Henry Eugene HODGES, Petitioner,
v.
Ricky BELL, Warden, Riverbend Maximum Security Institution, Respondent.
No. 3:01-624.
United States District Court, M.D. Tennessee, Nashville Division.
March 28, 2008.MEMORANDUM
WILLIAM J. HAYNES, JR., District Judge.
TABLE OF CONTENTS
I. Introduction ................................................................490
A. Discovery and Evidentiary Hearing Issues ................................493
1. Review of State Court Record ........................................494
2. Conclusions of Law ..................................................496
II. Petitioner's Non-Defaulted Claims ...........................................502
A. Procedural History ......................................................502
B. State Courts' Findings of Fact ..........................................503
C. Conclusions of Law ......................................................508
1. Ineffective Assistance of Counsel Claims ............................509
a. Ineffectiveness of Trial Counsel ...............................509
b. Ineffectiveness of Counsel at Sentencing .......................519
c. Ineffectiveness of Appellate Counsel ...........................528
d. The Validity of Petitioner's Guilty Plea .......................529
2. Petitioner's Jury Claims ...........................................529
a. Voir Dire ......................................................529
b. Jury Exemption .................................................536
c. Jury Instruction ...............................................537
3. State's Insufficient Proof of Aggravating Circumstances ............540
4. Victim's Mother's Presence at Trial ................................543
5. The Testimony of the State's Medical Examiner ......................545
6. Denial of Expert Services ..........................................546
7. Exclusion of TDOC Evidence .........................................547
8. Admission of Petitioner's Georgia Murder Conviction ................549
9. Tennessee's Proportionality Review of Death Sentences ..............550
10. Unconstitutional Death Penalty Statute .............................552
11. Production of Dr. Nurcombe's Notes .................................552
12. Dr. Kyser's Testimony ..............................................554
III. Defaulted Claims ............................................................555
A. Claims Found by the State Court to be Defaulted .........................555
B. Claims Challenged by Respondent as Defaulted ............................557
C. Conclusions of Law ......................................................559
1. Noncompliance with Applicable State Rules ............................561
2. "Firmly Established" and "Regularly Followed" State Rules ............561
3. Independent and Adequate State Rule ..................................562
4. Cause and Prejudice Requirement ......................................563
a. Cause .............................................................563
b. Prejudice .........................................................566
IV. Conclusion ..................................................................567
Petitioner, Henry Eugene Hodges, a state prisoner, filed this action under 28 U.S.C. § 2254, seeking the writ of habeas corpus to set aside his first-degree murder conviction for which he received the death sentence. The Court granted Petitioner's motion for appointment of counsel. (Docket Entry Nos. 3 and 5). Petitioner's counsel filed an amended petition asserting claims under Article I § 9 and Article III of the United States Constitution as well as the Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments to the United States Constitution (Docket Entry No. 32). The Respondent filed an answer (Docket Entry No. 39). In earlier proceedings, collateral issues arose about the Petitioner's conditions of confinement that the Court addressed in an Order (Docket Entry No. 100) that the Sixth Circuit later vacated. (Docket Entry No. 291).
In summary, Petitioner's amended petition[1] includes the following claims with numerous subparts, discussed infra:
(1) Denial of a fair and impartial jury in violation of the Sixth, Eighth, and Fourteenth Amendments, because the trial court precluded Petitioner from asking proper questions necessary to empanel a fair and impartial jury;
(2) denial of the effective assistance of counsel at trial and on appeal in violation of the Sixth and Fourteenth Amendments;
(3) the trial court's instructions at the sentencing proceeding were inaccurate and incomplete, in violation of the Eighth and Fourteenth Amendments;
(4) the trial court admitted testimony from prosecution witnesses that Petitioner showed no remorse in violation of the Eighth and Fourteenth Amendments;
(5) the trial court denied Petitioner funding for an expert in the field of genetic transmission of drug and alcohol dependency, and the effects of drug and alcohol abuse in violation of the Eighth and Fourteenth Amendments;
(6) the trial court allowed admission, as an aggravating circumstance, a Georgia conviction that occurred after the offense here in violation of the Due Process Clause of the Fourteenth Amendment;
(7) the State withheld material exculpatory evidence in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments;
(8) Petitioner's death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution because the State withheld material exculpatory evidence and presented false testimony at the sentencing phase of trial;
(9) the trial court allowed the State to intrude unconstitutionally into Petitioner's preparation for the sentencing hearing in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendment by: 1) ordering Petitioner to provide the State notice of witnesses Petitioner would present at his sentencing hearing; 2) ordering Petitioner to provide the State with his expert's report; 3) ordering Petitioner to submit to an evaluation performed by the State's experts, Drs. Kyser and Morgan; and 4) ordering that Petitioner to produce Dr. Nurcombe's notes from his interview of Petitioner and in preparation of his report;
(10) the trial court allowed educated persons fitting occupational categories to exempt themselves from jury service and denied Petitioner funds to employ an expert to provide statistical evidence in support of this claim in violation of the Sixth, Eighth, and Fourteenth Amendments;
(11) the trial court precluded Petitioner from inquiring of prospective jurors 1) whether they could consider mitigation evidence if they learned that Petitioner had previously been convicted of another murder; and 2) whether they believed that Petitioner would be incarcerated for the remainder of his life if the jury sentenced him to life imprisonment in violation of the Sixth, Eighth, and Fourteenth Amendments;
(12) the trial court failed to strike for cause prospective jurors who stated that they would automatically impose a death sentence; 2) struck for cause prospective jurors who, while they expressed reservations respecting the death penalty, indicated that they could follow the law; 3) failed to strike incompetent jurors; and 4) failed to strike a former girlfriend of a police officer who was involved in the investigation into the murder in violation of the Sixth, Eighth, and Fourteenth Amendments;
(13) the trial court and the prosecution obtained from prospective jurors a promise that if Petitioner was found guilty of first-degree murder, and if they found that aggravating evidence outweighed mitigating evidence, they would do their "duty and obligation" to return a death sentence in violation of the Sixth, Eighth, and Fourteenth Amendments;
(14) the trial court did not prevent or rectify the prosecutors inflammatory conduct in violation of the Sixth, Eighth, and Fourteenth Amendments;
(15) the trial court denied Petitioner funds necessary to employ an expert to testify about genetic and environmental causes of substance abuse in violation of the Eighth and Fourteenth Amendments;
(16) the trial court denied Petitioner the right to present the jury with relevant mitigating evidence in violation of the Sixth, Eighth, and Fourteenth Amendments;
(17) the trial court denied Petitioner's request for specific sentencing instructions and gave the jury improper instructions in violation of the Eighth and Fourteenth Amendments;
(18) Petitioner's conviction and death sentence violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because Petitioner as incompetent to stand trial due to neurological, bio-chemical, and psychological impairments of the central nervous system and brain;
(19) Petitioner's conviction and death sentence violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because Petitioner was incompetent to plead guilty due to neurological, bio-chemical, and psychological impairments of the central nervous system and brain;
(20) Petitioner's conviction and sentence violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because Petitioner' guilty plea was not made knowingly, intelligently or voluntarily;
(21) Petitioner's conviction and death sentence violate the Fifth, Sixth, Eight and Fourteenth Amendments to the United States Constitution because the prosecuting and/or law enforcement authorities coerced Trina Brown into changing her statement that she was in fact the true killer of the victim, Ronald Bassett;
(22) Petitioner's death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the prosecutor knowingly presented the false testimony;
(23) Petitioner's conviction and death sentence violate the Sixth, Eighth, and Fourteenth Amendments because Petitioner is actually innocent of the crime of first degree, premeditated murder;
(24) Petitioner's death sentence violates the, Sixth, Eighth, and Fourteenth Amendments because of juror misconduct;
(25) Petitioner's death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because Tennessee's death penalty statute is unconstitutional;
(26) Petitioner's death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because the trial court denied Petitioner the right to participate in the voir dire process and to make an unsworn statement to his sentencing jury;
(27) The Tennessee appellate courts' proportionality review violated Article I, §§ 8 and 16 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the United States Constitution;
(28) Electrocution constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments;
(29) Lethal injection constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments;
(30) In violation of the Eighth and Fourteenth Amendments, Petitioner is not competent to be executed. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986);
(31) The cumulative effect of the errors at trial denied Petitioner due process of law under the Fourteenth Amendment; and
(32) Petitioner was denied a full and fair state post-conviction proceeding due to errors of the post-conviction court.
(See Docket Entry No. 32, Amended Petition at pp. 3-41). Within these claims are numerous subparts that are discussed infra. From the Court's review, in his supplemental brief, Petitioner presents additional claims. See Docket Entry Nos. 303 and 307.
In earlier proceedings, the Court entered several orders granting Petitioner's discovery requests. (Docket Entry Nos. 30, 79, 80 and 82). The Court also held a hearing on Petitioner's additional discovery requests and on whether to conduct an evidentiary hearing on the merits of Petitioner's claims. The Court addresses those two issues first and thereafter decides the merits of Petitioner's exhausted claims and Respondent's procedural default contentions.
A. Discovery and Evidentiary Hearing Issues
For his discovery subjects, Petitioner contends that in his state post-conviction proceedings: (1) the state trial court did not allow his counsel adequate time for discovery; (2) the state trial court denied funding of a mitigation specialist and physician with expertise in drug abuse disorders; (3) the state trial court denied his post-conviction counsel's request for a continuance despite the report of the mitigation specialist that her report was incomplete; (4) Petitioner's post-conviction counsel were unable to locate two witnesses: Trina Brown, Petitioner's accomplice who now insists that she murdered the victim and Leroy Thompson, a juror whose pain allegedly precluded him from deliberating at the sentencing; and (5) subsequent events reveal false testimony and misconduct by Dr. Charles Harlan, the medical examiner who testified at Petitioner's sentencing hearing.
For specific discovery, Petitioner seeks all of the files of the Federal Bureau of Investigation ("FBI") and the Tennessee Bureau of Investigation ("TBI") on the victim's murder, the files of the Metropolitan-Davidson County Medical Examiner's Office, and Petitioner's institutional records at the Metropolitan-Nashville Davidson County jail during his pretrial and presentence confinement. Petitioner's requests for the FBI and TBI files are premised on Brown's incriminating statement and are cited as potential sources of Brady materials. The requests for the medical examiner's records are based upon Petitioner's assertions about Dr. Harlan. Petitioner also requests to take the depositions of detectives Bill Pridemore and Pat Postilone of the Metropolitan-Davidson County Police Department and Dr. Harlan. The Pridemore and Postilone deposition requests are also premised upon Brown's statement and the search for Brady material.
Petitioner requests an evidentiary hearing on the issues of:(l) the ineffective assistance of his trial and appellate counsel (Docket Entry No. 32, Amended Petition at ¶ 2); (2) his competency at the time of his trial, id. at ¶ 30, 31, 32; (3) the prosecutors' withholding of exculpatory evidence namely, that Trina Brown and Dr. Charles Harlan's testimony was false, id. at ¶ 18, 19, 33, 34, 35; (4) a related claim that Brown and Dr. Harlan testified falsely; (5) the improper conduct of juror Thompson, id. at ¶ 36; (6) the State's method of execution that constitutes cruel and unusual punishment, id. at ¶ 42; and (7) his responses to the Respondent's contentions of procedural default. See Docket Entry No. 219, Petitioner's Response.
Respondent argues that Petitioner has not shown good cause for discovery and the discovery sought will not result in habeas relief and does not impact the claims that are properly before the Court. (Docket Entry No. 28).
The discovery and evidentiary hearing issues are factually interrelated. As discussed infra, the legal standards are also similar. Therefore, the Court will analyze these requests jointly. An initial review of the state court record is necessary to decide both issues.
1. Review of the State Court Record
Prior to the scheduled trial, the state trial court entered several orders appointing experts for the Petitioner. For sentencing issues, Petitioner had the assistance of a psychiatrist and psychiatric testing by a clinical psychologist who has a Ph.D. as well as private investigative services. (Docket Entry No. 40, Addendum No. 1, Volume 1, Order dated May 19, 1992). Dr. Barry Nurcombe, an accomplished and experienced psychiatrist interviewed Petitioner on several occasions. Dr. Pamela Auble, Ph.D., a clinical psychologist and neuropsychologist, administered a battery of psychiatric tests to Petitioner. Dr. Ann Charvet, a clinical sociologist and mitigation specialist also provided services as reflected in the state courts' orders and their billing statements. Id. at Addendum No. 1, Orders of September 13, 1991, January 2, 1992 and May 19, 1992. Dr. Nurcombe's report was filed on December 13, 1991. Id. See also Hodges v. State, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865 at **3-4 (Tenn.Crim. App. Oct.20, 2000).
The state court record includes has extensive transcripts of the sentencing hearing, and voir dire of the jury. (Docket Entry No. 40, Addendum No. 2, Volumes 1 through 10). The voir dire transcript includes the examination of juror Thompson. Id. at Volume 7, at pp. 926-43. At Petitioner's sentencing hearing, Petitioner's mother and brother testified about Petitioner's personal history. Dr. Nurcombe presented his evaluation of Petitioner at sentencing. Petitioner also had an evidentiary hearing on his motion for a new trial where the defense team unsuccessfully attempted to attack the veracity of Dr. Harlan's testimony.
For his post-conviction proceeding, the state trial court authorized payment for a forensic expert and mitigation specialist. Hodges, 2000 WL 1562865 at **28-30. As summarized by the Tennessee appellate court, Petitioner also presented testimony of Dr. Ann Charvet, a clinical sociologist about the mitigation efforts to Petitioner's trial. Id. at **9-10. Julie Hackenmiller, a mitigation specialist who was retained for the post-conviction hearing also testified about her research. Id. at **11-12. Hackenmiller had Petitioner's high school, medical and juvenile records, as well as Petitioner's family records and his psychiatric reports. Id. Hackenmiller did not have Petitioner's Georgia and Florida prison records and assert that she "needed more time to interview one of the [Petitioner's] school principals regarding teasing by other students endured by the [Petitioner]". Id. at *11. Petitioner's counsel also attained a concession from Dr. Bruce Levy, the medical examiner for Metropolitan-Davidson County and Chief Medical Examiner for the State of Tennessee, that he disagreed with Dr. Harlan's opinion on the length of time before the victim died. Id. at *13.
The State post-conviction record also includes an affidavit of Dr. Kris Sperry that Dr. Harlan's testimony "grossly exaggerates the time" the victim was conscious. Id. at **15-16. Petitioner examined his three trial counsel extensively. Id. at **4-9. In addition to his three trial counsel, Petitioner called the chief counsel of the Tennessee District Public Defender agency to opine on Petitioner's trial counsel's work. Id. at *10. The testimony of Petitioner's trial counsel in the post-conviction proceeding is two volumes. (Docket Entry No. 40, Addendum No. 8, Volumes 1 and 2).
In a videotaped statement, Trina Brown recants her testimony at Petitioner's trial. This videotaped statement represents another instance of Brown's inconsistency about her role in the victim's death. At Petitioner's sentencing hearing, Brown also claimed responsibility for the victim's death. As the state appellate court found:
Trina Brown testified that the appellant did not want to kill the victim and that it was she, not the appellant, who made the decision to kill the victim. FN8 She was afraid that if the victim was permitted to live, he would have the appellant arrested, and as a result, she would lose the appellant. Therefore, she told the appellant to kill the victim. The appellant admitted on cross-examination that both he and Brown tried to manipulate each other. He admitted that he had previously stated that Brown "would jump off a building" if he asked her.
FN8 The appellant admitted, however, that this was the first time Trina Brown had revealed this fact. Her prior statements were contrary to this testimony. It is also contrary to her testimony that the appellant had told her on two separate occasions that he was going to murder and rob the next homosexual that propositioned him in order to raise money for their move to Florida. She apparently thought she could prevent the imposition of a death sentence by testifying in this manner. She admitted that she still loved the appellant and would do anything to help him. They continued to communicate with each other through letters and tapes.
State v. Hodges, No. 01-C-01-9212-CR00382, 1995 WL 301443, at *4 (Tenn. Crim.App. May 18, 2005) (emphasis added).
As to Dr. Harlan, Petitioner states that "Harlan's bias, prejudice, incompetence and fraudulent activities were not brought to light and available to Mr. Hodges until initial charges were brought in 2002 and proceedings were conducted before the Board of Medical Examiners in 2003." (Docket Entry No. 230, Petitioner's Supplemental Memoranda at p. 43 n. 12).
Petitioner also filed six volumes of documents (Docket Entry Nos. 230 through 284) consisting of thousands of pages, but without any detailed analysis of those documents and their specific relevance to the evidentiary hearing. First, many of the documents, such as Petitioner's personal, medical, school and juvenile records, as stated earlier, were reviewed and relied upon by psychiatrists and psychologists in the State court proceedings. Those documents do not justify an evidentiary hearing. Some documents are of questionable probative value, e. g., a copy of Petitioner's 1980 doctor visit when he was 14 for an infection of his tonsils and adenoids, id. at Volume 1 at Exhibit 11, and documents of Trina Brown's parents' divorce proceedings that did not decide any relevant matters for Trina Brown. Id. at Exhibit 55. Much of the Petitioner's institutional records are not shown to have any apparent probative value to his claims in this action. The only different information on Petitioner's medical condition are the two affidavits of physicians discussed infra. Without detailed analysis of these massive materials to show their relevance on discovery and evidentiary issues, the Court considers the effect of these voluminous submissions that the Court had to search for possible relevance, is a delay of the proceedings.
Petitioner submitted affidavits by Dr. Murray Smith, an internist who specializes in drug disorders and Dr. George Woods, a psychiatrist. Id. at Volume II, Exhibits 4 and 5. In his one page affidavit, Dr. Smith opines that Petitioner has a bipolar disorder and if retained, he would have recommended that counsel retain a psychiatrist. Id. at Exhibit No. 4. In his two page affidavit, Dr. Woods who has been evaluating Petitioner since 2004, opines that Petitioner has serious bipolar disorder and traumatic stress. Id. at Exhibit 5. Dr. Woods opines that Petitioner was unable or incapable of deliberating at the time of the murder and was unable to conform his conduct to the law because Petitioner had a severe emotional disturbance. Although Dr. Woods's affidavit references his two prior reports, those reports are not attached to his affidavit.
The record reflects that Petitioner has had numerous mental evaluations by psychiatrists and psychologists. In 1981, Dr. Joseph Fishbein, a psychiatrist, examined Petitioner, cited his drug use, and found a "conduct disorder", but did not diagnose Petitioner as having a bipolar disorder. Id. at Exhibit 12. Dr. James Campbell, a psychologist, did not find any "disturbance of psychotic proportion" but who found a "behavioral disorder of adolescence". Id. In 1981 Dr. Michael E. Slezah, a clinical psychologist found Petitioner to have impulsive behavior and "poor internal controls". Id. at Exhibit 13. In 1983, Dr. Ross Campbell, a psychiatrist opined that Petitioner had "all criteria of antisocial personality disorder" and was the "aggressive type with psychopathic tendencies." Id. A 1990 psychological assessment by the Georgia correctional psychologist diagnosed Petitioner with an Axis II Antisocial Personality Disorder. Id. at Exhibit 21 at p. 15. This report reflects Petitioner's statement that he "hates homosexualswould go out seeking them and killing them". Id. at p. 46.
In 1992, prior to his trial, Dr. Leonard Morgan, a clinical psychologist evaluated Petitioner for the state court on whether Petitioner had a "diminished capacity." Dr. Morgan found that Petitioner's "intellectual ability is within normal range. There is no evidence of disorder of mood, memory orientation or thought patterns." Id. at Attachment 14. As noted, Dr. Nurcombe, a psychiatrist for the defense at the sentencing hearing did not find any such bipolar disorder. Finally, Dr. Morgan and Dr. James Kyser, forensic psychiatrist evaluated Petitioner for the State. These doctors found Petitioner to have an antisocial personality, but he was not suffering from any mental illness or emotional disturbance and "was in complete control of his behavior". State v. Hodges, 944 S.W.2d 346, 351 (Tenn.1997).
2. Conclusions of Law
Rule 6(a) of the Rules Governing Section 2254 Actions provides a good cause standard for discovery.
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.
In Bracy v. Gramley, 520 U.S. 899, 908-909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997), the Supreme Court described the standard for good cause under Rule 6(a) as "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)). Accord Williams v. Bagley, 380 F.3d 932, 974 (6th Cir.2004).
Petitioner argues that as an initial petition involving a death sentence, he is entitled to discovery to discern any constitutional violations in his conviction and sentence. If this were the initial proceeding, the Court is inclined to agree, but Petitioner has had two extensive proceedings in the state courts with opportunities for discovery. In addition, the law in this Circuit as stated in Stanford v. Parker, 266 F.3d 442 (6th Cir.2001) is that there is not an automatic right to discovery.
Habeas petitioners have no right to automatic discovery. A district court has discretion to grant discovery in a habeas case upon a fact specific showing of good cause under Rule 6. See Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir.2000) ... The burden of demonstrating the materiality of information requested is on the moving party. See Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir.2000).
The district court applied the correct legal standard in light of the evidence and the state court proceedings. The discovery sought by Stanford would not resolve any factual disputes that could entitle him to relief, even if the facts were found in his favor. To the contrary, Stanford's requested discovery, when reviewed in light of the recently examined record, falls more in the category of a fishing expedition. We will not find that a district court erred by denying a fishing expedition masquerading as discovery.
Id. at 460.
"Conclusionary allegations are not enough to warrant discovery under Rule 6 of the Federal Rules Governing Section 2254 Petitions; the petitioner must set forth specific allegations of fact." Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994). In addition, discovery is unavailable "where undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material." Williams v. Bagley, 380 F.3d 932, 976-77 (6th Cir.2004) (quoting Byrd v. Collins, 209 F.3d 486, 518 (6th Cir.2000)). In this regard, the state courts' determinations of the facts are entitled to a statutory presumption of correctness, 28 U.S.C. § 2254(e)(1) and with certain exceptions, this Court's review is limited to "the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
Discovery requests must also be considered in the context of 28 U.S.C. § 2254(e)(1) on the presumptive correctness of state court finding.
Because Petitioner failed to rebut the statutory presumption of correctness that the federal habeas court must award to the factual findings of the state courts, the district court properly concluded that it was required to defer to those factual findings. Furthermore, given this conclusion, we would be hardpressed to say that the district court abused its discretion in denying further discovery on these issues.
Byrd 209 F.3d at 516. See also Moen v. Czerniak, No. Civ.02-10-JE, 2004 WL 1293920 at *1 (D.Or. June 10, 2004) ("Discovery under Rule 6 must be considered in light of the provisions of 28 U.S.C. 2254(e)(2) which limit the scope of federal habeas corpus review to the state court record except [in] certain specified circumstances...").
Also relevant is consideration of the habeas petitioner's failure to utilize any available state discovery procedures. In Byrd, the Sixth Circuit stated:
We find nothing in the record to indicate that Petitioner's counsel otherwise utilized the August 5th order or Ohio Rev. Code § 149.43 to pursue further discovery. Counsel claims that, on an undisclosed date, he met with an employee of the Ohio Auditor of State to discuss a "Furtherance of Justice Account" and was informed that the Hamilton County Auditor's Office would have audit oversight responsibility for the prosecutor's disbursements from such an account. There is no indication whatsoever that, after receiving such information, counsel either attempted to obtain these records from Hamilton County or pursue a public records action.
209 F.3d at 507. As discussed infra, Tennessee law on post-conviction proceeding provide ample overview for discovery.
For Petitioner's request for an evidentiary hearing, in the Antiterrorism and Effective Death Penalty Act, ("AEDPA"), Congress redefined the standards for conducting an evidentiary hearing in a habeas action:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that(A) the claims relies on(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
In Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), the Supreme Court explained that if the petitioner demonstrated diligence, then the inquiry ends, but if there is an issue of diligence the focus is on whether the petitioner or his counsel knew of the matters at issue and failed to pursue the matter:
The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts ... Diligence for purposes of the opening clause [of Section 2254(e)(2)] depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful.
* * *
For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must to diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.
* * *
Given knowledge of the report's existence and potential importance, a diligent attorney would have done more. Counsel's failure to investigate these references in anything but a cursory manner triggers the opening clause of § 2254(e)(2).
As we hold there was a failure to develop the factual basis of this Brady claim in state court, we must determine if the requirements in the balance of § 2254(e)(2) are satisfied so that petitioner's failure is excused ... upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error.
Id. at 435, 437, 439-440, 120 S.Ct. 1479.
Independent of § 2254(e)(2), the Court also has the inherent authority to set an evidentiary hearing in a habeas action. Abdur'Rahman v. Bell, 226 F.3d 696, 705-06 (6th Cir.2000). "[A] district court does have the inherent authority to order an evidentiary hearing even if the factors requiring an evidentiary hearing are absent." Id. at 705. Such hearings are set "to settle disputed issues of material fact." Id. at 706. Yet, "if [the court] concludes that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, [the court] may, and ordinarily should accept the facts as found in the hearing, but [the court] need not. In every case [the court] has the power, constrained only by [its] sound discretion, to receive evidence bearing on the applicant's constitutional claim." Id. (quoting Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). This authority extends to determine factual issues or if an inadequate record exist, on a procedural default controversy. Alcorn v. Smith, 781 F.2d 58, 60 (6th Cir.1986).
Even prior to ADEA, a habeas petitioner had to show cause for his failure to develop the state record or that "a fundamental miscarriage of justice would result from failure to hold an evidentiary hearing," Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In a word, the distinction between § 2254(e)(2) and the Court's inherent authority to order a hearing is "when a petitioner is entitled to a hearing [under § 2254(e)(2)] ... versus whether a district court has the inherent authority to order a hearing [that] is still intact following Williams." Abdur'Rahman, 226 F.3d at 706. Evidentiary hearings have been held to be appropriately denied where the habeas petitioner "has not shown that his ... claims would result in no reasonable factfinder finding him guilty of the underlying offenses ... We therefore conclude that the district court did not abuse its discretion by declining to conduct an evidentiary hearing." Abdus-Samad v. Bell, 420 F.3d 614, 626-27 (6th Cir.2005).
Moreover, the Supreme Court and the Sixth Circuit have observed that: "The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings." Keeney, 504 U.S. at 9, 112 S.Ct. 1715. Accord Byrd v. Collins, 209 F.3d 486, 516-17 (6th Cir.2000) (quoting Keeney, 504 U.S. at 9, 112 S.Ct. 1715). More recently, the Supreme Court stated "[W]e have made clear that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it". Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004).
After the conference with counsel, a review of the state court record and Petitioner's submissions, the Court concludes that Petitioner has not shown good cause for additional discovery. Petitioner contends that he was constrained in the state post-conviction proceeding by the trial court's failure to provide funding and adequate time for post-conviction counsel to prepare. This contention is without merit. First, Tennessee case law and statutes authorize discovery in state post-conviction proceedings. Under Tennessee law, Petitioner could have sought discovery, filed affidavits, taken depositions and requested subpoenas in the post-conviction proceeding. See Tenn.Code Ann. § 40-30-109. Under the habeas corpus statutes, a party can petition the presiding Court to issue subpoenas. Tenn.Code Ann. § 29-21-121(a). The availability of depositions in the state post-conviction proceeding is reflected in Strouth v. State, 755 S.W.2d 819, 827 (Tenn.Crim.App.1987) ("In a deposition taken in 1982 for Dieks's post-conviction hearing, McMahan testified that he had been offered money and accepted the offer, because `[y]ou know, no man is going to turn down a thousand bucks to tell the truth'").
Moreover, from 1992 to 1995, the Tennessee courts held that law enforcement files are subject to the Tennessee Public Records Act for disclosure and that attorneys could seek access to such files for clients with capital sentences in post-conviction proceedings. See Capital Case Resource Center Tennessee, Inc. v. Woodall, No. 01-A-019104CH00150, 1992 WL 12217 at *5 (Tenn.Ct.App. Jan.29, 1992). Although Woodall was later modified by statute in 1995, Waller v. Bryan, 16 S.W.3d 770, 774-75 (Tenn.Ct.App.1999), Petitioner had this window of opportunity to review the State's files after his death sentence in 1992. With certain exceptions, FBI records are subject to disclosure under the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552(a) through(g).
As to Petitioner's contention of denial of necessary expert services in the state post-conviction process, first, "[t]here is no constitutional requirement that the State provide a psychiatrist for post-conviction proceedings." Deputy v. Taylor, Civ. A. No. 93-387 LON, 1993 WL 643368 at *5 (D.Del.1993). Second, in 1995, the Tennessee Supreme Court rendered Owens v. State, 908 S.W.2d 923 (Tenn.1995) that authorizes such funding in capital cases in post-conviction proceedings. As a matter of fact for Petitioner's trial and post-conviction proceedings, the state trial court authorized several experts to assist the Petitioner's counsel with one exception, the a physician specializing in drug addiction. The Tennessee courts found that Petitioner's drug use and history were factual matters that could be argued by counsel. Given the appointment of a psychiatrist and a psychologist, this Court deems the state court's ruling on this issue to be reasonable.
As to Petitioner's submission of medical evidence, Drs. Woods's and Smith's affidavits reflect their conclusions without any consideration of the facts of the murder, the findings of the state courts or the opinions of other psychiatrists who examined Petitioner throughout his life and at, or shortly after the murder. Such conclusory opinions do not warrant an evidentiary hearing and lack probative value. Any psychiatric evaluation of a habeas Petitioner's mental competence years after the critical events or "well after trial" "lack[s] the same relevance" as evaluations prior to trial. Harries v. Bell, 417 F.3d 631, 636 (6th Cir.2005). In Harries, the Court ruled that notwithstanding a "bipolar disorder" and "anxiety disorder", the habeas petitioner was competent for trial purposes based upon mental evaluations with different diagnoses prior to trial. Id. at 635, 636. Here, as outlined above, there were multiple evaluations of Petitioner prior to trial and prior to sentencing and none corroborate Dr. Woods's opinion.
Dr. Woods' opinion is wholly at odds with the facts of the murder, as described by Petitioner's girl friend and as found by the state courts. These facts reflect that Petitioner planned the murder and how he would commit the murder, announced his intentions, solicited a customer, went to the victim's house, handcuffed and taped the victim, went to get his girl friend and returned to murder the victim. Thereafter, the Petitioner took the victim's personal property, used his bank card, withdrew funds, commanded the victim's vehicle and later escaped to Georgia, where he planned and committed a second murder in a similar modus operandi These facts clearly reflect the Petitioner's sustained deliberative plan and execution of his murder plan. Dr. Woods's failure to address any of these facts and his stated reliance upon Petitioner and his counsel for information deprives his opinion of any probative value as a matter of fact.
Petitioner submits the affidavits of his trial counsel that if they had had Dr. Woods's opinion about Petitioner having a bipolar disorder, then they would have gone to trial or presented this condition as a defense and as mitigation evidence. Several defendants in Tennessee with bipolar disorders have been convicted by jury trial, State v. Thacker, 164 S.W.3d 208, 219-20, 232 (Tenn.2005); Morris v. State, No. W2005-00426-CCA-R3-PD, 2006 WL 2872870 *19-20, 22-23, 62 (Tenn. Crim.App. Feb.26, 2007) (discussing and rejecting the opinion of Dr. Woods and others) and had their guilty pleas upheld. See e.g., Henderson v. State, No. W2003-01545-CCA-R3-PD, 2005 WL 1541855 at **17-20, 37 and 47 (Tenn.Crim.App. Dec. 5,2005). See also United States v. Moore, 180 Fed.Appx. 571, 573 (6th Cir.2006) (upholding sentence based upon a guilty plea of a defendant who had been diagnosed with bipolar disorder).
The Court has reviewed Brown's affidavit adopting her statement on the videotape as well as the videotape itself. Based upon that review and her demeanor on the videotape, her prior testimony at sentencing and the Tennessee appellate court's findings about Brown's credibility, the Court does not find Brown's videotaped statement to be credible so as to justify the additional discovery sought nor to hold an evidentiary hearing.
The critical issue with Dr. Harlan is his opinion that the victim could have lived for up to five minutes after Petitioner started his strangulation of the victim. Here, Dr. Levy testified that he disagreed with that opinion. There is not any showing that any such questionable testimony or conduct of Dr. Harlan occurred prior to the time of Petitioner's trial. The cited proof about Dr. Harlan involves events that occurred in 1995 that is three years after Petitioner's trial. Because the questionable events did not come to light until 2002, long after Petitioner's trial, and despite discovery in the state courts and this Court, there is not any reason to conclude that the state prosecutors were aware of the conduct that required disclosure under Brady. In any event, Brown who was present at the murder, testified at sentencing that about five minutes passed before the victim died. See infra at p. 45. Aside from Dr. Harlan's disputed testimony, Brown's testimony at sentencing constitutes a wholly independent factual basis for the jury's finding of an aggravating circumstance, in addition to the Tennessee court's ruling on the issue. Supra at p. 75. This contention does not merit additional discovery nor an evidentiary hearing.
On the necessity for an evidentiary hearing on Petitioner's claims about his trial and appellate counsel's performance, given the multi-volume transcript of the state post-conviction evidentiary hearings as well as the expert services to assist counsel in those proceedings, the Court concludes that Petitioner had a full and fair hearing for his claims. As to matters that were not pursued in the state post-conviction hearing, Petitioner does not have a constitutional right to counsel in post-conviction healings. Under Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) and Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) the right to counsel does not extend beyond the first appellate process. Thus, counsel errors in state post-conviction proceedings are not grounds for cause because there is no right to counsel for these proceedings. As the Supreme Court explained in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991):
[W]e decline[] . . . to extend the right to counsel beyond the first appeal of the criminal conviction. We held in Ross that neither the fundamental fairness required by the Due Process Clause nor the Fourteenth Amendment's equal protection guarantee necessitated that States provide counsel in state discretionary appeals where defendants already had one appeal as of right. . . . Similarly, in Finley, we held there is no right to counsel in state collateral proceedings after exhaustion of direct review. . . .
Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that Coleman had a right to counsel to appeal a state collateral determination of his claims of trial error.
Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas.
501 U.S. at 756-57, 111 S.Ct. 2546. Accord Ritchie v. Eberhart, 11 F.3d 587, 591-92 (6th Cir.1993) and 28 U.S.C. § 2254(i) (codifying this principle).
The Court applies the same principle to the evidentiary hearing issue. If Petitioner's post-conviction counsel failed to pursue a matter, that omission could not be considered on the merits and therefore, cannot justify an evidentiary hearing.
For these collective reasons, the Court concludes that Petitioner has not shown good cause for his discovery requests and his request for evidentiary hearing is not justified under the circumstances here.
II. Petitioner's Non-Defaulted Claims[2]
A. Procedural History
On August 31, 1990, the Petitioner was indicted on charges of first degree murder, first degree murder during commission of a crime and aggravated burglary. In 1991, Hodges pled guilty in the Circuit Court of Davidson County, Tennessee, to first-degree murder and aggravated robbery. In 1992, after a sentencing hearing, and based upon the jury's findings of aggravating circumstance, the judge sentenced Hodges to death on the first degree murder charge and to a forty year sentence on the aggravated robbery conviction to be served consecutive to his death sentence. The Tennessee Court of Criminal Appeals affirmed his conviction and sentence. State v. Hodges, 1995 WL 301443 (Tenn.Crim.App.1995). The Tennessee Supreme Court upheld Petitioner's death sentence. State v. Hodges, 944 S.W.2d 346 (Tenn.1997).
Hodges filed his only state petition for post-conviction relief that the trial court denied. The Tennessee Court of Criminal Appeals affirmed the trial court's order denying the petition. Hodges v. State, No. M1999-00516-CCA-R3-PD 2000 WL 1562865 (Tenn.Cr.App. Oct. 20, 2000). The Tennessee Supreme Court denied his application for permission to appeal on March 26, 2001.
B. State Courts' Findings of Facts
In its decision, the Tennessee Supreme Court made the following factual findings[3] on the circumstance of the Petitioner's conviction.
The defendant, Henry Eugene Hodges, entered a guilty plea and was convicted of premeditated first-degree murder. Thereafter, the penalty phase of the trial commenced. The State presented proof of the circumstances of the offense through the testimony of Trina Brown, the defendant's fifteen-year-old girlfriend. Brown testified that one week before the murder she and the twentyfour-year-old defendant, who were living with the defendant's brother in Smyrna, Tennessee, decided to move to Florida. To get money for the move, Hodges, a male homosexual prostitute, told Brown that he would rob and kill the next person who propositioned him. Hodges discussed with Brown how the crimes would be carried, out. Hodges repeated these statements on May 14, 1990, the day of this murder.
On the night of May 14, Brown and Hodges went to Centennial Park in Nashville. When the victim, Ronald Bassett, approached Hodges talked with him, and they left together in the victim's vehicle and went to the victim's residence at 3133A, Parthenon Avenue, across from Centennial Park. Ten or fifteen minutes later, Hodges returned to the park on foot, and along with Brown, drove back to the victim's residence in his own car. Hodges told Brown to lie down in the backseat of the car so no one could see her. When they arrived at the victim's residence, Hodges told Brown to wait in the car. After an unspecified period of time, Hodges returned to the car, wearing gloves, and asked Brown to come into the house. Brown testified that when she arrived, Bassett was lying face down on the bed in his bedroom with a pillow over his head. Hodges had bound his feet together with duct tape and had handcuffed his hands. While Bassett lay helplessly, Brown and the defendant ransacked the house searching for items of value. After obtaining the personal identification number for the victim's automatic teller card, Brown and the defendant "took a break," drank a coke, and discussed whether to kill Bassett. Brown testified that she told Hodges to kill Bassett to prevent their arrest. Hodges then went into the bedroom and, ignoring the victim's pleas not to kill him, strangled Bassett to death with a nylon rope. Brown testified that she heard Bassett moan and make a choking sound and that it took about five minutes for Bassett to die.
In an attempt to remove any fingerprints, the defendant wiped off various items in the residence. After turning the air conditioner in Bassett's bedroom on high to prevent discovery of the body, Hodges and Brown left the victim's residence, taking the victim's automobile and several items of personal property, including jewelry, a gun, and a VCR. After using Bassett's automatic teller card to withdraw the twenty-four-hour maximum of four hundred dollars from his account, the pair returned to the house of the defendant's brother and went to bed. The next day, having learned that the victim's body had been discovered, Brown and the defendant abandoned the victim's car in rural Rutherford County and drove to Georgia in their own car. They were eventually arrested in North Carolina. Items of the victim's personal property were found in their possession at this time. Also, the defendant's fingerprints were found on items inside Bassett's home, and Brown had been photographed withdrawing money with Bassett's automatic teller card.
949 S.W.2d at 349-50.
As to the facts on Petitioner's sentencing, the Tennessee Supreme Court made the following findings.
Testifying for the State at the sentencing hearing, Dr. Charles Harlan, the chief medical examiner for Metropolitan Nashville and Davidson County, confirmed that Bassett had died from ligature strangulation. Dr. Harlan opined that Bassett would have remained alive and conscious for at least three and perhaps as long as five minutes during the strangulation. Harlan also found abrasions on the victim's wrists consistent with handcuffs.
The State proved that the defendant had been convicted of armed robbery, attempted kidnaping and robbery in Hamilton County in 1984. The State also established that the defendant had been convicted of murder in Fulton County, Georgia, in July 1990. The record reveals that the Georgia killing occurred when the defendant and Brown arrived in Atlanta after murdering Bassett. Hodges made arrangements with a man to engage in homosexual acts for an agreed price. Hodges accompanied the man to his motel room, but when the man was unable to pay the agreed price, Hodges murdered him.
In mitigation, the defendant testified FN6 and also presented the testimony of his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist. This proof showed that the defendant was the next to youngest of his mother's five sons. His mother and father were not married. His father was actually married to another woman, but engaged in what one of the witnesses described as an "irregular union" with the defendant's mother for eighteen years. The defendant's father abused the defendant's mother and was strict with the defendant's brothers, three of whom were the children of another man. The defendant, however, was his father's favorite and was spoiled. Financial difficulties forced the family to move about frequently, and defendant's father supported the family only sporadically.
FN6 The defendant testified only about his personal history, particularly his alleged sexual abuse at age twelve. In this pre-Cazes proceeding, the trial court correctly limited the State to questions concerning personal history and did not allow cross-examination on the circumstances of the offense. See State v. Cazes, 875 S.W.2d 253, 264-267 (Tenn.1994).
The defense introduced proof to show that Hodges seemed normal until he was twelve years old. At that time, he began to associate with older boys, sniff glue and gasoline, be truant from school, and run away from home. He also engaged in sexual activities with his younger brother and attempted sexual activities with a female cousin. He became involved with the juvenile authorities and was confined to a juvenile facility in Chattanooga.
Through his mitigation proof, the defendant attempted to establish that a catalyst and major contributing cause of his delinquent and later criminal behavior was his rape and sexual abuse by a stranger when he was twelve years old. According to the defendant, he accepted a stranger's offer of a ride home when he was playing a short distance from his home on Fessler's Lane in Nashville. Rather than driving Hodges home, the stranger drove Hodges to his home and raped him. Fearing rejection by his homophobic father and driven by guilt, the defendant told no one of this incident until he was arrested in 1990.
Dr. Nurcombe testified that, while the defendant suffered from an antisocial personality disorder, low self-esteem, and substance (marijuana) abuse, the killing was motivated by a subconscious desire for revenge for the sexual abuse inflicted on him when he was twelve, coupled with Hodges' fear that his family might discover that he was engaged in homosexual prostitution since Brown had told Hodges's sister-in-law shortly before the killing that he was a homosexual prostitute. The defense also introduced testimony that Brown dominated and manipulated the defendant.
In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and Dr. Leonard Morgan, a clinical psychologist. Both had examined the defendant and concluded that he suffered from an antisocial personality disorder. They described persons with this disorder as having "no conscience," being "self centered," being "notoriously dishonest and untruthful," and having "very little regard for the feelings of others and . . . willing to use any means to get what they want, no matter who it hurts." While acknowledging the complicated factors involved in antisocial personality disorders, the State's experts discounted the singular importance of the one incident of alleged sexual abuse in causing the defendant's actions. Dr. Morgan concluded that the defendant "was in complete control of his behavior" and not suffering from mental illness or emotional disturbance.
Id. at 350-51.
In Petitioner's earlier appeal, the Tennessee Court of Criminal Appeals's made other factual findings on Petitioner's personal history and post-offense conduct at Petitioner's sentencing.
When the appellant and Brown arrived in Atlanta, the appellant made arrangements with a man to engage in homosexual acts for an agreed price. They went to the appellant's motel room. When the person revealed that he did not have sufficient funds to pay the agreed price, the appellant murdered him. The appellant was subsequently convicted of murder in the first degree in Fulton County, Georgia, on July 31, 1990.
The state proved that the appellant had been previously convicted of robbery with a deadly weapon, simple robbery, and attempt to commit a felony, namely, kidnapping. The appellant was convicted of these offenses on January 26, 1984 in Hamilton County. The state also proved the conviction on July 31, 1990 for first degree murder in the Fulton County, Georgia case. This established the aggravating circumstance embodied in Tenn.Code Ann. § 39-13-204(i)(2).
The state also established that the murder was committed during the commission of a felony: robbery. As indicated, the victim was handcuffed and his legs taped, rendering him helpless. The appellant took several items of personal property from the residence. This established the aggravating circumstance embodied in Tenn.Code Ann. § 39-13-204(0(7).
The appellant presented evidence to mitigate his punishment for this murder. He presented evidence of his childhood, his family life, the sexual abuse he suffered when he was twelve years of age, his mental illness or disturbance, Brown's alleged dominance of him, his immaturity, and his drug abuse.
* * *
According to family members, the appellant was his father's favorite. The appellant was never punished while his brother and two half-brothers were the subject of harsh punishment. If the appellant's mother punished him, his father would become angry at her. The appellant's mother and half-brother described the appellant as "spoiled." The half-brother stated that the appellant could do whatever he desired without fear of punishment.
The record reveals that the appellant lived a normal life until he was twelve years of age. When he reached this age, he refused to go to school, began to associate with older men, and started sniffing glueanything that would make him "high." He frequently ran away from home and occasionally would stay away for weeks before returning home. Although the appellant's mother moved the family frequently, the appellant's lifestyle did not change. He was in custody of juvenile authorities on sixteen different occasions. While confined to a juvenile treatment facility in Chattanooga, the appellant escaped. He subsequently committed several serious offenses, which resulted in his convictions for robbery with a deadly weapon, simple robbery, and an attempt to commit a felony: kidnaping.
The appellant's maternal grandfather was an alcoholic. One of the appellant's half-brothers is a recovering alcoholic. The appellant has a history of abusing marijuana. He smoked as many as eight marijuana cigarettes in a twenty-four hour period.
The appellant testified that he was sexually abused by a complete stranger when he was twelve years old. However, he never revealed this abuse to any member of his family. Nor did he tell the juvenile authorities or the Tennessee prison officials that he had been sexually abused. The sexual abuse did not surface until he had been arrested for the Fulton County, Georgia murder. He related this to an official at the Georgia Diagnostic Center. The appellant refused to tell his parents about the sexual abuse because his father was homophobic and the appellant felt his mother would blame him for the occurrence. He did not tell the juvenile authorities because he knew they would tell his mother.
* * *
Shortly after the sexual abuse incident, the appellant made his brother perform fellatio on him. He took a young female cousin into a closet for the purpose of engaging in sexual conduct. When the murder occurred, he was living with Trina Brown. He was also engaging in homosexual male prostitution.
* * *
The appellant's mother opined that fifteen-year-old Trina Brown completely dominated the appellant. Trina Brown testified that the appellant did not want to kill the victim and that it was she, not the appellant, who made the decision to kill the victim.FN8 She was afraid that if the victim was permitted to live, he would have the appellant arrested, and as a result, she would lose the appellant. Therefore, she told the appellant to kill the victim.FN8 The appellant admitted on cross-examination that both he and Brown tried to manipulate each other. He admitted that he had previously stated that Brown "would jump off a building" if he asked her.
FN8 The appellant admitted, however, that this was the first time Trina Brown had revealed this fact. Her prior statements were contrary to this testimony. It is also contrary to her testimony that the appellant had told her on two separate occasions that he was going to murder and rob the next homosexual that propositioned him in order to raise money for their move to Florida. She apparently thought she could prevent the imposition of a death sentence by testifying in this manner. She admitted that she still loved the appellant and would do anything to help him. They continued to communicate with each other through letters and tapes.
Dr. Barry Nurcombe, a child psychiatrist, testified as an expert for the defense. He described the appellant as having an anti-social personality disorder. He outlined the appellant's family life, his childhood, the incident involving sexual abuse, his drug dependence, the murder, his relationship with Brown, his difficulty coping with stress, his poor judgment, which was aggravated by the use of marijuana, and other facts prior to expressing his professional opinion. He concluded that the appellant had a low self-esteem. He also concluded that although a grown man, the appellant reacts the same as a seven or eight-year-old child. He found that the appellant had established the rudiments of psychological disturbance prior to the incident involving sexual abuse.
According to Dr. Nurcombe, the appellant wanted revenge for the sexual abuse that he encountered in his childhood; and he viewed homosexuals as a class rather than individuals. Nurcombe related that Brown had told the appellant's sister-in-law the appellant was a homosexual. This was related by the sister-in-law to the appellant's half-brother, who confronted the appellant with this fact. Dr. Nurcombe opined that the stress resulting from this incident, coupled with the fear that the appellant's family might discover his homosexual lifestyle, motivated the appellant to kill the victim-the next homosexual that propositioned him.
The appellant told Dr. Nurcombe that "he did not wish to be thought [of as] crazy, that he felt that he did things deliberately [on the night in question, and] that any attempt to explain what he had done on psychological grounds was hogwash." The following colloquy occurred during Nurcombe cross-examination:
Q. Henry Hodges told you exactly why he killed Mr. Bassett but you think that you have a better grasp on why he did it than Mr. Hodges does, himself, is that correct?
A. Yes, I do.
The state called Dr. James G. Kyser, a psychiatrist, and Dr. James Morgan, a psychologist, in rebuttal. These two expert witnesses had examined the appellant for the state. Both experts had talked to the appellant on several occasions, reviewed certain medical records, and viewed an interview the appellant gave a television station concerning the murder and the appellant's background.
Dr. Kyser concluded that the appellant had an anti-social personality disorder. He stated that people with this disorder have "no conscience", are "self-centered," are "notoriously dishonest and untruthful," "have very little regard for the feelings of others," and are willing to use any means to get what they want, no matter who it hurts, and they "know how to work the system real well." The appellant "essentially meets all [these] criteria."
Each time Dr. Kyser talked to the appellant about the Bassett murder, the appellant would contradict what he had previously stated during interviews. Dr. Kyser explained that his evaluation of the appellant was necessarily predicated upon what the appellant told him. Due to the many contradictions related by the appellant, Dr. Kyser did not believe him. Dr. Kyser stated: "[H]e is at high suspicion for being untruthful; for, in fact, lying, malingering, [and] attempting to distort the truth." He stated that Dr. Nurcombe's psycho-dynamic theory is not universally accepted by other psychiatrists.
Dr. Morgan also concluded that the appellant had an anti-social personality disorder. According to Dr. Morgan, one episode of sexual abuse, as in this case, will not cause a person to have an antisocial personality disorder. He concluded that the appellant was in complete control of his behavior when he murdered the victim.
1995 WL 301443 at **2-5 (some footnotes omitted).
C. Conclusions of Law
Petitioner's habeas petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, federal courts may not grant habeas relief for claims adjudicated on their merits in a state court proceeding, unless that state court proceeding:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court stated that a state court judgment is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court on a set of materially indistinguishable facts." In such instances, the Supreme Court held that a federal habeas court may grant a writ. Id. The Supreme Court interpreted the language "clearly established Federal law, as determined by the Supreme Court of the United States" as referring to "holdings as opposed to dicta" of its decisions "as of the time of the relevant state-court decision". Id. at 412, 120 S.Ct. 1495. In Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Court reiterated that AEDPA modified a federal court's role in reviewing state prisoner applications "in order to prevent federal habeas `retrials' and to ensure that state court convictions are given effect to the extent possible under the law."
Moreover, the Supreme Court stated that under the "unreasonable application" clause, a state court judgment results in an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies to the facts of the particular case." Id. at 694, 122 S.Ct. 1843. The district court "must presume that all determinations of factual issues made by the state court are correct unless the defendant can rebut that presumption by clear and convincing evidence." Mitchell v. Mason, 325 F.3d 732, 737-738 (6th Cir.2003) (citing 28 U.S.C. § 2254(e)(1)).
Yet, the Supreme Court explained that a state court's application of clearly established federal law must be "objectively unreasonable," and a federal habeas court may not grant habeas relief "simply because that court concludes in its independent judgment that the relevant decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411, 120 S.Ct. 1495. A state court's application of federal law is unreasonable and habeas relief may be granted if the "state court decision is so clearly incorrect that it would not be debatable among reasonable jurists." Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996)).
The Court addresses the merits of the non-defaulted claims, but combines related claims.[4] The Court also considers Petitioner's ineffective assistance of counsel claims first as the resolution of that claim could preclude considerations of other claims.
1. Ineffective Assistance of Counsel Claims
Petitioner's claim 9 that is 15 pages in length, alleges ineffective assistance of his counsel at trial based upon his trial counsel's inadequate investigation and preparation before his plea and at sentencing. (Docket Entry No. 32, Amended Petition at pp. 5-20). Petitioner also cites his counsel's ineffectiveness on appeal for their failure to raise the claims in this petition. Id. at pp. 19-20. Aside from trial and appellate counsel, Petitioner also cites the State's inadequate compensation of appointed counsel. A related claim is claim 32 that Petitioner's guilty plea was not knowingly, intelligently and voluntarily entered. Id. at p. 37
a. Ineffectiveness of Trial Counsel
As to the ineffectiveness of Petitioner's trial counsel, the Tennessee Court of Criminal Appeals made the following factual findings.
Attorneys Donald Dawson, Michael Terry and Brock Mahler were appointed at the trial level to represent the appellant in this case. Since his appointment in 1996, Dawson has held the position of Post-Conviction Defender for the State of Tennessee and represents capital case petitioners in state post-conviction and federal habeas corpus proceedings. See Tenn.Code Ann. § 40-30-302 et seq. (1997). Prior to his appointment, he was in the private practice of law in the areas of employment discrimination and criminal defense. Dawson also had previous work experience with both the federal and state public defender's offices. He had tried one other capital case prior to his appointment to the appellant's case. Dawson stated that he represented the appellant both at the trial level and on appeal, although he conceded that he had a minor role in the appeal.
At the time of Dawson's appointment to this case in February 1991, he was involved in a "major [federal] tax criminal case in Memphis." He advised the trial court of his involvement in the federal case and that it would not be prudent for him to accept appointment. The trial court informed Dawson that the appellant was incarcerated in Georgia and would not be returned to Nashville until July or August. The appellant was returned to Tennessee custody some time in April. Because of his involvement in the federal case in Memphis during this time, Dawson was unable to do any substantive work in the appellant's case. In fact, Dawson recalled that he did not "file any motions or begin actual work on the case until after [he] returned from Memphis."
Dawson testified that the law firm he was with at the time of his appointment had dissolved and, in August 1991, he had joined another law firm. The pressure to generate fees at his new firm highly impacted the amount of time he devoted to the appellant's case. He related that he primarily worked on the appellant's case outside of his regular practice, on the weekends and evenings. He admitted that he should not have accepted appointment to the appellant's case because his financial concerns impeded his ability to work on the case. Notwithstanding, Dawson stated that he began working "in earnest" on this case in late September or early October 1991. Until this time, the defense team had not developed any defense theory of the case. Dawson stated that developing a strategy was frustrated by the appellant's public confession to eight murders.
* * *
In making the decision to enter a plea of guilty to the charge of first degree murder, Dawson testified that neither he nor anyone else associated with the defense traveled to Georgia, where the appellant was incarcerated, or North Carolina, where the appellant was arrested, in order to undertake a factual investigation. He explained that the defense team did not have adequate time to conduct such investigations. Additionally, he admitted that the defense team did not file a motion for funds to travel to Georgia and North Carolina, a motion for funds for a fingerprint examiner, a motion to suppress evidence, or a motion for a forensic pathologist to assist in the cross-examination of the State's medical expert. Dawson did admit, however, that the defense team did present a challenge to the medical examiner's testimony in its motion for new trial. Specifically, the medical examiner had testified that the victim would have been rendered unconscious three to five minutes prior to death; the defense team subsequently learned that a person would lose consciousness in thirty seconds.
Dawson testified that, over the weekend preceding the scheduled trial, the defense team determined that the "guiltinnocence phase [was] hopeless. That there was no way we were going to convince anybody that Mr. Hodges didn't kill the victim in this matter." The defense team concluded that, in order to gain credibility with the jury at the sentencing phase, the better strategy would be to plead guilty. In hindsight, Dawson related that had they proceeded to trial at the guilt phase, they would have been able to "begin to introduce [their] mitigation theories." He admitted that he "had not done the sort of serious legal research that should have been done on an issue like that." Dawson stated that he was only being compensated $20-$30 per hour in-court to represent the appellant. He admitted that this meager compensation was considered in the defense strategy. Another factor in the decision to plead guilty was the intent to surprise the State so they would not be able to introduce as much proof at the sentencing phase.
Dawson spent 228.1 out-of-court hours and 58 in-court hours on this case, however, he did not believe that this was sufficient. He further stated, though, that he probably spent more time on the case than he billed. According to Dawson, Mahler spent well over 300 hours working on this case prior to trial. Mahler was employed by the Capital Case Resource Center and, therefore, did not receive any reimbursement from the courts for his work on this case. Dawson admitted on cross-examination that the defense team had filed a bill of particulars in this case and approximately fifty motions. He also filed numerous special requests for jury charges. He conceded that the attorneys had a good working relationship with the appellant. He admitted that the proof of the appellant's guilt was overwhelming, i.e., the appellant had made numerous public statements as to his culpability; his fingerprints were found at the scene; personal belongings of the victim were located in the appellant's possession at the time of his arrest; and the appellant's girlfriend had provided a statement implicating the appellant. He acknowledged that the decision to plead guilty was a tactical decision, although, as he explained, entered without sufficient investigation and preparation.
Dawson stated that the appellant commended the defense team and thanked them for their representation. He added that the appellant never complained at any time regarding counsel's representation. At one point in the appeal process, the appellant indicated that he wanted to withdraw his appeal and be executed, however, Dawson and Terry convinced him to pursue his appeal.
Dawson concluded by stating,
my feeling is that we failed in some fundamental ways to properly protect Mr. Hodges. That, you know, we clearly, obviously from the result, we didn't convince the jury of the mitigation or the weight of the mitigation that we presented. And I believe that there is, there are things that we should have done in terms of additional investigation that would have made that mitigation case stronger, to the extent that we had a duty to do those things and to prepare the mitigation, to come up with a more, I guess, compelling theory. Not theory but manner in which we presented the case, this would be through putting it on as a guilty-innocence case first. Then starting out mitigation, there and continuing it into the sentencing phase, that we failed in some fundamental ways that had we done sufficient legal research and investigation, we would not have made those errors. . . .
Michael Terry was appointed to represent the appellant in April or June 1991. At the time of his appointment, he had tried one capital case to conclusion and was involved in another exhausting capital case which was tried for three weeks in July 1991.
Terry stated that after the appellant was returned to Nashville, he started giving interviews to the local news stations describing himself as a serial killer. Terry advised the appellant to stop giving interviews. Notwithstanding these initial consultations, Terry stated that he did not actually start working on the appellant's case until August. The appellant's trial began in January 1992. Terry concluded that the period from August to January was insufficient time to prepare for trial. He stated that in order to effectively represent a defendant charged with a capital crime, he would need to devote six months solely to that case. Indeed, he stated that anywhere between 1500 and 1800 hours are "required to be effective in [capital] cases. And short of that is not effective representation." He claimed that he spent 256 out-of-court hours and 69.5 in-court hours for his work on this case. Terry explained that, during this time, the fees paid to appointed counsel representing indigent appellants resulted in a financial strain for himself. He stated the $20 per hour paid in appointed cases for indigent defendants was "not going to get you effective assistance in this kind of case."
* * *
Regarding the appellant's entry of a guilty plea, Terry admitted that the decision was made the week prior to trial. He stated that the decision was, in part, to be a demonstration of remorse for the jury. Reflecting upon this decision, Terry opined that pleading guilty was a mistake for several reasons. Expounding upon this conclusion, Terry testified that they surprised the court, the prosecutor, and the jury by pleading guilty. He explained that they should have at least "pitch[ed] a fight."
2000 WL 1562865 at **4-5, 6-7, 8 (some footnotes omitted).
The Tennessee Court of Criminal Appeals addressed Petitioner's claim about the validity of his guilty plea and upheld his guilty plea that was supported by effective assistance of his counsel.
The appellant claims that trial counsel were ineffective by deciding to plead guilty rather than proceed to trial. He maintains that the advice constituted deficient legal representation that resulted in severe prejudice. Additionally, he contends that the "hasty" decision to enter the plea effectively "destroyed their credibility with the jury." He argues that the decision was made absent (1) any consideration of the pros and cons of pleading guilty; (2) any research into the ramifications of pleading guilty in a capital case; and (3) any consultation with third party attorneys on the matter.
At the post-conviction hearing, Dawson testified that the decision to enter a guilty plea was made the weekend prior to trial when it was determined that "there was no way we were going to convince anybody that Mr. Hodges didn't kill the victim in this matter." He explained that, at that time, the defense team believed that by entering a plea during the guilt phase of the trial, they would gain credibility with the jury for the sentencing phase. The defense team also hoped to surprise the State by entering the plea. In essence, the defense team intended to disrupt the bifurcated nature of the trial, thereby precluding the State from introducing evidence during the penalty phase which the State had planned to introduce at the guilt phase. Notwithstanding this reasoning, Dawson admitted that, although the proof was overwhelming, in hindsight, they should have proceeded to trial so that they could have begun introduction of their mitigation theories. Michael Terry corroborated Dawson's testimony regarding the appellant's guilty plea. He explained that the plea was supposed to be "a demonstration of remorse for the jury." However, he agrees that the decision was a mistake and that they should have at a least "pitched a fight." The appellant did not testify at the post-conviction hearing. Other than his attorneys protestations of ineffectiveness at this level, there is no other evidence that the appellant's guilty plea was not knowingly entered. The post-conviction court concluded that counsel made an informed tactical decision in advising the appellant to enter the guilty plea.
* * *
Although it is true that the appellant ultimately gained nothing by pleading guilty, the record persuasively demonstrates that the appellant had little to gain by insisting upon a trial. It is undisputed that the evidence against the appellant was overwhelming and that his chances of acquittal were virtually nonexistent. Indeed, in advising the appellant, defense counsel was faced with two options: plead not guilty to the indictment and face a full trial; or plead guilty to the indictment and face limited evidence in a sentencing hearing with an opportunity to trade on his acceptance of his guilt and remorse. Confronted with the overwhelming evidence of the appellant's guilt, defense counsel advised the appellant to plead guilty in the reasonable hope of obtaining leniency during the sentencing phase. Defense counsel reasonably believed that the jury would view the appellant's guilty plea as an expression of remorse warranting a less severe sentence than that imposed upon a defendant who protests his innocence in the face of overwhelming evidence of guilt. Moreover, by pleading guilty, the appellant eliminated the presentation, to the jury of all of the evidence available to establish the appellant's guilt of the murder. The hard callous facts behind the offenses, in essence, were desensitized by avoiding the guilt phase. The absence of an in-depth recitation of facts enabled the appellant to seek some sympathy from the jury in the face of mitigating evidence.
Viewing from counsel's perspective at the time the advice was rendered to the appellant regarding the decision to plead guilty, we must reject the claim that such advice was outside the range of competence demanded of attorneys in criminal cases. . . . Although defense counsel's strategy for avoiding the death penalty was thwarted, the decision to pursue that particular strategy cannot be deemed incompetent. Given the overwhelming evidence of guilt, the advice of counsel regarding the appellant's decision to plead guilty cannot be faulted in hindsight The courts must exercise substantial restraint before interfering with the attorney-client relationship and the matter of strategy and tactics. See Holland v. State, 761 S.W.2d 307, 320 (Tex.Crim.App. 1988), cert. denied. 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863 (1989) (citation omitted). Such an inquiry should only be made where it does not appear that there exists any plausible basis in strategy and tactics for the particular act or acts by counsel. Id. Errors in trial strategy do not generally establish incompetence. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065; see also McMann v. Richardson, 397 U.S. at 770, 90 S.Ct. at 1448 ("that a guilty plea must be intelligently made is not a requirement that all advice offered by defendant's lawyer withstand retrospective examination in a post-conviction hearing."). Moreover, we acknowledge that a defendant is entitled to competent, not perfect, representation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn.Crim. App.1996). Accordingly, after review of the record, we cannot conclude that counsel's recommendation to the appellant to plead guilty constituted incompetent advice. This issue is without merit.
2000 WL 1562865 at **18, 20-21 (emphasis added).
The Tennessee appellate court rejected Petitioner's claim that his trial counsel's performance on the finger print issue as deficient for lack of prejudice.
The appellant contends that counsel was ineffective by failing to seek an independent fingerprint examiner to review the conclusions drawn by the States' examiners, failing to evaluate the procedures used to lift and preserve the latent print, and failing to identify or eliminate unknown latent prints found in the victim's residence. The appellant further claims that he was precluded from demonstrating prejudice due to the post-conviction court's denial of funds for the fingerprint expert.
This clam focus upon a latent fingerprint lifted from the unicorn glass globe found in the victim's residence. A latent fingerprint examiner employed by the Metro Police Department examined the latent print and compared this print to known prints of the appellant. The prints were identified as those of the appellant. Trial counsel did not have an independent fingerprint expert review the conclusions drawn by the State's examiners nor did they challenge the procedures used to lift and preserve the latent prints.
The post-conviction court denied post-conviction counsel's motion for funds for a fingerprint expert. Thus, no testimony was presented to explain the failure to request a fingerprint expert. Notwithstanding, given the nature of the case, we presume a threshold finding of deficient performance regarding counsel's failure to investigate the State's expert's findings. However, the appellant has not demonstrated how he was harmed by counsel's failure to request the services of independent experts. See Black, 794 S.W.2d at 757. As noted by the post-conviction court in its denial of funds, the qualifications of the State's experts were not challenged and there is no allegation of bias. See infra.
What is more important, however, is the effect of the appellant's guilty plea. Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea. In other words, although some pre-plea action or inaction of counsel may have been deficient, in order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, m U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn.Crim. App.1997). The appellant has failed to show how such an attack on the fingerprint evidence would have altered his decision to plead guilty. The proof does show, however, the overwhelming evidence of the appellant's guilt irregardless of the fingerprint evidence.
Id. at **17-18.
As to the claim that earlier intervention by counsel would have prevented Petitioner from giving inculpatory interviews with the media, the post-conviction court found that:
[t]he petitioner is a person who craves attention. Even after his return to Nashville and conferring with counsel he continued to write letters and give interviews. There is no proof that earlier intervention by counsel would have prevented the petitioner from making these inculpatory disclosures to the press or government officials.
Id. at *21.
As to the systemic deficiencies in Tennessee's system of providing counsel, the Tennessee Court of Criminal Appeals found:
The appellant next claims that the systemic deficiencies in the indigent defense system of the State of Tennessee render any indigent capital defendant's Sixth Amendment right to effective counsel a nullity because it forces the court-appointed attorney to choose between the defendant's right to effective representation and the attorney's right to earn a living. In other words, he asserts that the fee structure afforded counsel for indigent capital defendants in this state necessarily denies him effective representation by counsel due to counsel's lack of devotion to his case. Particularly, the appellant supports his claim by referencing counsel's lack of involvement in his case upon initial appointment. Indeed, he asserts that had counsel maintained more contact with the appellant upon their appointment, they could have prevented him from making inculpatory statements to the media and they could have further investigated his case. He explains that had counsel received greater compensation, they would have been willing to devote more time to his case.
The appellant's claim that the court-appointed compensation scheme created a financial disincentive to provide competent, quality representation in this case is belied by the record. By their own account, each attorney expended more than 300 hours on the case. The hired investigator/mitigation expert spent at least 150 hours on the case.
* * *
The Court further discounted any inherent ineffectiveness resulting from the compensatory schedule of appointed counsel for capital indigent defendants, finding:
. . . [g]iven the amount of time spent by counsel in preparation for the 1992 trial, this could not be the case. There is no proof in this record that if trial counsel had been paid more, that they would have done more. The testimony on this issue was amorphous and vague. Sure, counsel would have liked to be paid more, but the fee structure did not deprive this petitioner for effective representation.
* * *
A blanket claim that the fee schedule established for counsel appointed in indigent capital defendant cases in Tennessee does not suffice to meet the burden. Thus, we decline to hold that the out-of-court fee schedule applied to private attorneys appointed to represent indigent capital defendants necessarily renders any representation ineffective because of the financial burden on counsel.
Id. at **21, 22 (emphasis added).
To evaluate these claims, the Sixth Circuit summarized the Supreme Court's precedents governing legal principles on ineffective assistance of counsel claims. In Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003), the Sixth Circuit identified two broad categories of ineffective assistance of counsel claims: (1) the actual or effective absence of counsel at the critical stage of the proceeding for which presumed prejudice arises; and (2) counsel whose performance was deficient on specific issues and was demonstrably prejudicial to the defendant. As that Court explained:
In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).. . the Supreme Court held that an appeals court must reverse a criminal defendant's conviction "without any specific showing of prejudice to defendant when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." Cronic, 466 U.S. at 659 n. 25, 104 S.Ct, 2039. In other words, when counsel is totally absent during a critical stage of the proceedings, prejudice must be presumed. . . . In Williams, the Supreme Court confirmed the vitality of this "per se" approach, noting that while the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel, requiring proof of deficient performance and prejudice provides guidance for resolving virtually all ineffective assistance of counsel claims, there are "a few situations in which prejudice may be presumed." Williams, 529 U.S. at 391, 120 S.Ct. 1495 . . . (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052, 80 L.Ed.2d 674). We have recently applied the presumption-of-prejudice test to a claim of ineffective assistance of counsel. Olden, 224 F.3d at 568 (prejudice is presumed when counsel is absent during prosecution's presentation of evidence that implicates defendant because such absence occurred during "critical stage" of trial).
Within the first category are three types of presumptive ineffectiveness of counsel:
The first is the complete denial of counsel, in which "the accused is denied the presence of counsel at `a critical stage.'" Bell, 122 S.Ct. at 1851 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039, 80 L.Ed.2d 657). The second is when counsel "`entirely fails to subject the prosecutions' case to meaningful adversarial testing.'" Id. (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039, 80 L.Ed.2d 657). The third is when counsel is placed in circumstances in which competent counsel very likely could not render assistance.
Id. at 742.
Where a habeas petitioner pled guilty, the Supreme Court defined the standard for ineffective assistance of counsel claims in that context:
The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. 1441. Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief.
We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.
A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge, no matter how peripheral such a plea, might be to the normal focus of counsel's inquiry. And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, McMann, supra, it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered possible constitutional infirmity in the proceedings.
The principal value of counsel to the accused in a criminal prosecution often does not lie in counsel's ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted to amass a large quantum of factual al data and inform the defendant of it. Counsel's concern is the faithful representation of the interest of his client and such representation frequently involves highly practical considerations as well as specialized knowledge of the law. Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution, see Brady v. United States, supra, 397 U.S. at 751-752, 90 S.Ct. 1463, or by contesting all guilty, see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement . . . might be factually supported.
Tollett v. Henderson, 411 U.S. 258, 266-68, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (emphasis added).
"The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case." Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996) (citation omitted). "A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable." Id. (quoting ABA's Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992)) (emphasis in the original). In this Circuit, a defendant "is entitled to the benefit of his attorney's superior experience and training in criminal law," to provide the defendant with a meaningful basis for deciding whether to accept a plea offer. Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003).
In Smith, the Sixth Circuit elaborated on counsel's obligations in the context of a guilty plea.
The decision to plead guiltyfirst, last, and alwaysrests with the defendant, not his lawyer. Although the attorney may provide an opinion on the strength of the government's case, the likelihood of a successful defense, and the wisdom of a chosen course of action, the ultimate decision of whether to go to trial must be made by the person who will bear the ultimate consequence of a conviction.
On the other hand, the attorney has a clear obligation to fully inform her client of the available options. We have held that the failure to convey a plea offer constitutes ineffective assistance, see Griffin, 330 F.3d at 734, but in the context of the modern criminal justice system, which is driven largely by the Sentencing Guidelines, more is required. A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears cm those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available. In a system dominated by sentencing guidelines, we do not see how sentence exposure can be fully explained without completely exploring the ranges of penalties under likely guideline scoring scenarios, given the information available to the defendant and his lawyer at the time. . . . The criminal defendant has a right to this information, just as he is entitled to the benefit of his attorney's superior experience and training in the criminal law.
348 F.3d at 552-53 (emphasis added).
Here, Petitioner's trial counsel had a bill of particulars, filed 50 pretrial motions and prepared numerous proposed jury instructions. Petitioner's trial counsel's were experienced in capital cases. Petitioner's counsel were clearly aware of the State's proof that they described as "overwhelming" and knew the elements of the offense. Petitioner's counsel had the aid of three experts. Petitioner's trial counsel's trial strategy was impaired by Petitioner's public statements and interviews admitting to several murders, notwithstanding his counsel's advice. 2000 WL 1562865 at *7. Given these circumstances, Petitioner's counsel made a strategic decision to recommend a guilty plea and Petitioner agreed to plead guilty. These strategic advantages were to demonstrate Petitioner's remorse and to limit the proof that the State could introduce. Id. at **6, 8.
The state trial and appellate courts found that given the State's "overwhelming" proof of Petitioner's guilt and defense counsel's investigation that was aided by experts, Petitioner's trial counsel's strategic decision to advise Petitioner to plead guilty was a reasonable tactic. This strategy sought to show Petitioner's remorse and to limit the State's proof and thereby avoid the death penalty. Petitioner has never testified that his plea was involuntary and uninformed. This Court concludes that in the context of a guilty plea, the state trial and appellate courts' rulings that Petitioner's trial counsel made a reasonable strategic decision to advise Petitioner to plead guilty are reasonable.
Aside from the reasonableness of counsel's performance, Petitioner must also establish prejudice from counsel's performance at the guilt stage. In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court further adduced the prejudice element for ineffective assistance of counsel in the guilty plea context.
We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra, and McMann v. Richardson, supra. The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.1984) ("It is inconceivable to us . . . that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received"). As we explained in Strickland v. Washington, supra these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker." Id., 466 U.S., at 695, 104 S.Ct. 2052.
Id. at 58-60, 106 S.Ct. 366. (emphasis added and footnotes omitted).
Here, as to trial counsel's advice to plead guilty, there is not any evidence to suggest that Petitioner would have gone to trial on that the outcome or that the finding of Petitioner's guilt would be different. Petitioner never testified in the state post-conviction hearing that his guilty plea was uninformed or involuntary or false or he would have gone to trial. As found by the state courts, there was overwhelming evidence of the Petitioner's guilt. Thus, the Court concludes that Petitioner has not shown the requisite prejudice for this aspect of his claim.
b. Ineffectiveness of Counsel at Sentencing
As to Petitioner's trial counsel's work at the sentencing phase, the Tennessee Court of Criminal Appeals cited Petitioner's proof:
Dawson testified that Brock Mahler came on board as third counsel in the case. Mahler was responsible for working on mitigation issues and psychological issues. Not only was this Mahler's first capital case, but also his first trial of any kind. Preparation on the mitigation theory began in October after the trial was scheduled for the later part of January. Dawson testified that this was not sufficient time to prepare a persuasive mitigation defense. Specifically, since the defense relied primarily on the appellant's own statements, i.e., he had been kidnapped and raped by a homosexual male when he was an adolescent, there were numerous persons that needed to be interviewed to corroborate these statements. There was no attempt to try to obtain records from the Georgia Diagnostic Center which would have provided corroboration in that the appellant related this rape incident to a doctor in the Georgia, penal system. Additionally, there was no attempt to obtain the statements of individuals who could have confirmed a change in the appellant's character and behavior at the time of the rape. Notwithstanding, the defense team did interview Dr. Nurcombe, the appellant's mother, his brothers, and one person in the community. Dawson admitted that these witnesses testified and helped establish the change in the appellant's behavior; additionally, he noted that "juries rely a lot more on lay witnesses than they do on professional witnesses." He stated, however, that additional witnesses "would have made it more real to the jury." Dawson confirmed that it was important for the purpose of establishing credibility to have obtained this information.
Dawson emphasized the mistake of relying solely on a psychiatrist, rather than hiring the services of a mitigation consultant. He explained that a mitigation consultant considers the fields of sociology, psychology, and other related areas in processing information about a defendant to establish a complete portrayal of the subject's life. Additionally, Dawson took responsibility for the court's denial of the defense motion for funds for a drug and alcohol expert.
* * *
Terry testified that he cross-examined Dr. Harlan during the sentencing hearing. Terry conceded that he had never talked with Dr. Harlan until immediately prior to his testimony at the sentencing hearing and admitted that he should have been more prepared for Dr. Harlan's testimony. He explained that he did not question Dr. Harlan prior to trial because "[w]e didn't think that there was any issue about the cause of death. And we did not anticipate that Harlan would exaggerate that time to four minutes." Notwithstanding, Terry elicited from Harlan on cross-examination that it was possible that the victim was conscious for less than three minutes. Moreover, at the motion for new trial, the defense team unsuccessfully attempted to attack the veracity of Dr. Harlan's testimony based upon evidence that the victim would not have been conscious for more than 30 seconds. Terry admitted that he was unprepared; he should have vigorously cross-examined Harlan; he should have interviewed him prior to trial; and he should have obtained a forensic pathologist to rebut Harlan's testimony.
* * *
When Brock Mahler was appointed as the third attorney in this case, he was employed as a staff attorney by the Capital Case Resource Center. He officially began working with the defense team in November although he had been consulted in October. Mahler testified that he initiated the investigation regarding mitigation evidence. Mahler testified that Susan Canon had been retained as the mitigation investigator in this case; specifically, she had been approved as of September 9th. Mahler explained, however, that it was not until the end of October when Mahler personally brought Canon to meet the appellant that an initial interview was conducted. A short time thereafter, Canon informed Mahler that she had to withdraw from the case. Ann Charvet was then contacted as a substitute for Canon. Although the mitigation investigator did spend roughly 77 hours preparing for this case, Mahler stated "[t]hat's laughable. Typically a mitigation investigation is in excess of 300 hours." Thus, as of November, nothing had been done on the appellant's case except that an evaluation by a mental health expert had been performed and the defense team had obtained some of the appellant's hospitalization records. Mahler testified that two months was not enough time to thoroughly prepare for trial. Although Mahler believed that they had a fairly compelling psychiatric explanation, they needed to introduce more law and expert witnesses to buttress their story before the jury. Mahler testified that, if he had more time, he would have involved Dr. Pamela Auble, who had evaluated the appellant, as a witness. He also mentioned that Dr. Ken Anchor, who had evaluated the appellant as a juvenile, should have been a witness, as he could have corroborated the fact that the appellant did show symptoms of a person with at least a sexual identity disorder. Mahler stated that a drug and alcohol expert was necessary as well as a social worker. Mahler admitted that motions for continuances were sought, but denied.
Regarding the penalty phase of the trial, Mahler testified that he was to deal with the psychiatric proof; Dawson was to deal with lay witnesses and direct examination; and Terry was to deal with cross-examination of the State's witnesses. Despite this plan, Mahler felt that the defense team was not integrated. Dawson and Terry were pulled from their private practices; so most of the work was done on the weekends. Mahler testified that he had urged Terry to be prepared to cross-examine Dr. Harlan, including "bon[ing] up on some medical treatises. . . ." Mahler opined that Terry "needed to inform himself about the medical aspects of ligature strangulation to be prepared to cross-examine Dr. Harlan." In fact, Mahler stated that an independent forensic pathologist should have been consulted to rebut Dr. Harlan's opinion regarding the length of time the victim remained conscious. Mahler attempted unsuccessfully to challenge Dr. Harlan's testimony in the motion for new trial. Indeed, Mahler testified that there was information to support the defense's position that consciousness could not have lasted as long as Dr. Harlan testified. Specifically, Mahler stated that there was an affidavit by Dr. Sperry stating that loss of consciousness would have been very rapid and there was testimony from another case where the defense had effectively cross-examined Dr. Harlan as to ligature strangulation.
Mahler took issue with the appellate court's opinion that the "heinous, atrocious, cruel" factor focused upon "mental torture because the victim was helpless." Mahler stated that he never got that impression. Rather, Mahler testified that he was of the opinion that "Mr. Bassett was involved in' being robbed. One does not presume in the course of a robbery that one is going to be killed." He further criticized the Court of Criminal Appeals' opinion, concluding its findings inconsistent because Mi-. Bassett had a pillow over his head and was in another room. Mahler noted that, given these facts, the victim would not have been able to overhear what the appellant and Brown were planning to do with him.
Mahler estimated that he spent about 500 hours on this case, including both trial and appeal preparation. Additionally, he testified that, in his opinion, Dawson and Terry's "performance was certainly deficient." He explained that they did not do anything on this case until "just near the end"; "[t]hey relied on [Mahler] to prepare this case for them."
* * *
David J. Keefe, chief counsel with the capital division of the Tennessee District Public Defender's Conference, reviewed the representation provided by counsel in the present case and testified on the appellant's behalf at the post-conviction hearing. Based on his review, Keefe opined that the appellant's attorneys were deficient in their representation of the appellant. He suggested that the attorneys should not have accepted appointment unless they were able to devote all or a substantial portion of their time to the matter. He further opined that the attorneys should have designated one person to serve as lead counsel to lend direction to the preparation and trial of the case. According to Keefe, the appellant was prejudiced by counsel's lack of involvement early in the case when the appellant gave interviews to the media without first being consulted by counsel. The jury never heard these statements provided to the press, however, Keefe believed the appellant was prejudiced just the same because the lawyers may have made the decision to plead guilty in part due to the fact that these statements were potentially available for introduction at trial. Keefe also believed the decision to plead guilty was wrong and hastily made. He opined that, by pleading guilty, the defense team confused the jury and lost an array of appellate issues. Keefe further criticized the defense team as developing their sentencing theory backwards. Specifically, he stated that the defense team should have investigated the facts and the appellant's background before they came up with a psychological theory to tell the jury instead of trying to adopt a theory and then fill in the holes. He also emphasized the defense team's ineffectiveness by not attempting to rebut the State's theory that the victim remained conscious for three to five minutes during the strangulation.
* * *
Julie Hackenmiller, a mitigation specialist with Inquisitor, Inc., was retained by the appellant for the post-conviction proceeding. Hackenmiller was responsible for performing the social history and assessments on the appellant's case. Inquisitor, Inc. began collecting the appellant's records and locating witnesses in June 1998; by August 1998, Hackenmiller was given primary responsibility for the mitigation investigation. At the time of the post-conviction hearing, Hackenmiller stated that her investigation was not complete and she needed additional time to complete her social history and assessment of the appellant. Although she received the appellant's high school records, she had not yet received prison records from Georgia or Florida, despite making several requests. She stated that she requested that post-conviction counsel subpoena these records in August 1998. She further testified that she needed more time to interview one of the appellant's school principals regarding teasing by other students endured by the appellant.
Hackenmiller also identified other mitigation themes that were not explored during trial. Specifically, she related that the appellant's mother had an extremely abusive childhood and background. Both her father and her husband were extremely abusive. His mother, as well as other maternal family members, had been diagnosed as mentally ill. Specifically, the appellant's mother had previously suffered a "nervous breakdown," and "she has been diagnosed as bipolar and post-traumatic stress disorder." In furtherance of this avenue, Hackenmiller obtained a release from the appellant's mother for her medical records. Notwithstanding, she had not yet received the records as of the hearing date. Additionally, she discovered that the appellant had a great deal of trouble as a juvenile. He had a substance abuse problem and had an "extremely little social support system to turn to." In her attempt to contact members of the appellant's family, Hackenmiller was frustrated by the appellant's mother's endeavor to thwart the interviews. In essence, Hackenmiller stated that the family's attitude was "uncooperative." She attributed this to the "extreme abuse [experienced by the appellant and his family] by the members of the press." Despite the family's current position, Hackenmiller believes that she will be able to establish rapport with the mother so that she will eventually be able to interview the brothers. Hackenmiller reported that the appellant's maternal grandfather, an alcoholic, was "an extremely violent, physically and sexually abusive individual." The appellant's mother was addicted to Valium, thus, the appellant had access to Valium and "sometimes overdosed or would take the Valium." Hackenmiller was less successful, however, in investigating the paternal side of the appellant's family. Specifically, she testified that she was still trying to identify five or six children from his father's legal marriage to another woman. In noting the relationship of the appellant's parents, Hackenmiller testified that the appellant's mother and father, although never married, spent seventeen years together.
Hackenmiller was in possession of records from various institutions where the appellant had been confined as a juvenile which indicated that the appellant responded well to positive reinforcement in an institutional setting. She referred to a report from a family therapy session when the appellant was twelve years old indicating that many of his problems derive from his home and parental situation. Another psychiatric report, also from 1979, indicated that the appellant was extremely motivated and performed very well in the therapeutic session. However, the report indicated that the appellant's home life was lacking in support and psychological warmth. Another report supported these conclusions, including that the appellant responded in a positive manner to praise and encouragement. These reports focused on the fact that the appellant required continuity between his teachers, parents and school authorities regarding his discipline. Hackenmiller reported that despite this advice, continuity in the home was not maintained. A discharge summary from the Parthenon Pavilion in 1981 indicated that the appellant had "moved home, switched school, and also had difficulty at home with his father being accused of a sexual relationship with his maternal aunt." This document also related that the appellant was responding well to treatment in a therapeutic environment. A 1981 report from the Wilder Youth Development Center reiterated that the appellant was doing extremely well in therapeutic environment and he was making excellent grades in school. A Madison Hospital admission in 1982 indicated that the appellant's behavioral problems included problems at school, home and with legal authorities. This document diagnosed the appellant with "adjustment disorder and passive-dependent personality." The document also indicated that the appellant's drug and alcohol usage was greatly influenced by his brothers and his peers. Another report indicated that the appellant associated with youths that got into trouble and that the appellant appeared to be a follower. A social history update from the Spencer Youth Center related that, within five months after the appellant's release from Wilder Youth Development Center, he had returned to using alcohol and drugs. A classification summary performed by the DeDe Wallace Center in 1982 provided that the appellant sought help in that he wished to end his "crime-drug cycle." None of this information was introduced at the penalty phase of the trial. The appellant's juvenile TDOC records listed indicators that the appellant was the victim of sexual abuse by other inmates and that the appellant attempted suicide and was placed on suicide watch. On cross-examination, Hackenmiller admitted that Dr. Nurcombe had access to all but the "Wilder" records, however, she rationalized that Dr. Nurcombe only covered the areas of mitigation import "minimally."
2000 WL 1562865 at *5-6, 8-9, 10-12.
Aside from this testimony, the Tennessee Court of Criminal Appeals cited other evidence of trial counsel's work prior to sentencing.
Dr. Ann Charvet, a clinical sociologist, assisted defense counsel with the mitigation aspect of the case. Charvet testified that she began work on this case during the first week of December 1991. The trial began in January 1992. She was compensated for 77 hours worked on this case. Charvet admitted that she had submitted a supplementary invoice for an additional 75 hours, however, she was never compensated for this time. She stated that this was not sufficient time for her to perform her function as a mitigation investigator. Specifically, she explained that a major part of her investigation involved the compilation of various documents relating to the appellant's life and this aspect of the investigation is very time consuming.
In the present case, Charvet interviewed the primary witnesses, i.e., the appellant's mother, stepfather, a brother, a sister-in-law, and some friends. Other primary witnesses, the appellant's brothers, were resistant to being interviewed. She was not successful in locating family members from the appellant's father's side of the family. Charvet testified that, had she had more time, she would have found secondary witnesses who could have "identif [ied] and validat[ed] the conditions in the home." Their testimony serves to make the testimony of the primary witnesses more credible. She explained that a lead attorney was not designated within the defense team. This resulted in confusion and, in her opinion, her information was not being properly utilized. She also felt restricted in her investigation. For example, she was not able to review all of the records the defense team had obtained prior to her involvement in the case. Had Dr. Charvet been provided either more time to prepare or additional financial resources, "[she] would have sought witnesses to tell a more complete story of who is Henry Hodges. [She] would have sought the humanization of him. [She] would have primarily tried to identify more clearly the conflict that he faced in coming to grips with his own sexuality." She testified that, had she been provided sufficient time, she would have interviewed counselors and mental health people and she would have interviewed prisoners with whom the appellant had been incarcerated.
Id. at **9-10.
The appellate factual findings in Petitioner's direct appeal reflects the proof presented by Petitioner's counsel at sentencing:
The appellant's mother and father maintained a "common law" marriage that lasted eighteen years. The appellant and one brother were born to this relationship. The appellant's mother was the victim of severe spouse abuse during the relationship.
According to family members, the appellant was his father's favorite. The appellant was never punished while his brother and two half-brothers were the subject of harsh punishment. If the appellant's mother punished him, his father would become angry at her. The appellant's mother and half-brother described the appellant as "spoiled." The half-brother stated that the appellant could do whatever he desired, without fear of punishment.
The record reveals that the appellant lived a normal life until he was twelve years of age. When he reached this age, he refused to go to school, began to associate with older men, and started sniffing glue-anything that would make him "high." He frequently ran away from home and occasionally would stay away for weeks before returning home. Although the appellant's mother moved the family frequently, the appellant's lifestyle did not change. He was in custody of juvenile authorities on sixteen different occasions. While confined to a juvenile treatment facility in Chattanooga, the appellant escaped. He subsequently committed several serious offenses, which resulted in his convictions for robbery with a deadly weapon, simple robbery, and an attempt to commit a felony kidnapping.
The appellant's maternal grandfather was an alcoholic. One of the appellant's half-brothers is a recovering alcoholic. The appellant has a history of abusing marijuana. He smoked as many as eight marijuana cigarettes in a twenty-four hour period.
The appellant testified that he was sexually abused by a complete stranger when he was twelve years of age. FN7. However, he never revealed this abuse to any member of his family. Nor did he tell the juvenile authorities or the Tennessee prison officials that he had been sexually abused. The sexual abuse did not surface until he had been arrested for the Fulton County, Georgia murder. He related this to an official at the Georgia Diagnostic Center. The appellant refused to tell his parents about the sexual abuse because his father was homophobic and the appellant felt his mother would blame him for the occurrence. He did not tell the juvenile authorities because he knew they would tell his mother.
FN7. The appellant testified that a stranger offered him a ride home. He accepted. However, the stranger allegedly drove to his own home and forced the appellant to engage in oral and anal sex. The stranger subsequently returned the appellant to a location near the appellant's residence.
Shortly after the sexual abuse incident, the appellant made his brother perform fellatio on him. He took a young female cousin into a closet for the purpose of engaging in sexual conduct. When the murder occurred, he was living with Trina Brown. He was also engaging in homosexual male prostitution.
The appellant's mother opined that fifteen-year-old Trina Brown completely dominated the appellant. Trina Brown testified that the appellant did not want to kill the victim and that it was she, not the appellant, who made the decision to kill the victim. FN8. She was afraid that if the victim was permitted to live, he would have the appellant arrested, and as a result, she would lose the appellant. Therefore, she told the appellant to kill the victim. The appellant admitted on cross-examination that both he and Brown tried to manipulate each other. He admitted that he had previously stated that Brown "would jump off a building" if he asked her.
FN8. The appellant admitted, however, that this was the first time Trina Brown had revealed this fact. Her prior statements were contrary to this testimony. It is also contrary to her testimony that the appellant had told her on two separate occasions that he was going to murder and rob the next homosexual that propositioned him in order to raise money for their move to Florida. She apparently thought she could prevent the imposition of a death sentence by testifying in this manner. She admitted that she still loved the appellant and would do anything to help him. They continued to communicate with each other through letters and tapes.
Dr. Barry Nurcombe, a child psychiatrist, testified as an expert for the defense. He described the appellant as having an anti-social personality disorder. He outlined the appellant's family life, his childhood, the incident involving sexual abuse, his drug dependence, the murder, his relationship with Brown, his difficulty coping with stress, his poor judgment, which was aggravated by the use of marijuana, and other facts prior to expressing his professional opinion. He concluded that the appellant had a low self-esteem. He also concluded that although a grown man, the appellant reacts the same as a seven or eight-year-old child. He found that the appellant had established the rudiments of psychological disturbance prior to the incident involving sexual abuse.
According to Dr. Nurcombe, the appellant wanted revenge for the sexual abuse that he encountered in his childhood; and he viewed homosexuals as a class rather than individuals. Nurcombe related that Brown had told the appellant's sister-in-law the appellant was a homosexual. This was related by the sister-in-law to the appellant's half-brother, who confronted the appellant with this fact. Dr. Nurcombe opined that the stress resulting from this incident, coupled with the fear that the appellant's family might discover his homosexual lifestyle, motivated the appellant to kill the victim-the next homosexual that propositioned him.
The appellant told Dr. Nurcombe that "he did not wish to be thought [of as] crazy, that he felt that he did things deliberately [on the night in question, and] that any attempt to explain what he had done on psychological grounds was hogwash." The following colloquy occurred during Nurcombe cross-examination:
Q. Henry Hodges told you exactly why he killed Mr. Bassett but you think that you have a better grasp on why he did it than Mr. Hodges does, himself, is that correct?
A. Yes, I do.
1995 WL 301443 at *3-4.
As to Petitioner's claim about trial counsel's failure to conduct an adequate investigation for sentencing, the Tennessee Court of Criminal Appeals summarized Petitioner's contentions and adopted the trial court's ruling:
The appellant claims that trial counsel was ineffective "by failing to conduct a reasonable and competent mitigation investigation, by usurping the function of specialized experts in this area, by focusing upon a mitigation theory which was neither investigated nor corroborated, and by ignoring, overlooking or unjustifiably rejecting significant evidence of mitigation which was never pursued and never presented to the jury." Specifically, he contends that, in the absence of a sufficient mitigation investigation, the appellant "was defined to the jury by the worst times of his life, not in the broader context where he would be reflected in a more positive and more sympathetic light than the crime depicted."
. . . He contends that counsel failed to obtained pertinent records, including prison, medical, educational and parole records, which would have reflected mitigation themes contrary to that asserted by defense counsel. The appellant also asserts that counsel failed to locate numerous lay witnesses, such as friends, teachers, classmates, co-workers, juvenile authorities and jail personnel to testify regarding the appellant's life and experiences. In sum, the appellant defines counsel's last minute effort at a meaningful mitigation investigation as a "helter skelter intense effort to prepare a case for trial in two months," which made it "absolutely impossible to present a coherent, much less, credible presentation to the jury to spare the life of Henry Hodges." Indeed, he asserts that counsel's premature commitment to an unverified and uninvestigated mitigation theme, i.e., isolated homosexual rape, caused defense counsel to reject, ignore, or overlook powerful mitigation evidence which opened up numerous avenues to defend . . . the following positive themes could have been presented to the jury; (1) the appellant was "starved for positive reinforcement and wanted to please his elders when he was twelve years old;" (2) the appellant was "extremely motivated and performed very well" in a structured environment; (3) the appellant "responded well to praise and encouragement;" and (4) the appellant was a "follower" and susceptible to outside influence.
The post-conviction [trial] court made the following finding and conclusion on this claim:
[A]ppellant now contends that perhaps a psychologist and a psychological examiner should have been called, but they were not called at the January 1999 hearing. Perhaps there was more family history that could be helpful or school records or neighbors, but none were called at the January 1999 hearing. The only new information presented were some records from a juvenile institution but these were cumulative to information presented at trial in 1992.
The [appellant] with an ineffective assistance of counsel claim must not only allege prejudice, but must prove prejudice by competent evidence. If the [appellant] says his lawyer failed to put on certain evidence, the [appellant] must produce that evidence, to not only show the fact finder that the evidence is producible, but that the evidence would have been helpful. If the claim is based on a failure to properly investigate, then the evidence or witness must be produced so that the trial judge can properly evaluate the evidence or the witness. See Black v. State, 794 S.W.2d 752 (Tenn.Crim.App.1990); see also Brown v. McGinnis, 922 F.2d 425 (7th Cir.1991) and Goode v. Armontrout, 925 F.2d 239 (8th Cir.1991).
Here, the defense had a theory of mitigation in the 1992 trial. This centered around the sexual abuse of the [appellant] when he was twelve. The defense presented evidence that the killing at issue in this case was motivated by a subconscious desire for revenge for the sexual abuse inflicted upon him and for rage at the discovery by his family of his homosexuality. This theory was supported by the testimony of Dr. Barry Nurcombe who is the head, of Child Psychiatry at Vanderbilt Medical School. Dr. Nurcombe was an impressive, witness. He was not a professional witness and seldom testified in court. He was well versed in the [appellant's] prior background, and well articulated the defense theory.
[trial court's extensive description of other mitigation evidence at sentencing omitted]
Under the standard set forth in Goad, we conclude that the appellant has not presented any evidence, at the post-conviction hearing substantially different from that proof introduced during the penalty phase. The mitigation specialist retained for post-conviction purposes admitted that Dr. Nurcombe had access to the same records that she had, save one. "[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether." Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066. Considering the evidence before this court, we conclude that additional evidence from further mitigation investigation would be merely cumulative to that evidence obtained by trial counsel prior to the sentencing hearing. The appellant suggests that trial counsel should have presented this information in a different manner. This allegation is misplaced; counsel cannot be deemed ineffective merely because a different procedure or strategy might have produced a different result. Given the records presently before this court, we conclude that trial counsel adequately investigated the appellant's background and presented a case in mitigation that was supported by the information introduced. This claim is without merit.
2000 WL 1562865 at **23-24, 27.
"Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel's failure "to conduct constitutionally adequate pretrial investigation into potential mitigation evidence" can "hamper[] [their] ability to make strategic choices." Harries v. Bell, 417 F.3d 631, 639 (6th Cir.2005). See also Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991) ("[O]ur case law rejects the notion that a `strategic' decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.").
The proof introduced at Petitioner's sentencing hearing, included Petitioner's personal history, his family problems, the testimony of an expert psychiatrist as well as the assistance of mitigation specialist. Given the Petitioner's personal history, Petitioner's trial counsel's theory of mitigation was within the range of reason. The Tennessee courts' rulings on this claim are reasonable.
As to Petitioner's proof in this action of Petitioner's bipolar disorder and drug dependency, for reasons stated earlier, such evaluations that are years after the events are not probative. Supra at p. 17. Given the state and federal law upholding convictions of defendants with bipolar disorder, supra at p. 18, the Court concludes this proof would not have altered the fact of Petitioner's conviction or sentence.
c. Petitioner's Claims of Ineffectiveness of his Appellate Counsel
As noted earlier, Petitioner's claim is that his appellate counsel should not have raised on appeal the claims that are asserted in this action. (Docket Entry No. 32, Amended Petition at p. 19). Petitioner asserts his appellate counsel should have researched "ligature strangulation." Id. This subpart appears to relate not to trial counsel, but a deficiency to Petitioner's appellate counsel. Id. at pp. 19-20.
In Murray v. Carrier, 477 U.S. 478, 485-36, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court reviewed its precedents and held that acts or omission of a petitioner's trial and appellate counsel may constitute cause. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court ruled that absent an error of constitutional magnitude, trial strategy decisions of counsel could not establish cause, id. at 133-34, 102 S.Ct. 1558, unless the decision is of constitutional significance. Murray, 477 U.S. at 486-88, 106 S.Ct. 2639. In Murray, the Supreme Court made it clear that procedural defaults attributed to ignorance or the inadvertence of counsel or as a result of a deliberate appellate strategy that fails to raise a "particular claim" would preclude federal habeas review of a claim. 477 U.S. at 487, 106 S.Ct. 2639. "[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default." Id. at 486, 106 S.Ct. 2678. As to the failure to raise a claim on appeal, the Court also observed that "[t]his process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)).
The Court concludes that any omission of Petitioner's appellate counsel to raise any of the cited claims on any state appeal is not grounds for habeas relief.
d. The Validity of Petitioner's Guilty Plea
A related claim is claim 32 that Petitioner's plea was an invalid guilty plea because his plea was not knowingly, intelligently and voluntarily entered based upon his counsel's ineffectiveness. State trial courts are required to advise a state defendant of his rights under the Due Process Clause of the Fourteenth Amendment to ensure a voluntary and knowing plea of guilty. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record should reflect a full understanding of the direct consequences so that the plea represents a voluntary and intelligent choice among the alternatives. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). As pertinent here, the Constitution requires that a defendant be informed of the direct consequences of his plea, Brady v. United States. 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) including the maximum possible sentence. Riggins v. McMackiu, 935 F.2d 790, 796 (6th Cir.1991). Counsel's expectation about the sentence are not grounds for invalidating the plea agreement, Stout v. United States, 508 F.2d 951, 953 (6th Cir.1975), absent gross error. Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir.1988).
There is not any showing here that Petitioner was inadequately advised as to the consequences of the plea. Petitioner understood his rights, the elements of the offense and State's proof and voluntarily entered his guilty plea. The state court records reflect that Petitioner was pleased with his counsel and never complained about their representation. Supra at p. 33. Petitioner never testified in his state post-conviction hearing that his plea was involuntary or that he lacked knowledge of the consequences of his guilty plea. As found above, Petitioner had effective assistance of counsel in deciding to plead guilty in a case where the proof of his guilt was overwhelming. This related claim also lacks merit.
2. Petitioner's Jury claims
a. Voir Dire Claims
Petitioner's claim 8 asserts denial of a fair and impartial jury in violation of the Sixth, Eighth and Fourteenth Amendments because the trial court precluded questions that Petitioner asserts are necessary to empanel a fair and impartial jury and the trial court refused to allow Petitioner personally to conduct voir dire. (Docket Entry No. 32, Amended Petition at pp. 3-5). The specifics on subparts of these claims in ¶ 8 of the First Amended Petition are as follows:
a. The trial court precluded Henry Hodges from questioning prospective jurors about whether they could consider mitigating evidence and impose a life sentence for someone who was previously convicted of another murder.
b. This question was especially relevant under the circumstances here, as Henry Hodges had been convicted of a separate homicide in Georgia, which was then used as an aggravating circumstance by the prosecution at the sentencing hearing.
c. If a juror could not consider mitigating evidence or a life sentence under such circumstances, then Henry Hodges would "on the facts of this case" automatically receive a death sentence without consideration of his mitigating evidence. Turner v. Murray, 476 U.S. 28, 35, 106 S.Ct. 1683, 1687, 90 L.Ed.2d 27 (1986).
d. It was a clear constitutional violation for the trial court to prohibit Henry Hodges from asking jurors, under the circumstances of this case, whether they could impose life upon someone convicted of more than one homicide. The constitutional violation is made clear by the voir dire of prospective juror Patsy Hedgepath. Patsy Hedgepath was asked whether she could consider mitigating evidence and a life sentence for someone convicted of more than one homicide, and she stated that she could not consider a life sentence. As a result, she was excluded from the jury for cause. See Tr. 1120-1124 et seq. (Patsy Hedgepath excluded for cause because of inability to consider mitigating evidence).
e. Despite disqualifying Patsy Hedgepath based upon her answers to such questioning, the trial court persisted in precluding Henry Hodges from asking such questions to other jurors. Tr. 1130.
f. The colloquy with Patsy Hedgepath and her exclusion by the trial court demonstrate that the trial court's refusal to allow the same question to all other prospective jurors was wholly arbitrary and objectively unreasonable. Indeed, there is no logical or legal basis for precluding a defendant from asking a particular question to jurors, when the trial judge himself relied on one prospective juror's answer to that question as providing a proper and constitutional basis for excluding that juror. The trial court's own actions confirm that denial of the question to other jurors did not meet "the essential demands of fairness." Morgan v. Illinois, 504 U.S. 719, 730, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941).
g. The trial court's refusal to allow Henry Hodges to ask this question was unreasonable and arbitrary, as was the Tennessee Supreme Court's failure to grant relief on this constitutional claim under Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) and its precursors. See Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27(1986); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). See also State v. Biegenwald, 126 N.J. 1, 594 A.2d 172 (1991) (capital defendant must be allowed to voir dire jurors concerning aggravating circumstances applicable to his particular case). (Docket Entry No. 32, First Amended Petition at pp. 3-5).
The related voir dire claims are claims 22, 23 and 24 that concern the trial court's limitations of counsel's voir dire questioning:
22. In violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the trial court precluded Petitioner from inquiring of prospective jurors: 1) whether they could consider mitigation evidence if they learned that Petitioner had previously been convicted of another murder; and 2) whether they believed that Petitioner would be incarcerated for the remainder of his life if the jury sentenced him to life imprisonment.
23. In violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, in trial court failed to strike for cause prospective jurors who stated that they would automatically impose a death sentence (prospective jurors Wilma J. Fitzgerald, Bonnie L. Case, Martha Hill, Patricia K. Williams, Charles E. Scott, Wyman F. Creech); 2) struck for cause prospective jurors who, while they expressed reservations respecting the death penalty, indicated that they could follow the law (prospective jurors Bill R. Bennett, Arvilla Harris); 3) failed to strike a former girlfriend of a police officer who was involved in the investigation into the Bassett murder (prospective juror Cindy A. Moore).
24. In violation of the Sixth, Eighth, and Fourteenth Amendments, both the trial court and the prosecution obtained from prospective jurors a promise that if Petitioner was found guilty of first-degree murder, and if they found that aggravating evidence outweighed mitigating evidence, they would do their "duty and obligation" to return a death sentence.
Id. at pp. 32-33.
As to subparts a and d of claim 8 and claims 23 and 24 on the voir dire of individual jurors, on Petitioner's direct appeal, the Tennessee Court of Criminal Appeals reviewed the circumstances of each juror listed. Hodges, 1995 WL 301443 at **7-12.
The appellant contends that during the individual voir dire the trial court, using close-ended questions, rehabilitated jurors that were subject to a defense challenge. However, the "same courtesy was not extended to those jurors who were subject to cause challenges by the State." He argues that this "disparate treatment of prospective jurors . . . violated the [appellant's] right to due process."
The appellant addresses the individual voir dire of four prospective witnesses, Bonnie L. Cash, Patricia K. Williams, Wyman F. Creech, and Arvilla Harris. Only one of these prospective jurors, Creech, was a member of the jury that sat in judgment of the appellant. This Court opts to consider all of the prospective jurors that were challenged for cause during the individual voir dire. Bonnie L. Cash candidly stated that she, like the members of her family, believed in the death penalty. However, she also stated that she did not "disagree with a life sentence;" and, before she would impose a death sentence, she would consider the imposition of a life sentence. She also stated that she would follow the law. Cash was subsequently called as a prospective juror during group voir dire. While the record is silent, it appears that defense counsel used a peremptory challenge to strike her from the panel. Patricia K. Williams stated that she could impose either a death sentence or a life sentence. However, before imposing a death sentence, she would have to have a "clear mind," meaning that the state would have to convince her that a death sentence was appropriate; and the aggravating and mitigating circumstances must be "weighed out" to determine the appropriate sentence. She subsequently told the trial court that she became confused after listening to defense counsel's questions and explanations of the law. A reading of the questions propounded and explanations made by defense counsel reveals why Ms. Williams became confused. The trial court subsequently asked questions to make sure that Ms. Williams could be fair and impartial. It then allowed further questioning by defense counsel. Ms. Williams constantly stated that the factors would have to be "weighed out" in order to determine the appropriate sentence.
Wyman F. Creech stated that he had seen news reports of the murder on television. However, he had not formed an opinion as to the appellant's guilt or innocence, and he would require the state to prove its case beyond a reasonable doubt before he would vote to convict the appellant or impose a death sentence. He stated he could consider both a life sentence and a death sentence, and he would have to weigh the aggravating factors before determining that sentence. If he had any doubt, he could not vote for a death sentence. He also stated that he would follow the law given by the trial court. Mr. Creech also became confused by the questions and explanations made by defense counsel. The trial court simply made sure that he could be a fair and impartial juror. The trial court again gave defense counsel, not the state, time to propound additional questions to Mr. Creech.
Mr. Creech was one of the initial jurors that was called at the beginning of the group voir dire. The appellant had fifteen challenges at that time. Neither the appellant nor the state peremptorily challenged him. Thus, he was a member of the jury that returned the death sentence.
Arvilla Harris expressed her opposition to the death penalty. She first stated that she had mixed views about the death penalty. She then stated that she guessed she could set aside her views. She also stated that she did not know if she could set aside her views regarding the death penalty. Later, she proclaimed that she did not think she could impose a death sentence under any circumstances. Finally, she stated that she would not consider imposing a death sentence regardless of circumstances. Her views were based on religious convictions. The trial court granted the state's challenge for cause.
When the trial court questioned Susan G. Whitman, she stated that she saw the program featuring a television personality interviewing the appellant about the murder he committed. She also stated he had admitted killing the victim, but his sexual molestation as a youth "drove him to do what he did." Ms. Whitman opined that the appellant deserved the death penalty for the murder. Although she stated she could follow the law, her initial inclination was to impose the death sentence. The trial court excused Whitman before either the state or the defense had the opportunity to question her. Neither party objected when Ms. Whitman was excused.
Bill R. Bennett was also familiar with the facts surrounding the prosecution of the appellant. He stated the appellant had escaped from jail, and he was charged with murder. However, Bennett stated that he had not formed an opinion as to the appellant's guilt. Bennett, like Harris, vacillated during questioning. When asked about the death penalty, he stated: "I don't actually believe in it. I don't actually believe in the life sentence, either." Later, he stated: "I don't know if I could [impose the death penalty] or not. I'm not sure about that." Finally, he stated: "I don't really believe I probably could even do it. I don't know. I have to say no." He stated that his feelings against the death penalty were "pretty strong." The trial court gave defense counsel the opportunity to rehabilitate Bennett. He continued to say he could not impose a death sentence. The trial court granted the state's challenge for cause.
Lyz N. Diaz had heard the appellant's name mentioned at work, and she knew that he had killed someone. However, she did not know the details surrounding the murder. Diaz stated that she would go by the law a "hundred percent." She also stated she could consider a life sentence and a death sentence. Defense counsel challenged Diaz for cause. Counsel contended that she did not "have a minimal understanding of what she's about to engage in." The trial court denied the challenge.
Diaz, like Creech, was one of the initial jurors called at the beginning of the group voir dire. The appellant had fifteen challenges at that time. Neither the appellant nor the state peremptorily challenged her. Thus, she was a member of the jury that returned the death sentence.
Defense counsel challenged Leroy Thompson for cause for the same reason given when challenging Ms. Diaz. The trial court denied the challenge. Mr. Thompson was called and questioned during the group voir dire. He was peremptorily challenged. Thus, he did not serve on the jury that returned the death sentence.
Patsy A. Hedgepath stated that she probably could not consider mitigating circumstances; and, if the accused was guilty, she would vote for a death sentence. The defendant challenged Hedgepath for cause during the individual voir dire. The trial court, granted the challenge because Hedgepath was not "open-minded,"
This Court has reviewed the entire voir dire proceedings. The record reveals that the trial court did not attempt to rehabilitate any prospective juror. When it was obvious that a prospective juror became confused, the trial court attempted to alleviate the confusion as well as to determine if the prospective juror was prone to impose the death penalty without regard to the evidence. In doing so, the trial court was fair to both parties. However, assuming arguendo that the trial court was biased during the individual voir dire examination, there are several reasons why the appellant is not entitled to relief on this ground.
The right of an accused to a fair and impartial jury in a capital case prohibits the inclusion of jurors who will impose a death sentence without regard to the law or the facts. In this case, no juror who sat in judgment of the appellant and returned the death sentence stated that he or she would, automatically return a death sentence if the appellant was convicted of a capital offense.
* * *
Two prospective jurors that the appellant challenged, Lyz N. Diaz and Wyman F. Creech, were two of the twelve jurors who were called when the group voir dire commenced. The appellant had fifteen (15) peremptory challenges at his disposal when these two prospective jurors were seated. The appellant chose not to challenge these prospective jurors, and they were members of the jury that returned the death sentence. Since the appellant did not use peremptory challenges to strike these prospective jurors, he cannot now complain that the trial court denied his challenge of these two individuals for cause.
* * *
The denial of the appellant's challenges of Cash, Williams and Thompson are equally without merit. Peremptory challenges were used to strike these prospective jurors. The record does not reveal who challenged them. If the appellant challenged these prospective jurors, he cannot now complain that the challenges for cause were denied. These three people were not members of the jury that returned the death sentence. Consequently, an incompetent juror was not thrust upon him.
* * *
The trial court properly excused Arvilla Harris for cause. It is obvious from a reading of her voir dire examination that she had views towards capital punishment which "would `prevent or substantially impair' the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath." In addition, a trial court's determination that a prospective juror does not meet the Wainwright v. Witt standard is presumed to be correct. The burden rests upon the shoulders of the appellant "to establish by convincing evidence that the determination was erroneous." The appellant has failed to establish that the trial court's determination as to Harris was erroneous.
Id. at **9-12 (emphasis added and footnotes with citations to state and federal law omitted).
As to subparts b and c of claim 8 and claim 22 on voir dire that are based upon the scope of permissible questioning by the defense counsel, the Tennessee Court of Criminal Appeals cited state law and ruled as follows:
When defense counsel asked the first prospective juror during individual voir dire if it would be difficult to sit in judgment of the accused if "aspects of homosexuality" were established by the evidence, the assistant district attorney general objected on the ground the inquiry exceeded the scope of the individual voir dire. During a jury-out hearing, defense counsel stated that he intended to inject into his voir dire the fact the appellant had been previously convicted of murder in the first degree. The trial court, referring to the United States Supreme Court's decision in Murphy v. Florida advised defense counsel not to tell "these jurors that he's got some prior problems with the law, and then come in here and turn around and they try to knock out because they say they've got a problem, because that particular strategy was just I mean, that doesn't go." Later, the trial court noted that defense counsel was essentially seeking a pledge from the prospective jurors as to how they would vote regarding aggravating circumstances concerning the prior conviction involving violence to the person.
When the question arose again, the trial court advised defense counsel that he could pose a hypothetical question that did not involve the facts of the case on trial. The court suggested that counsel use the killing of a child and whether the prospective juror could consider mitigating circumstances if these facts were present. Counsel continued to question the prospective juror. Counsel posed the question concerning the death of a child and asked the prospective juror whether the juror could consider mitigating circumstances if the appellant was found guilty of a capital offense. The appellant complains that the trial court refused to permit him to ask the prospective jurors whether the appellant's homosexual activities would affect their ability to be fair and impartial. Defense counsel knew that the individual voir dire was limited to the prospective jurors' view on capital punishment and their exposure to pretrial publicity. On the other hand, the trial court did not limit the group voir dire; and the trial court advised defense counsel he would be permitted to make such an inquiry at that time. Thus, the trial court did not limit the are that defense counsel wanted to probe.
The appellant also complains that he should have been permitted to ask the prospective jurors whether the would consider a life sentence if the appellant had been previously convicted of murder in the first degree. Each prospective juror who was tentatively selected had stated that he or she could follow the law. Each stated that he or she could consider a life sentence as well as a death sentence; and each juror stated that he or she would weigh the aggravating circumstances and the mitigating circumstances in determining the proper-sentence to be imposed. The question posed by defense counsel could not be answered by the prospective jurors without knowing more about the facts surrounding the case, the aggravating circumstances, and the mitigating circumstances that might be submitted during the sentencing hearing. Also, the question was intended to obtain a pledge from the prospective juror. That is not permissible.
1995 WL 301443 at **7-8 (emphasis added).
As to subparts a, d, g of claim 8 and claim 22 on Petitioner's assertion of his personal right to voir dire the jury panel, the Tennessee Court of Criminal Appeals ruled as follows:
The appellant fried a motion prior to trial for the entry of any order permitting him to pose questions to the prospective jurors. Defense counsel states in their brief that they wanted the appellant to ask a few questions for the purpose of "humanizing the [appellant] in the eyes of the jury." In other words, the appellant sought hybrid representation.
* * *
. . . .Neither the United States Constitution, the Tennessee. Constitution, or the applicable statute grants the accused, the right to hybrid representation. Furthermore, the courts "are not willing to extend the reach of the Sixth Amendment to include such a right."
1995 WL 301443 at **12, 13 (emphasis added and footnotes omitted).
In Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). the Supreme Court restated its precedent that "[v]oir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." (quoting Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976)). The issues in voir dire are the Defendant's "right to an impartial jury" and the trial judge's "restriction on inquiries at the request of counsel [are] subject to the essential demands of fairness." Id. at 728, 730, 112 S.Ct. 2222 (quoting Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)). The trial judge's determinations of credibility and biases of potential jurors are entitled to "special deference." Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) and clear and convincing proof is required to set aside those evaluations. 28 U.S.C. § 2254(e)(1). In Morgan, the Supreme Court held that on voir dire defense counsel could ask only if the jurors would impose a death sentence upon a finding of guilt and were not permitted to question further. 504 U.S. at 723, 733-39, 112 S.Ct. 2222.
This Court concludes that the trial judge's rulings on voir dire were reasonable. Petitioner's counsel's questions had the effect of seeking a preliminary opinion Petitioner's personal life style and murder conviction. By these questions, Petitioner's trial counsel sought a preliminary vote of prospective jurors on the factual merits without all the evidence. As to the voir dire of individual potential jurors, Petitioner relies upon his appellate counsel's statement of the facts on this issue. Yet, the Tennessee Court of Criminal Appeals found that "[e]ach [juror] stated that he or she could consider a life sentence as well as a death sentence; and each juror stated that he or she would weigh the aggravating circumstances and the mitigating circumstances in determining the proper sentence to be imposed." 1995 WL 301443 at *8. The juror Harris was excused only after she responded that "she would not consider imposing a death sentence regardless of circumstances. Her views were based on religious convictions. The trial court granted the state's challenge for cause." Id at *10 (emphasis added). Thompson did not serve on the jury. Under these facts, Harris was more than merely "affected by the prospect of the death penalty." Adams v. Texas, 448 U.S. 38, 49-50, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
The Court concludes that Tennessee appellate court's ruling upholding the trial court's voir dire rulings, is reasonable. This Court also concludes exceptional circumstances did not exist to require Petitioner personally to question prospective jurors in a hybrid form of voir dire. The Court concludes that the Tennessee Court's rulings on these claims are reasonable.
b. Jury Exemption Claim
In claim 21, Petitioner asserts that the trial court allowed potential jurors who are educated and held certain occupations "to exempt themselves from jury service if they so choose." (Docket Entry No. 32, Amended Petitioner at p. 32). Petitioner also asserts that the trial judge denied his requests for funds to have an expert to prove evidence of these exclusions. Id.
This claim was raised on Petitioner's direct appeal to the Tennessee Court of Criminal Appeals that cited federal law and ruled as follows:
While the groups that were exempted share the same profession or occupation, there is no evidence that individuals falling within one of these classifications share unique attitudes, ideas, or experiences. Consequently, members of a particular profession or occupation do not constitute a cognizable group . . .
The appellate courts of this state have held that individuals of the same age or age grouping do not constitute a cognizable group. This Court holds that individuals having a college education, an advanced degree, or that pass an examination to obtain the right to join a profession are not a cognizable group. Hodges, 1995 WL 301443 at *27 (footnotes with citations to stated and federal law omitted).
As the Tennessee appellate court correctly stated, the United States Supreme Court authorized States to exempt citizens from jury service.
The States are free to grant exemptions from jury service to individuals in case of special hard-ship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare. It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community.
Taylor v. Louisiana, 419 U.S. 522, 534, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (citation omitted).
As the Tennessee Court explained: "If the individual desires to serve, he or she is free to waive the exemption and become a member of the jury panel." 1995 WL 301443 at *26. This Court concludes that the state court's dismissal of this claim was reasonable.
c. Jury Instruction Claims
In claims 11(c) and (d), and claim 12, Petitioner challenges the adequacy of the trial court's jury instructions on mitigation.
11. * * *
c. The jury was never instructed that the aggravating circumstance could be found only if there was affirmative proof that there was the "intent" to inflict severe pain or serious physical abuse upon the victim, not simply severe pain or abuse. Consequently, the death sentence is unconstitutional, as this lack of instruction permits the death sentence without adequate narrowing of the class of person eligible for the death sentence, as any homicide could be said to involve severe pain or abuse. See Wade v. Calderon, 29 F.3d 1312, 1320 (9th Cir.1994); Compare People v. Davenport, 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861, 875-876 (1985) (severe pain involved in virtually all murders and thus its presence does not distinguish among murders).
d. Similarly, the jury never received any narrowing construction of the phrase "serious physical abuse" contained in the aggravating circumstance, and none had been provided at the time of trial.
* * *
12. In violation of the Eighth and Fourteenth Amendments, the trial court's instructions at the sentencing proceeding were inaccurate and incomplete:
a. The trial court erroneously instructed the jurors that they were to consider mitigating circumstances "if you believe they have been proven." There is no requirement under Tennessee law or the federal constitution, however, that imposes a burden of proof upon the defendant and thus limits the consideration of mitigating circumstances. Rather, under Tennessee law, a mitigating circumstance is to be considered simply if it is "raised by the evidence," and the defendant has no burden of proof. Tenn. Code Ann. § 39-13-204(e), (j). The instruction thereby precluded the full consideration of mitigating evidence by the jury. See, Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869. 71 L.Ed.2d 1(1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
b. The trial court also failed to guide the jury's deliberations by failing to provide specific mitigating circumstance instructions to the jury
1) Henry Hodges requested that the jury be instructed on the specific mitigating factors which were present in the case. His requested instructions on mitigating circumstances included the following:
a) "The defendant had a disturbed childhood due to the irregular nature of the relationship of his parents, the conflicts that existed between them, and the financial hardships experienced by the family" (Tr.1923, 1931, 1935, 1941,1973,1982, 2105-2106, 2115, Ex. 22)
b) "The defendant's psychological and social development was severely impacted by the trauma of being abducted and homosexually raped at the age of 12, an experience which he was afraid to reveal to others for fear that he would be blamed or rejected" (Tr. 2008-2016, 2018-2019, 2021-2022, 2106-2112, 2127)
c) "The aftereffects of the trauma, in combination with a genetic predisposition to alcoholism, led to the defendant's becoming drug-and alcohol-dependent during his adolescence" (Tr. 1937-1938, 1942, 2021,2102, 2108, 2113-2114, Ex. 22)
d) "The defendant's drug and alcohol dependency, in combination with the psychological impairments resulting from his disturbed childhood and preadolescent sexual abuse, contributed to the defendant's becoming truant from school and to his delinquent, and later criminal, behavior." (Tr.1937-1938, 1942,1960,2021, 2046, 2108-2116, Ex. 21, Ex. 22)
e) "As a result of his disturbed childhood and preadolescent sexual abuse, the defendant developed a severe conflict regarding his sexual identity which he felt compelled to keep secret from his family." (Tr. 1745, 1747, 2112, 2117-2118, 2127)
f) "When the defendant's sexual conflicts were revealed to his family he suffered a mental and emotional disturbance." (Tr. 1747, 2127-2132, 2146)
g) "The intent to commit murder was formed while the defendant was under the influence of this mental and emotional disturbance." (Tr. 1748, 1751, 2129-2137)
h) "The defendant did not wish to kill the victim and persuaded to commit the murder by his juvenile accomplice, Trina Brown, who was permitted to plead guilty and receive a sentence of incarceration in a juvenile institution until she is twenty-one years of age." (Tr. 1715, 1721, 1755-1759, 2139-2140).
i) "The Defendant was an immature and emotionally dependent person at the time of the offense and his judgment was impaired by alcohol and drugs." (Tr. 1574, 2128-2129).
j) "The murder of the victim in this case added to the mental and emotional disturbance the defendant was experiencing, and contributed to the commission of the homicide in Atlanta which has been listed as one of the statutory aggravating factors." (Tr. 2143).
k) "The defendant was immature and emotionally dependent person at the time of the offense and his judgment was impaired by alcohol and drugs." (Tr. 2143).
(Docket Entry No. 32, First Amended Petitioner at pp. 22-25).
Citing state law, the Tennessee Court of Criminal Appeals rejected these claims as impermissibly requiring a fact specific instruction. Neither the Tennessee Constitution nor the Federal Constitution prohibits or requires informing a capital sentencing jury of relevant and accurate sentencing information. See State v. Bates, supra [804 S.W.2d 868 (Tenn.), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991) ]; California v. Ramos, supra [463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983)]. We are of the opinion that to provide a jury with the sort of information requested by defendant could result in sentences of death based on sheer speculation and on factors other than those enumerated in T.C.A. § 39-2-203 [now T.C.A. XX-XX-XXX] and sanctioned under either Constitution.
1995 WL 301443 at *26.
The Tennessee Supreme Court likewise addressed Petitioner's jury instructions challenging in his direct appeal:
In Odom, supra, the defendant claimed that the trial court erred by refusing to submit to the jury his requested fact specific instructions on nonstatutory mitigating circumstances. We rejected that claim, concluding that the fact specific instructions advocated by the defense implied to the jury that the judge had made findings of fact in contravention of Article VI, § 9 of the Tennessee Constitution. Id., 928 S.W.2d at 32. We held that specificity in the charge on nonstatutory mitigating circumstances is inappropriate and cautioned that instructions must be drafted "so that when they are considered by the jury, the statutory mitigating circumstances are indistinguishable from the non-statutory mitigating circumstances." Id. Though not explicitly stated in Odom, the clear implication is that instructions on nonstatutory mitigating circumstances must be phrased in general categories similar to the statutory mitigating circumstances. Finally, we emphasized in Odom, that under the statute, a trial court has no duty, absent a timely and proper request from the defense, to include instructions on nonstatutory mitigating circumstances. Id., 928 S.W.2d at 31. However, when the defense proffers a requested instruction which is overly specific, it is incumbent upon the trial court to revise and generalize the instruction to conform to the evidence and the law. Id.
* * *
Applying those principles to the facts in this case, it is clear that the trial court appropriately denied the defendant's requested instruction. A fair reading of the defendant's requested instructions leaves the distinct impression that the trial judge has made findings of fact which is impermissible under the Tennessee Constitution. Moreover, by their specificity, the requested instructions on nonstatutory mitigating circumstances were clearly distinguishable from the statutory mitigating circumstances which is not permissible under the statute and our decision in Odom. Therefore, the trial court, correctly refused to give the defendant's proffered instructions.
The defense claims also that the revised instructions given by the trial court, by their lack of specificity, defeated the purpose of the instructions and did not convey to the jury a fair picture of the mitigation proof. We do not agree. As was previously recognized, unlike lawyers, jurors do not parse jury instructions in an attempt to find subtle shades of meaning. Jurors interpret the instructions in a commonsense manner and in light of the evidence presented at the trial. Boyde, 494 U.S. at 380-81, 110 S.Ct, at 1198. The defense assertion ignores the reality that these jurors had heard specific evidence during the sentencing hearing about the defendant's childhood, his immaturity, alleged sexual abuse, drug abuse, mental illness and emotional disturbance, as well as the dominance by Trina Brown. By their breadth, the instructions on nonstatutory mitigating circumstances encompassed all the evidence presented by the defense at the sentencing hearing. Under this Court's decision in Odom, trial courts have a duty to modify proffered instructions to remove factual specificity. The trial court in this case fulfilled that responsibility long before the Odom decision was rendered. For that he deserves commendation, and the defendant's claim of error is without merit.
944 S.W.2d at 355-56 (footnotes omitted).
As to claim 12(a), Petitioner insists that the trial judge did not "give effect" to his mitigation evidence in the jury instruction, quoting Boyde v. California, 494 U.S. 370, 377-78, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)[5]. The Tennessee Supreme Court reviewed the trial court's complete jury instruction and reasonably concluded that the trial court was not requiring Petitioner to prove mitigation, but was instructing the jury to consider all of the evidence. Id. at 353-54, 110 S.Ct. 1190. Fom the Court's review, the Tennessee Court of Criminal Appeals found that the trial judge's instructions directed to the jury to consider any mitigation evidence in the record. Hodges, 1995 WL 301443 at *21. The record reflects that all mitigating facts about the Defendant's personal history were presented to the jury through witness. In the Court's view, the trial court did all that it could do to "give effect" to Petitioner's mitigation proof. The United States Supreme Court has not required fact based jury instructions on mitigation. See Blystone v. Pennsylvania, 494 U.S. 299, 306, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality). The Court concludes that these claims lack merit.
3. State's Insufficient Proof of Aggravated Circumstances
The Petitioner's claim 11 asserts that the jury's finding of aggravated circumstances was based upon insufficient and tainted evidence.
11. In violation of the Eighth and Fourteenth Amendments, the "heinous, atrocious, or cruel" aggravating circumstances found by the jury was unconstitutional:
a. There was insufficient evidence to support the aggravating circumstances, in that there was no competent proof that severe pain was wilfully inflicted upon the victim or that the victim suffered severe pain.
b. The jury's finding of this circumstances was based upon the false testimony of prosecution pathologist Charles Harlan, who claimed that during death by strangulation, the victim would have been conscious for the greater part of 3-5 minutes. This is not true. Rather, unconsciousness would result in a matter of seconds.
(Docket Entry No. 32, Amended Petition at p. 21) (emphasis added).
In deciding the sufficiency of the state's evidence to prove a "heinous," or a "cruel" death required as an aggravating circumstance for a death sentence, the Tennessee Supreme Court found as follows:
Hodges handcuffed the victim, bound his feet with duct tape and left the victim lying on the bed with a pillow over his head. No doubt, the victim suffered considerable mental pain as the defendant, along with Trina Brown, ransacked his home, looking for valuable property and money. The helpless victim's mental pain, no doubt, increased when the defendant and Brown, took a break, and over a coke, discussed whether or not they should kill the victim. The evidence surrounding the murder itself shows that the victim pleaded with Hodges for his life. Dr. Harlan testified that the killing would have taken between three to five minutes to accomplish and that victim would have been conscious during most of this period. Brown testified that she heard the victim moaning and making a choking sound. The facts and circumstances surrounding this murder, including the strangulation, are clearly sufficient to establish torture as that term has been defined in State v. Williams, supra and to support the jury's finding that this murder was heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death. Tenn.Code Ann. § 39-13-204(i)(5) (1991 Repl.).
944 S.W.2d at 357-58.
Petitioner cites the testimony of Dr. Harlan that it could have taken three to five minutes for the victim to die, as false and reputed by other experts. At the post-conviction hearing, additional expert proof was presented on this issue, as described by the Tennessee appellate court:
The State presented the testimony of Dr. Bruce Phillip Levy, Medical Examiner for Davidson County and Chief Medical Examiner for the State of Tennessee. Specifically, Dr. Levy was called to testify as to the time of death and the loss of consciousness in ligature strangulation cases. Dr. Levy testified that there are three different mechanisms that can cause loss of consciousness during ligature strangulation: (1) compression of the airway itself; (2) compression of both the arteries and veins in the neck; and (3) occlusion of the veins in the neck. The former involves the most pressure and the latter involves the least pressure applied around the neck. Dr. Levy testified that consciousness would be lost, in the second instance, in about ten to twenty seconds and death would result in about four to five minutes. He stated, in this type of case, there would be no congestion of the face, no hemorrhaging in the eyes, and congestion in the chest below the ligature. In the third instance, unconsciousness would result in about 60 seconds, and death in about four to five minutes. Dr. Levy stated that, in this instance, there would be marked congestion of the face and hemorrhaging of the eyes. According to Dr. Levy, there has been dispute in the medical community for the previous ten years regarding the length of time someone would remain conscious during strangulation. He testified that in 1989 or 1990, the belief was that someone could remain conscious for as long as they could hold their breath, which could be up to a couple of minutes.
Dr. Levy stated that, regarding the present case, he reviewed the medical examiner's file, the testimony at the trial, and the deposition of Dr. Sperry providing an opinion as to the length of time that the victim would have remained conscious. After reviewing this evidence, Dr. Levy concluded that the victim died as a result of a ligature strangulation involving compression of both the veins and arteries as well as occlusion of the veins alone. Dr. Levy also opined that there could have been more than just one continual attempt to strangle the victim in this case. Given the trial testimony and other information, Dr. Levy believed it was possible that the victim could have remained conscious for longer than a minute or two. Dr. Levy further believed that the minimum length of time the victim remained conscious was forty to eighty seconds, assuming there was a constant occlusion of the veins. On cross-examination, given his review of the evidence in the case, Dr. Levy testified that he disagreed with Dr. Harlan's trial testimony that the victim remained conscious for three to five minutes.
2000 WL 1562865, **12-13 (emphasis added).
The Tennessee Court of Criminal Appeals considered this contention and Petitioner's proof and concluded:
Indeed, the testimony regarding the length of time of the victim's consciousness was only one factor in establishing "torture." See State v. Henry Eugene Hodges, No. 01C01-9212-CR-00382, 1995 WL 301443 (Tenn.Crim.App. at Jackson, May 18, 1995), aff'd by, 944 S.W.2d 346 (Tenn.1997) ("[s]trangulation alone does not establish the heinous, atrocious and cruel aggravating factor."). Thus, even had defense counsel established that the length of the victim's consciousness was only twenty to thirty seconds, ample evidence still remained from which the jury could have found the "heinous, atrocious, cruel" aggravating circumstance. Accordingly, the appellant has failed to establish prejudice resulting from counsel's deficient conduct.
Id. at *17 (emphasis added).
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), sets the standard for reviewing the legal sufficiency of the evidence in support of a conviction.
. . . [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon `jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law.
Id. at 318-19, 99 S.Ct. 2781 (emphasis added with footnotes and citations omitted).
If any rational finder of fact would accept the evidence as establishing each essential element of the crime, the Jackson standard of review is satisfied. Id. at 324, 99 S.Ct. 2781. A question of purely state law rarely serves as a basis for habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and rulings by a state's highest court on state law are binding on the federal courts. Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam).
As a factual matter, as stated earlier, Trina Brown, the Petitioner's accomplice who witnessed the murder testified about how long the murder took: "Q. How long did it take Mr. Hodges to kill the man? A. About five minutes." (Docket Entry No. 40, Addendum No. 2, Volume 12, Transcript at p. 1723). Whatever the challenges to Dr. Harlan's testimony, under Tennessee law, Brown's and Dr. Levy's testimony about how long it took Petitioner to kill the victim render this contention meritless. Given the facts cited by the Tennessee Supreme Court on the victim's awareness during the strangulation and the circumstances of the murder, infra at p. 23, and the Tennessee Court of Criminal Appeals' definition of torture, this Court concludes that Tennessee courts' rulings on these facts are sufficient to establish a "heinous" and "cruel" murder under Tennessee law, and are reasonable.
4. Victim's Mother's Presence at Trial
Petitioner's claim 10 challenges the victim's mother's presence at the prosecutor's table. (Docket Entry No. 32, Amended Petitioner at pp. 20-21). Petitioner's specific allegations on these claims are as follows:
e. In violation of due process of law and the Eighth Amendment, Henry Hodges was denied a fundamentally fair sentencing hearing and the death sentence was imposed as a result of caprice, emotion, and whim based upon Mrs. Bassett's presence at the prosecution's table as well as the prosecution's open embrace of her before the jurors. This pervasive attempt to influence the jury to sympathize with the prosecution and to impose the death sentence created the unacceptable risk that Henry Hodges was sentenced to death based not upon his culpability but on reasons unrelated to his culpability. The death sentence must be reversed. See Payne v. Tennessee, 501 U.S. 808, 830 n. 2, 111 S.Ct. at 2597, 2611 n. 2, 115 L.Ed.2d 720 (1991) (presentation to jury of family of victim's endorsement of the death sentence violates Eighth Amendment).
Id. at 21. A related claim is claim 25(1)(2) and (3) that challenges the prosecutor's hugging the victim's mother and her departure from the courtroom. Id. at 33-34.
The Tennessee Court of Criminal Appeal's ruling on this claim described the factual circumstances of the victim's mother who requested to be seated at the prosecutor's table. The trial court remarked that such seating was "customary" for the State's "interested" witness and cited the lack of any testimony from the victim's mother supporting the death penalty. Hodges, 1995 WL 301443 at *17. The Tennessee Court of Criminal Appeals reviewed Tennessee precedents allowing this practice, id. at **18-19, and concluded:
The appellant contends Mrs. Bassett's presence at the state's counsel table "amounted to a statement by the victim's family that death was the appropriate sentence." He further contends that her presence "created an unacceptable risk that the jury's verdict was based on vengeance and sympathy." He argues that her presence resulted in the deprivation of several state and federal constitutional rights.
As the trial court stated there is a common law rule which permits the prosecutor or an interested witness to sit at counsel table with the assistant district attorney general prosecuting the accused. This has been the practice for many years.
* * *
The question of whether a layman should be permitted to sit at the state's counsel table is a matter which addresses itself to the sound discretion of the trial court. In this case, the trial court did not abuse its discretion by permitting Mrs. Bassett to sit at the state's counsel table. Contrary to the position asserted by the appellant, her presence at counsel table was not tantamount to the victim's family expressing the view that a death sentence was appropriate. Nor did her presence create an unacceptable risk that the jury's verdict would be predicated upon vengeance and sympathy.
The trial court advised defense counsel they could voir dire the jury regarding Mrs. Bassett's presence at counsel table. No questions were asked. The trial court instructed the jury prior to the commencement of the trial. The instruction given stated:
[I]t would be impermissible to decide any issue in this case based upon prejudice, sympathy or passion. And I want to make sure that anything that you observed or saw or read before this case, even in and around the courthouse, would not affect your ability to do that. So, again, I instruct you that nothing in this case is to be decided by you based on sympathy, prejudice or passion.
The trial court instructed the jury at the conclusion of the trial that "you cannot consider sympathy toward the victim or the victim's family" in determining whether to return a death sentence. It is an elementary principle of law that jurors are presumed to follow the instructions given by a trial court.
Problems can arise with relatives and friends of the victim regardless of where they may be seated in the courtroom. However, such problems did not occur in this case. Mrs. Bassett maintained her composure during the sentencing hearing. There was no emotional outburst. The record does not reflect that she cried during the hearing or exhibited any other emotion. Before the pathologist testified, Mrs. Bassett left the courtroom. This precaution prevented Mrs. Bassett from exhibiting her emotions in the presence of the jury.
Id. at **18-20. (emphasis added and footnotes omitted). The trial court invited Petitioner's counsel to address this issue on voir dire, but they declined to do so. Id. at *18.
As to the hugging incident that occurred outside the courtroom, the Tennessee Court of Criminal Appeals found as follows:
Immediately after the jury had been selected, an incident occurred in a hallway adjacent to the courtroom. Defense counsel moved for the entry of a mistrial. While making the motion, defense counsel made the statement that "the entire purpose of this woman [Mrs. Bassett] being here at all" is to "prejudice this jury against the Defendant.". The trial court denied the motion.
Id. at *17.
For this claim, Petitioner relies upon Payne v. Tennessee, 501 U.S. 808, 830 n. 2, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), but that reliance is misplaced. In Payne, the Supreme Court noted that testimony of the "victim's family members' characterization and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case." Id. (emphasis added). Here, the victim's mother's presence at trial, although prominent, is not evidence and the state trial court gave appropriate and timely instructions to the jury not to consider emotional factors in their deliberation. Petitioner's counsel could have explained any prejudicial influence on the jury during voir dire, but failed to do so. At most, her presence would be of much less impact than in Payne where the grandmother actually testified that her grandson misses his mother whom the defendant murdered. 501 U.S. at 814-15, 827, 111 S.Ct. 2597. The Court finds this ruling reasonable and given the other evidence at sentencing, the cited conduct did not violate Petitioner's right to a fair sentencing hearing.
5. The Testimony of the State's Medical Examiner
Petitioner's claims 11(b) and 19(b) are that Dr. Harlan, the State's medical examiner testified falsely on how long it took before the victim died from Petitioner's strangulation of him. Petitioner contends that this false testimony is reflected in Dr. Harlan's testimony in another case and the testimony of other physician witnesses in this case, including the State's rebuttal witness. The Tennessee Court of Criminal Appeals described the conflict in the context of Petitioner's ineffective assistance of counsel claim.
The affidavit of Dr. Kris Sperry was submitted the court . . . [and] provided the following:
* * *
During the course of his testimony, . . . Dr. Harlan states that "He would have remained conscious for the greater part of three to five minutes." In my opinion, to a reasonable degree of medical certainty . . . it was not possible for Mr. Bassett to have maintained consciousness for this extended period of time while being strangled in the manner depicted and described. Rather, the greatest probability is that he lost consciousness within no more than 20 to 30 seconds after the ligature was applied, and probably sooner. . . . Dr. Harlan's testimony grossly exaggerates the time that Mr. Bassett would have been able to maintain consciousness, far beyond what would be considered medically possible. . .
The appellant also presented the testimony of Dr. Harlan contained in the capital case, State v. Ronnie Cauthern, wherein Dr. Harlan stated that unconsciousness occurs in thirty seconds during ligature strangulation.
In rebuttal, the State presented the testimony of Dr. Bruce Phillip Levy. Dr. Levy opined that, in the instant case, it was possible that the victim could have remained conscious for longer than a minute or two. Dr. Levy admitted on cross-examination that he disagreed with Dr. Harlan's testimony. Indeed, Dr. Levy believed that the minimum length of time the victim could have remained conscious was forty to eighty seconds.
. . . . [T]he testimony at the hearing, that, at the time of the appellant's trial, the popular belief was that consciousness was related to how long a person could hold his breath rather than the blood supply to the brain. This opinion has since changed to the common position that once the blood supply to the brain is cut by strangulation then unconsciousness results. Accordingly, the post-conviction court refused to find the failure to further challenge Dr. Harlan's testimony ineffective. Additionally, the court noted that, since the finding of the "heinous, atrocious, cruel" circumstance was based on a number of factors, not just the length of the victim's consciousness, even if counsel's performance was deficient, it was not prejudicial. Although we find deficient counsel's performance in failing to fully investigate and challenge the State's proof that the victim was conscious for three to five minutes during the ligature strangulation, we agree with the post-conviction court that no prejudice enured to the appellant's detriment.
2000 WL 1562865 at **15-16 (emphasis added).
Aside from the experts' differences, Brown, Petitioner's accomplice, testified that it took about five minutes for the victim to die. Supra at p. 75. The Court concludes that the state courts' finding that there is not any prejudice on this claim is reasonable. Any related Brady claim based on Dr. Harlan lacks merit for lacking materiality and failing to create a lack of confidence in the result of Petitioner's trial.
6. Denial of Expert Services
Petitioner's claim 14 concerns the trial court's denial of his motion for an expert on his drug and alcohol dependency.
14. In violation of the Eighth and Fourteenth Amendments, the trial court denied Henry Hodges funding for an expert in the field of genetic transmission of drug and alcohol dependency, and the effects of drug and alcohol abuse. Though Dr. Martin was eminently qualified to testify about such matters (T.R. 131-149), though Henry Hodges made a detailed showing entitling him to such funding (T.R. 91-92), and though Henry Hodges' past mental state and mental state at the time of the offense was critical to the jury's assessment of his culpability, the trial court denied his motion. As a result of the trial court's ruling, Henry Hodges was denied due process of law and denied his Eighth and Fourteenth Amendment right to have the jury consider all of his mitigating evidence. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
(Docket Entry No. 32, Amended Petition at pp. 26-27).
In his state post-conviction appeal, the Tennessee Court of Criminal Appeals rejected this claim, citing the trial court's prior approval of two experts for the defense at trial and experts for post-conviction:
In his ex parte motion, the appellant claimed that the drug and alcohol expert was necessary to explain to the post-conviction court how the appellant's drug and alcohol addiction attributed to the crime and how the appellant's genetically predisposed addiction affected the appellant's personality and behavior. The mitigation specialist was requested in order to compile the psycho-social history of the appellant, to develop mitigation theories and to identify relevant forensic experts to assist in mitigation.
* * *
Although the post-conviction court granted the funding for the services of Dr. Robert Kessler, the [trial] court concluded that the appellant was not entitled to the services of the drug and alcohol expert and was not entitled to additional mitigation investigation. The [trial] court concluded:
I'm going to deny the mitigation specialist and the drug and alcohol addiction expert. Now let me tell you about the drug and alcohol addiction expert. I mean, I don't I don't discount the possible importance of that. But, again, sort of back to the same thing I would say about the mitigation specialist; I do believe that we judges and lawyers are sufficiently knowledgeable to take that information and process it.
In other words, I don't think just because you don't have an expert in your post-conviction hearing I mean, if you actually came up with the raw materials that prior counsel didn't find, I don't think you're precluded or even prejudiced in making the argument, well, Judge, if these raw materials were available and it was given to an expert we could have presented the expert to the jury.
. . .
And you all are smart enough to make this argument, Judge, if we'd known it, we could have gotten an expert who could have put this kind of spin on it. And I think I could process that and make a judgment about that without actually having the [expert] out there to tell me that.
* * *
We cannot conclude that the post-conviction court abused its discretion. The court had already granted a total of $15,000 to be used for mitigation investigation. The post-conviction court made a rationalized determination that an additional $8,500 for the purpose of "processing" already available information into mitigation themes was unnecessary. Likewise, the court was justified in finding that counsel was sufficiently capable of presenting to the court information regarding the appellant's substance addictions and the court was sufficiently capable of "processing" that information without the aid of an "expert." Additionally, the majority of this information was actually presented to the jury in this case through the testimony of Dr. Nurcombe. Finally, with regard to the fingerprint expert, given the overwhelming evidence of the appellant's guilt, even absent the fingerprint identification, we cannot conclude that the appellant would be able to establish prejudice on his ineffective assistance of counsel claim. Accordingly, we conclude that the post-conviction court acted within its discretion in denying the requested services.
2000 WL 1562865 at **28-29.
The Supreme Court holding on expert assistance is Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The Sixth Circuit "has interpreted Ake as allowing psychiatric assistance during the sentencing phase if 1) the defendant's sanity was a significant factor at trial, or 2) the state presents at sentencing psychiatric evidence of the future dangerousness." Smith a. Mitchell, 348 F.3d 177, 207 (6th Cir.2003). Here, as a factual matter, the Petitioner's sanity was not at issue at the guilt stage, and the State only presented expert psychiatric evidence in response to Petitioner's expert proof. The state trial court provided Petitioner with several experts. The Court does not find the state court's ruling on denying the funding of a drug expert to be unreasonable.
7. Exclusion of TDOC Evidence
Petitioner's claim 15 challenges the trial court's exclusion of defense proof on the number of state prisoners who committed aggravated crimes, but were not sentenced to death.
15. In violation of the Eighth and Fourteenth Amendments, the trial court excluded from the jury's consideration a Tennessee Department of Corrections report indicating that only a small portion of persons with prior convictions (aggravating circumstance (i)(2)) have ever received the death penalty, and that the jury should put little weight on that aggravating circumstance in this case. As a result, Henry Hodges was not able to have the jury make a reasoned moral response to his mitigating evidence, the offense, and the offender, in violation of the Eighth and Fourteenth Amendments. He was also unable to fully rebut the prosecution's claims that he should be executed because of a history of violence. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1(1986).
(Docket Entry No. 32, Amended Petition at p. 27).
This claim was addressed on Petitioner's direct appeal to the Tennessee Court of Criminal Appeals.
The appellant contends that the trial court committed error of prejudicial dimensions in ruling that "a computer report from the Tennessee Department of Correction which listed offenders having two or more homicide convictions, the degree of the homicides, the total number of convictions for each offender, the year of the last homicide sentence, and the total sentence received by each offender" could not be introduced as evidence at the sentencing hearing. He argues that the "proffered evidence goes to the weight to be given the subsection (i)(2) aggravating circumstance by showing the jurors that there have been many offenders with a previous homicide conviction who have received sentences less than death."
The appellant cites Tenn.Code Ann. § 39-13-204(c) as authority for the admission of the proffered evidence. He does not cite any case that supports his argument.
The state argues that the trial court correctly ruled that the proffered evidence was not admissible because it "was totally irrelevant to establishing or negating that aggravating circumstance." The state does not cite any authority in support of its argument. The argument advanced by the appellant is predicated upon a false premise. Many death penalty cases are settled pursuant to plea bargain agreements. If the agreement provides for a plea of guilty to a capital offense, the agreed punishment is life or life without parole. However, it is common for the state and the accused to agree that the plea may be to second degree murder, voluntary manslaughter, or a lesser included offense. Given this fact, the computer report was not an accurate assessment of "jury verdicts" in death penalty cases.
There is another false premise. The facts of the cases represented in the computer report may not have warranted the imposition of the death penalty. Also, it is common knowledge that assistant district attorney generals often waive a death sentence. This is commonplace. The reasons why a prosecutor may waive the death penalty are legion.
In summary, the computer report was neither relevant nor probative of a sentencing issue. The trial court did not abuse its discretion in ruling that the report could not be introduced into evidence. This issue is without merit.
1995 WL 301443 at * 25 (emphasis added).
A question of state law rarely serves as a basis for habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). "Today, we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions." Id. at 67-68, 112 S.Ct. 475. Rulings by a state's highest court on state law are binding on the federal courts. Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam). As a matter of federal law, admissibility of evidence does not arise to a level of constitutional magnitude unless its admission is so egregious that the habeas petitioner was denied a fundamentally fair trial. See Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988). To warrant habeas relief, the excluded evidence must be critical, that is, the evidence must "tend to exculpate" the petitioner and also must contain "persuasive assurances of trustworthiness." Turpin v. Kassulke, 26 F.3d 1392, 1396 (6th Cir.1994).
Here, the cited evidence lacks any indicia of reliability for the comparative purposes sought by Petitioner. Moreover, the legal authorities relied upon by Petitioner are inopposite. Penry, involved the exclusion of mitigation evidence pertinent to the individual defendant, 492 U.S. at 315, 109 S.Ct. 2934 and the evidence in Skipper was on the defendant's risk of future violence inside a prison. 476 U.S. at 4, 106 S.Ct. 1669. The holdings of these cases are premised upon mitigation evidence of "a defendant's character or record and any circumstances of the offense." Id. citing Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The Court deems this claim about evidence of other defendants and their convictions in various and different circumstances do not qualify under Penry or Skipper. The state courts' rulings on this claim are reasonable.
8. Admission of Petitioner's Georgia Murder Conviction
Petitioner's claim 16 is that the trial court's erroneously admitted his Georgia conviction at sentencing, despite the fact that this conviction occurred after the murder in Tennessee.
16. In violation of due process under the Fourteenth Amendment, the trial court allowed admission as an aggravating circumstance a conviction for a Georgia offense, where the offense and the conviction both occurred after the offense here:
a. The death of Ronald Bassett in Nashville occurred on May 14, 1990.
b. Michael Whiznant was later killed in Atlanta, Georgia on May 17, 1990.
c. At the sentencing hearing in Tennessee, the prosecution relied upon a conviction for the Whiznant homicide, where that conviction occurred on July 31, 1990.
d. The Tennessee legislature did not intend for "after-occurring" events to be used as a "prior conviction" under Tenn.Code Ann. § 39-13-204(i)(2) (1989)
e. In the non-capital context, such "after-occurring" events cannot be used to enhance a sentence. Tenn. Code Ann. § 40-35-106(b)(1) (1989) (prior felony must have occurred prior to new conviction; provision is designed to punish persons who have previously been convicted but then commit a new offense)
f. Also, the Georgia offense has increased the punishment for an offense which occurred prior to its occurrence.
g. As a result, the use of the (i)(2) aggravating circumstance violates 84 due process and equal protection under the Fourteenth Amendments.
(Docket Entry No. 32, Amended Petition at pp. 27-28).
The Tennessee Supreme Court decided this issue in Petitioner's direct appeal and found that the fact of conviction not the date of conviction was the controlling fact under Tennessee law:
The State introduced proof to establish that the defendant had been previously convicted of armed robbery, attempted kidnaping and robbery in Hamilton County in 1984. In addition, the State established that the defendant had been convicted of murder in Fulton County, Georgia in July of 1990. This evidence is clearly sufficient to support the jury's finding that the "[t]he defendant was previously convicted of one or more felonies, other than the present charge whose statutory elements involve the use of violence to the person." Tenn.Code Ann. § 39-13-204(i)(2) (1991) Repl). Moreover, we do not agree with the defendant's claim that the Georgia conviction for murder should not have been admitted to establish this aggravating circumstance because the killing in that case occurred after the offense in this case. We have previously held on numerous occasions that so long as a defendant is convicted of a violent felony prior to the sentencing hearing at which the previous conviction is introduced, this aggravating circumstance is applicable. State v. Nichols, 877 S.W.2d 722, 736 (Tenn.1994); State v. Caldwell, 671 S.W.2d 459, 464-65 (Tenn.1984). We decline the defendant's invitation to overrule this precedent; therefore, this issue is without merit.
944 S.W.2d at 357 (some emphasis added).
Thus, the Georgia conviction was introduced for a legitimate purpose to meet the requirements of state statutory law on aggravating circumstances. Aside from the state law issues, the United States Supreme Court has recognized that evidence of an individual defendant's future dangerousness at sentencing is appropriate.
This Court has approved the jury's consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant's future dangerousness bears an all sentencing determination made in our criminal justice system. . . .
The prosecutors . . . in . . . States that impose the death penalty frequently emphasize a defendant's future dangerousness in their evidence and argument at the sentencing phase; they urge the jury to sentence to death so that he will not be a danger to the public if release from prison.
Simmons v. South Carolina, 512 U.S. 154, 162-63, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (emphasis added with citations omitted). The state court's rulings are reasonable.
9. Tennessee's Proportionality Review for Death Sentences
Petitioner's claims 17 and 39 challenge the State's system of proportionality in review of death sentences.
17. The proportionality review by Tennessee Appellate Review conducted by the Tennessee Courts was constitutionally inadequate.
a. Henry Hodges was not on notice of any standards to govern such review
b. There were not any standards at the time of his direct review; they have only been created subsequently
c. There is no full compliance with Tenn.S.Ct.R. 12 (which requires information be gathered for each conviction of first-degree murder) which is necessary for any evaluation of the appropriateness of any death sentence in light of all similar cases throughout the state
d. The Tennessee courts in this case did not carefully and fully apply the dictates of Tenn.Code Ann § 39-13-206(c)(1), which requires full consideration of all similar cases, and analysis of the defendants and offenses in similar cases. There was no adequate discussion of Henry Hodges and his mitigating evidence by the Tennessee courts including his long history of mental illness.
e. As a result, the death sentence violates the Eighth and Fourteenth Amendment. There was inadequate notice, the review was incomplete, Henry Hodges was denied the full opportunity to be heard, and the appellate review was not meaningful. See Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991) (meaningful appellate review required); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (due process requires adequate notice); Harris v. Blodgett, 853 F.Supp. 1239 (W.D.Wash.1994) (proportionality review violated due process of law).
* * *
39. The Tennessee appellate courts' proportionality review violated Article I, §§ 8 and 16 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. In performing proportionality review, Tennessee's appellate courts 1) did not review Rule 12 forms on other first-degree murder prosecutions; and 2) employed Rule 12 forms that had inaccurate, incomplete, and/or untrustworthy information respecting Petitioner and others convicted of first-degree murder.
(Docket Entry No. 32, Amended Petition at pp. 28-29, 39-40).
The Tennessee Supreme Court decided this proportionality claim on Petitioner's direct appeal and found this claim to be meritless.
In accordance with the mandate of Tenn.Code Ann. § 39-13-206(c) (1) (1991) Repl.), we have considered the entire record in this cause and find that the sentence of death was not imposed in any arbitrary fashion; that the evidence supports, as previously discussed, the jury's findings of the statutory aggravating circumstances; and the jury's finding that the aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. Tenn.Code Ann. § 39-13-206(c)(1)(A)(C) (1991) Repl.). Finally, comparative proportionality review convinces us that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases considering the nature of the crime and the defendant. Tenn.Code Ann. § 39-13-206(c)(1)(D) (1991) Repl).
Our 1977 statute created a comparative proportionality review to serve as an additional safeguard against arbitrary or capricious sentencing. Such review of death cases insures rationality and consistency in the imposition of the death penalty. We have studied, compared, and analyzed cases and conducted a meaningful proportionality review as outlined in State v. Barber, 753 S.W.2d 659, 663-68 (Tenn.1988). We have reviewed Rule 12 reports from trial judges submitted over the past eighteen years in all criminal trials for first degree murder in which life imprisonment or a sentence of death has been imposed. We have made an independent, conscientious and thorough review of this case, as we have in every other capital case that has come before this Court. As a result of that review, we are of the opinion that the calculated and premeditated killing of this victim warrants imposition of the death penalty. The defendant rendered the victim helpless by binding his feet and hands and then proceeded to ransack the victim's home, while the terrified victim pondered his own fate. The defendant ignored the victim's pleas for mercy and proceeded to strangle the victim to death. The victim remained alive and conscious for most of the three to five minutes required for the defendant to accomplish this task. This murder places the defendant Hodges into the class of defendants deserving capital punishment and is not disproportionate to the sentences imposed in similar cases.
944 S.W.2d at 358. In the earlier direct appeal, the Tennessee Court of Criminal Appeals, this claim was also addressed and rejected this claim on various grounds. Hodges, 1995 WL 301443 at *35.
The Supreme Court has held that the Constitution does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 44-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Buell v. Mitchell, 274 F.3d 337, 368 (6th Cir.2001). This claim lacks merit.
10. Unconstitutional Death Penalty Statute
Petitioner's claim 37 challenges the constitutionality of Petitioner's death sentence statute that provides inadequate guidance to jurors.
37. Petitioner's death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because Tennessee's death penalty statute is unconstitutional. It is unconstitutional because 1) it provides jurors insufficient instruction on how to weigh aggravating and mitigating circumstances; 2) it allows a juror to avoid taking responsibility for a death sentence by concluding that because the law requires such a sentence, there is nothing a juror can do but to vote for a death sentence; 3) it precludes jurors from learning that a hung jury results in a life sentence and a juror can vote for life through an act of mercy; and 4) it is discriminatorily applied on the basis of economics, race of the victim, geography, and gender.
(Docket Entry No. 32, Amended Petition at p. 39). Petitioner's other constitutional challenge claims 41 and 42 are death by electrocution or lethal injection constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Id. at p. 41.
On direct appeal, Petitioner asserted numerous constitutional challenges to the death penalty, but not on these grounds. Hodges, 1995 WL 301443 at **33-35. The asserted claims were found meritless under state and federal law. On Petitioner's direct appeal, the Tennessee Court of Criminal Appeals held that Petitioner's claim that "Death by electrocution is cruel and unusual punishment. This theory has been addressed by our Supreme Court on numerous occasions, and on each occasion, the Court has rejected this argument." Id. at *34. Petitioner has not cited a United States Supreme Court holding that death by electrocution violated the Eighth Amendment. Petitioner's claim challenging the lethal injection method is not established by any proof and is moot. These claim lacks merit.
11. Production of Dr. Nurcombe's Notes
Petitioner's claim 40 is for violations of his rights under the Fifth, Sixth and Fourteenth Amendments at his sentencing. Petitioner asserts that at his sentencing, Dr. Nurcombe testified as an expert for him. After Dr. Nurcombe's testimony, the State's prosecutor requested Dr. Nurcombe notes, including what Petitioner describes as Dr. Nurcombe's raw notes. Citing Tenn.R.Crim. 26.2 and Tenn.R.Evid. 705, the trial court ordered the production of Dr. Nurcombe's notes on his interviews of Petitioner. Hodge, 1995 WL 301443 at *15. On appeal, Petitioner argued that this disclosure "violated his constitutional privilege against self-incrimination." Id. at *16[6] The Tennessee Court of Criminal Appeals disagreed:
As a general rule, a trial court will require disclosure of the underlying data of the expert's opinion when the court "believes that the party opponent will be unable to cross-examine effectively and the reason for such inability is other than the prejudicial nature of such facts or data. . . ."
The underlying facts and data that are elicited during the cross-examination of the expert are not admitted as substantive evidence. They are admitted "for the limited and independent purpose of enabling the jury to scrutinize the expert's reasoning." The trial court is required to give a limiting instruction as to how the jury is to consider the data and facts elicited during cross-examination.
* * *
It would have been extremely difficult, if not impossible, for the assistant district attorney general to cross-examine Dr. Nurcombe effectively without access to the notes. The trial court gave a limiting instruction to the jury. The jury was instructed in the following words: "Expert witnesses have testified as to what other persons have told them. This testimony may be considered only as a basis for the expert's opinion and not for the truth of these statements." The appellant's contention that providing the assistant district attorney general with the statements he made to Dr. Nurcombe violated his constitutional privilege against self-incrimination is devoid of merit. The appellant, not the state, called Dr. Nurcombe as a witness. Furthermore, the appellant knew, or should have known, that (a) Dr. Nurcombe would rely on his interviews with the appellant to formulate his opinion, and (b) the state would have the opportunity to test Dr. Nurcombe's controversial theory. For instance, the appellant admitted that he acted deliberately. He stated that attempting to justify his actions through a psychological theory was sheer "hogwash." Also, Dr. Nurcombe testified that he had a better insight into why the appellant committed the murder than the appellant himself.
The appellant's reliance upon Estelle v. Smith [451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) ] is misplaced. Estelle and this case are factually distinguishable. In Estelle, the person conducting the examination was appointed by the trial court to determine the competency of the accused for trial. Here, the doctor was selected by the appellant or his counsel. Also, the evidence was admitted as substantive evidence in Estelle. The evidence in this case was introduced solely for the purpose of testing the reasonableness of Dr. Nurcombe's opinion.
Since the "clinical notes" were properly provided to the assistant district attorney general pursuant to Tenn. R. Evid. 705, and the ruling of the court was a reasonable exercise of its discretion, it is not necessary for this Court to decided whether the "clinical notes" constitute a "statement" within the meaning of Rule 26.2, Tenn. R.Crim. P. This issue is without merit.
Id. at **16-17. (footnotes omitted).
Upon review of Estelle, that decision refers to where the State compels the witness's testimony. 451 U.S. at 463, 101 S.Ct. 1866. Here, Petitioner elected to put forth Dr. Nurcombe's testimony based upon his statements to Dr. Nurcombe. In this context, any privilege on these subjects is waived. Brown v. United States, 356 U.S. 148, 154-55, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). The Court concludes that the Tennessee Court of Criminal Appeals decision on this claim is reasonable because Estelle involved a state agent psychiatrist who interviewed a defendant without prior disclosure to the defendant that his statements could be used against him. 451 U.S. at 457, 461, 463, 101 S.Ct. 1866. Those circumstance are not presented here. Petitioner elected to submit expert proof based upon interviews of him and placed his statements to Dr. Nurcombe at issue. This claim lacks merit.
12. Dr. Kyser's Testimony
Petitioner's claim 13 concerns the admission of the testimony of Dr. Kyser, a State expert who testified on rebuttal that Petitioner demonstrated a "lack of remorse." (Docket Entry No. 32, Amended Petition at p. 26). Petitioner contends that such testimony violates his rights under the Fifth and Fourteenth Amendments to remain silent. Id. Petitioner also asserts an undefined Eighth Amendment claim on this testimony.
The Tennessee Court of Criminal Appeals described this testimony on direct appeal
The appellant was interviewed by Drs. Kyser and Morgan on several occasions. Each time the murder of the victim was discussed, the appellant factually contradicted the statements he had made during prior interviews. Based on these contradictions, Dr. Kyser stated that the appellant "is at high suspicion for being untruthful; for, in fact, lying, malingering, [and] attempting to distort the truth." As Dr. Kyser stated, a psychiatrist must, as a general rule, predicate an opinion on what he is told by the patient. He concluded his direct testimony by labeling Dr. Nurcombe's opinion as a "controversial theory" which is not universally accepted among psychiatrists.
1995 WL 301443 at *22.
In affirming the trial court's overruling the Petitioner objection to this testimony, the Tennessee appellate court ruled:
The testimony of Drs. Kyser and Morgan was relevant because it undermined Dr. Nurcombe's explanation of why the accused murdered the victim. First, it was established that Dr. Nurcombe's opinion was predicated upon a controversial psycho-dynamic theory, a theory which is not universally accepted by psychiatrists. Second, what the appellant related to Dr. Nurcombe might not have been true-if he was less than candid with Drs. Kyser and Morgan, he may have been less than candid with Dr. Nurcombe. Third, the appellant may have been malingering or created this theory as a means to avoid a death sentence. Fourth, the testimony of the appellant's mother and Dr. Nurcombe that Trina Brown dominated the appellant was also refuted. Drs. Kyser and Morgan explained that a person with an anti-social personality disorder dominates those around him.
* * *
Contrary to the position taken by the appellant, this testimony was not introduced to reflect upon his lack of remorse; nor was it introduced solely to influence the jury regarding the appellant's credibility. The testimony of Drs. Kyser and Morgan was in rebuttal to the "controversial theory" relied upon by Dr. Nurcombe.
Id. at **23, 24.
On post-conviction when this claim was presented, the Tennessee appellate court agreed that, Dr. Kyser's testimony was to respond to the opinion testimony of Petitioner's expert.
In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and Dr. Leonard Morgan, a clinical psychologist. Both had examined the appellant and concluded that he suffered from an antisocial personality disorder. They described persons with this disorder as having "no conscience," being "self centered," being "notoriously dishonest and untruthful," and having "very little regard for the feelings of others and . . . willing to use any means to get what they want, no matter who it hurts." While acknowledging the complicated factors involved in antisocial personality disorders, the State's experts discounted the singular importance of the one incident of alleged sexual abuse in causing the appellant's actions. Dr. Morgan concluded that the appellant "was in complete control of his behavior" and not suffering from mental illness or emotional disturbance.
2000 WL 1562865 at *4.
First, the Court notes that in his direct appeal to the Tennessee Court of Criminal Appeals, Petitioner relied only upon state law for this contention: "[A]ppellant's reliance on State v. Schimpf, 782 S.W.2d 186 (Tenn.Crim.App.1989), per app. denied (Tenn.1990) is misplaced". Hodges, 1995 WL 301443 at *24. In any event, the Court concludes that for the same authorities cited on Petitioner's claim about the production of Dr. Nurcombe's notes, this claim lacks merit as a question of law.
III. DEFAULTED CLAIMS
A. Claims Found by State Court to be Defaulted
In Petitioner's post-conviction appeal, the Tennessee Court of Criminal Appeals listed Petitioner's claims on appeal and found most of those claims procedurally defaulted.
As described by the Tennessee appellate court on his post-conviction appeal, the appellant raises the following issues:
I. Whether the appellant received the effective assistance of counsel; FN5
FN5 Within this general challenge, the appellant presents four specific allegations of ineffectiveness: (1) counsel was ineffective for failing to investigate, identify and challenge the State's proof as to aggravator (i)(5); (2) counsel was ineffective for failing to challenge fingerprint evidence: (3) counsel was ineffective by making a "hasty" decision to enter the guilty plea; (4) counsel was ineffective, per se, because of the systemic deficiencies in the State of Tennessee's indigent defense system; and (5) counsel was ineffective for failing to conduct a competent mitigation investigation, adopting a mitigation theory not based on adequate investigation and failing to develop additional mitigation themes. Each allegation will be discussed infra.
II. Whether the post-conviction court's denial of funds for expert services impinged upon the appellant's constitutional rights;
III. Whether the appellant's constitutional right to due process was violated by the post-conviction court's refusal to bifurcate the evidentiary hearing; and
IV. Whether the errors and omissions identified in claims 1 through 20 of the Verified Amended Petition for Post-Conviction, either individually or cumulatively, violated the appellant's constitutional rights FN6.
FN6 These claims are identified in the petition' as follows:
Claim I: Ineffective assistance of counsel at the guilt stage;
Claim II: Ineffective assistance of counsel at the sentencing stage;
Claim III: Ineffective assistance of counsel on direct appeal;
Claim IV: State's failure to relinquish Brady material at guilt stage;
Claim V: State's failure to relinquish Brady material at sentencing stage;
Claim VI: State knowingly used false testimony at sentencing stage;
Claim VII: Involuntary guilty plea;
Claim VIII: Unconstitutional intrusion into defense preparation for sentencing stage;
Claim IX: Denial of jury based on fair cross-section of the community;
Claim X: Unconstitutional restriction of voir dire;
Claim XI: Unconstitutional voir dire rulings;
Claim XII: State obtained promise from prospective jurors to do their "duty and obligation;"
Claim XIII: The prosecution engaged in conduct seeking to inflame the jury;
Claim XIV: Unconstitutional denial of expert services;
Claim XV: Unconstitutional preclusion of mitigating evidence;
Claim XVI: Unconstitutional sentencing phase instructions;
Claim XVII: Unconstitutional Application of aggravating circumstances;
Claim XVIII: Death penalty statute is unconstitutional;
Claim XIX: Denial of right to allocution; and
Claim XX: Inadequate proportionality review.
2000 WL 1562865 at *l-2 nns. 5, 6.
In the final section of that opinion, the Tennessee Court of Criminal appeals found the claims summarized in its earlier footnote to be defaulted under its waiver rule.
In his final issue, the appellant asserts that he is entitled to relief on the twenty grounds raised in his verified amended post-conviction petition. FN 11 Without citation to the record, explanation, argument or citation to any legal authority, the appellant asks this court to rely upon the argument set forth in his petition, averring that he has not waived these claims. The State submits that these allegations have been waived. We agree. When an appellant fails to articulate reasons to support a conclusory statement, the issue may be deemed waived. Tenn.R.App.P. 27(a) (7); State v. McKay, 680 S.W.2d 447, 454 (Tenn.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1412, 84 L.Ed.2d 795 (1985). See also Tenn.Ct.Crim.App.R. 10(b); State v. Campbell, 904 S.W.2d 608, 614 (Tenn.Crim.App.), perm, to appeal denied, (Tenn.1995). With the exception of those specific claims properly addressed elsewhere in the appellant's brief, this court declines the appellant's invitation to address these issues. See id. Additionally, it appears that many of these claims have been previously determined on direct appeal. FN 12 See Tenn.Code Ann. § 40-30-206(h) (1997).
FN 11 These grounds are specifically enumerated in footnote [6][7].
FN12 The record indicates that the following grounds for post-conviction relief raised by the appellant were previously determined on direct appeal: (1) challenges relating to the voir dire of the jury; (2) conduct of prosecutor which inflamed the jury; (3) unconstitutional sentencing phase instructions; (4) presentation of false testimony at sentencing phase; (5) denial of expert services; (6) preclusion of mitigation evidence; (7) denial of jury comprised of fair cross section of community; (8) right of allocution; (9) constitutionality of death penalty; and (10) proportionality review.
2000 WL 1562865 * 32.
B. Additional Claims Respondent Challenges as Defaulted
In addition to the above claims, the Respondent specifically challenges the following claims in the First Amended Petition, as procedurally defaulted because these claims were never raised or presented in the state court proceedings. The Petitioner's basic response to these default contentions are noted.
Claims 9(a)(2), 9(a)(3), 9(a)(6), 9(a)(7), 9(a)(9), 9(a)(10), 9(b)(3), 9(b)(5)(b), 9(b)(5)(e), 9(b)(5)(f), 9(b) (5)(s), (b)(14) because Petitioner failed to present address these factual allegations in his brief to the Court of Criminal Appeals; Claims 9(a)(13), 9(b)(2), 9(b)(5)(m), 9(b)(5), 9(b) (13) on the Petitioner's ineffective assistance of counsel claims were not presented in state court. Petitioner acknowledges that these allegations were not specifically raised in state court, however Petitioner can establish cause and prejudice to overcome any alleged default the ineffective assistance of counsel in post-conviction;Claims 9(b)(6), 9(b)(7), 9(b)(8), 9(b)(9), 9(b) (10), 9(b)(11), 9(b)(12), 9(c)(1), 23, 32(b) Respondent has alleged that these claims are defaulted because the Court of Criminal Appeals concluded that these issues were waived for failure to properly brief. Respondent is incorrect. Petitioner responds that, because the Tennessee courts have not strictly applied Tenn.R.App.P 27;
Claim 12(a)(b) Respondent has alleged that the portions of these claims that rely on the Eighth and Fourteenth Amendments are defaulted because the Eighth and Fourteenth Amendments were not specifically invoked in state court;
Claims 18(a)(1)-(9), 19 and 34 Respondent has alleged that Petitioner should not be heard on these claims because they are procedurally defaulted. Petitioner responds that Brady and false testimony claims are not subject to any valid procedural default;
Claim 20 Respondent contends that parts 1 through 3 of Paragraph 20 are defaulted because in post-conviction proceedings the Court of Criminal Appeals concluded that the issues were waived for failure to properly brief. . . . Petitioner contends that the cited rule is not regularly and consistently enforced so as to bar federal review for these claims. . In addition, Petitioner asserts cause and prejudice by the ineffective assistance of Petitioner's counsel in post-conviction;
Claim 21 Respondent alleges that part one of this claim is procedurally defaulted because Petitioner did not specifically mention the Eighth and Fourteenth Amendments in his briefs on appeal;
Claim 23 Respondent has alleged that the portions of these claims that rely on the Eighth and Fourteenth Amendments are defaulted because the Eighth and Fourteenth Amendments were not specifically invoked in state court;
Claim 25 Respondent contends that parts 4 and 6 of this claim were not specifically raised on direct appeal. Petitioner asserts that he can establish clause and prejudice due to ineffective assistance of appellate counsel.
Claim 28 Respondent contends that Petitioner procedurally defaulted subparts 4, 6, 7, and 8 of this claim by failing to specifically raise them on direct appeal. Petitioner asserts cause and prejudice due to ineffective assistance of appellate counsel;
Claims 3 31 Respondent asserts procedural defaulted of this substantive due process claims of incompetency to stand trial and to plead guilty. Henry Hodges' competency claim is not, and cannot be procedurally defaulted. Petitioner argues that courts have recognized, a substantive due process claim for a lack of competency to stand trial "is not subject to procedural default and must be considered on the merits." Battle v. United States, 419 F.3d 1292, 1298-99 (11th Cir.2005);
Claim 32(c), 33 Respondent argues procedural defaulted because these claims were not presented in the state courts. Petitioner responds that cause and prejudice due to ineffective assistance of counsel in post-conviction excuses any default.
Claim 35 Respondent alleges that Petitioner's claim of actual innocence of first-degree premeditated murder is procedurally defaulted. Petitioner argues that actual innocence precludes any procedural bar. See e.g., Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995);
Claim 36 Respondent alleges that this claim on juror misconduct is procedurally defaulted. Petitioner responds with "cause and prejudice" due to ineffective assistance of appellate and post-conviction counsel;
Claim 40 Respondent argues that Petitioner's Fourteenth Amendment claim is defaulted because Petitioner failed to specifically mention the Fourteenth Amendment in his appellate briefs;
Claim 43 Respondent asserts that Petitioner's lethal injection claim is procedurally defaulted because it was not raised in the state courts. Petitioner submits cause and prejudice will be established due to the ineffective assistance of counsel in post-conviction;
Claim 43 Respondent alleges that Petitioner's Ford claims is not ripe. Petitioner concedes that this claim is not ripe.
See Docket Entry No. 188, Respondent's motion for summary judgment on defaulted claims.
In his supplemental brief, (Docket Entry No. 307) Respondent cites as defaulted Petitioner's new proportionality claim for the district attorneys general lack a uniform standard for seeking the death penalty. (Docket Entry No. 303, Petitioner's Supplemental Brief on "Exhausted" Claims at pp. 39-46). In the state appellate court, Petitioner's claim was that the Tennessee Supreme Court's proportionality review lacked uniformed standards, the equal protection argument is defaulted. See Docket Entry No. 40, Addendum No. 10 at p. 131 and Addendum No. 14 at p. 731. Petitioner's supplemental brief challenges Petitioner's claims on Dr. Harlan's testimony that are based upon the Eighth and Fourteenth Amendments because in state court, Petitioner's challenge in the State proceedings was premised solely on the Fifth Amendment. (Docket Entry No. 40, Addendum No. 10 at p. 53 and Addendum No. 14 at p. 53). Petitioner's supplemental brief argues that Petitioner's claim for denial of funds for a particular expert is cited as Eighth and Fourteenth Amendment claims, but Petitioner cited only the Fourteenth Amendment for this claim in the state courts. (Docket Entry No. 40, Addendum No. 10 at p. 6 and Addendum No. 14 at p. 63). Petitioner presents as an Eighth Amendment claim, the trial court's exclusion of proof about other state prisoners convicted of multiple murders, but in the state courts, Petitioner presented this claim only as a "due process violation." (Docket Entry No. 40, Addendum No. 10 at p. 65). Petitioner's challenge to allowance of professional exemptions was cast as a Sixth Amendment claim in state court, (Docket Entry No. 40, Addendum No. 14 at p. 12), but now is asserted as Eighth and Fourteenth Amendment violations.
C. Conclusions of Law
The Supreme Court defined the "Procedural Default Doctrine" for federal habeas proceedings as barring federal habeas relief in the certain instances:
[t]his Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. This rule applies whether the state law ground is substantive or procedural. In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional. Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would, therefore, be advisory. . .
* * *
. . . The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.
Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citations omitted).
The rationale for this doctrine arises out of federal respect for federalism and maintaining comity with state courts:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.
* * *
[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. . . .In the absence of an independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the State's interest in correcting their own mistakes is respected in all federal habeas cases.
Id. at 730-31, 732.
The Supreme Court further recognized that state procedural rules also serve a legitimate state interest in finality of criminal convictions:
[p]lainly the interest in finality is the same with regard to both federal and state prisoners. . . . There is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.
Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (quoting Kaufman v. United States, 394 U.S. 217, 228, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969)).
In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court noted that state procedural rules channel the controversy to the state trial and appellate courts.
A state's procedural rules serve vital purposes at trial, on appeal, and on state collateral attacks. . . .
"Each state's compliment of procedural rules . . . channel[s] to the extent possible, the resolution of various types of questions to the stage of the judicial process at which they can be resolved most fairly and efficiently." Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Failure to raise a claim on appeal reduces the finality of appellate proceedings, deprives the appellate court of an opportunity to review trial error, and "undercut[s] the state's ability to enforce its procedural rule[s]." Engle, 456 U.S. at 129, 102 S.Ct. 1558.
Id. at 490-91, 106 S.Ct. 2639.
As a threshold matter, a federal habeas court can consider only claims that the petitioner "fairly presented" to the state courts. Tuggle v. Seabold, 806 F.2d 87, 91 (6th Cir.1986). To do so, a petitioner can: (1) rely on federal cases interpreting the federal constitutional provision involved; or (2) state cases interpreting the federal constitutional provision involved; (3) assert a claim in terms that call to mind the specific right guaranteed by the federal constitution; or (4) allege a factual pattern within the mainstream of federal constitutional litigation. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Federal courts can consider supplemental evidence that was not presented to the state court if that evidence, does not "fundamentally alter the legal claim already considered by the state court." Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Yet, "mere similarity of claims is insufficient to exhaust." Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995).
For those claims for which Petitioner now relies upon constitutional amendments that were not cited and briefed in the state courts, the Court concludes that those claims were not fairly presented to the state courts and will be considered as unexhausted and defaulted. To present to this Court, new facts and distinctly different legal theories is an end-run around the state courts and the exhaustion statute. Absent a clear showing of actual innocence or obstruction of such evidence by State officials, the Court will not consider those claims. Neither circumstance is presented here.
Moreover, omissions of Petitioner's post-conviction counsel to pursue certain claims cannot establish cause for any procedural default. Supra at pp. 19-20. Thus, all of those claims which Petitioner seeks to excuse for omissions of post-conviction counsel, are procedurally defaulted and cannot be considered.
Finally for those new claims that were not presented to any state court, on habeas review, the district court cannot review such a claim:
[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claim.
Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546 (citing Harris v. Reed, 489 U.S. 255, 269-270, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)) (O'Conner, J., concurring); Teague v. Lane, 489 U.S. 288, 297-298, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Tenth Circuit refers to this as an "anticipatory procedural bar," Moore v. Schoeman, 288 F.3d 1231, 1233 n. 3 (10th Cir.2002). For this additional reason, these new claims are defaulted.
In the Sixth Circuit, the analysis under procedural default doctrine was set forth in the Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986):
When a state argues that a habeas claim is precluded by the petitioner's failure to observe a state procedural rule, the federal court must go through a complicated analysis. First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.
* * *
Second, the court must decide whether the state courts actually enforced the state procedural sanction.
* * *
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim. . . . This question generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.
Maupin, 785 F.2d at 138 (citations omitted).
1. Noncompliance with Applicable State Rules
Under Maupin, the threshold issue is the existence of an applicable state law rule and the Petitioner's noncompliance therewith. Here, the Tennessee Court of Criminal Appeals invoked Tenn. R.App. P. 27(a)(7) and Tenn. Ct.Crim.App. 10(b) to conclude that most of Petitioner's state post-conviction claims were defaulted. In addition, the Tennessee's limitations period, Tenn Code Ann. § 40-30-102 in the Tennessee Post-Conviction Act that was amended in 1995 to provide a one year period of limitation and now codified at Tenn.Code Ann. § 40-30-202, applies to bar Petitioner's completely new claims. For the procedural default analysis, Petitioner's non-compliance with these two procedural rules is established.
2. "Firmly Established" and "Regularly Followed" State Rules
To qualify for the procedural default rule, the cited state law must be "firmly established and regularly followed" at the time the claim arose. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). As the Sixth Circuit explained, "[c]onsiderations of comity do not require a federal court to abstain from deciding a constitutional claim on grounds of procedural default where the state courts have not enforced a given state procedural rule." Rice v. Marshall, 816 F.2d 1126, 1129 (6th Cir.1987).
Although Petitioner makes a substantial showing that Rule 27(a) (7) has not been applied regularly enforced, the numerous annotations to Tenn. Ct.Crim.App. 10(b), reflected that this rule is regularly enforced and firmly established. The limitations period in § 40-30-102 has been held to be strictly enforced with a narrow exception. Burford v. State, 845 S.W.2d 204, 209-10 (Tenn.1992). In Hutchison v. Bell, 303 F.3d 720 (6th Cir.2002), the Sixth Circuit analyzed Tennessee's statute of limitations statute on post-conviction petitions and Burford exception in a procedural default analysis:
Hutchison argues that Tennessee courts' willingness to excuse procedural default pursuant to Burford demonstrates that state procedural rules are not regularly followed in the context of later-arising claims.
Nevertheless, we agree that Tennessee's due process exception does not render this provision inadequate. Tennessee's due process exception does not grant unfettered discretion to state courts in applying procedural default rules. Although Tennessee courts will often permit the hearing of an untimely claim, the decision is confined by the due process standards delineated in Burford and its progeny. The Tennessee courts consistently enforce a procedural scheme that encompasses both the one-year limitations period and a court-recognized procedure for tolling that statute when specific due process grounds are presented. . .
In Hannah v. Conley, 49 F.3d 1193 (6th Cir.1995) (per curiam), this Court found that the then-applicable three-year statute of limitations for post-conviction petitions in Tennessee was regularly applied and would bar presentation of an unexhausted claim. Id. at 1197. The Hannah court noted that the language of the statute was mandatory in that it provided that a claimant "must" petition within three years or his claim "shall" be barred. Id. at 1196. The current one-year statute of limitations contains the same mandatory language. See T.C.A. § 40-30-202(a).
Although the previous cases did not present a Burford type later arising claim, we do not find that the state's Burford tolling rules command a different result. . . .
Given that tolling under Burford is not discretionary and given this Circuit's reluctance to discourage state courts from exhibiting caution before applying procedural default rules in capital cases, we conclude that the Burford exception does not render Tennessee's procedural rules inadequate.
Id. at 738-739. (footnotes omitted).
The Sixth Circuit also ruled in Hutchison that despite the Burford exception to the Tennessee timeliness rule, Burford was not a separate constitutional claim. Id. at 740-41. In a word, Hutchison found the Tennessee limitations rule to constitute a firmly established and regularly followed state law. Thus, the Court concludes the waiver rule, Rule 10(b) and Tennessee's limitations statutes are regularly enforced.
3. Independent and Adequate State Rule
As to what is an independent and adequate state rule, the Supreme Court recognized the following state interests as constituting adequate grounds for state procedural rules.
The possible avoidance of an unnecessary trial or of a retrial, the difficulty of making factual determinations concerning grand juries long after the indictment has been handed down and the grand jury disbanded, and the potential disruption to the numerous convictions of finding a defect in a grand jury only after the jury has handed down indictments in many cases.
Coleman, 501 U.S. at 745-46, 111 S.Ct. 2546.
Another reason to support a finding of adequate state rules was articulated in Francis, wherein the Supreme Court enforced a state rule that promoted finality, noting a comparable federal rule. Plainly the interest in finality is the same with regard to both federal and state prisoners. . . . There is no reason to . . . give greater preclusive effects to procedural default by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.
425 U.S. at 541-42, 96 S.Ct. 1708. The Court stated that "whether the state procedural ground is `independent and adequate'. . . turns on the substantiality of the state interest involved. Kentucky's interests in finality of judgment, judicial economy, and permitting defendants just `one bite at the apple' are both obvious and substantial." Wesselman v. Seabold, 834 F.2d 99, 101 (6th Cir.1987). An exception to this rule, however, arises "where state collateral review is the first place a prisoner can present a challenge to his conviction." Coleman, 501 U.S. at 755, 111 S.Ct. 2546.
As to types of procedural rules which have been found to be independent and adequate, in Coleman, the Supreme Court upheld a procedural rule that bars consideration of a federal claim for failure to meet state law requirements for timely appeals. 501 U.S. at 750-51, 111 S.Ct. 2546. "No procedural principle is more familiar to this court than that a constitutional right may be forfeited in criminal as well as in civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Id. at 751, 111 S.Ct. 2546 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). Accord Brown v. Allen, 344 U.S. 443, 485-86, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (procedural default rule applied a state rule that placed time limits on appellate rights).
In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), a petitioner's failure to raise his claim objecting to a psychiatrist's testimony in the Virginia Supreme Court on his direct appeal, was held to preclude habeas relief. In Cone v. Bell, 243 F.3d 961 (6th Cir.2001), the Sixth Circuit found the Tennessee' waiver statute in former Tenn.Code Ann. §§ 40-30-111(a) to be "independent and adequate" state rules.
To repeat, they are: (1) that there is a state procedural rule applicable to Cone's claim and that he failed to comply with it; (2) that the state actually enforced the state rule; and (3) that Cone's noncompliance with the rule is an independent and adequate state ground for denying state review of a constitutional claim. Maupin, 785 F.2d at 138. As to the first requirement, the Tennessee waiver rule is plainly applicable to Cone's Brady claims; second, the Tennessee courts explicitly relied upon the waiver rule when deciding whether to consider Cone's post-conviction Brady claims' and third, the state's legitimate interest in required a defendant to raise all the claims he has at one time, thus avoiding multiple bites at the apple, is an independent and adequate state ground.
We are satisfied the Cone's Brady claims have been procedurally defaulted in the Tennessee courts.
Id. at 970.
Based upon Cone and Hutchison, the Court concludes that Tennessee's limitations period for post-conviction petition as well as its waiver rule in Tenn. Ct.Crim. App. 10(b) are independent and adequate state rules that promote the timely presentation of claims.
4. The Cause and Prejudice Requirement
a. Cause
Once the respondent establishes procedural default, the burden shifts to the Petitioner to show cause for the procedural default and actual prejudice or that the failure to consider the claim will result in a miscarriage of justice by the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 322, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Coleman, 501 U.S. at 753, 111 S.Ct. 2546. Cause for a procedural default must depend on some "objective factor external to the defense" that interfered with the petitioner's efforts to comply with the procedural rule. Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546; Murray, 477 U.S. at 488, 106 S.Ct. 2639.
. . . we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel, see Reed v. Ross, 468 U.S. at 16, 104 S.Ct. 2901, or that `some interference by officials,' Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 437, 97 L.Ed. 469 (1953), made compliance impracticable, would constitute cause under this standard.
Carrier, 477 U.S. at 488, 106 S.Ct. 2639 (emphasis added).
Inadequate defense counsel can prove cause, but only if counsel's conduct violates Sixth Amendment standards and counsel's inadequate conduct has been presented to the state courts.
So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.
* * *
Similarly, if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State, which may not `conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Ineffective assistance of counsel, then, is cause for a procedural default. However, we think that the exhaustion doctrine, which is `principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings,' Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. The question whether there is cause for a procedural default does not pose any occasion for applying the exhaustion doctrine when the federal habeas court can adjudicate the question of cause____a question of federal law___without deciding an independent and unexhausted constitutional claim on the merits. But if a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for a procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available. The principle of comity that underlies the exhaustion doctrine would be ill-served by a rule that allowed a federal district court `to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950), and that holds true whether an ineffective assistance claim is asserted as cause for a procedural default or denominated as an independent ground for habeas relief.
Id. at 488-89, 106 S.Ct. 2639 (emphasis added).
The Supreme Court emphasized in Coleman that mere attorney error cannot be cause and cannot be attributable to the state.
Attorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk of attorney error.' Attorney error that constitutes ineffective assistance of counsel is cause, however . . . as Carrier explains, `if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the state.' Carrier, All U.S. at 488, 106 S.Ct. 2639. In other words, it is not the gravity of the attorney's error that matters, but that it constitutes a violation of petitioner's right to counsel, so that the error must be seen as an external factor, i.e., `imputed to the state.'
Coleman, 501 U.S. at 753-54, 111 S.Ct. 2546 (emphasis added and some citations omitted).
Moreover, to serve as cause, the specific ineffective assistance of counsel claim to prove cause, must itself not be subject to procedural default absent a showing of a miscarriage of justice and/or a showing of cause and prejudice for that claim. Edwards v. Carpenter, 529 U.S. 446, 448, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) ("to hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that procedural default may not itself be excused, if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.")
In Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), the Supreme Court made it clear that ineffective assistance of counsel can not be grounds for cause where counsel was not constitutionally required for the proceeding in which the error occurred. Under Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) and Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) the right to counsel does not extend beyond the first appellate process. Thus, counsel errors in state post-conviction proceedings are not grounds for cause because there is no right to counsel for these proceedings. Ritchie v. Eberhart, 11 F.3d 587, 591-92 (6th Cir.1993). As the Supreme Court explained in Coleman:
[W]e decline to extend the right to counsel beyond the first appeal of the criminal conviction. We held in Ross that neither the fundamental fairness required by the Due Process Clause nor the Fourteenth Amendment's equal protection guarantee necessitated that states provide counsel in state discretionary appeals where defendants already had one appeal as of right. . . . Similarly, in Finley, we held there was no right to counsel in state collateral proceedings after exhaustion of direct review.
. . . . Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that Coleman had a right to counsel to appeal a state collateral determination of his claims of trial error. Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas.
Coleman, 501 U.S. at 756-57, 111 S.Ct. 2546.
Here, most of these procedural defaults arise out of Petitioner's post-conviction counsel's omissions. Petitioner contends that his post-conviction counsel omitted to present the claims in his amended petition in Petitioner's state post-conviction appeal. Given that the state courts found Petitioner's counsel provided him effective assistance, the Court's concludes that Petitioner cannot establish cause due to his trial or appellate counsel's performance. Moreover, as stated earlier, as a matter of law, post-conviction counsel's omissions, cannot establish cause, Thus, Petitioner cannot establish cause for these defaulted claims.
As Petitioner's contention that to assert his Brady claims can establish cause and prejudice, as the Sixth Circuit stated:
Suppression of exculpatory or favorable impeaching evidence by the state that results in an inability to raise claims relating to that evidence in state court establishes cause for the ensuing default. Id. The petitioner need not show that the prosecutor acted in bad faith or that defense counsel made a specific request for evidence. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). . . . However, unless the alleged Brady evidence is "material" for the purposes of the Brady rule, its "suppression d[oes] not give rise to sufficient prejudice to overcome the procedural default." Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
Hutchison, 303 F.3d at 741.
Given the availability of the state and police records from 1992 to 1995, Petitioner has not shown why the cited information allegedly withheld by the State was not accessed. See supra, at pp. 16-17. Petitioner also asserted Brady claims in his state post-conviction proceeding. To be sure, Petitioner alleges that Brown was unavailable, but this Court is not persuaded that Brown could not be located for Petitioner's post-conviction proceeding given Petitioner's relationship with Brown and her conviction for her role in the murder. As to Brown's 2004 videotaped statement on her committing the murder, based upon the Tennessee appellate court's findings and this Court's review of Brown's trial testimony, this Court concludes that Brown's statements are not credible. Thus, the Court also finds that Brown's assertion that she was coerced into giving her statements about Petitioner lacks credibility. As to Dr. Harlan's testimony, the other ample proof in the record that several minutes, passed before the victim died, and the Tennessee appellate court ruling that twenty seconds was sufficient for torture under Tennessee law, render this testimony immaterial.
Without an extended repetition, the Court concludes that Petitioner's Brady claims lack materiality. Thus, the Court concludes that these claims cannot establish cause for any of these procedural defaults.
b. Prejudice
In addition to "cause" a petitioner must also prove that he was "actually prejudiced by the alleged constitutional error," Maupin, 785 F.2d at 138. The Supreme Court conceded that it has not given "precise context" to the term "prejudice," "expressly leaving to future cases further elaboration of the significance of that term." United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (quoting Wainwright, 433 U.S. at 91, 97 S.Ct. 2497). For the reasons stated above and as found by the state courts, the Court concludes that neither Petitioner's ineffective assistance of counsel nor his Brady claims can establish any prejudice for his procedural defaults.
To the extent that Brown's statement is relied upon for an assertion of prejudice and Petitioner's actual innocence, Schlup requires the district court to "assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial". 513 U.S. at 332, 115 S.Ct. 851. This consideration includes "how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence". Id. Given this Court's review of Brown's testimony at sentencing and her videotaped statement, her loving relationship with the Petitioner and the Tennessee appellate courts description of the murder and comments on Brown's prior attempts to shift blame for the victim's murder away from the Petitioner, the Court deems her statements unreliable.
For the above stated reasons, the Court concludes that the amended petition should be denied and dismissed with prejudice.
An appropriate Order is filed herewith.
NOTES
[1] Rule 15 of the Federal Rules of Civil Procedure applies in a habeas proceeding. Mayle v. Felix, 545 U.S. 644, 649, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005); Rule 6(a), Rules Governing Section 2254 Cases. Under Fed. R.Civ.P. 15(a), the filing of an amended complaint supercedes the prior complaint. Clark v. Tarrant County, 798 F.2d 736, 740-41 (5th Cir. 1986). Thus, the Court deems the amended petition to supercede the earlier petition.
[2] Given the Supreme Court's holding: "we hold that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default," Dretke v. Haley, 541 U.S. 386, 394, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), the Court will decide first the merits of the non-defaulted claims.
[3] State appellate court findings in its opinion can constitute factual findings under 28 U.S.C. § 2254(d). Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The state court's other factual findings are set forth to correspond with Petitioner's specific claims.
[4] The number for Petitioner's claims correspond to the numbered paragraphs in the First Amended Petition. The Court has also tried to group related claims.
[5] For this claim, Petitioner also cites 2007 decisions of the Supreme Court, but that Court has instructed district courts' that habeas decisions must be based upon "clearly established Federal law, as determined by the Supreme Court of the United States" referred to as "holdings as opposed to dicta" of its decisions, "as of the time of the relevant state-court decision". Williams, 529 U.S. at 412, 120 S.Ct. 1495.
[6] In his amended petition, Petitioner adds Sixth and Fourteenth Amendment claims to this contention that the Court considers defaulted claims.
[7] On the last page of its lengthy opinion, that court cited footnote 5 as listing the twenty summary claims, but as reflected in the above-quoted text that footnote is actually footnote 6.