Middlebrooks v. Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0281p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellant, -
DONALD RAY MIDDLEBROOKS,
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No. 05-5904
v.
,
>
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Respondent-Appellee. -
RICKY BELL, Warden,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 03-00814—Robert L. Echols, District Judge.
Argued: April 29, 2010
Decided and Filed: September 1, 2010
Before: MOORE, CLAY, and GILMAN, Circuit Judges.

_________________

COUNSEL
ARGUED: Paul R. Bottei, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Paul R. Bottei, Gretchen
L. Swift, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. James E. Gaylord, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. In 1989, a jury convicted Donald
Middlebrooks of the 1987 kidnaping and murder of Kerrick Majors, a fourteen-year-old
African-American youth, and sentenced Middlebrooks to death. The Tennessee
Supreme Court affirmed the convictions but vacated the death sentence in 1992. In

1
No. 05-5904 Middlebrooks v. Bell Page 2

1995, a jury again sentenced Middlebrooks to death after finding that the murder was
especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating
circumstances. Middlebrooks raised a number of constitutional claims in state
postconviction proceedings and in a subsequent habeas petition in federal district court.
The district court denied relief on all claims and denied a certificate of applicability
(“COA”).

This court granted a COA with respect to seven issues in three categories:
(1) ineffective assistance of counsel due to (a) failure to investigate and present
mitigating evidence of brain damage, (b) failure to investigate and present mitigating
evidence of physical and sexual abuse, (c) failure to prepare adequately for the testimony
of a mental-health expert witness, and (d) failure to investigate and present mitigating
evidence of the relative dominance of a co-defendant; (2) violation of the Confrontation
Clause based on the trial court’s refusal to grant Middlebrooks’s counsel access to a
prosecution witness’s hospital records; and (3) prosecutorial misconduct based on the
statements during closing argument that (a) the victim’s family wanted the jury to return
a verdict of death, and (b) the Bible teaches that the death penalty is the appropriate
punishment for murder. After careful review, we now AFFIRM the district court’s
judgment denying Middlebrooks’s habeas petition.

I. BACKGROUND

In 1989, a jury heard evidence of Middlebrooks’s involvement in Majors’s
murder during the guilt phase of Middlebrooks’s capital trial, summarized as follows by
the Tennessee Supreme Court:

[O]n the evening of Sunday, April 26, 1987, around 7:00 p.m., the
victim, Kerrick Majors, a 14-year-old black male, was with four friends
on Gallatin Road in East Nashville, Tennessee, when they saw a table
with a “lot of stuff” being set up across the street as a flea market by
three homeless street persons: the defendant, Donald Middlebrooks (a
24-year-old white male); his wife, 17-year-old Tammy Middlebrooks;
and their companion, 16-year-old Roger Brewington. The five boys ran
across Gallatin Road and were looking at the flea market when Tammy
Middlebrooks called out, “Hey, leave our stuff alone!” The boys started
No. 05-5904 Middlebrooks v. Bell Page 3

running. The defendant and Brewington chased them until they caught
Majors. Brewington grabbed Majors in a “sleeper hold” around his neck
and head. The defendant held his hand. When Majors said, “Hey man,
you know me,” Brewington responded, “Shut up, you nigger.” Shannon
Stewart and another of the boys, Tony Watson, saw the two men drag
Majors toward the table and observed the defendant strike him in the
face, knocking him to the ground. Frightened, the boys took off running.
Later that evening, they reported these events to the victim’s mother,
who called the police.
The next afternoon, Kerrick Majors’ nude body was discovered
lying face up in a dry creek bed under a foam mattress in a heavily
wooded area behind a drugstore on Gallatin Road in the area where the
defendant and Brewington had caught Majors. A bloodstained T-shirt
was tied around his neck. A red rope belt was tied around Majors’ left
wrist, and there was a two-inch laceration in his right wrist. Abrasions,
swelling, and bruising were present on the victim’s head, his left eye, his
nose, his lips, and inside his mouth. An “X” with a vertical line running
through it had been cut into his chest. The forensic pathologist, Dr.
Charles Harlan, testified that these incisions had been made while Majors
was alive. There were two deep stab wounds in the center of the body.
One of these penetrated the left lung and pulmonary artery and caused
the victim to bleed to death over a period of ten to thirty minutes, during
part of which Majors was conscious. Investigating officers noticed a
smell of urine about the face, and there were bruises and skinned areas
on the back. A wooden stick with blood stains on one end was found
lying close to the victim’s head.
Around 1:10 a.m. on April 28, police investigators met
Brewington at a doughnut shop several miles from the Gallatin Road
area. Brewington directed the officers to the location of a knife with a
brass knuckle handle, which was bloodstained. Dr. Harlan testified that
this knife could have inflicted the deep stab wounds on the victim’s
body. Brewington also directed the police to a wooded area between
Gallatin Road and Ellington Parkway in Nashville where, around 7:00
a.m. on April 28, Donald and Tammy Middlebrooks were apprehended
at a small plywood shack. The defendant, who resisted the arresting
officers, had a knife with him. He was arrested with the aid of police
dogs, taken to the hospital for treatment of the dog bites, and later
transported to police headquarters.
At 12:30 p.m. that day, the defendant gave a lengthy video-taped
statement about his involvement in the death of Kerrick Majors. The
defendant admitted participating in the beating and mistreatment of
Majors, but described his role as minor and depicted Roger Brewington
as the primary perpetrator of the offense. After Majors was caught,
No. 05-5904 Middlebrooks v. Bell Page 4

Middlebrooks said Brewington suggested they “have some fun,” and the
three of them took Majors back into the woods. His hands were tied.
Brewington slapped him, beat him with the knife’s brass knuckles, hit
him with a stick, and urinated into his mouth. The defendant admitted
striking Majors with his open hand and on the leg with a switch.
Defendant said that his wife Tammy had slapped Majors and burned
Majors’ nose with a cigarette lighter as Brewington urged her on.
Brewington hit Majors on his testicles, threatened to cut “it” open, stuck
a stick up Majors’ anus, hit him some more with the brass knuckles,
wiped the victim’s blood on himself, beat his mouth and tongue with a
stick, dropped the knife on him, gagged him, and slashed his wrist.
Finally, when the defendant asked Brewington to stop because the
victim’s crying and pleading were getting on his nerves, Brewington
gave the victim “the kiss of death” on the forehead. Brewington then
gave the defendant the knife and told him to stab Majors. When the
defendant refused, Brewington stabbed Majors. The defendant then
reluctantly stabbed the victim, according to him, “to prove to Roger that
I guess I was cooler” and to put Majors out of his misery. In a previous
statement, however, the defendant had said that he had stabbed Majors
twice. The victim’s ordeal began at 7:30 p.m. and ended at 11:00 p.m.
that night with the stabbing.
The next day, the defendant said he and Brewington went back
to where they had left the body. Brewington kicked it and made the “X”
lacerations at this time. The defendant said he then covered Majors with
a foam mattress. The defendant admitted that before beating and killing
Majors, he and Brewington had drunk alcohol and smoked marijuana.
The defendant presented no proof.

State v. Middlebrooks, 840 S.W.2d 317, 323–25 (Tenn. 1992). On the basis of this
evidence, the jury convicted Middlebrooks of felony murder and aggravated kidnaping
but acquitted him of first-degree premeditated murder, armed robbery, and aggravated
sexual battery. During the penalty phase of his trial, the jury found two aggravating
circumstances—that the murder was especially heinous, atrocious, and cruel in that it
involved torture or depravity of mind, and that it was committed while Middlebrooks
perpetrated a felony—and that those aggravating circumstances outweighed the
mitigating factors. The jury therefore sentenced Middlebrooks to death.

On direct appeal, the Tennessee Supreme Court affirmed Middlebrooks’s
convictions but vacated his death sentence because the second aggravating circumstance
No. 05-5904 Middlebrooks v. Bell Page 5

“essentially duplicates the elements of the offense of first-degree felony murder” and
therefore “does not sufficiently narrow the population of death-eligible felony murder
defendants under the Eighth Amendment to the U.S. Constitution, and Article I, § 16 of
the Tennessee Constitution.” Id. at 323.

At the second sentencing proceeding, held in October 1995, the State introduced
evidence supporting the above-described events and the following details:

According to the State’s proof, fourteen-year-old Majors was
small for his age.FN5 He was described as a good student who loved
school. He was not a violent person, nor did he carry a weapon. Since
his murder, his mother’s health has deteriorated. She has been on
medication and will not leave the house except for doctor appointments.
She has had a nervous breakdown, suffers from panic attacks, and has not
been able to sleep at night since the murder. Majors’ older brother
blames himself for Majors’ death and now suffers from mood swings.
FN5
The autopsy indicated that Kerrick Majors was 4’ 11”
tall and weighed 112 pounds.
Shannon Stewart testified that he had spoken with Middlebrooks
the morning of the murder. Middlebrooks had told Stewart that he was
a member of the KKK, that he “hated niggers,” and that he punched a
black man just for saying hello. Stewart also testified that he overheard
Middlebrooks order Majors to “shut up nigger.”

State v. Middlebrooks, 995 S.W.2d 550, 554–55 (Tenn. 1999). In mitigation,
Middlebrooks’s attorneys put forth the following evidence:

Middlebrooks’ cousins, James and Carol Sue Little, and his half-sister,
Sharon Fuchs, testified about Middlebrooks’ childhood. Middlebrooks
grew up in Texas. His father died when he was four. His mother
remarried and had another child, Ms. Fuchs, before she again divorced.
Middlebrooks’ mother either left the children at night with relatives or
else would take them to bars with her.
According to the proof, Middlebrooks’ mother would often bring
men to the house, and the children sometimes heard or saw their mother
having sex. Ms. Fuchs testified that sometimes these men would molest
her while her mother watched. She further testified that she,
Middlebrooks, and other children in the family were molested by
different family members. For example, Middlebrooks was often left
alone with a male relative who had sexually abused him, and
No. 05-5904 Middlebrooks v. Bell Page 6

Middlebrooks’ mother would grab him between his legs and also watch
him use the bathroom. According to Sharon Fuchs, the small town in
which they grew up lacked counseling services or social service agencies
where they could seek help for sexual abuse. According to her, no one
in the family ever discussed or admitted the family’s problems.
The proof further indicated that Middlebrooks was often angry
and got into trouble. He was sent to a Methodist Home for Children in
Waco for two years. Later, he was twice sent to prison. Between prison
stays, Middlebrooks started to have seizures. On one occasion he
climbed a water tower and threatened to commit suicide. He was
hospitalized more than once at a mental institution.
A psychologist, Dr. Jeffrey L. Smalldon, performed
neuropsychological and psychological evaluations of Middlebrooks.
From these evaluations, interviews, testing, and prior education and
medical records, Smalldon concluded that Middlebrooks has a severe
borderline personality disorder. Middlebrooks exhibited several
characteristics of the disorder including inconsistent behavior, instability
of mood, a marked identity disturbance, impulsive and reckless behavior,
poor anger control, and recurring suicidal or self-destructive acts.
Smalldon testified that the documents from other mental health
professionals who have evaluated Middlebrooks indicate that he suffers
from substance abuse, psychotic personality disorder, and schizophrenia.
Middlebrooks also suffers a mild degree of organic brain impairment
which causes him to be more impulsive and less able to delay his
responses. Finally, Smalldon testified that Middlebrooks has also
exhibited characteristics of adults who were sexually abused as children.
During cross-examination, Dr. Smalldon admitted that
Middlebrooks confessed to a greater involvement in Majors’ death than
he had in the video-taped confession. For instance, Smalldon disclosed
that Middlebrooks admitted to him that it was his idea to hold Majors for
ransom, that he helped tie Majors up, and that he urinated on Majors. In
an attempt to resolve the discrepancies between the video-taped
confession to the police and the confession made to him in the interview,
Smalldon explained that Middlebrooks is a chronic liar. Dr. Smalldon
conceded that Middlebrooks had never expressed any remorse to him.
Smalldon agreed that there were some indications in the medical records
of Middlebrooks’ malingering, but testified that these indications were
not inconsistent with mental illness.
In rebuttal, the State introduced the testimony of two experts
indicating that Middlebrooks was exaggerating his mental illness
symptoms, that he was competent to stand trial, that he did not have a
defense of insanity, and that he was not committable. One expert
No. 05-5904 Middlebrooks v. Bell Page 7

testified that he could not say whether Middlebrooks was mentally ill.
The other expert testified that he made no finding of mental illness and
did not consider a personality disorder to be a mental illness.

Id. at 555–56. The jury found beyond a reasonable doubt the statutory aggravating
circumstance that the murder was especially heinous, atrocious, or cruel in that it
involved torture or depravity of mind. Concluding that this aggravating circumstance
outweighed Middlebrooks’s mitigating factors, the jury reimposed a sentence of death.
The Tennessee Court of Criminal Appeals and Tennessee Supreme Court affirmed the
sentence on direct appeal. State v. Middlebrooks, No. 01C01-9606-CR-00230, 1998 WL
13819 (Tenn. Crim. App. Jan. 15, 1998) (unpublished opinion); Middlebrooks, 995
S.W.2d 550.

In November 1999, Middlebrooks filed a petition for postconviction relief in
state court, raising, inter alia, ineffective assistance of counsel based on trial counsel’s
alleged inadequate performance during the resentencing proceeding. In May 2001, while
the petition was pending, the state trial court denied Middlebrooks’s ex parte motion for
funds to conduct brain scans on Middlebrooks. After an evidentiary hearing at which
Middlebrooks’s resentencing attorneys testified, the trial court dismissed the petition in
July 2001. The Tennessee Court of Criminal Appeals affirmed. Middlebrooks v. State,
No. M2001-01865, 2003 WL 61244 (Tenn. Crim. App. Jan. 9, 2003) (unpublished
opinion).

Middlebrooks filed a petition for writ of habeas corpus in federal district court
in September 2003, amending it in 2004. The district court denied all sixteen claims
(with their multiple subclaims) raised therein, concluding that some were procedurally
defaulted and rejecting others on the merits. Middlebrooks v. Bell, No. 3:03-0814 (M.D.
Tenn. May 26, 2005) (unpublished opinion). The district court denied a COA and then,
on remand from this court, issued a more particularized denial. Middlebrooks v. Bell,
No. 03-0814, 2007 WL 760441 (M.D. Tenn. Mar. 8, 2007). We then granted a COA on
the seven issues discussed below.
No. 05-5904 Middlebrooks v. Bell Page 8

II. ANALYSIS

A. Standard of Review

This court reviews de novo a district court’s denial of a petition for writ of
habeas corpus. White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005). Because
Middlebrooks filed his habeas petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), that statute’s deference provisions
apply. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2006). Under AEDPA, when a state
court addresses the merits of a claim, a federal court can grant the writ only if the state
court’s decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or was “based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d). When a state court does
not address the merits of a claim, federal review is de novo. Maples v. Stegall, 340 F.3d
433, 436–37 (6th Cir. 2003).

Federal review is barred altogether by the doctrine of procedural default when
“a petitioner has defaulted his federal claims in state court pursuant to an independent
and adequate state procedural rule.” Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir.
2003). This doctrine applies only if the requirements laid out in Maupin v. Smith, 785
F.2d 135 (6th Cir. 1986), are met: first, the procedural rule applied to the petitioner and
he failed to follow it; second, the state court actually denied his claim based on the state
procedural rule; and third, the rule constituted an adequate and independent state ground
to deny relief, meaning that the rule was firmly established and regularly followed in the
state courts. Id. at 138; Mitchell, 325 F.3d at 738. If these requirements are met, a
petitioner can still overcome procedural default “by either demonstrating cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrating that failure to consider the claims will result in a fundamental miscarriage
of justice.” Murphy v. Ohio, 551 F.3d 485, 502 (6th Cir. 2009) (internal quotation marks
and brackets omitted).
No. 05-5904 Middlebrooks v. Bell Page 9

B. Ineffective Assistance of Counsel

Middlebrooks claims that trial counsel rendered constitutionally ineffective
assistance in violation of his Sixth Amendment rights during his second sentencing
proceeding. “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Strickland v. Washington,
466 U.S. 668, 686 (1984). The Supreme Court has separated this inquiry into two parts:
whether counsel’s performance was deficient and whether the deficiency prejudiced the
petitioner’s defense. Id. at 687. Attorney performance is deficient if it is unreasonable
under the prevailing professional norms. Id. at 688. A strategic decision will not be the
basis of a finding of deficient performance so long as that strategic decision was
reasonable. Id. at 689; English v. Romanowski, 602 F.3d 714, 726 (6th Cir. 2010). A
defendant can establish prejudice by showing “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.

Middlebrooks’s ineffective-assistance claim focuses on four alleged
shortcomings: (1) failure to present evidence of brain damage, (2) failure to present
evidence of physical and sexual abuse suffered as a child, (3) failure adequately to
prepare Dr. Smalldon for cross-examination, and (4) failure to present evidence of
Brewington’s relative dominance in Majors’s murder. We address each in turn.

1. Failure to Investigate and Present Evidence of Brain Damage

In Claim 9(a) of his habeas petition, Middlebrooks claims that his attorneys
failed to investigate and present evidence of Middlebrooks’s brain damage and related
seizure disorder and mental illness that would have enhanced his mitigation case. The
core of his argument is that counsel should have arranged for an MRI or PET scan of
Middlebrooks’s brain. In support of his claim, Middlebrooks presents an MRI and a
PET scan paid for by his habeas attorneys and affidavits from several neuroscientists
No. 05-5904 Middlebrooks v. Bell Page 10

stating that those scans reveal abnormalities in the areas of Middlebrooks’s brain
responsible for emotions, behavior control, and social judgment.

As a threshold matter, the State argues that this claim is procedurally defaulted.
Contrary to the district court’s opinion, Middlebrooks did present this claim to the state
courts, pleading in his petition for postconviction relief counsel’s “failure to move for
expert assistance of a neurologist who could have conducted necessary testing and
provided expert testimony regarding the issue of brain damage and its effect upon
Petitioner.” J.A. at 1165. Problematically, however, Middlebrooks failed to offer any
authority in support of this claim on postconviction appeal, in contravention of state-
court procedural rules. We consider the Maupin factors to determine whether those
state-court rules now bar our review.

Tennessee Court of Criminal Appeals Rule 10(b) provides that “[i]ssues which
are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.” Rule 27(a)(7) of the Tennessee Rules of
Appellate Procedure provides that an appellant’s brief must contain “[a]n argument . . .
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record,” and Rule 27(g) requires attorneys
to cite specific pages when citing the record. Middlebrooks failed to comply with these
court rules when he merely listed his ineffective-assistance-of-counsel claim among
several others in an addendum to his appellate brief in an effort “to preserve these issues
as much as is possible.” J.A. at 1284–85. The state appeals court actually enforced the
procedural rules when it held that all claims listed in the addendum “are waived”
because Middlebrooks “failed to reference the record, cite any authority, or present any
argument regarding these issues.” See Middlebrooks, 2003 WL 61244, at *12 (citing
Tenn. Ct. Crim. App. R. 10(b) and Tenn. R. App. P. 27(a)(7), (g)). Finally, a review of
Tennessee cases indicates that these appellate court rules are firmly established, and
Middlebrooks does not argue otherwise. See State v. McCary, 119 S.W.3d 226, 243
(Tenn. Crim. App. 2003); State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App.
2000); State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); see also Lewis
No. 05-5904 Middlebrooks v. Bell Page 11

v. Tennessee, 279 F. App’x 323, 326 (6th Cir. 2008) (unpublished opinion) (finding
procedural default based on state court’s application of Tenn. Ct. Crim. App. R. 10(b)
and Tenn. R. App. P. 27(a)); Killebrew v. Bernhardt, No. 94-6567, 1995 WL 712761,
at *1 (6th Cir. Dec. 1, 1995) (unpublished opinion) (same).

Accordingly, Claim 9(a) is procedurally defaulted unless Middlebrooks can
demonstrate cause and prejudice or that a miscarriage of justice will result.
Middlebrooks relies on the former exception, offering as cause the state postconviction
court’s denial of his request for funding to hire a neuroscientist who could perform MRI
and PET scans. As the State points out, in support of his argument Middlebrooks cites
only cases holding that 28 U.S.C. § 2254(e)(2) does not prevent the district court from
holding an evidentiary hearing when the petitioner’s failure to develop the record in state
court resulted from the state courts’ denial of funds. These cases can help Middlebrooks
put his new evidence before a federal habeas court, but they do not help him establish
cause for procedural default. Notwithstanding the citation of inapposite cases, however,
Middlebrooks’s argument is properly directed at procedural default. He argues in his
reply brief that he “failed to present evidence relating to brain damage . . . because he
was denied funding” to develop that evidence. Reply Br. at 10. In essence, he argues
that he failed to brief the claim on postconviction appeal because he had no new
evidence to support it, and he had no new evidence because the trial court denied him
funding. The new evidence of brain damage came to light only when Middlebrooks’s
habeas attorneys drew on their own funds to conduct MRI and PET scans.

Though Middlebrooks’s argument is not without force, we ultimately cannot
conclude that the trial court’s denial of funds excuses Middlebrooks’s failure to comply
with the Tennessee court’s briefing rules in presenting his ineffective-assistance-of-
counsel claim on postconviction appeal. Middlebrooks could have argued deficient
performance by providing evidence that it was standard practice among capital defense
attorneys in the mid-1990s in Tennessee to obtain an MRI or PET scan when there are
indications of brain damage. Alternatively, he could have argued, as he does now, that
Dr. Smalldon’s observations should have led counsel to seek a brain scan. Regarding
No. 05-5904 Middlebrooks v. Bell Page 12

prejudice, we acknowledge that Middlebrooks would have had more difficulty without
the scans than with them in convincing the state court that the jury might have sentenced
him to life. Nonetheless, Middlebrooks at least could have argued that a brain scan
confirming Dr. Smalldon’s suspicion of organic brain damage would have made a
stronger impression on the jury. Thus, although the trial court’s denial of funds certainly
explains why Middlebrooks could not make his argument as forcefully as he could have
with the brain scans, it does not explain his failure to make any argument at all.
Accordingly, Middlebrooks has not demonstrated cause, and his claim for ineffective
assistance of counsel by failure to investigate and present further evidence of brain
damage is procedurally defaulted.

2. Failure to Investigate and Present Evidence of Physical and Sexual Abuse

In Claim 9(b) of his habeas petition, Middlebrooks argues that his trial counsel
were constitutionally ineffective in failing to uncover and present evidence of the
traumatic physical and sexual abuse that he endured as a child. Specifically,
Middlebrooks states that the jury never learned that he “was forced into child
prostitution by his mother to make money for alcohol and drugs and was himself
introduced to alcohol and drugs (including marijuana and heroin) by his mother at a very
young age,” or that he “was repeatedly raped, beaten, and subjected to sexual torture by
family friends, relatives, his own mother, his mother’s boyfriends, and his mother’s
customers—all with his mother’s knowledge and permission.” Pet’r Br. at 53–54.
Furthermore, he alleges that the jury never learned that these traumatic childhood
experiences resulted in PTSD, which, according to one expert, “impaired Mr.
Middlebrooks from effectively conforming his behavior to the law at the time of the
offense for which he has been sentenced to death.” J.A. at 1545.

In fact, the jury heard much of this evidence from Middlebrooks’s half-sister
Sharon Fuchs and from Dr. Smalldon. They testified that Middlebrooks’s mother
sometimes took the kids to bars with her and sometimes left them there; that she brought
men home for sex; that the children at times heard and saw her having sex; and that
Fuchs was at times made to participate in the sex. Fuchs and Dr. Smalldon also testified
No. 05-5904 Middlebrooks v. Bell Page 13

that an uncle named W.T. Edwards molested Fuchs and Middlebrooks; that Fuchs
witnessed a pedophile cousin named John Eugene Little anally rape Middlebrooks when
Middlebrooks was thirteen or fourteen years old; that Little raped Middlebrooks multiple
times; that Middlebrooks’s mother knew about Little’s conduct but nonetheless had him
babysit the children; that she herself used to grab Middlebrooks between the legs and
watch him go to the bathroom; and that she forced Middlebrooks to perform sex acts on
her on a frequent basis for two to three years. After reviewing these events, Dr.
Smalldon discussed common long-term effects of childhood sexual abuse, including
emotional numbing, tendency to devalue oneself and others, and repressed anger. Dr.
Smalldon explained that he observed many of these effects in Middlebrooks and that he
believed Middlebrooks suffered from severe borderline personality disorder.

To be sure, Middlebrooks now highlights details that his trial counsel did not
bring out. Middlebrooks presents evidence that he was raped by Little at age eight, that
Little beat him and tortured his sexual organs, that his mother routinely had full
intercourse with him beginning when he was ten years old, and that she prostituted
Middlebrooks to men who would orally or anally rape him. Middlebrooks also provides
a new diagnosis of PTSD. The critical question in our Sixth Amendment analysis is
whether trial counsel were ineffective in failing to bring out these additional details.

We do not reach this question, however, because we conclude that Middlebrooks
has procedurally defaulted Claim 9(b). As with Claim 9(a), Middlebrooks failed to brief
this issue on appeal of the denial of his petition for postconviction relief, and the appeals
court denied relief based on Tennessee Court of Criminal Appeals Rule 10(b) and
Tennessee Rules of Appellate Procedure 27(a)(7) and 27(g). For the reasons discussed
above, this procedural ruling was an independent and adequate state ground for denying
the claim. Middlebrooks makes no attempt to demonstrate cause and prejudice or to
argue that he meets the miscarriage-of-justice exception. The doctrine of procedural
default therefore bars federal habeas review.
No. 05-5904 Middlebrooks v. Bell Page 14

3. Failure Adequately to Prepare for the Testimony of Dr. Jeffrey Smalldon

In Claim 9(e) of his habeas petition, Middlebrooks argues that trial counsel
provided ineffective assistance in either putting Dr. Smalldon on the stand or failing to
prepare him to provide stronger testimony and avoid being devastated on cross-
examination. Middlebrooks did not address this claim in his opening brief here. Even
after the State pointed out the omission, Middlebrooks failed to argue the claim in his
reply brief. The issue is therefore abandoned. Geboy v. Brigano, 489 F.3d 752, 766–67
(6th Cir. 2007).

4. Failure to Investigate and Present Evidence of the Relative
Dominance of Roger Brewington
In Claim 9(hh) of his habeas petition, Middlebrooks argues that his trial counsel
provided ineffective assistance by failing to present mitigating evidence of Brewington’s
dominance over Middlebrooks in Majors’s murder. Because the Tennessee Court of
Criminal Appeals resolved this claim on the merits on postconviction review, it is
properly before us. The state court declined to decide whether trial counsel’s
performance was deficient and rejected the claim based on lack of prejudice. Therefore,
we review the performance prong of the claim de novo but the prejudice determination
under AEDPA deference.

Middlebrooks’s sentencing jury did hear some evidence that Brewington was the
leader in the murder. This evidence came in through Middlebrooks’s videotaped
confession and Dr. Smalldon’s testimony. In the confession, Middlebrooks described
Brewington as the leader, recounting that Brewington dragged Majors into the woods,
tied his hands and beat him with brass knuckles, tortured his genitals, repeatedly dropped
a knife on him, and urinated in his mouth. Middlebrooks explained that Brewington
challenged him to stab Majors and that after refusing initially, Middlebrooks did so only
after Brewington first stabbed Majors. Middlebrooks claimed that he stabbed Majors
to prove himself to Brewington and to end Majors’s ordeal. Middlebrooks also said that
he did not stop Brewington from torturing Majors because he was afraid of Brewington.
Dr. Smalldon confirmed that Middlebrooks claimed to have stabbed Majors under
No. 05-5904 Middlebrooks v. Bell Page 15

pressure from Brewington and that he feared Brewington. Dr. Smalldon also reported
that, according to Middlebrooks, Brewington told Majors that he would sacrifice Majors
to Satan. Based on his examinations, Dr. Smalldon further opined that Middlebrooks
had a weak personality and could be egged on to commit crimes. In addition to
advancing this evidence, trial counsel touched briefly on the relative-dominance theory
of mitigation in closing argument, stating that “[o]nly when Roger Brewington, bigger,
not as old in the point of chronology, but when Roger Brewington shows up, that is
when the trouble starts.” J.A. at 926.

During postconviction proceedings, Middlebrooks advanced several additional
pieces of evidence supporting his relative-dominance theory of mitigation. These
included (1) a 1987 report by clinical psychologist Kenneth Anchor who examined
Brewington and wrote that Brewington had “poor impulse control,” “unsocialized,
aggressive behavior,” and a “volatile temperament” and that Brewington showed no
remorse for his role in Majors’s murder, J.A. at 1488–89; (2) foster care records
repeatedly citing Brewington’s tendency to manipulate others and “to dominate the other
students,” J.A. at 1491; (3) testimony by a police officer at Brewington’s trial that
Brewington appeared to be twenty or twenty-five years old and that Brewington showed
no remorse for his actions; (4) a signed statement by Brewington swearing to serve the
devil; (5) racist cartoons and writings by Brewington; (6) documentation that
Brewington assaulted a juvenile detention center officer in 1987; (7) admissions from
Brewington that he was under the influence of cocaine and had consumed a case of beer
the day of the murder; and (8) Brewington’s presentence report, reflecting the State’s
argument for a sentencing enhancement because “it is obvious that the actual acts which
the defendant admitted inflicting upon the victim showed him to be a leader and not a
follower,” J.A. at 1474. In addition, psychologist Dr. Jay Woodman testified at the
postconviction evidentiary hearing based on a prison interview with Brewington that
Brewington had a “domineering” personality and was “impervious to peer criticism or
peer pressure.” Postconviction Hr’g Tr. at 129, 131 (Dist. Ct. Doc. 22, Addendum 6).
Dr. Woodman, who had also examined Middlebrooks, testified that “Middlebrooks
would be much more likely to follow someone else’s lead.” Id. at 132.
No. 05-5904 Middlebrooks v. Bell Page 16

Middlebrooks’s trial counsel testified at the postconviction evidentiary hearing
that they knew that Brewington looked older than he was, that they were aware of Dr.
Anchor’s report, that they had seen some but not all of Brewington’s social-history
documents, and that they had reviewed the transcripts of Brewington’s trial. Although
counsel intended to emphasize at resentencing that, “of the players involved,
[Middlebrooks] was the lesser player,” J.A. at 1240, they did not present all of the
evidence of Brewington’s relative dominance that they did uncover or seek more
evidence because they were concerned that the State would call Brewington to the stand
in rebuttal. That is, trial counsel made a strategic decision not to investigate and present
further evidence of Brewington’s dominant role in the murder. The record provides a
basis for counsel’s concern about provoking harmful testimony from Brewington.
Brewington had given a statement to the police indicating that Middlebrooks told Majors
to remove his clothes, that Middlebrooks made the decision to kill Majors, and that
Middlebrooks was responsible for both stabs to Majors’s body. See Middlebrooks, 2003
WL 61244, at *4. Moreover, Brewington maintained at his own trial that Middlebrooks
had dropped the knife on Majors, seemed to enjoy himself while tormenting Majors, and
did all of the fatal stabbing. In light of these facts, we conclude that Middlebrooks has
not overcome the presumption that trial counsel’s strategy was reasonable. Strickland,
466 U.S. at 689.

Middlebrooks makes a second, more compelling argument that his trial counsel
rendered constitutionally ineffective assistance. At the postconviction hearing,
Middlebrooks’s trial counsel testified that they likely had not seen Brewington’s
presentence report and did not know that the State had requested a leadership
enhancement for Brewington. Middlebrooks contends that had the jury been informed
(1) that the State had sought a sentencing enhancement based on role at Brewington’s
sentencing, and (2) that Brewington received a life sentence, the jury would not have
returned the death penalty.

This argument is not without force. Under Lockett v. Ohio, 438 U.S. 586 (1978),
a sentencing jury is able to consider “as a mitigating factor, any aspect of a defendant’s
No. 05-5904 Middlebrooks v. Bell Page 17

character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Id. at 604 (emphasis omitted). Ohio
has opened the field even more widely than required by Lockett, specifying as mitigating
“[a]ny other factors that are relevant to the issue of whether the offender should be
sentenced to death.” Ohio Rev. Code § 2924.04(B)(7). And the Supreme Court has
recognized that some states treat the universe of mitigation evidence as encompassing
information that a more culpable co-defendant received a lighter sentence. See Parker
v. Dugger, 498 U.S. 308, 314–16 (1991) (describing fact that co-defendant pleaded
guilty to second-degree murder as proper mitigation evidence in Florida); see also Meyer
v. Branker, 506 F.3d 358, 375–76 (4th Cir. 2007) (holding that states may, but are not
constitutionally required to, permit consideration of such evidence as mitigating);
Beardslee v. Woodford, 358 F.3d 560, 579 (9th Cir. 2004) (same). Thus, counsel’s
failure to inform the jury that the prosecution viewed Brewington as the chief perpetrator
and that Brewington received a life term might have constituted deficient performance.

Furthermore, the argument is not vitiated by the fact that minors were ineligible
for the death penalty in Tennessee at the time of Brewington’s sentencing. See Tenn.
Code Ann. § 37-1-134(a)(1). The jury might have judged Middlebrooks to be less death-
worthy than Brewington, and it might have opted to sentence Middlebrooks to life to
avoid the injustice of punishing the follower more severely than the leader.

Even if Middlebrooks’s counsel rendered deficient performance in failing to
highlight the State’s view of Brewington, however, we cannot say that that failure
prejudiced Middlebrooks in the constitutional sense. The prosecution put on substantial
evidence in support of a death sentence, emphasizing the evidence that Majors was
tortured for hours before dying: bruises, lacerations, and burns covered his body; the
perpetrators had urinated in his mouth; a knife had been dropped on him repeatedly; an
“X” with a vertical line through it had been carved into Majors’s chest while he was still
alive; and the two stab wounds caused him to bleed to death while he was still conscious.
Middlebrooks presented some evidence that Brewington was the leading figure in the
murder (in addition to other mitigation evidence concerning Middlebrooks’s mental
No. 05-5904 Middlebrooks v. Bell Page 18

health). The additional evidence that even the State considered Brewington the leader
and that Brewington received a life sentence certainly would have buttressed
Middlebrooks’s case for life, but the issue is whether there is a reasonable probability
that it would have led the jury ultimately to choose life over death. Strickland, 466 U.S.
at 694. The Tennessee Court of Criminal Appeals answered that question in the
negative. It concluded that “no degree of finger-pointing to the sixteen-year-old co-
defendant would have affected the jury’s verdict in light of the hours of torture to the
young victim which ended when the petitioner viciously stabbed the victim.”
Middlebrooks, 2003 WL 61244, at *11. Constrained by AEDPA, we must affirm
because we cannot say that the state court’s application of Strickland’s prejudice prong
was unreasonable.

C. Confrontation Clause

In Claim 9A(b) of his habeas petition, Middlebrooks asserts that his
Confrontation Clause rights were violated when, during the guilt phase,1 the trial court
refused to allow defense counsel to examine records of prosecution witness Shannon
Stewart’s admission to a psychiatric hospital. Stewart witnessed Majors’s abduction and
testified to his observations. Middlebrooks raised the concern that Stewart’s recall and
retelling of the abduction were unreliable, and Middlebrooks sought access to the
hospital records for impeachment. The trial judge refused to review the records in
camera. The Tennessee Supreme Court held that although the trial court should have
reviewed the records, it committed no reversible constitutional error in declining
Middlebrooks access to them. Middlebrooks, 840 S.W.2d at 332–33.

“[A] primary interest secured by [the Confrontation Clause] is the right of cross-
examination.” Douglas v. Alabama, 380 U.S. 415, 418 (1965). Thus, “a criminal
defendant states a violation of the Confrontation Clause by showing that he was

1
Middlebrooks also pleads his Confrontation Clause claim with respect to the resentencing
proceeding, arguing that his right to confront Stewart was frustrated at that stage for the same reason.
Because Middlebrooks did not raise the Confrontation Clause issue with respect to the resentencing
proceeding in state court, the issue is procedurally defaulted. See Williams v. Anderson, 460 F.3d 789, 806
(6th Cir. 2006).
No. 05-5904 Middlebrooks v. Bell Page 19

prohibited from engaging in otherwise appropriate cross-examination designed . . . ‘to
expose to the jury the facts from which jurors . . . could appropriately draw inferences
relating to the reliability of the witness.’” Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). In reviewing Confrontation
Clause claims under this standard, the key is “whether the jury had enough information,
despite the limits placed on otherwise permitted cross-examination, to assess the defense
theory.” Stewart v. Wolfenbarger, 468 F.3d 338, 347 (6th Cir. 2007) (internal quotation
marks omitted).

The Tennessee Supreme Court stated that the trial court’s failure to review the
records in camera “was error” but concluded that this “error was harmless.”
Middlebrooks, 840 S.W.2d at 333. The court did not find a violation of the
Confrontation Clause, however. Rather, it concluded that “the defendant was not denied
the opportunity ‘to expose to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.’” Id. (quoting Davis, 415 U.S.
at 318). Because the Tennessee Supreme Court rejected Middlebrooks’s claim on the
merits, we apply AEDPA deference. We conclude that the state court’s decision did not
involve an unreasonable application of clearly established federal law.

As an initial matter, we disagree with the state court’s characterization of
Stewart’s records as involving “essentially behavioral problems.” Middlebrooks,
840 S.W.2d at 333. The records discuss deficiencies that might have impacted Stewart’s
reliability as an eyewitness, including “signs of neuropathology,” “mild to moderate
range of impairment,” “below average intellectual abilities,” and significant impairment
in “[c]omprehension, social judgment, and common[]sense.” J.A. at 984–85.

It is undisputed, however, that the trial court did not limit Middlebrooks’s ability
to cross-examine Stewart in the sense of preventing certain lines of questioning.
Middlebrooks’s attorneys had ample opportunity to present their theory of mitigation,
and, in fact, they were able to impeach Stewart’s credibility. Stewart’s strongest
contribution to the prosecution’s case was his testimony that once Brewington caught
hold of Majors, Middlebrooks told Majors, “Shut up, nigger” and struck Majors in the
No. 05-5904 Middlebrooks v. Bell Page 20

face. These facts bore on Middlebrooks’s role in the attack and his possible racist
motive. On cross-examination, defense counsel brought out that Stewart had not told
the police about the racial slur when he was first interviewed and, further, that Stewart
had testified at Brewington’s trial that Brewington was the one who struck Majors. Of
course, Middlebrooks wanted to impeach Stewart in yet another way: he wanted to use
the hospital records to question Stewart’s reliability on psychiatric grounds. But as the
Tennessee Supreme Court pointed out, “there is nothing in the trial record to
demonstrate that defense counsel was prevented from asking Stewart about his
hospitalization.” Middlebrooks, 840 S.W.2d at 333.

That said, it is likely that such a line of questioning would have been more robust
had counsel seen the records and known what to ask. In this vein, Middlebrooks argues
that the scope of his examination of Stewart was limited—by his inability to conduct a
more effective cross-examination. In light of the Supreme Court’s decision in
Pennsylvania v. Ritchie, 480 U.S. 39 (1987), this argument is not a basis for habeas
relief. In that case, George Ritchie, accused of sexually assaulting his thirteen-year-old
daughter, claimed that the trial court violated the Confrontation Clause when it denied
his motion to compel a state agency charged with investigating child abuse to turn over
its records concerning his case. Ritchie argued “that he could not effectively question
his daughter because, without the [agency] material, he did not know which types of
questions would best expose the weaknesses in her testimony.” Id. at 51. The plurality
rejected the claim, explaining that “the right to confrontation is a trial right” and
declining “to transform the Confrontation Clause into a constitutionally compelled rule
of pretrial discovery.” Id. at 52. The plurality stated that “[t]he ability to question
adverse witnesses . . . does not include the power to require the pretrial disclosure of any
and all information that might be useful in contradicting unfavorable testimony.
Normally the right to confront one’s accusers is satisfied if defense counsel receives
wide latitude at trial to question witnesses.” Id. (footnote omitted). Because the trial
court permitted Ritchie’s attorney to cross-examine Ritchie’s daughter with no
limitations aside from routine evidentiary rulings, it did not impinge on his confrontation
rights. Id. at 46, 54.
No. 05-5904 Middlebrooks v. Bell Page 21

Ritchie was only a plurality opinion, and we cannot predict whether the Supreme
Court will extend the Confrontation Clause to cover discovery requests under some
circumstances. It is clear, however, that for now there is no clearly established federal
law indicating that the trial court’s failure to order disclosure of Stewart’s hospital
records violated Middlebrooks’s confrontation rights. Here, as noted above,
Middlebrooks’s trial counsel received wide latitude to question Stewart. Accordingly,
we lack grounds to hold that the Tennessee Supreme Court’s resolution of this claim
“was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

D. Prosecutorial Misconduct

Finally, in Claims 13(c) and 13(d) of his habeas petition, Middlebrooks alleges
that the State violated his right to due process when the prosecutor asked the jury during
closing argument to return a verdict of death based on the victim’s family’s wishes and
because the Bible required it. Specifically, the prosecutor told the jury:

[Majors’s] family asks you to impose the death penalty. The
State asks you to impose the death penalty. The facts support it. He
deserves it. Justice demands it on the facts and the law.
[Defense counsel] has asked you to consider something else. He
has asked you to consider the book where the words of our Lord are
written, vengeance is mine.
This lady has come to the courtroom, not for vengeance, but to
turn this over to you, the law. If she was after vengeance, this case
would have never made it here.
The same book that says vengeance is mine says whoever
sheddeth man’s blood, whoever sheddeth man’s blood, then by man shall
his blood be shed. The Lord meant for the system of laws and justice to
govern societies wherever they are, and you are that tool of the Lord, that
part of justice—.

J.A. at 939–40. To prevail on a due-process claim based on prosecutorial misconduct,
Middlebrooks “must demonstrate that the prosecution’s conduct was both improper and
so flagrant as to warrant reversal.” Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005). On
direct appeal of Middlebrooks’s resentencing, the Tennessee Supreme Court concluded
No. 05-5904 Middlebrooks v. Bell Page 22

that both classes of statements were improper but that they did not require reversal
because they did not affect the jury’s verdict. Middlebrooks, 995 S.W.2d at 557–61.
Because the state court rejected Middlebrooks’s claims on the merits, our review is
constrained by AEDPA.

We agree with the Tennessee Supreme Court that the prosecutor’s remarks about
the victim’s family and the prosecutor’s references to the Biblical basis for capital
punishment were highly improper. The comments “were completely out of bounds,
textbook examples of what a prosecutor should not be permitted to say during closing
argument.” Shafer v. Wilson, 364 F. App’x 940, 949 (6th Cir. 2010) (unpublished
opinion). Thus, the only question is whether the comments were flagrant enough to
violate the Constitution, that is, whether they “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S.
168, 181 (1986) (internal quotation marks omitted). To determine flagrancy, we
consider four factors: “(1) the likelihood that the remarks of the prosecutor tended to
mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or
extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the
total strength of the evidence against the defendant.” Bates, 402 F.3d at 641. The state
court applied a set of factors consistent with these and thus not contrary to the standard
set out in Darden. We may vacate Middlebrooks’s sentence, therefore, only if the state
court’s conclusion was unreasonable.

Upon review, we cannot say that it was. Two of the four factors weigh in
Middlebrooks’s favor. Both sets of statements by their very nature tended to focus the
jury on impermissible considerations, and the fact that the statements came together, one
after the other, likely increased their influence. In addition, the statements were
deliberately made: the prosecutor mentioned the victim’s family’s wishes soon after
stating that “[w]hat happened in this case is every mother’s worst nightmare,” and just
before stating that “[t]his lady has come to this courtroom . . . to turn this case over to
you, the law.” J.A. at 938–40. “This lady” referred to Majors’s mother, who, according
to Middlebrooks, sat at the prosecution’s table throughout the trial. The prosecution
No. 05-5904 Middlebrooks v. Bell Page 23

invoked the Bible, meanwhile in a deliberate (and overdone) response to a Biblical
allusion by defense counsel.

The other two factors weigh in favor of upholding Middlebrooks’s sentence. The
prosecutor’s comments were relatively isolated, appearing within the same three pages
of the transcript. See United States v. Benson, 591 F.3d 491, 499–500 (6th Cir. 2010)
(holding that improper comments were isolated when prosecutor made two references
to co-defendants’ guilty pleas during closing argument). More importantly, the overall
weight of the evidence supporting the prosecution’s case for death was substantial. In
the state court’s words:

The circumstances of the offense were shocking in their
gruesomeness, brutality, and inhumanity. Medical evidence established
the nature and severity of the injuries, bruises, cuts, abrasions, and
wounds suffered by the victim. The victim was beaten and cut in the
face, mouth, body, legs, and testicles. The evidence further indicated that
an “X” had been carved into the victim's chest before his death from stab
wounds. The victim was alive and conscious for much of the abuse
inflicted upon him, and was conscious and alive for a period of time after
being stabbed.
Middlebrooks by his own admission fully participated in the
capture of Kerrick Majors and in the infliction of severe physical and
mental pain to the victim by acts of unimaginable cruelty, despite the
young victim's pleas for his life. Finally, after three to four hours of
repeated sadistic acts, Middlebrooks stabbed the victim.
The evidence was overwhelming in support of the jury's findings
that the State had proven this aggravating circumstance beyond a
reasonable doubt and that this evidence was not outweighed by evidence
of mitigating factors.

Middlebrooks, 995 S.W.2d at 560.

To reiterate, we do not have occasion to decide whether these factors indicate
that the prosecutor’s comments were flagrant. Instead, we ask only whether the state
court’s conclusion that they were not flagrant was unreasonable, and to that question we
answer “no.” In reaching this conclusion, we note that we are constrained in part by Coe
v. Bell, 161 F.3d 320 (6th Cir. 1998), in which a panel of this court held that
No. 05-5904 Middlebrooks v. Bell Page 24

prosecutorial references to the Bible nearly identical to those in the instant case did not
so taint the proceedings as to require reversal. See id. at 351. Accordingly, habeas relief
is unwarranted.

III. CONCLUSION

For the foregoing reasons, we conclude that the district court correctly
determined that Middlebrooks’s claims are either procedurally defaulted or do not
provide a basis for vacating his death sentence under the strictures of AEDPA. We
therefore AFFIRM the district court’s order denying Middlebrooks’s petition for a writ
of habeas corpus.