown how he could have achieved a different outcome at trial if he had
had adequate representation. He has not shown that he could have succeeded on a motion
to sever or a motion to suppress certain evidence, particularly in light of this court’s
affirming on direct appeal the denial of co-defendant Williams’ suppression motion. The
petitioner has also failed to provide any evidence of what information trial counsel could
have discovered with proper communication and investigation. Other than the testimony
of Agent Fox as to the petitioner’s length of stay inside of the restaurant, the petitioner said
that he was unsurprised by any evidence at trial, and, consequently, he has not shown how
his being provided discovery materials in a timely manner would have benefited his
defense.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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