07/07/2023
IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 5, 2023 Session
JESSIE DOTSON v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 08-07688 James C. Beasley, Jr., Special Judge
___________________________________
No. W2019-01059-SC-R11-PD
___________________________________
This appeal involves a capital post-conviction petitioner’s expert funding requests under
Tennessee Supreme Court Rule 13. A jury convicted the Petitioner, Jessie Dotson, of six
counts of premeditated first-degree murder and sentenced him to death. This Court
affirmed the jury’s verdict. The Petitioner filed for post-conviction relief, alleging several
grounds of ineffective assistance of counsel. He requested funds under Tennessee Supreme
Court Rule 13 to hire expert witnesses to assist in establishing his claims of ineffective
assistance of counsel. The post-conviction court authorized the funds, but the Director of
the Administrative Office of the Courts (AOC) and the Chief Justice denied approval for
some of the Petitioner’s requested experts. After an evidentiary hearing, the
post-conviction court denied relief. The Court of Criminal Appeals affirmed the ruling
without deciding the Petitioner’s Rule 13 constitutional challenges. We granted review to
consider the Petitioner’s constitutional issues regarding Rule 13. We hold the provisions
of Rule 13 are constitutional as applied; the Petitioner was not unconstitutionally denied
appellate review of the denial of his request for expert funds; and the Petitioner was not
deprived of a full and fair post-conviction hearing due to the denial of expert funds.
Tenn. R. App. P. 11 Appeal by Permission; Judgments of the Trial Court and Court
of Criminal Appeals Affirmed on Other Grounds
SHARON G. LEE, J., delivered the opinion of the Court, in which ROGER A. PAGE, C.J., and
HOLLY KIRBY and SARAH K. CAMPBELL, JJ., joined. JEFFREY S. BIVINS, J., not
participating.1
1
On the Petitioner’s motion, Justice Bivins, who served as the Chief Justice during the relevant
time period, recused from participation in this appeal before any consideration of the Rule 11 application.
Justyna Scalpone, Post-Conviction Defender; and Kelly A. Gleason and Andrew L. Harris,
Assistant Post-Conviction Defenders, Nashville, Tennessee, for the appellant, Jessie
Dotson.
Jonathan Skrmetti, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; Courtney N. Orr, Senior Assistant Attorney General; Amy P. Weirich, District
Attorney General; and Stephen Jones, Assistant District Attorney General, for the appellee,
State of Tennessee.
David R. Esquivel and Michael C. Tackeff, Nashville, Tennessee, for Amici Curiae,
Former Access to Justice Commission Chairs, Tennessee Innocence Project, Choosing
Justice Initiative, and Tennessee Association of Criminal Defense Lawyers.
OPINION
This appeal focuses on Rule 13 and the administration of funds appropriated by the
General Assembly for the provision of expert, investigative, or other similar services for
indigent post-conviction petitioners in capital cases. Rule 13 establishes the procedures
indigent defendants must use to request funds for expert services in the trial court and for
the AOC Director and the Chief Justice’s administrative review of the trial court’s
authorization of funds. Tenn. Code Ann. § 40-14-207(b) (2012); Tenn. Sup. Ct. R. 13.
The Petitioner requested funds under Rule 13 to hire expert witnesses to assist in his
post-conviction proceedings. In the four instances at issue here, the post-conviction court
authorized the funds, but the AOC Director and the Chief Justice either reduced the
requested amount or denied approval of the funds. The Petitioner proceeded under protest
to the post-conviction evidentiary hearing without the assistance of these witnesses. The
post-conviction court denied relief, and the Court of Criminal Appeals affirmed.
We granted the Petitioner’s application for permission to appeal under Rule 11 of
the Tennessee Rules of Appellate Procedure to consider these issues: whether the
provisions of Rule 13 for prior approval review are unconstitutional, as applied; whether
the Petitioner has been unconstitutionally denied appellate review of the denial of expert
funds; and whether the Petitioner has been deprived of his statutory right to a full and fair
post-conviction hearing due to the denial of expert funds.2
2
Citing State v. Linville, 647 S.W.3d 344 (Tenn. 2022), the State asserts that the Petitioner’s
arguments challenging Rule 13 and the authority of the AOC Director and the Chief Justice to deny prior
approval of expert funds are waived because these arguments were not stated as questions for review in the
Petitioner’s Rule 11 application. However, in Linville, the defendant raised an issue in his brief that had not
been raised in his Rule 11 application. Id. at 353 (noting that “the substance of [Linville’s] application”
contained “no mention of any challenge to mandatory minimum sentencing” and further observing that
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These issues present questions of law, which we review de novo with no
presumption of correctness. State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014) (citing Waters
v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009)); Pratcher v. Methodist Healthcare Memphis
Hosps., 407 S.W.3d 727, 734 (Tenn. 2013). We interpret Supreme Court Rules using the
same rules of construction as when we interpret statutes. Thomas v. Oldfield, 279 S.W.3d
259, 261 (Tenn. 2009) (“In construing the rules of this Court, . . . our goal is to ascertain
and give effect to this Court’s intent in adopting its rules.”). As the promulgator of Rule
13, this Court “is the rule’s primary arbiter.” In re Gant, 937 S.W.2d 842, 846 (Tenn. 1996).
Tennessee Supreme Court Rule 13
The Tennessee General Assembly annually appropriates a finite and limited amount
of funds for indigent litigants in capital cases. Tennessee Code Annotated section
40-14-207(b) provides for investigative or expert services for indigent defendants:
(b) In capital cases where the defendant has been found to be indigent by the
court of record having jurisdiction of the case, the court in an ex parte hearing
may, in its discretion, determine that investigative or expert services or other
similar services are necessary to ensure that the constitutional rights of the
defendant are properly protected. If that determination is made, the court may
grant prior authorization for these necessary services in a reasonable amount
to be determined by the court. The authorization shall be evidenced by a
signed order of the court. The order shall provide for the reimbursement of
reasonable and necessary expenses by the administrative director of the
courts as authorized by this part and rules promulgated thereunder by the
supreme court.
Tenn. Code Ann. § 40-14-207(b). This Court adopted Rule 13 as the procedural framework
for administration of these funds and later amended Rule 13 to include provisions for
capital post-conviction cases.3 Rule 13, section 5 provides:
Section 5. Experts, investigators, and other support services.
(a)(1) In the trial and direct appeal of all criminal cases in which the
defendant is entitled to appointed counsel and in the trial and appeals of
Linville, “in his brief before the Court of Criminal Appeals, specifically stated that he was ‘not raising an
issue as to sentencing in this appeal’ other than the clerical error”). Here, the Petitioner preserved his
arguments relating to these issues below, raised them in his Rule 11 application, and briefed them. Thus,
Linville is distinguishable and the Petitioner’s issues were not waived.
3
Owens v. State, 908 S.W.2d 923, 924 (Tenn. 1995) (concluding section 40-14-207(b) applies to
capital post-conviction cases).
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post-conviction proceedings in capital cases involving indigent petitioners,
the court, in an ex parte hearing, may in its discretion determine that
investigative or expert services or other similar services are necessary to
ensure that the constitutional rights of the defendant are properly protected.
If such determination is made, the court may grant prior authorization for
these necessary services in a reasonable amount to be determined by the
court. The authorization shall be evidenced by a signed order of the court.
The order shall provide for the payment or reimbursement of reasonable and
necessary expenses by the director. See Tenn. Code Ann. § 40-14-207(b);
State v. Barnett, 909 S.W.2d 423 (Tenn. 1995); Owens v. State, 908 S.W.2d
923 (Tenn. 1995).
....
(b)(1) Every effort shall be made to obtain the services of a person or entity
whose primary office of business is within 150 miles of the court where the
case is pending. If the person or entity proposed to provide the service is not
located within the 150-mile radius, the motion shall explain the efforts made
to obtain the services of a provider within the 150-mile radius.
(2) Any motion seeking funding for expert or similar services shall itemize:
(A) the nature of the services requested;
(B) the name, address, qualifications, and licensure status, as evidenced by
a curriculum vitae or resume, of the person or entity proposed to provide the
services;
(C) the means, date, time, and location at which the services are to be
provided; and
(D) a statement of the itemized costs of the services, including the hourly
rate, and the amount of any expected additional or incidental costs.
(3) Any motion seeking funding for investigative or other similar services
shall itemize:
(A) the type of investigation to be conducted;
(B) the specific facts that suggest the investigation likely will result in
admissible evidence;
(C) an itemized list of anticipated expenses for the investigation;
(D) the name and address of the person or entity proposed to provide the
services; and
(E) a statement indicating whether the person satisfies the licensure
requirement of this rule.
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(4) If a motion satisfies these threshold requirements, the trial court must
conduct an ex parte hearing on the motion and determine if the requested
services are necessary to ensure the protection of the defendant’s
constitutional rights.
(c)(1) Funding shall be authorized only if, after conducting a hearing on the
motion, the court determines that there is a particularized need for the
requested services and that the hourly rate charged for the services is
reasonable in that it is comparable to rates charged for similar services.
....
(3) Particularized need in the context of capital post-conviction proceedings
is established when a petitioner shows, by reference to the particular facts
and circumstances of the petitioner’s case, that the services are necessary to
establish a ground for post-conviction relief and that the petitioner will be
unable to establish that ground for post-conviction relief by other available
evidence. See Owens, 908 S.W.2d at 928.
(4) Particularized need cannot be established and funding requests should be
denied where the motion contains only:
(A) undeveloped or conclusory assertions that such services would be
beneficial;
(B) assertions establishing only the mere hope or suspicion that favorable
evidence may be obtained;
(C) information indicating that the requested services relate to factual issues
or matters within the province and understanding of the jury; or
(D) information indicating that the requested services fall within the
capability and expertise of appointed counsel. See, e.g., Barnett, 909 S.W.2d
at 430; Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985); State v.
Abraham, 451 S.E.2d 131, 149 (N.C. 1994).
(d)(1) The director and/or the chief justice shall maintain uniformity as to the
rates paid individuals or entities for services provided to indigent parties.
Appointed counsel shall make every effort to obtain individuals or entities
who are willing to provide services at an hourly rate less than the maximum.
Although not an exclusive listing, compensation for individuals or entities
providing the following services shall not exceed the following maximum
hourly rates:
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(A) Accident Reconstruction $115.00
(B) Medical Services/Doctors $250.00
(C) Psychiatrists $250.00
(D) Psychologists $150.00
(E) Investigators (Guilt/Sentencing) $50.00
....
(2) For persons or entities compensated at a rate of one hundred dollars
($100) per hour or more, time spent traveling shall be compensated at no
greater than fifty percent (50%) of the approved hourly rate.
....
(4) In a post-conviction capital case, a trial court shall not authorize more
than a total of $20,000 for all investigative services, unless in its sound
discretion the trial court determines that extraordinary circumstances exist
that have been proven by clear and convincing evidence.
(5) In a post-conviction capital case, a trial court shall not authorize more
than a total of $25,000 for the services of all experts unless in its sound
discretion the trial court determines that extraordinary circumstances exist
that have been proven by clear and convincing evidence.
(6) Expenses shall not be authorized or approved for expert tests or expert
services if the results or testimony generated from such tests or services will
not be admissible as evidence.
(e)(1) If the requirements of sections 5(c) and (d) are satisfied and the motion
is granted, the authorization shall be evidenced by a signed order of the court.
Unless otherwise indicated in the order, the amount authorized includes both
fees and necessary expenses under section 4(a).
(2) The order shall include a finding of particularized need and the specific
facts that demonstrate particularized need as well as the information required
by section 5(b)(1) or (b)(2).
(3) The court may satisfy the requirements of subsection (2) above by
incorporating and attaching that portion of the defense motion that includes
the specific facts supporting the finding of particularized need.
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(4) Once the services are authorized by the court in which the case is
pending, the order and any attachments must be submitted in writing to the
director for prior approval. Claims for these services may not be submitted
electronically.
(5) If the director denies prior approval of the request, the claim shall also
be transmitted to the chief justice for disposition and prior approval. The
determination of the chief justice shall be final.
Tenn. Sup. Ct. R. 13, § 5 (emphases added).4
Under Rule 13, before a post-conviction court can authorize funds for expert
services, the court has to determine there is a particularized need for the requested expert
services and that the hourly rate for the services is reasonable. Id. §§ 5(c)(1), (3). The
petitioner has to show the expert services are necessary to establish a ground for relief and
that the ground cannot be established by other available evidence. Id. § 5(c)(3). The court
cannot authorize more than $25,000 for all expert services unless there is proof by clear
and convincing evidence that extraordinary circumstances exist. Id. § 5(d)(5). The prior
authorization order has to be submitted to the AOC for approval. Id. § 5(e)(4). If the AOC
Director denies the request, the claim is sent to the Chief Justice for final disposition. Id.
§ 5(e)(5).
This appeal involves four of the Petitioner’s requests for Rule 13 funds, one of
which was approved but at a lesser hourly rate and the remaining three that the Chief Justice
did not approve.5
Dr. Bhushan S. Agharkar
In March 2017, the Petitioner filed an ex parte motion seeking $17,500 based on an
hourly rate of $350 for the expert services of Dr. Bhushan S. Agharkar, a psychiatrist.
According to the motion, Dr. Agharkar’s services were a necessary component of the
Petitioner’s claim that trial counsel failed to adequately investigate and present available
mental health defenses and mitigating evidence. After an ex parte hearing, the
post-conviction court found the funds were necessary and granted prior authorization for
the requested amount. The AOC Director approved the funding request at a reduced hourly
rate of $250 consistent with the rate schedule in Rule 13. The Chief Justice concurred in
the AOC Director’s decision.
4
Rule 13, section 5 was amended to apply to juvenile transfer proceedings after the Petitioner filed
his expert funding requests.
5
The Petitioner sought and obtained funds for other experts that are not at issue in this appeal.
-7-
After receiving notice of the rate reduction, the Petitioner moved the post-conviction
court to vacate his death sentences. He claimed Dr. Agharkar did not accept the reduced
rate, and the denial of necessary expert services violated the Petitioner’s due process rights
for expert assistance, his right to a full and fair hearing, and his right not to be subjected to
cruel and unusual punishment. The post-conviction court denied the motion, noting that
the Petitioner had not been denied all expert assistance.6
Dr. James R. Merikangas
In June 2018, the Petitioner filed an ex parte motion seeking $10,000 at an hourly
rate of $250 plus reasonable expenses to retain Dr. James R. Merikangas, a neurologist.
The motion asserted the requested services were a crucial component of the investigation
and proof of the Petitioner’s claim that trial counsel failed to adequately investigate and
present available mental health defenses and mitigation evidence. The motion noted that if
all of the requested services were completed, the request for funds could exceed Rule 13’s
$25,000 limit for all expert services. The post-conviction court granted prior authorization,
finding that extraordinary circumstances existed for the funding to exceed the $25,000 cap.
Dr. Richard Leo
In August 2018, the Petitioner filed an ex parte motion seeking $9,000 at an hourly
rate of $150 plus travel expenses in expert funding for Dr. Richard A. Leo, a false
confession expert. The Petitioner explained that trial counsel had previously retained Dr.
Leo to assist with their investigation of the case but had not used his services. The Petitioner
stated that the services of Dr. Leo were a crucial component of the investigation and proof
of the Petitioner’s claim that his trial counsel failed to adequately investigate the State’s
case, failed to consult with the appropriate forensic experts, and failed to prepare a
challenge to the State’s physical evidence. The post-conviction court found that the funds
were necessary, that extraordinary circumstances existed to exceed the cap, and granted
prior authorization up to a total of $9,000 at an hourly rate of $150 plus expenses.
Dr. James S. Walker
In September 2018, the Petitioner filed an ex parte motion seeking $1,425 at an
hourly rate of $150 to hire Dr. James S. Walker, a neuropsychologist. The motion
acknowledged that trial counsel had previously retained Dr. Walker but chose not to call
6
The post-conviction court denied the Petitioner’s request for an appeal under Rule 9 of the
Tennessee Rules of Appellate Procedure. The Court of Criminal Appeals and this Court denied the
Petitioner’s applications for an extraordinary appeal under Rule 10. See Dotson v. State, No. W2017-02550-
CCA-R10-PD (Tenn. Crim. App. Mar. 29, 2018) (order); Dotson v. State, No. W2017-02550-SC-R10-PD
(Tenn. May 10, 2018) (order).
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him as a witness at trial. The Petitioner characterized Dr. Walker as a fact witness in one
sense but noted that his testimony would primarily involve matters of specialized
knowledge and opinion about his neuropsychological findings and conclusions. The
motion indicated that Dr. Walker’s services were necessary to develop and prove the
Petitioner’s claim that counsel failed to present available mitigating evidence regarding the
Petitioner’s diagnosed mental diseases and defects. The post-conviction court found the
funds were necessary, that extraordinary circumstances existed to exceed the $25,000 cap,
and granted prior authorization for $1,425 to retain Dr. Walker.
The Petitioner orally informed the post-conviction court that the AOC Director and
the Chief Justice had denied approval for the funding requests for Dr. Merikangas, Dr. Leo,
and Dr. Walker.
Constitutional Challenges to Rule 13
The Petitioner asserts that the AOC Director and the Chief Justice interpreted the
prior approval review provisions in Rule 13, sections 5(e)(4) and 5(e)(5) as granting them
the authority to review the post-conviction court’s substantive findings and to “vacate” the
post-conviction court’s prior authorization orders. He maintains that this substantive
review by the AOC Director and the Chief Justice constituted an improper exercise of
judicial power in violation of Article II, sections 1 and 2 and Article VI, sections 1, 2, and
3 of the Tennessee Constitution.
Article II, sections 1 and 2 are the separation of powers provisions of the Tennessee
Constitution, providing that the powers of the government are divided into Legislative,
Executive, and Judicial departments and that no person in one of these departments shall
exercise any of the powers belonging to the others. Tenn. Const. art. II, §§ 1–2. Article VI
relates to the Judicial Department, providing in section 1 that the judicial power of this
State is “vested in one Supreme Court and in such Circuit, Chancery and other Inferior
Courts as the Legislature shall from time to time, ordain and establish.” Tenn. Const. art.
VI, § 1. Section 2 provides that the Supreme Court shall consist of five judges and that the
“concurrence of three of the judges shall in every case be necessary to a decision.” Tenn.
Const. art. VI, § 2. Finally, section 3 provides that the judges of this Court or any
intermediate appellate court shall be appointed by the Governor and confirmed by the
Legislature. Tenn. Const. art. VI, § 3.
The Petitioner submits that under Article VI, section 1, the General Assembly
granted the post-conviction court jurisdiction over post-conviction proceedings and vested
that court with the state’s judicial power. See Tenn. Code Ann. §§ 16-10-101, -102 (2009);
40-30-104(a) (2012). The Petitioner asserts that the post-conviction court properly
exercised its judicial power when it granted prior authorization of expert funding.
According to the Petitioner, only an entity vested with the state’s judicial power can
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substantively review and set aside the post-conviction court’s prior authorization orders.
Citing Article VI, sections 1, 2, and 3 of the Tennessee Constitution, the Petitioner contends
that neither the AOC Director nor the Chief Justice, acting alone, is vested with the state’s
judicial power and thus had no authority to substantively review and deny prior approval
of the post-conviction court’s prior authorization orders.
At the heart of the Petitioner’s argument is the premise that the AOC Director and
the Chief Justice conducted a substantive review. As we will explain, this premise is faulty.
No language in Rule 13, including sections 5(e)(4) and 5(e)(5), authorizes substantive
review by the AOC Director or the Chief Justice in the prior approval process. As
promulgator of Rule 13, it was not the Court’s intent to authorize substantive review. Gant,
937 S.W.2d at 846.
Under Rule 13, denial of prior approval by the AOC Director and the Chief Justice
can be based on a prior authorization order that is noncompliant with Rule 13 or an
administrative funding decision.7 There is no suggestion here that the prior authorization
orders did not comply with Rule 13. With no substantive review and no Rule 13 compliance
issues, we conclude the AOC Director and the Chief Justice denied prior approval based
on an administrative funding decision. This Court, through the AOC Director, has to
efficiently and fairly manage the limited pool of funds for indigent non-capital and capital
defendants facing trial and for indigent petitioners in capital post-conviction cases. Rule
13, section 6(b)(2) requires the AOC Director to give due consideration to state revenues
when deciding compensation and reimbursement claims. The post-conviction court need
not consider budgetary concerns. Throughout any fiscal year, the AOC Director receives
prior authorization orders for funds from trial courts across the state. If funding for expert
assistance was unlimited, then all Rule 13 requests could conceivably be granted. But that
is not realistic. Funds are limited, and there has to be a mechanism for regulating the flow
of funds. That is the role of the AOC Director and the Chief Justice in Rule 13. A prior
authorization order from a post-conviction court is no guarantee or promise of payment.
Otherwise, the AOC Director would simply verify compliance with Rule 13 and pay out
the authorized funds chronologically until the funds are depleted. Implicit in the General
Assembly’s statutory authorization of this Court’s administration of the finite pool of funds
is an expectation that the Court has to make administrative funding decisions based on the
amount of requested funds and the available funding resources. With limited funds, not all
prior authorization orders can be approved. Because substantive review is not authorized
by Rule 13 and because this record contains no indication substantive review occurred, the
Petitioner has failed to establish that the AOC Director and the Chief Justice improperly
exercised judicial authority in violation of the Tennessee Constitution.
7
See, e.g., Tenn. Sup. Ct. R. 13, § 6(b)(2) (indicating the director gives “due consideration to state
revenues” after auditing claims for compliance with this rule).
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Next, the Petitioner argues that the prior approval process in sections 5(e)(4) and
5(e)(5) violates his procedural due process rights under Article I, section 8 of the Tennessee
Constitution and the Fourteenth Amendment to the United States Constitution. He contends
the process failed to provide him with notice of the evidence considered by the AOC
Director and/or the Chief Justice in their decision to deny the funding requests, and he was
denied the ability to contest their decision.
We begin with the applicable constitutional provisions. Article I, section 8 of the
Tennessee Constitution states in part that “no man shall be . . . deprived of his life, liberty
or property, but by the judgment of his peers, or the law of the land.” Tenn. Const. art. I,
§ 8. The Fourteenth Amendment, section 1, provides that the states shall not “deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. “[T]he procedural due process protections in these two provisions are essentially the
same.” Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 731 (Tenn. 2012).
When considering a procedural due process claim, a reviewing court must first
determine whether a petitioner has an interest entitled to due process protection. See id.
(citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570–71 (1972); Rowe v. Bd. of
Educ. of Chattanooga, 938 S.W.2d 351, 354 (Tenn. 1996)). If the petitioner has a protected
interest, “then the court must determine ‘what process is due.’” Id. (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)) (citing Martin v. Sizemore, 78 S.W.3d 249, 263 (Tenn.
Ct. App. 2001)). “Once the court determines [the] minimum procedural due process
protections to which the person is entitled, the court must finally determine whether the
challenged procedures satisfy these minimum requirements.” Id.
In considering whether a petitioner has an interest that is entitled to due process
protection, a court may look beyond the federal and state constitutions because state law
may create and define the dimensions of constitutionally protected interests. Id. (citing
Roth, 408 U.S. at 577). The interest asserted by the Petitioner stems from Tennessee Code
Annotated section 40-14-207(b), a statute that provides indigent capital litigants access to
funds for investigative, expert, or other similar services. See Owens v. State, 908 S.W.2d
923, 929 (Tenn. 1995). The Petitioner sought access to these funds for expert assistance
during a state post-conviction proceeding, which is a statutory procedural vehicle to
collaterally challenge a conviction or sentence as “void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2012); see also Tenn. Code Ann.
§ 40-30-101 to -123 (known as the Post-Conviction Procedure Act). Post-conviction
proceedings are not constitutionally required. See Davis v. State, 912 S.W.2d 689, 695
(Tenn. 1995). Thus, our narrow focus is whether the state statute that provides access to
expert funds during post-conviction proceedings creates a constitutionally protected
interest in the funds.
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Citing Goldberg v. Kelly, 397 U.S. 354 (1970), the Petitioner compares this indigent
fund pool to federal public assistance payments under the Aid to Families with Dependent
Children program. The Petitioner asserts he has a legal entitlement to the indigent funds
when he makes the specified showing. However, unlike the financial assistance benefits in
Goldberg, our General Assembly makes a finite appropriation of these indigent funds,
requiring administration funding decisions to be made. Neither Tennessee Code Annotated
section 40-14-207(b) nor Rule 13 creates any right to the funds, and Rule 13 merely
establishes a procedural mechanism for implementing the indigent funding statute. Owens,
908 S.W.2d at 928 n.10 (citing Allen v. McWilliams, 715 S.W.2d 28, 29 (Tenn. 1986)).
Indigent litigants may apply for funds to assist in post-conviction proceedings. Although a
post-conviction court may grant prior authorization of funds upon the proper showing, the
post-conviction court has no authority to direct payment of the funds. Instead, prior
approval lies with the AOC Director, and ultimately with the Chief Justice, and necessarily
hinges on an administrative funding decision. See, e.g., Rosenfield v. Wilkins, 468 F. Supp.
2d 806, 810–811 (W.D. Va. 2006) (explaining that “a property right cannot emanate from
a mere subjective expectancy” and concluding that appointed attorneys have no entitlement
under the Criminal Justice Act (CJA) to fee payments they request and no constitutionally
protected property interest in any particular level of payment (quoting Guerra v. Scruggs,
942 F.2d 270, 278 (4th Cir. 1991))).
Thus, neither Goldberg nor other cited authority supports the Petitioner’s contention
he has a constitutionally protected right in the finite pool of indigent funds. Because the
Petitioner cannot establish a constitutionally protected right, he cannot establish that the
prior approval provisions of Rule 13 deny him procedural due process.
Appellate Remedy
The Petitioner’s next series of arguments stems largely from the Court of Criminal
Appeals’ opinion in its direct review of the post-conviction court’s denial of relief. See
Dotson v. State, No. W2019-01059-CCA-R3-PD, 2022 WL 860414 (Tenn. Crim. App.
Mar. 23, 2022). The Petitioner challenged the denial of funding in the Court of Criminal
Appeals, raising numerous constitutional challenges to sections 5(e)(4)–(5) and the actions
of the AOC Director and the Chief Justice in denying prior approval under those provisions.
The Court of Criminal Appeals explained that when a trial court denies ex parte requests
for expert funds, a petitioner may seek review through an interlocutory appeal under
Tennessee Rule of Appellate Procedure 9, an extraordinary appeal under Rule 10, or when
challenged as part of an appeal from a judgment of conviction under Rule 3(b). Id. at *64
(citing State v. Todd, No. M2006-01940-CCA-R3-CD, 2007 WL 1582661, at *2 (Tenn.
Crim. App. May 31, 2007)). The intermediate appellate court noted, however, that the
Petitioner was not seeking review of any direct actions of the post-conviction court related
to funding as part of his challenge to the post-conviction court’s judgment. Id. at *65.
Instead, the Petitioner directly challenged the determinations of the AOC Director and the
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Chief Justice in denying prior approval of the expert funding requests under Rule 13. Id.
Citing Tennessee Rule of Criminal Procedure 37(b), the Court of Criminal Appeals
observed that a defendant may appeal any order or judgment in a criminal proceeding when
the law provides for such an appeal; however, Rule 13 does not provide for an appeal of
the Chief Justice’s denial of prior approval of expert funds. Id. Additionally, the Court of
Criminal Appeals concluded it was without authority to decide constitutional challenges to
Rule 13, sections 5(e)(4)–(5) because this Court has previously held that inferior courts do
not have the authority to invalidate a supreme court rule. Id. As a result, the Court of
Criminal Appeals determined the Petitioner was not entitled to relief on this issue. Id.
The Petitioner now asserts that the Court of Criminal Appeals unconstitutionally
denied him a forum to review the AOC Director’s and the Chief Justice’s denial of prior
approval of expert services authorized by the post-conviction court. The Petitioner argues
the Court of Criminal Appeals erred when it concluded he was not entitled to review of the
prior approval decisions under Tennessee Rule of Appellate Procedure 3(b).
The Post-Conviction Procedure Act authorizes an appeal from a post-conviction
court’s order denying post-conviction relief “in the manner prescribed by the Tennessee
Rules of Appellate Procedure.” Tenn. Code Ann. § 40-30-116. Rule 3(b) of the Tennessee
Rules of Appellate Procedure identifies the right to appeal the post-conviction court’s
judgment as an appeal as of right. Tenn. R. App. P. 3(b). But here, the Petitioner was
seeking appellate review of the Chief Justice’s denial of prior approval, not denial of prior
authorization by the post-conviction court. When a post-conviction court denies or limits
prior authorization of expert funds, a petitioner may seek interlocutory review of the
post-conviction court’s actions or omissions under Rules 9 or 10 of the Tennessee Rules
of Appellate Procedure, or he may seek review of the court’s denial of prior authorization,
including the propriety of the reasons for the denial, as part of his appeal of a final judgment
denying post-conviction relief under Rule 3(b).8 Here, the post-conviction court granted
prior authorization of the requested expert funds, and the AOC Director and the Chief
Justice denied prior approval. Thus, unlike the post-conviction court’s reasons for denying
prior authorization, which are subject to review as part of the post-conviction court’s final
judgment, the Chief Justice’s Rule 13 administrative reasons for denying prior approval
are not subject to further review. See Tenn. Sup. Ct. R. 13, § 5(e)(5) (“The determination
of the chief justice shall be final.”). The Court of Criminal Appeals properly concluded that
the Chief Justice’s Rule 13 funding decisions were not reviewable as part of the
post-conviction court’s final judgment under Rule 3. We also agree with the Court of
Criminal Appeals that it lacked authority to consider constitutional challenges to the Rule
13 prior approval provisions when its decision could invalidate portions of Rule 13. Gant,
937 S.W.2d at 846 (indicating that lower courts have no authority to invalidate a supreme
8
The post-conviction court’s denial or limitation of prior authorization is reviewed under the abuse
of discretion standard. See Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 517 (Tenn. 2013).
- 13 -
court rule and that “the [s]upreme [c]ourt, as the promulgator of the rule, is the rule’s
primary arbiter”).
The Petitioner argues that he was denied a direct appeal of the funding decision in
violation of the Open Courts Clause of the Tennessee Constitution and his state and federal
rights to equal protection. The Open Courts Clause provides in part that “all courts shall be
open; and every man, for injury done him . . . shall have remedy by due course of law . . . .”
Tenn. Const. art. I, § 17. Here, our courts have been open to the Petitioner throughout his
trial, his direct appeal of his convictions, and now in his post-conviction collateral
challenges to his convictions. The Petitioner cites no authority, and we find none,
indicating the Open Courts Clause requires review of an administrative funding decision
within statutory post-conviction proceedings. The Petitioner has “open courts” from the
post-conviction court through this Court to adjudicate his post-conviction challenges to his
convictions and/or sentences, including consideration of whether the denial of funds
deprived him of a full and fair post-conviction hearing. Thus, we find no basis for relief
based on the Open Courts Clause.
Next, both the state and federal constitutions guarantee equal protection of the law,
meaning “all persons similarly circumstanced shall be treated alike.” State v. Robinson, 29
S.W.3d 476, 480 (Tenn. 2000) (quoting Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d
139, 153 (Tenn. 1993)); U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8, art. XI, § 8.
“Conversely, things which are different in fact or opinion are not required by either
constitution to be treated the same.” Tenn. Small Sch. Sys., 851 S.W.2d at 153 (quoting
Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988)). The Petitioner argues that the Court of
Criminal Appeals’ refusal to consider the denial of prior approval by the Chief Justice
denied him equal protection of the law by creating two separate classes of capital
petitioners: (1) a class of petitioners who were denied prior authorization of expert services
by the post-conviction court but whose denials of funds were reviewed in a Rule 3 appeal,
and (2) a class of petitioners who were denied prior approval by the AOC Director and the
Chief Justice but whose denial of funds will not be reviewed in a Rule 3 appeal. We
disagree. The two classes are seeking different types of review. The first class seeks review
of an authorization for funds by a post-conviction court based on its substantive review of
the merits of the petitioner’s need for experts. The second class seeks review of an
administrative funding decision of the AOC and the Chief Justice, based on the need to
marshal limited funds available for more requests than can be granted. Petitioners in each
respective class are treated the same. While the end result of both types of review may be
the same—denial of funds—the nature of the two types of review are fundamentally
different.9 For these reasons, we conclude the Petitioner’s equal protection argument is
without merit.
9
As discussed below, ultimately, a petitioner in either class may argue that the denial of funds
deprived the petitioner of a full and fair post-conviction hearing.
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Having concluded the Court of Criminal Appeals correctly declined to review this
issue under Rule 3, we focus on the larger question of whether due process requires
appellate review of the administrative funding decisions of the Chief Justice. Our review
is unique in that the administration of the appropriated indigent defense funds in Tennessee
rests solely with this Court and its administrative office. We have a narrow body of caselaw
that addresses the denial of prior authorization of funds by trial courts. However, we have
no cases in which an indigent capital litigant has sought review of the denial of prior
approval after a post-conviction court grants prior authorization. Looking beyond
Tennessee law for guidance is not particularly useful because each jurisdiction has a
different administrative mechanism for dispersing indigent funds. However, the CJA,
which makes funds available to indigent litigants in federal court, is instructive. See 18
U.S.C.A. § 3006A.
Through the CJA, Congress appropriates funds for indigent representation and for
investigative, expert, or other services necessary for adequate representation. Id. In part,
the statute provides:
(e) Services other than counsel. –
(1) Upon request. – Counsel for a person who is financially
unable to obtain investigative, expert, or other services
necessary for adequate representation may request them in an
ex parte application. Upon finding, after appropriate inquiry in
an ex parte proceeding, that the services are necessary and that
the person is financially unable to obtain them, the court, or the
United States magistrate judge if the services are required in
connection with a matter over which he has jurisdiction, shall
authorize counsel to obtain the services.
....
(3) Maximum amounts. – Compensation to be paid to a
person for services rendered by him to a person under this
subsection, or to be paid to an organization for services
rendered by an employee thereof, shall not exceed $2,400,
exclusive of reimbursement for expenses reasonably incurred,
unless payment in excess of that limit is certified by the court,
or by the United States magistrate judge if the services were
rendered in connection with a case disposed of entirely before
him, as necessary to provide fair compensation for services of
an unusual character or duration, and the amount of the excess
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payment is approved by the chief judge of the circuit. The chief
judge of the circuit may delegate such approval authority to an
active or senior circuit judge.
....
(f) Receipt of other payments. – Whenever the United States magistrate
judge or the court finds that funds are available for payment from or on
behalf of a person furnished representation, it may authorize or direct that
such funds be paid . . . to any person or organization authorized pursuant to
subsection (e) to render investigative, expert, or other services . . . .
Id. § 3006A(e), (f) (emphasis added).
Rule 13 does not mirror the CJA, but we find both useful analogies and important
distinctions that inform our inquiry. Similar to Rule 13, the CJA allows indigent federal
litigants to request funds for expert services via an ex parte application and ex parte
proceeding. Id. § 3006A(e)(1). Upon finding that the expert services are necessary, the
district court or magistrate judge authorizes the expert services up to the presumptive
funding caps set out in the CJA. Id. § 3006A(e)(1), (3). A notable difference between the
CJA and Rule 13 is that the CJA authorizes the district court, or magistrate, to authorize or
direct that the funds be paid to the expert after “find[ing] that funds are available for
payment.” Id. § 3006A(f). In contrast, under Rule 13, the AOC Director and the Chief
Justice have the authority to assess the availability of funds and approve payment to the
experts. Tenn. Sup. Ct. R. 13, § 5(e). The CJA, like Rule 13, also allows a litigant to seek
funds in excess of the cap if the district court or magistrate judge certifies that the additional
funds are necessary to provide fair compensation for services of an unusual character or
duration and the amount of the excess payment is certified by the chief judge of the circuit.
18 U.S.C.A. § 3006A(e)(3).
Federal courts interpreting the CJA have concluded that an indigent litigant may
appeal the district court judge’s denial of funds. See United States v. Obasi, 435 F.3d 847,
852 (8th Cir. 2006). Although the CJA is silent on the availability of review of the decisions
of the chief judge to reduce or deny funds in excess of the cap, even when certified by the
district court or magistrate, courts have determined that the chief judge acts in an
administrative capacity when reviewing the request rather than performing a judicial
function. Id. (challenging the chief judge’s approval of a sum $5,000 less than the amount
of funds certified by the district court for an investigator);10 see also United States v. Snarr,
704 F.3d 368, 403–04 (5th Cir. 2013) (challenging the chief judge’s reduction and denial
10
Cf. Ayestas v. Davis, ___ U.S. ___, 138 S.Ct. 1080, 1090 (2018) (describing the district court’s
denial of a petitioner’s request for funding as a judicial decision).
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of funds certified by the district judge); In re Marcum, L.L.P., 670 F.3d 636, 637–38 (5th
Cir. 2012) (challenging the chief judge’s order directing the expert to continue work on the
case despite approving only partial payment of expert fees). Most importantly, the federal
courts have concluded that, based on the statutory authority granted to the chief judge, a
determination by the chief judge can only be challenged by seeking reconsideration with
the chief judge or by writ of mandamus in the United States Supreme Court. Obasi, 435
F.3d at 852 (citing United States v. D’Andrea, 612 F.2d 1386, 1387–88 (7th Cir. 1980));
Snarr, 704 F.3d at 404 (citing D’Andrea, 612 F.2d at 1387–88); Marcum, 670 F.3d at 638
(citations omitted).11
Even though the federal courts were most often concerned about jurisdiction, these
cases show how the federal courts view indigent requests for expert funding under the CJA
and the virtual lack of review of the chief judge’s administrative decisions. None of the
cases cite due process or other constitutional concerns regarding review of the chief judge’s
decisions. Instead, the federal courts appear to be satisfied with the extraordinary remedy
of writ of mandamus in the United States Supreme Court.
From our review, we conclude that due process does not require appellate review of
an administrative funding decision of the AOC Director or the Chief Justice. By statute and
Rule 13, the administration of the funds is within the discretion of this Court. The statutory
authorization to promulgate rules to administer the limited pool of funds implies the
Legislature was aware that any rules so promulgated would necessarily consider the
availability of state revenues. In instances in which expert or other funds authorized by a
post-conviction court are denied by the AOC Director, Rule 13, section 5(e)(5) provides
for automatic review of the Director’s denial by the Chief Justice. The decision is
administrative and budgetary in nature, requiring the balancing of overall limitations on
available funds against current pending requests for funds and future requests projected for
the remainder of the fiscal year. The Petitioner cites no authority, and we find none, holding
that due process requires allowing an “appeal” of an administrative and budgetary decision
that necessarily involves multiple competing requests for funds for statutory
post-conviction proceedings. We conclude that the Petitioner is not denied his rights to due
process by the lack of appellate review of administrative funding decisions.
Even though there is no review of the reasons for the administrative funding
decisions, the effects of those decisions are subject to review.12 Due process in the
post-conviction context merely requires that “the [petitioner] have ‘the opportunity to be
11
Marcum unsuccessfully pursued a petition for a writ of mandamus in the United States Supreme
Court. See In re Marcum LLP, 565 U.S. 1195, 1195 (2012).
12
See Snarr, 704 F.3d at 404–06 (considering whether, as a result of the chief judge’s order
reducing or denying expert funds, the defendant lacked the funds necessary to present an adequate defense
and was therefore denied due process). Due process considerations are much greater before conviction.
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heard at a meaningful time and in a meaningful manner.’” Stokes v. State, 146 S.W.3d 56,
61 (Tenn. 2004) (quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)). A full and
fair hearing requires only “the opportunity to present proof and argument on the petition
for post-conviction relief.” House, 911 S.W.2d at 714; Tenn. Code Ann. § 40-30-106(h)
(“A full and fair hearing has occurred where the petitioner is afforded the opportunity to
call witnesses and otherwise present evidence, regardless of whether the petitioner actually
introduced any evidence.”). Thus, review of the effects of the denial of expert funds affords
the petitioner due process consistent with post-conviction proceedings.13
Because the Petitioner has had an adequate appellate review of the due process
concerns accompanying the denial of expert funds, we deny relief on this issue.14
Full and Fair Post-Conviction Hearing
Finally, we consider the Petitioner’s claim that the denial of expert funds deprived
him of a full and fair post-conviction hearing. Before we consider the adequacy of the
evidentiary hearing, we revisit a brief portion of the factual and procedural history
summarized in this Court’s opinion on direct appeal to place the post-conviction issues in
context. See State v. Dotson, 450 S.W.3d 1, 12–47 (Tenn. 2014).
A jury found that in March 2008, the Petitioner shot and killed his brother, his
brother’s fiancé, and their two friends inside his brother’s home. Id. at 11–12. The
Petitioner beat and stabbed five young children in the home because they witnessed the
killings. Id. at 13–14, 25. Two of the children died, and the other three children survived
due to medical intervention. Id. at 13, 23. Two of the surviving children identified the
Petitioner as the killer. Id. at 24, 32. This identification led to the Petitioner’s confession to
the police and to his mother. Id. at 25–26. At trial, the State relied on the children’s
identifications and the Petitioner’s confession along with other corroborating evidence. Id.
at 20–33.
In his defense, the Petitioner presented evidence suggesting the killings and
attempted killings were gang-related. Id. at 38. He also presented the testimony of a
psychotherapist to cast doubt on the children’s statements. Id. at 39–40. The Petitioner
13
The Court of Criminal Appeals may not review the administrative funding decisions of the Chief
Justice, but it is appropriate for the intermediate appellate court to review a petitioner’s claim that he was
denied a full and fair hearing on the stated post-conviction grounds because of the denial of expert funds.
The Court of Criminal Appeals’ judgment would be subject to review by this Court under Rule 11 of the
Tennessee Rules of Appellate Procedure.
14
The Petitioner also generally suggested that the Rule 13 provisions and/or the lack of an appellate
remedy violate the state and federal prohibitions against cruel and unusual punishment. However, he has
cited no authority supporting this argument.
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testified as the final trial witness, telling the jury he was hiding under the bed when
unknown assailants committed these killings. Id. at 40–41. Upon emerging from under the
bed, the Petitioner discovered the victims’ bodies and rode away on a bicycle. Id. at 41–
42. He said he did not contact the police because he is a gang member, adding that gang
members “don’t call the police.” Id. at 42.
The jury convicted the Petitioner of six counts of premeditated first-degree murder
and three counts of attempted first-degree murder. Id. at 44. At the penalty phase, the State
presented additional evidence to support the aggravating circumstances along with victim
impact evidence. Id. The Petitioner offered the testimony of a mitigation specialist, who
detailed the family history and background. Id. at 44–46. At the conclusion of the penalty
phase, the jury sentenced the Petitioner to death for each of the first-degree murder
convictions. Id. at 47. Following a separate sentencing hearing, the trial court sentenced
the Petitioner as a Range II, multiple offender to forty years for each conviction of
attempted first degree murder to be served consecutively to each other and to the death
sentences. Id. at 47. This Court affirmed his convictions and sentences. Id. at 105.
The Petitioner sought post-conviction relief, raising several claims of ineffective
assistance of counsel. As noted, he sought funds for expert witnesses to assist him in
establishing certain ineffective assistance grounds. Not all of his requests were granted,
and the Petitioner proceeded to the post-conviction hearing without the assistance of these
experts. At the October 1 through 4, 2018 evidentiary hearing, the Petitioner presented
testimony from lead counsel, co-counsel, Rachael Geiser (licensed private investigator),
Glori Shettles (mitigation specialist), Dr. Marilyn Miller (expert in crime scene
reconstruction, forensic science, and serology), and Deputy Carlos Atkins. The State
presented testimony from Deputy Keley Gray and Assistant District Attorney General Ray
Lepone. The Petitioner did not testify at the hearing. The post-conviction court denied
post-conviction relief in a 109-page order.
Although there was a multi-day hearing, the Petitioner contends he was denied a
full and fair evidentiary hearing. A full and fair post-conviction hearing occurs when a
petitioner is given the opportunity to present proof and argument on the grounds raised in
the petition for post-conviction relief. See House, 911 S.W.2d at 714. Thus, when a
petitioner asserts he has been denied a full and fair hearing due to the denial of expert funds,
he should identify the grounds for post-conviction relief he was either unable to present or
unable to fully and fairly present at the hearing without the assistance of the desired experts.
This specificity allows the court to identify the grounds, assess the available evidence
relevant to those grounds, and consider whether the absence of the desired expert denied
the petitioner a full and fair hearing on those grounds.15
15
This same specificity is useful in establishing particularized need for funds in the post-conviction
court.
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Here, the Petitioner failed to clearly identify and support with argument the
post-conviction grounds he was unable to fully and fairly present at the evidentiary hearing
without expert assistance. Such failures typically result in waiver. However, we have
chosen as part of our broader review of the post-conviction hearing to examine a particular
ground of ineffective assistance of counsel that was raised in the petition and considered
by the post-conviction court to which expert testimony from Dr. Merikangas and Dr. Leo
could conceivably have been relevant.
As this Court has explained, the Petitioner had the burden of establishing his factual
allegations by clear and convincing evidence. Phillips v. State, 647 S.W.3d 389, 401 (Tenn.
2022) (citing Tenn. Code Ann. § 40-30-110(f) (2018 & Supp. 2020)). As the Court
explained in Phillips:
The post-conviction court, under the guidance of Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), then analyzes the
facts to determine whether counsel’s performance was deficient and whether
that deficiency prejudiced the petitioner. Nesbit v. State, 452 S.W.3d 779,
786–87 (Tenn. 2014). Counsel’s representation is deficient if “counsel’s
representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Deficiency alone, however, does
not warrant automatic relief. See id. at 692, 104 S.Ct. 2052. A petitioner must
also show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694, 104 S.Ct. 2052. The petitioner must prove
sufficient facts to support both the deficiency and prejudice prongs of the
Strickland inquiry—or, stated another way, the post-conviction court need
only determine the petitioner’s proof is insufficient to support one of the two
prongs to deny the claim. Mobley [v. State], 397 S.W.3d [70] at 80 [(Tenn.
2013)].
Id.
In his amended petition, the Petitioner alleged his trial counsel were ineffective for
failing to obtain or properly utilize expert assistance in the guilt and penalty phase
investigations. This ground focused on trial counsel’s choice of mental health experts and
false confession expert and was primarily developed through the testimony and
cross-examination of lead counsel and co-counsel. The testimony revealed that, after trial
counsel learned the Petitioner had certain deficits, they explored whether the deficits could
be used to challenge the voluntariness and reliability of his statements or otherwise
- 20 -
configure into defense theories. To that end, trial counsel retained Dr. Geraldine Bishop, a
psychologist, Dr. Walker, a neuropsychologist, and Dr. Leo, a false confessions expert.
Dr. Bishop conducted a psychological evaluation but could not support a mental
health defense. Dr. Walker conducted neuropsychological testing and issued a report
finding the Petitioner competent to stand trial and concluding there was no viable insanity
defense. Dr. Walker diagnosed the Petitioner under Axis I with adjustment disorder with
depressed and anxious mood, alcohol dependence, cannabis dependence, and cognitive
disorder not otherwise specified; under Axis II with antisocial personality characteristics;
and under Axis IV with current psychosocial stressors of incarceration and legal problems.
Dr. Walker also identified several mitigating factors.16
The Petitioner’s trial counsel did not call Dr. Bishop as a witness and decided
against calling Dr. Walker due to his findings of the Petitioner’s antisocial personality
characteristics. Trial counsel viewed antisocial personality as “one of the more dangerous
labels in the criminal justice systems” because this type of diagnosis does not result in as
much empathy or sympathy as other more serious mental health diagnoses. Trial counsel
felt strongly that such a diagnosis should not be presented to the jury. Likewise, although
counsel characterized the mitigation evidence identified by Dr. Walker as helpful, counsel
chose not to present this evidence for the same reasons.
Dr. Leo was retained to assess the voluntariness and reliability of the Petitioner’s
confessions to the police and to his mother. Dr. Leo’s assessments were based on a
handwritten version of the events prepared by the Petitioner and on video excerpts of his
confession that had been recorded and broadcast as part of The First 48 television
program.17 Trial counsel was unable to obtain the entire footage recorded by the film crew.
Trial counsel described the Petitioner’s statement as “bad” but described the available
portion of the recorded and broadcast statement as “much worse.” Counsel suspected the
unedited version of the statement was even worse. As a result, counsel made it a priority
to prevent the admission of The First 48 recordings and convinced the trial court to exclude
the recordings in their entirety with the understanding that the recordings could be
admissible if counsel opened the door to them through Dr. Leo’s testimony. Trial counsel
16
The mitigating factors included physical abuse suffered by the Petitioner as a child, the violent
neighborhood in which he was raised, his brother’s violent history and intoxication on the night of the
murders, the Petitioner’s significant academic difficulties and verbal learning problems, the family’s
neglect of him as a child, his prior criminal history, his intoxication on the night of the murders, and his
chances of being a violent adult based upon genetic testing and the abuse he suffered as a child.
17
The proof established that The First 48 filmed criminal investigations under a contract with the
police. As part of filming the investigation in this case, the crew recorded the Petitioner’s confession, which
was broadcast on the television program.
- 21 -
weighed the value of Dr. Leo’s purported testimony and concluded Dr. Leo’s opinion was
not particularly helpful and could open the door to the admission of the recorded
confessions from The First 48 program. For these reasons, trial counsel decided not to call
Dr. Leo as a witness.18
As to this ground of ineffective assistance, the post-conviction court accredited the
testimony of Petitioner’s trial counsel and determined that not using psychological
evidence from Dr. Walker due to the antisocial diagnosis was a strategic decision. The
court concluded that the Petitioner did not carry his burden of proof on both prongs of his
ineffective assistance claim. As to the decision not to utilize Dr. Leo, the court again found
that the Petitioner failed to carry his burden of proof on both prongs of ineffective
assistance.
The Petitioner sought to retain Dr. Merikangas, a psychiatrist, to assist in
establishing that trial counsel were ineffective for failing to utilize Dr. Walker and Dr. Leo
and for failing to obtain the services of a psychiatrist. The post-conviction court accredited
the testimony of trial counsel regarding its tactical reasons for not utilizing Dr. Walker or
Dr. Leo. The evidence does not preponderate against those findings. The proof established
that trial counsel investigated possible defenses through Dr. Walker and Dr. Leo and
thoughtfully evaluated the results before deciding not to call either witness at trial. Giving
deference to counsel’s strategy, the decision not to use Dr. Walker and Dr. Leo for the
reasons explained was sound and well-informed. See House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (“The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to matters
of strategy and tactical choices applies only if the choices are informed ones based on
adequate preparation.” (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)));
Strickland v. Washington, 466 U.S. 668, 690 (1984) (noting that “strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable”). It seems unlikely that any testimony from Dr. Merikangas would alter
this conclusion.
As to the additional ineffective assistance ground that trial counsel were ineffective
for failing to obtain the services of a psychiatrist, the Petitioner argues that under Ake v.
Oklahoma, 470 U.S. 68 (1985), he was constitutionally entitled to the services of a
psychiatrist at trial to assist in his defense and to develop mitigation evidence related to
mental health. The Petitioner’s reliance on Ake is misplaced. In Ake, the United States
Supreme Court held that when a criminal defendant makes a preliminary showing that his
18
Dr. Walker’s report discussed the Petitioner’s claim that his confessions were coerced. Although
Dr. Walker identified factors consistent with a false confession claim, Dr. Walker described the Petitioner
as not easily led or influenced by others. Counsel decided these remarks provided another reason not to call
Dr. Walker.
- 22 -
sanity at the time of the offense is likely to be a significant factor in his defense at trial,
due process requires the State to assure the defendant access to a competent psychiatrist to
conduct “an appropriate examination and assist in evaluation, preparation, and presentation
of the defense.” Id. at 83. Here, Dr. Walker specifically determined that the Petitioner did
not have a viable insanity defense. Therefore, the Ake requirement was never triggered.
Nonetheless, the post-conviction court granted prior authorization for the services
of Dr. Merikangas, a psychiatrist. It appears from the ex parte motion that the Petitioner
planned to utilize Dr. Merikangas to establish that trial counsel failed to investigate and
present available mental health defenses and mitigation evidence. In our view, because the
Ake requirement is inapplicable, Dr. Merikangas’s opinion would have been irrelevant on
the issue of whether counsel were ineffective for failing to obtain a psychiatrist. Further, it
appears the Petitioner was seeking a second opinion from Dr. Merikangas on available
mental health defenses and any related mitigation evidence. As explained, trial counsel
retained competent mental health professionals and reasonably relied on the opinions of
those experts. Counsel’s informed reasons for choosing not to present the defense are
virtually unassailable. See Strickland, 466 U.S. at 690. Thus, we conclude the Petitioner
has failed to show that the absence of Dr. Merikangas’s testimony denied the Petitioner a
full and fair hearing on this ineffective assistance claim. Accordingly, the Petitioner’s claim
is without merit.
Having reviewed the post-conviction proceedings in their entirety and the opinion
of the Court of Criminal Appeals, we conclude the Petitioner was not deprived of a full and
fair post-conviction hearing.
CONCLUSION
We hold the provisions of Rule 13 for prior approval review are constitutional, as
applied; the Petitioner was not unconstitutionally denied appellate review of the denial of
his request for expert funds; and the Petitioner was not deprived of a full and fair
post-conviction hearing due to the denial of expert funds. We affirm the judgments of the
post-conviction court and the Court of Criminal Appeals on the separate grounds stated
herein. Costs are taxed to the State of Tennessee based on the Petitioner’s indigency.
_________________________________
SHARON G. LEE, JUSTICE
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