Harold Wayne Nichols v. Stanton Heidle, Warden

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0193p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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HAROLD WAYNE NICHOLS,

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Petitioner-Appellant,

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No. 06-6495

v.

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Respondent-Appellee. -

STANTON HEIDLE, Warden,

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Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 1:02-cv-330—R. Allan Edgar, District Judge.

Argued: January 24, 2013

Decided and Filed: July 25, 2013

Before: BATCHELDER, Chief Judge; MARTIN and COOK, Circuit Judges.

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COUNSEL

ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF

EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. James E.

Gaylord, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for

Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Mark A.

Fulks, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

Batchelder, C. J., delivered the opinion of the court, in which COOK, J., joined.

MARTIN, J. (p. 60), delivered a separate concurring opinion.

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OPINION

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ALICE M. BATCHELDER, Chief Judge. Petitioner Harold Wayne Nichols, a

Tennessee state prisoner awaiting execution, appeals on several grounds the district

1

No. 06-6495 Nichols v. Heidle Page 2

court’s denial of his petition for writ of habeas corpus. Finding no merit in any of these

grounds, we AFFIRM.

I.

A. Background

By any measure, Wayne Nichols had an oppressive and forlorn childhood, due

to his father’s abuse, his mother’s illness, their poverty, and the church-dominated

society into which he was born. Born December 31, 1960, to a poor family in

Cleveland, Tennessee, near Chattanooga, he lived in a tiny, run-down house with his

father Mac, mother Nanny Lou, and sister Deborah, who was three years older. The four

shared a room. Mac’s mother, Oma, lived in the other room. They were members of the

Church of God of Prophecy and Mac allowed no visitors other than the occasional

church member. Mac was a mean, abusive, and outright vile man.

On June 11, 1961, Mac’s sister Betty Sampley and her husband drowned during

a family outing, so two of their six children — Royce and Diana, then 13 and 12 years

old — moved into the already-crowded Nichols household.1 The four younger Sampley

children were placed in the nearby Tomlinson Children’s Home, an orphanage run by

the Church of God of Prophecy. For the next several years, Mac frequently exposed

himself to adolescent Diana, menaced her sexually, and may have sexually assaulted her

(the full extent of the abuse is unclear).

In August 1966, Oma died. In May 1967, Royce graduated from high school and

moved out. And in January 1968, Diana married and moved out. Nanny Lou had been

diagnosed with breast cancer in October 1966 and spent much of the rest of her life

bedridden. Nanny Lou died of breast cancer on January 29, 1971. Wayne was then 10

years old and was left isolated in the home with just his 13-year-old sister and abusive

father.

1

Diana shared a bed with grandmother Oma and Royce slept on an unheated back porch.

No. 06-6495 Nichols v. Heidle Page 3

Mac continued to abuse Deborah and Wayne physically, and began (or

continued) to abuse Deborah (and possibly Wayne) sexually. Mac’s sexual abuse of

Deborah soon became so flagrant that certain church leaders were compelled to

intervene and on August 12, 1971, less than seven months after Nanny Lou’s death, the

church leaders brokered an agreement with Mac whereby Wayne and Deborah would

be removed from his care and, in exchange, the abuse was covered up and Mac was

never charged criminally. Wayne and Deborah, then 10 and 13 years old, were placed

in the Tomlinson Children’s Home. According to testimony and records of operating

procedures, this was a stereotypically harsh and inhospitable orphanage.2 Wayne and

Deborah remained there for the next several years. Mac did not visit or interact with

them.

On May 1, 1976, Deborah married and moved away, apparently out of the state.

On June 28, 1977, Wayne, who was then age 17, was returned to live with Mac.3 At that

time, Mac was receiving disability benefits, drinking heavily, and cavorting with

prostitutes. Mac was verbally and physically abusive to Wayne, though apparently not

sexually abusive as the record reports only a single incident, in which he propositioned

Wayne sexually and Wayne declined. While in high school, Wayne began to roam at

night rather than go home.

Wayne graduated from Kirkman Technical High School in August 1979, but had

trouble finding work. Over the next two years, he worked a series of minimum-wage

jobs and then enlisted in the Army on November 30, 1981. In March 1982, while

2

Testimonial accounts describe the Tomlinson Home as being like a “correctional institution,”

“the Army,” and a “hellacious home.” Testimonial accounts describe intense violence and cruelty,

including severe lashings and a child forced to eat his own vomit. The Tomlinson Houseparent Guide

instructed the houseparents to use corporal punishment “firmly and thoroughly,” but cautioned against

leaving severe visible bruises.

It is noteworthy that 10 years earlier, in 1961, cousins Diana and Royce Sampley, then ages 12

and 13, were considered too old for the Tomlinson Home and were therefore sent to live with the Nichols.

The Nichols children, at ages 10 and 13, might have been the oldest children at the Tomlinson Home

during their time there.

3

At one point, the record says “as he was about to be adopted,” which seems unlikely since he

was 17 years old. At another point, the record suggests that Wayne was sent back to his father because

there were only a few children left at the orphanage and it was closing down, which is reasonable as it did

close shortly thereafter.

No. 06-6495 Nichols v. Heidle Page 4

stationed at Ft. Riley, Kansas, Wayne met a woman and they moved in together, even

though she was married to another soldier. They never married but had a daughter, who

was born in November 1983. Wayne did not fare well in the Army and was discharged

in November 1983, a full two years early. Wayne did not fare well in this relationship

either and in early 1984 Wayne left this woman and their daughter in Kansas and

returned to Chattanooga.

It is unclear where Wayne was living upon his return to Chattanooga in early

1984, but he likely returned to live with his father, Mac. Wayne was reportedly working

at a convenience store.

On the night of August 30, 1984, Wayne climbed through a window into an

apartment that was shared by two women. According to Wayne, he intended only to rob

the apartment and did not expect anyone to be there. But finding one of the women

there, he grabbed her and attempted to rape her. She resisted and Wayne fled. Police

arrested Wayne on September 4, 1984, and on December 13, 1984, he pled guilty to

burglary and assault with attempt to rape. The court sentenced him to five years in

prison, of which he served 18 months. While in prison at the Brushy Mountain State

Penitentiary, psychologist Dr. Floyd Doughty prepared a psychological report on Wayne

and found nothing remarkable.

Wayne was released on parole April 29, 1986, but missed a parole appointment

on July 9, 1986, so his parole officer filed a violation (August 18, 1986), and Wayne

went to jail for one month, from September 26, 1986, until October 26, 1986. He was

then released and ordered to live with his father until he married his fiancee, Joanne.

Wayne and Joanne married on November 1, 1986. They both had jobs; Joanne

at Sathers Candy and Wayne at Godfather’s Pizza. They lived with Mac in the

beginning, which Joanne recounted as having been awful. Mac was unreasonably

demanding and verbally abusive, to which Wayne was apologetic and subservient.

Eventually, Joanne and Wayne moved out. By all accounts, their marriage was happy

and loving; Joanne was smitten with Wayne right up until his January 1989 arrest for the

rapes and murder, and she claimed that he had treated her wonderfully throughout their

No. 06-6495 Nichols v. Heidle Page 5

relationship. In April 1987, Joanne had surgery for a blocked fallopian tube. And in

June 1987, the woman in Kansas filed a paternity suit seeking child support. Wayne

settled and paid some money. Otherwise, Wayne and Joanne appeared to be doing fine.

At 11:45 p.m. on June 29, 1987, a woman living in the East Ridge suburb of

Chattanooga (almost four miles from Wayne’s neighborhood) saw a man in a white t-

shirt lurking outside her house and called the police. When the police arrived 10 minutes

later, they found Wayne (in a white t-shirt) leaving the woods about 300 feet from the

woman’s house. Because he did not live in the area and could not give any reason for

his being there, the police arrested him for prowling and carrying a dangerous weapon,

a knife. On July 29, 1987, Wayne was returned to county jail for a year for the prowling

conviction and parole violation. Wayne was released from jail on June 1, 1988. Joanne

welcomed him home and Godfather’s Pizza welcomed him back to work as though

nothing had happened.

But according to Joanne, beginning in July or August of 1988, Wayne began to

go out at night alone and stay out all night. He told her he was just restless and,

apparently, she believed him. When she worried that he was having an affair, he was

able to reassure her that he was not. Their relationship was solid. And, in September

1988, Wayne was promoted to first assistant manager at Godfather’s Pizza. So that must

have been going well also.

B. Crimes

The State prosecuted and convicted Wayne Nichols for the rapes or attempted

rapes of 12 women during his three-month rape spree, which spanned the period from

September 30, 1988, to January 3, 1989.4 But based on Nichols’s additional confessions

4

In a peculiar tangent, a 16-year-old girl accused Nichols of raping her, “resulting in [her]

pregnancy.” The State later dismissed this claim after discovering it was false. This girl had worked with

Nichols at Godfather’s Pizza, had gotten rides to and from work from him, and, according to Joanne, had

attended a Christmas party with them the day after the alleged rape without showing any problem with

Nichols at that time. Sometime in April 1989, well after Nichols had been arrested and the story of his

rape spree publicized, this girl told police that Nichols had sexually harassed her and other female

employees on numerous occasions and that he had raped her on December 15, 1988. Nichols vehemently

denied committing that particular rape, despite confessing to numerous others, and defense counsel were

able to show that Nichols could not have committed that rape as alleged. It turned out that the girl had

gotten pregnant and had attempted to cover it up by falsely claiming to have been a victim of Nichols’s

No. 06-6495 Nichols v. Heidle Page 6

and his psychologists’ assessments, there were almost certainly more victims and more

rapes.

Victim # 1: Karen Elise Pulley (rape, murder)

On the night of Friday, September 30, 1988, Nichols parked near a house in the

Brainerd area of Chattanooga where 21-year-old Karen Pulley lived with two female

house mates. Nichols watched the house from outside and saw one of the women dress

and leave. Nichols armed himself with a short length of two-by-four lumber,5 climbed

in a bathroom window, and roamed through the house. When he found Karen Pulley in

bed and alone, he struck her in the head with the two-by-four, tore her clothes from her,

and forcibly raped her vaginally. Afterwards, Nichols hit her in the head several more

times with the two-by-four, crushing her skull, and left her on the floor, bleeding and

unconscious. Nichols inflicted an astounding amount of damage to Karen Pulley’s head

and body, as is evident from both the autopsy and the gruesome crime-scene photos,

particularly when compared to photos of Karen Pulley from before the murder.

One of Pulley’s house mates found her the next morning, alive but unconscious,

lying on the floor in a large pool of blood. Pulley died at the hospital later that day —

she never regained consciousness. Police investigated relentlessly for three months.

They collected samples for all manner of forensic testing, including fingerprinting and

biological testing,6 received and pursued hundreds of tips, questioned over 100 people,

and investigated numerous possible suspects, but made no progress toward solving the

serial rapes. The prosecution dismissed this charge on October 3, 1989.

This aspect of Nichols’s rape cases is perhaps most noteworthy because it demonstrates Nichols’s

willingness and ability to dispute and defend against a false rape accusation, thereby undermining a

suggestion that Nichols’s numerous other confessions were the result of coercion or the mere acquiescence

to police suggestion. Nichols has abandoned his prior claims that his confessions were the product of

coercion and police manipulation, but hints of those accusations linger in his present arguments, including

his mitigation argument, and he has only at this stage — the appeal of the denial of his federal habeas

corpus petition — abandoned his actual-innocence claim. See fn. 6, infra.

5

It is unclear whether Nichols found the two-by-four outside the house or inside, but it is certain

that he obtained the two-by-four at the crime scene. Nichols did not bring the two-by-four with him.

6

Among the numerous biological samples were spermatozoa collected from her gown. Initial

testing could not be matched to Nichols and that was part of an actual-innocence claim. But in October

2005, advanced DNA testing matched the sample to Nichols and confirmed that he had been the

perpetrator, as he had confessed.

No. 06-6495 Nichols v. Heidle Page 7

crime. Specifically, the police never suspected Nichols and had not even established that

the murder weapon was a two-by-four.

In January 1989, the police identified Nichols as a suspect in a series of other

rapes in neighboring communities, discussed infra, and after initially denying knowledge

of this rape and murder, Nichols confessed and recorded a detailed confession. Nichols

eventually pled guilty and, following a sentencing trial, a jury recommended the death

penalty, which the court imposed. The sentencing trial and the death sentence are the

basis for this appeal.

Victim # 2 (rape)7

Sometime shortly after midnight on Thursday, October 20, 1988, Nichols

approached a house in the Tiftonia neighborhood of Chattanooga where a 23-year-old

married woman was home alone. At about 12:30 a.m., just before going to bed, she

unlocked a side door for her husband, who would typically arrive home from work

shortly after that hour. Nichols entered through the unlocked door at about 12:45 a.m.,

picked up a candlestick, and found the woman in her bedroom. He struck her on the

head with the candlestick multiple times, leaving wounds that would require stitches,

threatened to kill her, choked her, and then raped her vaginally.

Afterward, Nichols warned her not to move, so the woman knelt on the bed,

motionless and terrified, until her husband arrived home from work some time later. He

called the police. Apparently, Nichols called the house while the police were there —

the victim answered and recognized his voice but was too scared to hear what he said.

She gave the phone to a police officer, but the record does not contain a police report

from those officers about any such phone call.

7

In February 1991, well after the Pulley murder trial and conviction, Nichols entered guilty pleas

to six additional rapes or attempted rapes, as part of a plea agreement. Nichols did not appeal any of these

six convictions (i.e., Victims # 2, 3, 4, 6, 9, and 10). These crimes comprise a substantial part of Nichols’s

rape spree and are in the record, but were not formally part of the Pulley murder trial and were only alluded

to vaguely during that proceeding.

On state post-conviction review, the state trial court referred to these additional convictions in

its denial of Nichols’s petition, noting that they would be considered during a potential resentencing. See

Section II.A, infra. The Tennessee Supreme Court, in analyzing Nichols’s claim about the order of his

trials, referred to Nichols’s “forty charges growing out of some fourteen incidents,” Nichols, 877 S.W.2d

at 735. See Section II.F, infra.

No. 06-6495 Nichols v. Heidle Page 8

When arrested in January 1989, Nichols confessed to this rape and eventually

(after the Pulley murder trial) entered a guilty plea pursuant to a plea agreement. This

was the one of six guilty pleas and corresponding convictions that Nichols did not

appeal.

Victim # 3 (rape)

At about 4:45 a.m. on Tuesday, November 1, 1988, Nichols went to a home in

the East Ridge suburb of Chattanooga,8 where a single woman lived alone. The woman

awoke to find Nichols standing over her holding a large knife to her throat. Nichols

warned her not to scream or he would kill her. He then turned on the light, took her to

the closet, and picked out a black skirt, white blouse, and black high heels. He had her

dress and then took her back to the bed where he raped her vaginally, ejaculating on the

skirt.9 He had her undress and bathe while he watched. He then told her not to call the

police or he would kill her, and left, taking the skirt with him.

Nichols confessed to this rape and eventually (after the Pulley murder trial)

entered a guilty plea pursuant to a plea agreement, even though this victim could not

identify him. This was one of six guilty pleas and corresponding convictions that

Nichols did not appeal.

Victim # 4 (attempted rape)

At about 12:45 a.m. on Monday, November 21, 1988, Nichols parked outside a

house in the Red Bank suburb of Chattanooga, where a 35-year-old single mother lived

with her young son. Nichols had been casing this house for some time, possibly weeks.

Nichols climbed on a lawn chair in the back yard to open a window, climbed through the

window and over the washing machine, and went to the bedroom. Nichols woke the

8

This date was Nichols’s second wedding anniversary and this address was walking distance from

Nichols’s house. Originally, Nichols’s wife Joanne had protested that Nichols could not have committed

this rape because they had been together on their anniversary, but later she realized that he had left in the

middle of that night.

9

Elsewhere, the record reports that Nichols hit this victim with a vase and took the vase with him,

but the police report prepared at the time of the crime does not refer to any vase.

No. 06-6495 Nichols v. Heidle Page 9

woman and turned on the light but she screamed and fought. They rolled onto the floor,

while Nichols struck her several times in the face and head.10

When the woman’s young son called out, they stopped fighting momentarily.

Nichols stood behind the woman and told her to tell the boy everything was okay, which

she did. Meanwhile, her dog had come into the room, and she ordered the dog to attack.

When the dog moved towards them, Nichols fled taking her purse and a walking cane.

The woman followed Nichols outside, screaming at him while he fled to his car. She got

her gun from her car and then called the police.

When the police arrived, the woman recounted that a couple of weeks earlier, she

had seen a car like Nichols’s parked in the same place Nichols had parked on the night

of the attack. When she approached the car, it drove off. On a different day around the

same time, she had come home to find that someone had gone through her underwear

drawer. Also, because the window through which Nichols had climbed in had been

painted shut, she surmised that he had pried it open from the inside during an earlier

break-in and left it unlocked, unbeknownst to her.

The woman gave the police an accurate description of Nichols and, following his

arrest, identified him by photo. Nichols confessed and eventually pled guilty to assault

with intent to rape. This was one of six convictions that he did not appeal.

Victim # 5 (rape)

At 1:30 a.m. on Wednesday, December 21, 1988, Nichols went to a house in the

East Ridge suburb of Chattanooga, where a single woman lived alone. Nichols watched

through a window and saw that she was alone. He entered the house through the front

door, which was unlocked, picked up a knife from the kitchen, and found the woman

sleeping on a couch in the living room. He woke her, ordered her to the bedroom, cut

and tore her clothes off, and armed with a knife, forcibly raped her vaginally. He

10

Photos in the record show that her eye was blackened badly and her face visibly swollen. Also,

there is a convoluted reference in the record to Nichols’s hitting her with a walking cane, taking the

walking cane when he fled, and placing the cane on the victim’s porch a couple of nights later. This was

never fully explained.

No. 06-6495 Nichols v. Heidle Page 10

attempted to rape her anally, but could not do so and instead ejaculated on her face. He

ordered her into the shower, turned it on, and forced her to wash her hair and face.

While his victim was in the shower, Nichols left, taking the knife and her purse with

him.11

The police showed this victim a photo of Nichols on January 5, 1989, and asked

if she could identify him. She could not, but she later identified him when she saw him

on TV and again when asked in court. The State tried Nichols to a jury and the jury

convicted him of burglary, larceny, and aggravated rape. This was one of the prior

violent felonies that the State used as a death-penalty qualifier in the Pulley murder trial.

Victim # 6 (attempted rape)

At about 1:05 a.m. on Thursday, December 22, 1988, Nichols went to a house

in the Tiftonia neighborhood of Chattanooga, where a 35-year-old woman lived alone.

Nichols broke in through the back door and found that the woman was in the shower.

Nichols took a knife from a kitchen drawer and attacked her when she emerged from the

shower, stabbing her several times in the hand and arm. When she fought back,

inflicting a cut on Nichols’s eye, he fled.

Nichols may have been stalking this woman for some time. In addition to this

attempted rape, Nichols was also convicted of attempted burglary of this residence on

December 8, 1988. There is no further explanation of this in the record. The absence

of any other charges on this earlier date suggests that he could not get in or left because

the woman was not home.

This victim gave the police an accurate description of Nichols and, following his

arrest, identified him from a photo. Nichols confessed to committing this attack and

eventually pled guilty to attempted rape. This was one of six guilty pleas and

convictions that he did not appeal.

11

At approximately 8:00 p.m. on January 3, 1989, this victim received a telephone call at her

home in which the caller said only, “I want to eat your puss.” She later believed the caller was Nichols,

based on the voice and the fact that he had her name and phone number from the contents of her purse.

No. 06-6495 Nichols v. Heidle Page 11

Victim # 7 (rape)

At 11:15 p.m. on Tuesday, December 27, 1988, Nichols went to an address in the

Red Bank suburb of Chattanooga, where a single woman lived alone. The woman had

returned from a movie and was making trips to her car, carrying items into her house.

Nichols, who had entered the residence through a back window, pulled an electrical cord

from an iron, surprised her from behind, lynched the cord around her neck, and dragged

her back inside. Nichols ordered her to strip and when she delayed, he punched her and

ripped off her clothes. When she told him she was menstruating, he punched her several

times in the face and head. He forced her to perform oral sex and then forcibly raped her

vaginally. He told her not to move and then fled. After about 10 minutes, she called

911.

Nichols confessed to this rape and, during this confession, he began laughing.

When police asked why he thought it was so funny, Nichols said: “Well, it’s not really

funny what happened, but the whole thing is sort of funny.” This laughing was

reportedly unmistakable on the video of the confession. Nichols entered a guilty plea

even though serology evidence could not be matched to him at that time, and the court

convicted him of burglary and aggravated rape. This was one of the prior violent

felonies used as a death-penalty qualifier in the Pulley murder trial.

Victim # 8 (attempted rape)

On Saturday, December 31, 1988, Nichols went to the Tiftonia neighborhood of

Chattanooga, where he attempted to rape a woman in her home. The record contains few

specifics. Nichols confessed on video, but this crime was not prosecuted.

On Monday, January 2, 1989, Nichols had been home from work because he was

feeling ill and spent the day lying in bed. At about 8:30 or 9:00 p.m., he got up and

dressed and told Joanne he was going to get hamburgers. He did not return until 7:00

a.m. the next morning. During that time, Nichols committed three rapes and attempted

another.

No. 06-6495 Nichols v. Heidle Page 12

Victim # 9 (rape)

At 12:15 a.m. on Tuesday, January 3, 1989, Nichols went to an apartment in the

East Brainerd or East Ridge neighborhood of Chattanooga, where a 31-year-old single

mother lived with her four-year-old daughter. Nichols entered and found the woman and

her daughter asleep in the master bed. Nichols threatened to harm the daughter if the

woman did not comply, so she told her daughter everything was okay, put a videotape

in the VCR for her to watch, and went to the living room with Nichols. Nichols forced

her to undress and lie down on the couch; he then raped her vaginally, coercing her with

a knife. Nichols told her that if he saw any police at her apartment, he would come back

and hurt or kill her daughter. She did not call the police until the next evening. She

described Nichols to the police and added that he smelled of cigarettes. She later

identified him from a photo line up.

Apparently, Nichols had been watching this victim’s apartment for several

weeks. On Thanksgiving weekend, six weeks earlier, this woman had returned home to

find the windows and doors unlocked. A stick or bar that had secured a sliding door had

been removed and put under the couch. Several baskets and other items were oddly out

of place and several lights were on that had not been on when she left. She later

suspected that the intruder had been Nichols, familiarizing himself with the layout of the

apartment and unlocking doors and windows for his entry at a later time.

Nichols confessed to the police and eventually pled guilty to this rape. This was

one of six guilty pleas and convictions that he did not appeal.

Victim # 10 (attempted burglary with intent to rape)

At about 1:00 a.m. on Tuesday, January 3, 1989, Nichols arrived at an apartment

in the East Ridge suburb of Chattanooga. Nichols cut the window screens and pried at

the doors, but could not break in, so he gave up and went next door to the residence of

the next victim. When police responded to Victim # 11’s 911 call at 3:34 a.m., they

searched the area and found that the rear screens of this apartment had been cut and the

rear door, front door, and front window had been pried on. Police woke the woman

No. 06-6495 Nichols v. Heidle Page 13

inside, who had been unaware of the attempted break in. Nichols confessed and pled

guilty to “attempted burglary by night with intent to rape.” This was one of six guilty

pleas and convictions that he did not appeal.

Victim # 11 (rape)12

At about 1:30 a.m. on Tuesday, January 3, 1989, Nichols approached the

neighboring apartment (to Victim # 10), where a 28-year-old single mother lived with

her children. Nichols pried open the back door with a screwdriver, breaking a window.

The woman heard the noise and got out of bed to investigate. Halfway down the stairs,

she saw Nichols breaking in and ran back upstairs and called 911. The dispatcher

recorded the 911 call at 1:36 a.m. Nichols followed her upstairs, hung up the phone, and

ordered her downstairs. The children were sleeping or watching TV upstairs and

Nichols threatened to harm her and kill the children if she did not comply. Nichols tore

her nightgown off of her and when she begged him to stop, he punched her in the face,

again threatened the children, and scratched her in the process, drawing blood. Nichols

forcibly raped her orally, vaginally, and anally. He did not ejaculate. Nichols told her

not to move until he was gone, but when he left the room, she ran upstairs for a robe.

When the police rang the doorbell moments later, the woman answered and Nichols fled

out the back. Police pursued unsuccessfully.

This woman initially identified another man as the rapist from a photo array (one

Fred Joseph Coats, also suspected in the next rape, Victim # 12), but at a subsequent in-

person line up determined that it had not been Coats. She later identified Nichols from

a photo array and identified him for a jury in court. Nichols was tried to a jury and

convicted of burglary and two counts of aggravated rape. The prosecutor in the Pulley

murder trial offered these two rape convictions as two of the five prior violent felonies

for death-penalty qualification.

12

This was actually charged and convicted as two separate rapes, so the record reflects that the

prosecutor in the Pulley murder trial presented five prior rape convictions as prior violent felonies for

purposes of death-penalty qualification, even though the prosecutor actually presented four cases

concerning four victims and four incidents.

No. 06-6495 Nichols v. Heidle Page 14

Victim # 12 (rape)

At 4:00 a.m. on Tuesday, January 3, 1989, Nichols arrived at a house in the East

Ridge suburb of Chattanooga, where a 26-year-old woman lived alone. This woman had

returned home at approximately 1:00 a.m. and fallen asleep on her couch. She was

awakened by two sharp blows to her head and face. Nichols had entered through a

window by climbing on top of her car. Nichols held a knife to her throat and threatened

to kill her if she did not comply. He forced her to the bedroom, chose an outfit for her,

and forced her to dress in it, all the while threatening her and hitting her. Nichols then

forcibly ripped and cut the clothes off of her, cutting her leg in the process. Nichols

attempted to rape her anally, but was unable to do so. When she claimed to be nauseous,

Nichols turned to get her a wash cloth and she reached for a .38 pistol she had in the

night stand. Nichols wrestled the gun away from her, beat her some more, and raped her

anally, by force and with the threat of the knife held against her. When he finished,

Nichols held the gun to her head and fired the empty chamber, apparently to horrify her

or to show it was empty. Nichols forced her into the shower and left while she was

showering. She called 911 at 4:43 a.m.

After his arrest, this woman identified Nichols from a photo array. After his

confession, police took Nichols to her house and he pointed out where and how he had

climbed onto her car to get into the window. During a consensual search of his car,

police recovered the woman’s gun and the knife from her kitchen. Nichols had also

stolen her purse. Nichols entered guilty pleas to burglary, larceny, and aggravated

rape.13 This was one of the prior violent felonies cited as a death-penalty qualifier in the

Pulley murder trial.

13

The record mistakenly reports in a couple of places that the State dismissed the charges in this

rape case. That is incorrect. The State dismissed an “attempted murder” charge in this case when it was

established that Nichols knew, before pulling trigger, that the chamber was empty in the gun and that even

the victim had told the police so.

No. 06-6495 Nichols v. Heidle Page 15

C. Arrest and Confession

At 8:10 p.m. on Thursday, January 5, 1989, East Ridge Police Captain Larry

Holland received an anonymous phone call from an unidentified man — later determined

to be one Chuck Mull,14 — alleging that Nichols was the serial rapist and providing

Nichols’s date of birth. Routine follow-up revealed Nichols’s 1984 arrest and conviction

for burglary and attempted rape. Police showed photo-arrays to four of the victims, each

of whom identified Nichols immediately. An arrest warrant issued.

Police arrested Nichols at his home at 11:06 p.m. and took him to the East Ridge

police station for questioning, with several officers from different communities present.

Nichols signed a waiver of counsel and Miranda rights at 11:23 p.m. A little over an

hour later, at 12:47 a.m. (Friday, January 6, 1989), Nichols recorded a videotaped

confession to the rapes of Victims # 3, 5, 11, and 12.

Questioning continued until approximately 4:21 a.m., and then police allowed

Nichols to sleep for several hours before beginning questioning again at approximately

11:30 a.m. that same morning (Friday, January 6, 1989). Nichols confessed to several

other rapes and attempted rapes, including several of those described above as well as

at least two others that were never prosecuted.15 It was suspected by police and even by

Nichols’s defense psychologists that Nichols had almost certainly committed more rapes

than those known.

That evening, police showed pictures of Nichols to some other victims. Victim

# 11 identified him at 5:20 p.m., Victim # 3 identified him an hour later, and then # 12

and # 5. At 8:00 p.m., the police took Nichols to the Chattanooga Police Department

where he made a full confession, on video, to the Pulley rape and murder, a case in

14

Mull was Larry Kilgore’s roommate, and possibly romantic partner, who was jealous of

Nichols’s friendship with Kilgore. Kilgore had been very fond of Nichols and eventually testified for

Nichols at the Pulley murder trial, asserting that Nichols was the best friend he had ever had and insisting

that Nichols was the best person he had ever known. Mull’s jealousy of Nichols led him to suspect

Nichols when no one else did, and to call the police with the tip.

15

Nichols confessed to at least two other rapes (Victims # 13 and 14) that he committed in Red

Bank. Neither of these were prosecuted and further details are not contained in the present record.

No. 06-6495 Nichols v. Heidle Page 16

which he had never until then been a suspect. A few hours later, actually 1:20 a.m. on

Saturday, January 7, 1989, Nichols directed a detective to a lot in East Ridge to recover

the two-by-four he had used to murder Karen Pulley.16 On Sunday, January 8, 1989,

Joanna Nichols relayed to another police officer that, after his arrest, Nichols had

confessed to her about his committing some of the rapes and the Pulley murder.

The State proceeded with indictments on all of the cases individually. On

February 1, 1989, the State indicted Nichols for the Pulley rape and murder. On April 5,

1989, Nichols moved the state trial court to compel the State to prosecute his crimes in

the chronological order in which they were committed, but the court denied the motion.

On July 18, 1989, Kenneth Nickerson, Ph.D., and Fausto Natal, M.D., of the Johnson

Mental Health Center, Inc. in Chattanooga, Tennessee, provided the court with a

competency report in which they found Nichols competent to stand trial.

D. Trials and Prosecution

Nichols had the same counsel for all of his trials: Hugh Moore and Rosemarie

Bryan. The first significant hearing was September 6, 1989, on Nichols’s motion to

suppress his confessions in the rape cases. The trial court did not believe Nichols’s

assertion that he had requested an attorney; found that Nichols had not been coerced; and

denied the motion.

The State prosecuted five of the rape charges (concerning four victims) to

conviction before initiating the Pulley rape-and-murder trial:

1.) Victim # 7, guilty plea, September 13, 1989, Case No. 175495.

2.) Victim # 12, guilty plea, October 24, 1989, No. 175433.

16

Questions existed about this two-by-four. Forensic investigation found no hair, fibers, blood,

or soft tissue on the two-by-four, even though Nichols had crushed Pulley’s skull with it and splattered

blood all over the room. Also, the two-by-four did not appear weathered even though it had presumably

been outside since September. At one point, the record says that one of Pulley’s roommates found the two-

by-four. The prosecution entered the two-by-four into evidence at Nichols’s sentencing trial and the

detective testified to its recovery and chain-of-possession. Because Nichols long ago abandoned any claim

of error concerning this two-by-four as the murder weapon, it is not an issue now and will not be

considered further in this opinion.

No. 06-6495 Nichols v. Heidle Page 17

3.) Victim # 11, guilty verdicts (2), January 11, 1990, Nos. 175438 and 178087.

4.) Victim # 5, guilty verdict, February 21, 1990, No. 180537.

It is noteworthy that, for each of these convictions, Nichols’s counsel moved the court

to stay the sentencing phase until after the completion of the other guilt-phase

determinations, specifically until after the Pulley murder trial. The court granted the

motions and did not sentence Nichols on any of these non-capital convictions until

December 13 and 14, 1990.17

The Pulley murder trial began on May 7, 1990. Nichols had requested a change

of venue, but the trial court did not change the venue of the trial. Instead, the trial court

selected jurors from another county (Sumner County) and brought them to Hamilton

County, where the crimes had occurred, for the trial. After jury selection, the trial court

denied Nichols’s motion to suppress his video- and audio-taped confession to the Pulley

rape and murder, so Nichols changed his plea and entered guilty pleas to charges of first

degree felony murder, aggravated rape, and first degree burglary.18 The trial court held

a colloquy, accepted the guilty pleas, convicted Nichols, and proceeded to the sentencing

phase.

At sentencing, the State sought the death penalty based on two specific, statutory

aggravating circumstances:

17

In December 1996, Nichols petitioned for post-conviction relief from these five non-capital

sentences, arguing that the trial court had failed to abide by certain state-common-law sentencing

principles. See Nichols v. Tennessee, 90 S.W.3d 576, 586 n.4 (Tenn. 2002). Thereafter, sometime

between 1997 and 2002, the post-conviction court granted this petition and held that Nichols was entitled

to new sentencing proceedings for these non-capital convictions. See id. at 586. The State did not appeal,

id., but neither did the state trial court proceed immediately with this re-sentencing, see Tennessee v.

Nichols, No. E2008-00169, 2009 WL 2633099, *2 (Tenn. Crim. App. Aug. 27, 2009). Eventually, on or

about December 17, 2007, the state trial court re-sentenced Nichols on these non-capital convictions,

sentencing him to the minimum sentence for each offense, to be served concurrently, for an effective

sentence of 25 years. Id. at *3.

Note that Nichols’s aggregate effective sentence for the other six non-capital offenses — to which

he entered guilty pleas and which he never appealed (i.e., Victims # 2, 3, 4, 6, 9, and 10) — is 225 years.

See id. at *1.

18

The State dismissed a charge of premeditated first degree murder.

No. 06-6495 Nichols v. Heidle Page 18

(1) the murder occurred during commission of a felony (rape);19 and

(2) Nichols’s previous convictions for violent felonies (i.e., the other five rapes).

The State’s first two witnesses, Chattanooga Police Officers Clarence Wilhoit and Gary

Schroyer, described the Pulley-murder crime scene and authenticated the introduction

of her bloody clothing into evidence. The third witness, paramedic William Craig,

described Karen Pulley’s condition20 upon his arrival and his medical response, further

described the crime scene, and introduced the crime scene photographs. The next two

witnesses, Karen Pulley’s house mates, testified about Karen Pulley, the house layout,

the circumstances surrounding the murder, and the crime scene.21 The sixth witness,

Detective Richard Heck, testified about the crime scene and the ensuing investigation,

and re-created the events of the rape and murder for the jury. More importantly, Det.

Heck introduced Nichols’s videotaped confession, which was played for the jury, and

commented on that confession. He also introduced maps Nichols had drawn during the

confession and narrated a video, played for the jury, in which the police re-created

Nichols’s path into and through the house during the murder, as Nichols had described

it in his confession. The seventh witness, medical examiner Dr. Frank King, testified

about the injuries to Karen Pulley; specifically, the particularities of the sexual assault,22

19

The Tennessee Supreme Court later held in Tennessee v. Middlebrooks, 840 S.W.2d 317, 346

(Tenn. 1992), that reliance on this factor (i.e., that the murder occurred during the commission of a felony)

as a death-penalty-qualifying aggravating circumstance is unconstitutional, in violation of Article I, § 16,

of the Tennessee Constitution and the Eighth Amendment to the United States Constitution. On direct

appeal in this case, the Tennessee Supreme Court acknowledged this error in Nichols’s sentencing, but

held it was harmless. Tennessee v. Nichols, 877 S.W.2d 722, 725 (Tenn. 1994).

20

Craig testified that Pulley’s head had been crushed so severely that he could not recognize her

as a woman and, in fact, because her body and particularly her feet were so small, he had insisted to the

other paramedics that she was actually “a small child.” Craig further testified that he had “seen many []

violent crimes[,] . . . traffic accidents[,] . . . [and] carnage in [his military] service [in Vietnam], but nothing

this brutal, I mean just brutal.”

21

Nichols’s defense counsel objected to these first five witnesses — Officers Wilhoit and

Schroyer, paramedic Craig, and Pulley’s two house mates — arguing that their testimony was irrelevant

to the sentencing determination and, therefore, inadmissible. The trial court heard each of their

testimonies, in full, outside of the presence of the jury, and then overruled the objection and allowed each

of them to testify a second time, in the presence of the jury.

22

Dr. King testified that, based on his examination, the rape had likely been Karen Pulley’s first

experience with vaginal sex and because the opening to her hymen was so very small, much smaller than

normal, significant force would have been necessary to penetrate the tissue, which he labeled a “traumatic

tearing,” and would have been very painful.

No. 06-6495 Nichols v. Heidle Page 19

evidence of her struggle, the force and brutality of the blows to her head, and the nature

of her death, including the likelihood that the two-by-four was the murder weapon. He

authenticated the autopsy report, as well as several diagrams and photographs, for

introduction into evidence. The final witness, Hamilton County Court Clerk Harold

Rohen, introduced the records of Nichols’s five other rape convictions that were offered

as death-penalty-qualifying, aggravating circumstances.

The defense argued for mitigation based on Nichols’s admission of guilt,

cooperation with police, and the psychological effects of his troubled childhood. The

defense produced witnesses who testified to Nichols’s good character and passive nature

— his wife Joanne, a friend and coworker named Larry Kilgore, and three preachers

familiar with his childhood and the orphanage: Rev. L. E. Butler, Rev. Winston Gonia,

and Rev. Charles Hawkins. Joanne testified that she and Nichols had “the perfect

marriage,” that Nichols “was always caring, kind, and nice,” and that her family adored

him, so she was shocked by the crimes. She conceded that Nichols had confessed to her,

but pled for his life, insisting that while he “should [not] be out on the streets,” he did

not “deserve[] the electric chair.” Kilgore testified that, even knowing of the crimes, he

considered Nichols the “best friend that [he had] ever had” and “one of the nicest men

[he had] ever known.” Rev. Butler testified that he had known Nichols since he was “a

very small child,” that Nichols had a religious upbringing, and that, in meeting with him

since the murders, Nichols had “shown remorse . . . a repentant spirit, remorseful spirit.”

Rev. Butler then opined about “demon possession” and that Nichols had been under the

control of an evil spirit, but conceded on cross-examination that Nichols had never

sought help for this perceived demon possession nor shown any remorse before his

arrest. Rev. Gonia testified that Nichols had been a good child and, though Nichols had

done horrible things, “[a]s far as I know . . . , he’s still a good person.” Rev. Hawkins

testified that he had known Nichols as a boy at the Tomlinson Home and had also

spoken with Nichols in jail since his arrest. He remembered Nichols as “a very fine

young man” and viewed him in jail as remorseful and “more like the Wayne [Nichols]

that I knew as a boy growing up.”

No. 06-6495 Nichols v. Heidle Page 20

Nichols testified about his personal history, including his childhood (though he

could not remember if his father was abusive to him), his time at the orphanage, his early

adulthood (including the attempted rape in 1984), and his relationships with Mac and

Joanne. Nichols also discussed his crimes, asserting that he knew the rapes were “wrong

and terrible,” and that he had not wanted to do them, but that a “strange feeling”

compelled him and he had been unable to control it. He specifically admitted to the

Pulley rape and murder, though he insisted that he had not meant to kill Karen Pulley

and was remorseful. On cross-examination he conceded that if he had not been arrested

he would have continued prowling at night and raping women, and that he had confessed

primarily to set the record straight because the police had been falsely accusing him of

other rapes, assaults, and even child molestation, that he had not committed.

Dr. Eric Engum, a psychologist who is also a lawyer, testified as a psychological

expert for the defense. Dr. Engum had diagnosed Nichols with “intermittent explosive

disorder,” a type of “impulse control disorder” in which Nichols’s “ability to resist [wa]s

overwhelmed.” Dr. Engum found no organic brain injury and attributed this diagnosis

to “psychosocial factors”, explaining:

The types of things that the experts in the field identify [as causal factors]

are [a] punitive, hostile environment in which the child is raised, maybe

alcoholic, abusive parent, abandonment, lack of love or empathy in the

family unit, estrangement or essentially being socially isolated from the

social milieu or, as we say, the world as it exists. Social isolation[,] I

guess[,] is the best term. Tremendous feelings of impotence, and what

I say by that is a person who feels that they’re not worth anything,

they’re not important, who’ve met a lot of defeats in life and kind of

internalized that and get the picture of themselves as somebody who

really has not succeeded in anything. They see themselves in a very

negative light.

...

[F]rom the evidence that I was able to pull together over many months,

it appears that [Nichols] was at a number of points in his life subjected

to a punitive, aggressive, hostile father. It also appears that at various

points in his life figures to whom he bonded, mother, grandmother were

just ripped away from him. For instance, his first remembrance is at age

five. He simply remembers his grandmother dying without any warning,

No. 06-6495 Nichols v. Heidle Page 21

without even being aware. At age ten, even though his mother had been

sick for a long time, he apparently was never told of that, and one day she

literally dies. He’s taken away and put in an orphanage. He has - - - he

bonds with a number of different house parents and they mysteriously

disappear. And it seems that his life is through that. So you have a child

who builds up this sense of being abandoned and he responds angrily.

...

There is a huge gap [in his memory] and I should emphasize. From

before age ten, from before the time he went into the orphanage he has

minimal recollection of any events in his lifetime. And consistent with

the diagnosis, most authorities believe that that’s an attempt simply to

repress all of the bad and negative things that occurred during his early

years. And so the child essentially internalizes the anger and frustration,

and it can either stay internalized or it can explode at various times.

Dr. Engum was careful to note that, in his opinion, Nichols had been aware of the

wrongfulness of his actions, but had been unable to control them and was remorseful

afterwards.

On cross-examination, Dr. Engum explained that Nichols’s sister had refused to

speak with him for his investigation, despite significant efforts. An aunt and uncle had

also refused. And he had been unable to locate anyone, other than Rev. Gonia, to

discuss the Tomlinson Children’s Home. But the most important part of Dr. Engum’s

cross-examination testimony concerned the State’s use of his notes to impeach his

testimony and undermine his credibility. Because defense counsel had not requested,

and Dr. Engum had not prepared, an expert report to give to the State, the trial court

ordered the defense to turn over Dr. Engum’s notes.23 Using those notes, the State

23

Before calling an expert witness, an attorney must provide a report as to what the expert will

testify, or else make the expert available for deposition. Tenn. R. Crim. P. 16(b)(1)(B)(iii); see also Tenn.

R. Civ. P 26.02(4)(A)(ii); Coe v. Tenn., 17 S.W.3d 193, 214 (Tenn. 2000). Nichols’s counsel did neither.

When the State told the court that defense counsel had not provided any expert report (or even identified

any expert), despite the State’s express discovery request for such a report, defense counsel argued that

they were not obliged to provide a report because their expert, Dr. Engum, had not prepared a written

report. They offered him for deposition, but as this was now the middle of trial — with the time for

declaration of experts and opportunity for depositions long since past — the court rejected that offer and

ordered defense counsel to produce any written notes that Dr. Engum had prepared. Defense counsel

argued that those notes were privileged work product, but the court disagreed and reviewed them in

camera. Meanwhile, defense counsel had Dr. Engum hastily prepare a report over the lunch recess and

offered that instead. The court rejected that offer as well, explaining that such a report was long past due.

Defense counsel provided the court with Dr. Engum’s numerous written notes and letters, which included

not only Dr. Engum’s psychological assessment of Nichols, but his opinion of witnesses and suggestions

of legal defense strategies. After in camera review, the court provided those documents to the State as

No. 06-6495 Nichols v. Heidle Page 22

portrayed Dr. Engum as a defense team lawyer, not an independent psychologist, who

was actively trying to persuade (or trick) the jury. For example, in his correspondence

with defense counsel, Dr. Engum repeatedly referred to “us” and “we” as though he were

part of the defense team, such as in the statement: “Joanne provides a wealth of

information which I believe will help us at least support an argument for the irresistible

impulse defense.”24 Moreover, concerning potential defense witness Rev. L. E. Butler,

Dr. Engum wrote to defense counsel:

Reverend Butler is the type of individual that I characterize [as] the

limited public figure. He would probably protest all the way to the stand

and then revel and bask in the notoriety of his testimony. I believe that

his testimony could also be fairly powerful. As we have discussed, we

are trying to build a mitigating factor of irresistible impulse. . . .

Reverend Butler can add to the persuasiveness of this argument by

recasting the irresistible impulse into possession by the devil. This may

have a great impact and influence upon those members of the jury with

religious leanings. . . . The only negative note that he might bring is with

regard to [Nichols]’s choice to let the devil into his heart. Reverend

Butler also states that if only [Nichols] had chosen to come back into the

church, none of this would have happened. Hence, we need to be very

careful that Reverend Butler does not recast this ‘possession theme’ into

an active, voluntary, knowing choice. I am afraid that he might state that

the church held out their hands to [Nichols] but [Nichols] did not

reciprocate and it is for this reason that [Nichols] committed these

crimes.

During its questioning of Dr. Engum and again in closing argument, the State argued that

this was a lawyer striving to “build a mitigating factor” or “influence the jury”; not a

psychological expert presenting an objective opinion of about a defendant’s

psychological condition.

At the close of evidence and following closing arguments, the court instructed

the jury on reaching its verdict and completing a particular verdict form. The court

satisfaction of the discovery requirement, rather than forbidding Dr. Engum’s testimony.

24

Note that, ultimately, Dr. Engum did not diagnose Nichols with “irresistible impulse,” but

rather, diagnosed him with “intermittent explosive disorder.”

No. 06-6495 Nichols v. Heidle Page 23

instructed the jury to reach three decisions and that only a unanimous agreement on each

would warrant the death penalty:

(1) Whether the State had proven, beyond a reasonable doubt, one or

more of the two listed, statutory, aggravating factors (i.e., that the

murder occurred during commission of a rape, and that Nichols

had convictions for five other rapes);

(2) Whether the State had proven, beyond a reasonable doubt, that

the statutory aggravating factor(s) outweighed the mitigating

factors; and

(3) Whether the punishment should be death.

Importantly, the verdict form also required, after the first question, that the jury write

down which of the two listed, statutory, aggravating factors they had unanimously found.

After receiving these instructions and retiring for the evening, the jury began the

next day, May 12, 1990, and after two hours of deliberation, returned a death sentence,

with the following four aggravating factors listed on the verdict form:

(1) First degree murder of Karen E. Pulley;

(2) The unfeeling brutality of the first degree murder of Karen E. Pulley;

(3) The lack of remorse; and

(4) The lack of respect of human rights.

The jury also found, expressly and unanimously on the form, that the aggravating factors

outweighed, beyond a reasonable doubt, the mitigating factors.

Defense counsel moved for a mistrial on the basis that the State had not proposed

or proven those four factors, which were not statutory factors and were, therefore,

impermissible. After hearing argument (outside the presence of the jury), the trial court

denied the motion and instead re-instructed the jury. Defense counsel moved the court

to re-instruct about the mitigating circumstances, but the court declined. The jury

returned 15 minutes later with the four prior, erroneous factors crossed out and these two

statutory aggravating factors written in:

No. 06-6495 Nichols v. Heidle Page 24

(1) The defendant was previously convicted of one or more felonies,

other than the present charge, whose statutory elements involve

the use of violence to the person. The State is relying upon the

crimes of Aggravated Rape, which are felonies involving the use

or threat of violence to the person.

(2) The murder was committed while the defendant was engaged in

committing, or was attempting to commit, or was fleeing after

committing or attempting to commit rape.

The jury also found — expressly, unanimously, and beyond a reasonable doubt — that

the aggravating factors outweighed, beyond a reasonable doubt, the mitigating factors.

The court then questioned the jury foreperson, asking whether the jury had found

that the two statutory aggravating factors had been proven beyond a reasonable doubt

before they returned the verdict the first time; whether the jurors had assumed they did

not need to write those two factors on the verdict form; and whether the reason for that

assumption was because they had found the only two factors listed. The jury foreperson

answered yes to all three questions. The court then polled the entire jury, asking each

juror if he or she had found the statutory aggravating factors beyond a reasonable doubt,

had found the two statutory aggravating factors outweighed any mitigating factors, and

had made that decision before returning the verdict the first time.25 Each juror answered

yes to each question and both the State and defense counsel declined further polling.

The court dismissed the jury and announced the death sentence. Nichols moved

for a new trial (June 11, 1990), amended that motion (November 30, 1990), and amended

25

The court was consistent in questioning each of the 12 jurors, but for three occasions.

In questioning the fourth juror it polled, the court also asked: “And what I stated earlier was

correct, that you assumed that since you found both of them you did not have to write those in there? . .

. And that’s why you made these other explanations?” The juror answered yes to both of these additional

questions.

In questioning the sixth juror polled, the court added the “beyond a reasonable doubt” condition

to the weighing question, asking: “Did you find that they outweighed beyond a reasonable doubt the

mitigating circumstances?” The juror answered yes. The court did not include the “beyond a reasonable

doubt” condition in asking the weighing question to any of the other jurors. No one appeared to notice the

difference, as it was not mentioned.

In re-questioning the jury foreperson, who was the seventh juror polled, the court also asked:

“And I believe the verdict is in your handwriting. . . . So the first part you wrote in, you felt was just a

word of explanation of why you did that? . . . But you actually had already found the existence of those

two aggravating circumstances?” The juror answered yes to all three of these additional questions; to the

third she said, “Definitely, Your Honor.”

No. 06-6495 Nichols v. Heidle Page 25

it again (December 13, 1990). On December 17, 1990, the trial court heard argument

on Nichols’s motions for new trial and denied them. Nichols appealed.

E. State Court Appeals

Nichols’s trial counsel, Hugh Moore and Rosemarie Bryan, continued to

represent him on appeal. On May 2, 1994, the Tennessee Supreme Court affirmed the

death sentence:

The proof demonstrates [that Nichols] is undoubtedly ‘among the worst

of the bad,’ and clearly belongs among those who are eligible for the

ultimate sanction. [Nichols] was convicted of attempted rape in 1984,

served 18 months, was placed on parole, violated it[,] and was returned

to prison. He committed five aggravated rapes within 90 days of his rape

and murder of Karen Pulley and in three instances was armed with

weapons. He prowled the city night after night searching out vulnerable

female victims. Moreover, both [Nichols] and Dr. Engum testified that

if released, he would continue to roam and to rape. At the most, the

evidence showed only that [Nichols] had been able to function without

violence in a prison setting. It does not show that the rape and murder of

Karen Pulley and the previous rape convictions were aberrations in an

otherwise productive life.

Tennessee v. Nichols, 877 S.W.2d 722, 739 (Tenn. 1994). The Tennessee Supreme

Court denied rehearing, Tenn. v. Nichols, 1994 Tenn. LEXIS 202 at *1 (Tenn. June 20,

1994), and the United States Supreme Court denied certiorari. Nichols v. Tenn., 513

U.S. 1114 (Jan. 17, 1995).

On December 19, 1995, the Tennessee Court of Criminal Appeals affirmed the

five supporting rape convictions (Victims # 5, 7, 11, and 12) and the non-capital

sentences in all cases, including Pulley. Tenn. v. Nichols, No. 03C01-9108-CR-00236,

1995 WL 755957 at *19 (Tenn. Ct. App., Dec. 19, 1995). The trial court later vacated

those sentences and re-sentenced Nichols. See Tenn. v. Nichols, No. E2008-00169, 2009

WL 2633099 at *2 (Tenn. Crim. App. Aug. 27, 2009).

Meanwhile, on April 25, 1995, Nichols had petitioned the state trial court for

post-conviction relief from the Pulley murder conviction. New attorneys represented

Nichols in his state post-conviction motion: Mary Ann Green, Paul Buchanan, and Don

No. 06-6495 Nichols v. Heidle Page 26

Dawson. The trial court conducted an extensive evidentiary hearing, in which Nichols’s

new counsel produced over 20 additional witnesses, though not Nichols himself.26 On

March 18, 1998, the state trial court denied post-conviction relief. Nichols appealed.

On appeal to the Tennessee Court of Criminal Appeals, Nichols raised eleven

issues, eight involving ineffective assistance of trial counsel. The appeals court

affirmed. Nichols v. Tenn., 2001 WL 55747 at *72 (Tenn. Crim. App. Jan. 19, 2001).

The Tennessee Supreme Court granted leave to appeal, particularly the issue of

Nichols’s Fifth Amendment right against self-incrimination vis-a-vis the disclosed

psychologist notes, Nichols v. Tenn., 2001 Tenn. LEXIS 551 at *1 (Tenn. July 2, 2001),

but affirmed as well. Nichols v. Tenn., 90 S.W.3d 576, 607 (Tenn. Oct. 7, 2002).

F. Federal Habeas

Nichols filed his petition for a writ of habeas corpus in federal district court on

May 23, 2003. Nichols had a new attorney, Stephen Kissenger. The district court

returned the petition for refiling on July 9, 2003, because it had exceeded the page limit.

Nichols filed a revised petition raising 34 enumerated claims, many with multiple sub-

claims (Aug.18, 2003).

A psychiatric report by David Lisak, Ph.D., University of Massachusetts, dated

February 11, 2004, opined that Nichols suffers an “array of traumatic experiences and

adverse childhood conditions” that “alter[ed] [his] brain development,” and led to

“serious, long term psychological, psychiatric, and functional impairments.” And a

psychiatric report by Faye Sultan, Ph.D, University Psychological Associates (Charlotte,

N.C.), dated March 18, 2004, opined that Nichols suffers from intermittent explosive

disorder, dissociative disorder, and personality disorder; and was “under the influence

26

The State called Nichols to testify at this hearing but Nichols refused to answer any substantive

questions, claiming a constitutional (Fifth Amendment) right against self-incrimination. The trial court

ruled that Nichols did not have such a right at the post-conviction stage of the proceedings, but did not

require him to answer any questions or hold his refusal against him. On appeal, the Tennessee Court of

Criminal Appeals held that Nichols “had no basis to refuse to answer the questions . . . [and] an adverse

inference could have been drawn because of [Nichols]’s refusal to answer.” Nichols, 2001 WL 55747 at

*16. The Tennessee Supreme Court disagreed with the appellate court, holding that Nichols properly

invoked his right not to answer, but further held that the appellate court’s error had not affected the

decision. Nichols v. Tenn., 90 S.W.3d 576, 607 (Tenn. 2002).

No. 06-6495 Nichols v. Heidle Page 27

of serious mental illness” when committing the crimes. On May 5, 2004, Nichols moved

the district court to expand the record to add these reports.

In October 2005, additional DNA testing confirmed that Nichols was the source

of the spermatozoa samples collected from Karen Pulley’s gown. Consequently, in

November 2005, Nichols’s counsel dismissed several claims that were predicated on his

claim of actual innocence or that relied on actual innocence as a cause-and-prejudice

exception.

On July 25, 2006, the district court dismissed the petition without a hearing, but

granted Nichols a certificate of appealability on seven issues. Nichols v. Bell, 440 F.

Supp. 2d 730 (E.D. Tenn. 2006). On November 28, 2006, Nichols appealed here and

this court subsequently granted Nichols a COA on one additional issue.27 We address

each of these eight issues in turn.

27

In his concurring opinion, infra, Judge Martin stresses and condemns the length of the judicial

proceedings in this case (i.e., “Nichols’[s] execution was supposed to take place [in] 1994 . . . and [since

then] this case has been moving through our justice system . . . providing no closure for the families of the

victims.”). It is certainly understandable that the general public, including the families of the victims,

might question and even condemn the fact that the appellate process in this case — a case in which the

defendant confessed and pled guilty — has lasted over 20 years. More particularly, it would be

understandable that the general public, including the families of the victims, might question and even

condemn the fact that this appeal has sat in the Sixth Circuit, before this panel, for almost seven (7) years.

It is somewhat perplexing, however, that Judge Martin would publicize and condemn this situation.

This appeal arrived here on December 1, 2006, and was assigned to this panel on December 5,

2006, with Judge Martin designated as the lead judge, holding primary responsibility for moving the appeal

forward. On March 30, 2007, Nichols’s counsel moved to expand the certificate of appealability, and that

motion was referred to Judge Martin, as the lead judge. The State moved for an extension of time to reply,

which Judge Martin granted, and the State eventually filed its reply on April 30, 2007. Judge Martin did

not move this appeal forward for over three (3) years.

On May 12, 2010, I advised the panel that I was inclined to grant the motion as to one additional

issue and Judge Cook agreed on May 14, 2010. On May 26, 2010, Judge Martin advised that he had

misfiled the case and motion, but would retrieve it and reply by June 7, 2010. After receiving no response

from Judge Martin for five (5) months, on November 5, 2010, I offered to take the lead on the appeal and

file an order granting the motion, based on the concurrence by Judge Cook. Judge Martin agreed on

November 10, 2010, and I issued the order that same day.

There followed two motions for extension of time by Nichols and four by the State, all of which

were granted, though eventually we ordered that no further extensions would be granted. At no point did

Judge Martin object to the grant of any extension of time or urge that the appeal proceed more rapidly.

The parties completed their briefing in February 2012 and, considering the availability of the advocates

and the judges, oral argument was eventually scheduled for and conducted on January 24, 2013. Since that

time, we have been preparing this memorandum opinion.

We agree that the 23 years since conviction in this case appears unreasonably long and,

particularly, that the seven-year duration before this court was due in large part to an unjustified period

of inactivity. We also recognize that although we did not insist that Judge Martin move this appeal along,

much of that inactivity (at least three years’ worth) remains directly attributable to him. We think Judge

Martin’s public denouncement of the delay in completing this appeal is misplaced.

No. 06-6495 Nichols v. Heidle Page 28

II.

Because Nichols filed his habeas petition in May 2003, we apply the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–132,

110 Stat. 1214, codified at 28 U.S.C. § 2254 et al. Under AEDPA, we review the last

state court decision that adjudicated the merits, to determine whether that decision “was

contrary to, or involved an unreasonable application of, clearly established [f]ederal law,

as determined by the Supreme Court of the United States,” or “was based on an

unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)–(2).

A state court “unreasonably applies” clearly established law when its ruling is

“so lacking in justification that [the] error [is] well understood and comprehended in

existing law[,] beyond any possibility for fairminded disagreement.” Harrington v.

Richter, 562 U.S. --, 131 S. Ct. 770, 786–87 (2011); see also Williams v. Taylor, 529

U.S. 362, 409 (2000) (“objectively unreasonable”).

Importantly, “an unreasonable application of federal law is different from an

incorrect application of federal law . . . [and] [t]his distinction creates a substantially

higher threshold for obtaining relief than [would] de novo review.” Renico v. Lett, 559

U.S. 766, 130 S. Ct. 1855, 1862 (2010) (quotation marks and citation omitted). In fact,

“[i]t is not necessary . . . to decide whether the [state court]’s decision — or, for that

matter, the trial judge’s [decision] — was right or wrong. . . . [W]hether the trial judge

was right or wrong is not the pertinent question under AEDPA.” Id. at 1865 n.3. And

the possibility that the federal habeas court might “conclude[] in its independent

judgment that the [state court] applied clearly established federal law erroneously or

incorrectly” is wholly irrelevant. See Williams, 529 U.S. at 411. “[E]ven a strong case

for relief does not mean the state court’s contrary conclusion was unreasonable.”

Harrington, 131 S. Ct. at 786.

Because “[a] federal court’s collateral review of a state-court decision must be

consistent with the respect due state courts in our federal system,” Miller–El v. Cockrell,

537 U.S. 322, 340 (2003), “AEDPA . . . imposes a highly deferential standard [on the

federal courts] for evaluating state-court rulings, and demands that state-court decisions

No. 06-6495 Nichols v. Heidle Page 29

be given the benefit of the doubt,” Renico, 130 S. Ct. at 1862 (quotation marks and

citation omitted). Even in the case of a summary denial, when the state court has not

fully explained the rationale for its decision, the reviewing “habeas court must determine

what arguments or theories could have supported the state court’s decision; and then it

must ask whether it is possible [that] fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior [Supreme Court]

decision.” Cullen v. Pinholster, 563 U.S. -- , 131 S. Ct. 1388, 1402 (2011) (quotation

marks and editorial marks omitted).

Moreover, “[e]valuating whether a rule application was unreasonable requires

considering the rule’s specificity.” Harrington, 131 S. Ct. at 786 (quotation marks

omitted). “The more general the rule at issue — and thus the greater the potential for

reasoned disagreement among fair-minded judges — the more leeway state courts have

in reaching outcomes in case-by-case determinations.” Renico, 130 S. Ct. at 1864

(editorial and quotation marks omitted). “[I]t is not an unreasonable application of

clearly established [f]ederal law for a state court to decline to apply a specific legal rule

that has not been squarely established by [the Supreme] Court.” Harrington, 131 S. Ct.

at 786 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (quotation marks

omitted)).

“If this standard is difficult to meet, that is because it was meant to be.”

Harrington, 131 S. Ct. at 786. Indeed, “[s]ection 2254(d) reflects the view that habeas

corpus is a guard against extreme malfunctions in the state criminal justice systems, not

a substitute for ordinary error correction through appeal.” Id. (quotation marks and

citation omitted; emphasis added).

A. Assistance of Counsel

Nichols claims he received ineffective assistance of counsel, arguing that his trial

counsel did not thoroughly investigate possible mitigating witnesses and, consequently,

did not provide the jury with a sufficient mitigation argument. Nichols specifically

contends that his trial counsel should have focused on his abusive childhood and called

more witnesses to bolster that argument.

No. 06-6495 Nichols v. Heidle Page 30

To prevail on a claim of ineffective assistance of counsel, a petitioner must show

that his counsel’s performance was deficient and that it prejudiced him. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Deficient performance means that “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. Prejudice

means “there is a reasonable probability that, but for counsel’s unprofessional errors

[i.e., deficient performance], the result of the proceeding would have been different.”

Id. at 694. A habeas petitioner is entitled to relief on an ineffective-assistance claim only

if the state court’s rejection of that claim was “contrary to, or involved an unreasonable

application of” Strickland, or rested “on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Therefore, the combined effect of Strickland and § 2254(d) is “doubly deferential”

review. Pinholster, 131 S. Ct. at 1403 (citation omitted). Put differently, “[t]he question

is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington, 131 S. Ct. at 788.

The counsel at issue, Nichols’s trial counsel (Hugh Moore and Rosemarie

Bryan), presented seven witnesses at the sentencing trial. Nichols’s wife, his best friend,

and three preachers testified that — but for the rapes and the murder — Nichols was a

kind and caring husband and friend, had been a good-natured and religious child, and

was sincerely remorseful.28 Nichols testified also, to emphasize his cooperation with the

police, that he had confessed willingly, and that he was sorry. He also testified about his

troubled childhood and the uncontrollable, energized feeling that compelled him to rape

and murder. Dr. Engum testified about Nichols’s troubled childhood, opined that

Nichols suffered from “intermittent explosive disorder,” and connected the two.

After his conviction and unsuccessful appeals, Nichols obtained new counsel and

petitioned the state trial court for post-conviction relief. During eight days of hearings

on that petition, Nichols’s post-conviction counsel introduced thousands of pages of

records and more than 20 witnesses, including family, people from his childhood,

28

One of the preachers, Rev. Butler, also testified about demon possession and offered his belief

that, when committing the rapes and murder, Nichols had been under the control of an evil spirit.

No. 06-6495 Nichols v. Heidle Page 31

preachers, teachers, orphanage workers, jail and prison guards, two psychiatric experts,

his trial counsel, and even a sentencing expert.29 The theory was that if trial counsel had

produced all of these witnesses and had further emphasized Nichols’s troubled childhood

as a mitigating factor, such an approach would have persuaded the jury to forego the

death penalty. The state trial court was not persuaded, explaining:

[Nichols’s post-conviction counsel] presented numerous relatives

and acquaintances at the hearings in this matter to demonstrate the

amount and type of mitigating evidence which was not presented at the

sentencing hearing in the original trial. . . . Many of these witnesses,

however, were cumulative and only expounded on issues which were

raised through the evidence presented by trial counsel at the sentencing

hearing, i.e., the evidence was ‘substantially similar’ to the mitigating

evidence previously presented to the jury. The psychologist retained by

post-conviction counsel even testified that while he may have had more

personal history in conducting his evaluation, it was essentially the same

kind of information Dr. Engum and trial counsel had at the original trial.

The issue of the abusive environment in which [Nichols] grew up

was addressed at [Nichols]’s sentencing hearing. The new witnesses who

testified here would thus have been cumulative and the prejudice is not

apparent. In addition, the allegations of sexual misconduct related to

[Nichols]’s sister were also raised at the motion for new trial. It was

determined then and on direct appeal that the evidence was additional

evidence on the issue of the abusive home environment which already

had been raised by the evidence. Most of the evidence related to these

claims was hearsay and it is noted that [Nichols] did not himself testify

to these alleged incidents and apparently has no memory of them. The

documents [submitted in post-conviction] also state and the trial court

found that [Nichols] and counsel made a diligent effort to find this type

of information prior to trial but were unable to find any witness who

would state more specific facts about any abuse. The documents

demonstrate that [Nichols] told investigator Cohan that his father

disciplined them but not really beyond what he thought was the parental

norm. [Nichols] also told his defense team about the orphanage and

stated that he had not been treated badly there. He even told them about

one set of houseparents who considered keeping him when the orphanage

was closing but that he was taken back to his father instead.

29

The State called Nichols to testify but Nichols refused to answer any substantive questions.

See fn. 26, supra.

No. 06-6495 Nichols v. Heidle Page 32

Many of the witnesses testified that they were not contacted and

that [Nichols] probably did not know how to contact them. Some

witnesses, however, testified that [Nichols] knew how to contact them

but that they received no contact and did not step forward on their own.

Using 20-20 hindsight[,] more witnesses may have been preferable;

based upon all the evidence and documentation, however, this court finds

that counsel w[ere] not derelict in their investigation of this case and that

no prejudice has been shown. The evidence indicates that many

witnesses were unwilling to talk to counsel about many of these matters

during the time frame of [Nichols]’s original proceedings [eight years

earlier]. Any additional witnesses would for the most part have been

cumulative or the weight of their testimony would have been minimal.

The aggravator of prior violent felonies was very substantial. It is also

noted that this factor could be even more substantial at any resentencing

hearing because [Nichols] subsequently pled guilty to additional

offenses.

The state appellate court affirmed. Nichols appealed to the Tennessee Supreme Court,

which was the last state court to render a decision on this issue.

The Tennessee Supreme Court conducted its own review of the witness

testimony from the hearings, reiterated the trial court’s findings, and “agree[d] that the

evidence in the record supported the trial court’s findings and conclusions.” Nichols v.

Tenn., 90 S.W.3d 576, 598-602 (Tenn. 2002).

[T]he record indicates that trial counsel identified and supported

the relevant mitigating themes. The evidence presented at

post-conviction did not contest trial counsel’s performance in this regard,

but rather, second-guessed the quantity of the mitigating evidence and

the manner of its presentation. . . .

[I]t appears that any of the evidence at post-conviction which was

not cumulative or may have bolstered the evidence presented at trial

would not have affected the jury’s determination given the strong

evidence supporting the prior violent felonies aggravating circumstance.

In sum, Nichols has not established a reasonable probability that the jury

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.

Id. at 602 (quotation marks and citations omitted). Therefore, the Tennessee Supreme

Court, on an independent review of the record, determined that Nichols’s trial counsel’s

No. 06-6495 Nichols v. Heidle Page 33

performance was not deficient and, even if it were, Nichols had not shown (or could not

show) prejudice.

Upon review of this record, we conclude that the Tennessee Supreme Court

reasonably applied Strickland and reasonably determined the facts in light of the

evidence presented. See 28 U.S.C. § 2254(d). In his briefing here, Nichols’s counsel

summarizes the post-conviction evidence:

Witnesses vividly described the isolation and physical, sexual[,] and

emotional abuse in the Nichols house; explained in detail how the deaths

of his grandmother and mother affected Nichols; described the escalation

of abuse by Nichols’ father; explained the circumstances of abuse leading

to the children’s placement in the orphanage; vividly described Nichols’

separation from his sister and the ‘hellacoius’ conditions at the

orphanage; discussed Nichols’ life after the orphanage with his still-

abusive father, the distressing circumstances regarding Nichols’

daughter’s mother resulting in alienation from his daughter; and,

ultimately, his changed disposition.

While the additional testimony may have been more “vivid,” “detailed,” or “distressing,”

it was not new — all of these basic facts had been introduced at the original sentencing,

albeit in a more perfunctory or cursory manner. This failure to produce or identify any

new, previously undiscovered, facts severely undermines the claim that the original

investigation was objectively deficient. Moreover, this additional evidence is subject to

the same vulnerability that Nichols’s original counsel feared at the original sentencing:

numerous people — be it his sister, his cousins, or the other orphans — suffered the

same, or worse, childhood conditions as Nichols, yet none of them committed serial

rapes or murder. We agree with the Tennessee Supreme Court that the additional

evidence presented at the post-conviction hearings was ultimately duplicative or merely

cumulative of the evidence presented at the original sentencing trial. And we agree that

a comparison does not reveal that the additional mitigating evidence is so compelling

that there is a reasonable probability that the outcome of the sentencing trial would have

been different.

Because our review is “doubly deferential,” Pinholster, 131 S. Ct. at 1403, we

are also mindful that “[i]n assessing deficient performance, reviewing courts must take

No. 06-6495 Nichols v. Heidle Page 34

care not to second- guess strategic decisions that failed to bear fruit.” Jackson v.

Bradshaw, 681 F.3d 753, 760 (6th Cir. 2012) (citing Strickland, 466 U.S. at 689)

(quotation marks omitted). Both trial attorneys, Hugh Moore and Rosemarie Bryan,

testified in the post-conviction hearings concerning the accusations of deficient

performance posed by Nichols’s post-conviction counsel.

Hugh Moore answered numerous questions about the decisions made in

preparation and performance of the Pulley murder trial. At one point during this

testimony, Moore explained:

Question: Did you make what you feel like was a good attempt to

try to get as much mitigation before the jury as possible?

Moore: To get as much before the jury as possible?

Question: Yes, sir.

Moore: I made an attempt to put the very best case I could before

the jury, but I’m not sure that putting the very best case

before the jury means putting as much evidence before

the jury as you possibly can.

Question: Did you - - were you here present when the other

witnesses testified the last time that . . . were all pretty

much mitigation-type witnesses?

Moore: I heard some of them.

Question: All right. Did you - - you did not call any of those that

had previously testified here on the two days in this post

conviction, did you?

Moore: No, and I didn’t hear a single witness testify that I would

have called.

Question: Okay. So it’s your feeling that none of these witnesses

added anything?

Moore: Add anything to - - I mean factually added something?

Question: Added anything sufficient to the point where you felt like

you would have called them had you - -

Moore: No, no.

No. 06-6495 Nichols v. Heidle Page 35

Moore reiterated this belief in later testimony, answering, “I don’t believe that

cumulative evidence is very effective with a jury.”

Rosemarie Bryan testified that, in her opinion, the post-conviction witnesses

were cumulative to those she and Moore had presented at the original sentencing, and

she “thought the damaging testimony from those folks hurt [post-conviction counsel’s

case] a lot more than how they helped and . . . in front of a jury that would have been

much worse.” Specifically, she said:

In my estimation, . . . [those additional witnesses] did no good and would

have done no good in the case. Yes, you are absolutely right, you put

people on the stand that said things that were not said at [Nichols]’s

sentencing phase. Yes, you did. But I do not believe that any of that

would have made any difference in the trial. And I believe we put on --

if you had 90 lawyers they’d put on 90 different mitigation phases, they’d

put on 90 different sorts of trials. I think we put on the best we could put

on under all of the circumstances, and we made some judgment calls not

to use some people in the family. And after seeing them here I think I

made the right call.

When questioned why she did not further emphasize Nichols’s troubled childhood,

Bryan answered that, “we made a studied judgment call on that and were afraid that if

we pushed it too far . . . it could come back to bite us, yes, and it could not be helpful.”

Both trial attorneys defended the challenged performance as a strategic decision

or decisions, made based on their training, experience, and the particular circumstances

of the case. “Strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.” English v. Romanowski, 602

F.3d 714, 726 (6th Cir. 2010) (quoting Strickland, 466 U.S. at 690) (quotation marks and

editorial marks omitted). Nichols has not proven that the investigation was not

thorough, nor has he proven that the strategic choices were unreasonable.

The state court’s resolution of this claim was neither contrary to nor an

unreasonable application of clearly established Supreme Court precedent. Nor was the

state court decision based on an unreasonable determination of the facts in light of the

evidence presented in the post- conviction proceedings. Consequently, Nichols is not

No. 06-6495 Nichols v. Heidle Page 36

entitled to habeas relief on this claim of ineffective assistance of counsel during the

penalty phase of his death penalty proceeding.

B. Jury Instruction

Nichols claims that the court improperly required unanimity in finding a

mitigating factor because it did not instruct, explicitly and specifically, that unanimity

was not required. Nichols relies on Mills v. Maryland, 486 U.S. 367, 370 (1988), in

which the Supreme Court held a death sentence unconstitutional because the jurors,

attempting to complete the verdict form in a yes-or-no manner, as instructed, thought

they were precluded from finding mitigating factors unless they agreed unanimously on

the existence of a particular mitigating factor. Such is not the case here.

In his briefing here, Nichols’s counsel asserts that “the instructions and verdict

form instructed the jurors to unanimously agree on mitigating factors.” Apt. Br. at 48

(capitalization omitted). That is simply not true. The instructions were as follows,30

with underlining added:

Tennessee Code Annotated 39-2-203(i) provides that no death

penalty shall be imposed by a jury but upon a unanimous finding that the

State has proven beyond a reasonable doubt of the existence of one or

more of the statutory aggravating circumstances, which shall be limited

to the following:

(1) The defendant was previously convicted of one or more

felonies, other than the present charge, whose statutory elements involve

the use of violence to the person.

The State is relying upon the crimes of Aggravated Rape, which

are felonies involving the use of threat or violence to the person.

(2) The murder was committed while the defendant was engaged

in committing, or was attempting to commit, or was fleeing after

committing or attempting to commit rape.

30

On its first attempt, the court misread the instructions, omitting the “beyond a reasonable

doubt” phrase at certain locations. After a bench conference and a brief recess, the court read the

instructions to the jury a second time, but again omitted the “beyond a reasonable doubt” phrase at certain

locations. The court read the second half of this passage twice more (four total) before getting it entirely

correct. The quoted passage is the final, correct version.

No. 06-6495 Nichols v. Heidle Page 37

Members of the Jury, the Court has read to you the aggravating

circumstances which the law requires you to consider if you are to find

beyond a reasonable doubt that the evidence was established. You shall

not take account of any other facts or circumstances as the bases for

deciding whether the death penalty would be appropriate punishment in

this case.

Tennessee Code Annotated 39-13-203(j) provides that in arriving

at the punishment, the jury shall consider as heretofore indicated, any

mitigating circumstance which shall include, but not be limited to, the

following:

(1) The murder was committed while the defendant was under

the influence of extreme mental or emotional duress.

(2) The defendant acted under extreme duress.

(3) The capacity of the defendant to appreciate the wrongfulness

of his conduct or to conform his conduct to the requirements of the law

was substantially impaired as a result of mental disease or defect which

was insufficient to establish a defense to the crime but which

substantially affected his judgment.

(4) Any other mitigating factor which is raised by the evidence

produced by either the prosecution or defense.

If you unanimously determine that at least one or more statutory

aggravating circumstances have been proved by the State, beyond a

reasonable doubt, and said circumstance or circumstances outweigh any

mitigating circumstance or circumstances beyond a reasonable doubt, the

sentence shall be death. The jury shall state in writing the statutory

aggravating circumstance or circumstances so found, and signify in

writing that the statutory aggravating circumstance or circumstances

outweigh the mitigating circumstance or circumstances so found, beyond

a reasonable doubt.

You will write your findings and verdict upon the enclosed form

attached hereto and made a part of this charge. Your verdict should be

as follows:

(1) We, the jury, unanimously find the following listed statutory

aggravating circumstance or circumstances, beyond a reasonable doubt.

(2) We, the jury, unanimously find that the statutory aggravating

circumstance or circumstances so listed above outweigh the mitigating

circumstance or circumstances, beyond a reasonable doubt.

(3) Therefore, we, the jury, unanimously find that the punishment

shall be death.

No. 06-6495 Nichols v. Heidle Page 38

The verdict must be unanimous and each juror must sign his or

her name beneath the verdict.

If you unanimously determine that no statutory aggravating

circumstances have been proved by the State beyond a reasonable doubt;

or if the jury unanimously determines that a statutory aggravating

circumstance or circumstances have been proved by the State beyond a

reasonable doubt but that said statutory aggravating circumstance or

circumstances did not outweigh one or more mitigating circumstances

beyond a reasonable doubt, the sentence shall be life imprisonment. You

will write your verdict upon the enclosed form attached hereto and made

a part of this charge.

The verdict should be as follows:

We, the jury, unanimously find that the punishment shall be life

imprisonment.

The verdict must be unanimous and signed by each juror.

You will have two forms. The first form, Punishment of Death.

(1) We, the jury, unanimously find the following listed statutory

aggravating circumstance or circumstances, beyond a reasonable doubt:

(Here list the statutory aggravating circumstance or circumstances

so found beyond a reasonable doubt, which shall be limited to those

enumerated by the Court for your consideration.)

(2) We, the jury, unanimously find that the State has proven

beyond a reasonable doubt that the statutory aggravating circumstance

or circumstances outweigh beyond a reasonable doubt the mitigating

circumstance or circumstances.

(3) Therefore, we, the jury, unanimously find that the punishment

for the defendant, Harold Wayne Nichols, shall be death.

Then there are twelve places for each juror to affix your

signature.

The second form provides Punishment of Life Imprisonment.

We, the jury, unanimously find that the punishment shall be life

imprisonment.

And there are twelve spaces for each juror to sign your name to

that form.

(underling added).

No. 06-6495 Nichols v. Heidle Page 39

Contrary to counsel’s mischaracterization, neither these instructions nor the

verdict form ever required the jurors to agree unanimously on any mitigating factor or

factors. A plain reading of these instructions reveals that unanimity was required to find

the aggravating factors, unanimity was required to find that the aggravating factors

outweighed the mitigating factors, and unanimity was required to impose the sentence,

be it death or life imprisonment. But, in stark contrast, unanimity was not required for

the mitigating factors — any juror could, in fact was instructed to (i.e., “shall”), consider

any mitigating factor, listed or otherwise, and, for the weighing step, mitigating factors

were effectively presumed, as there is no requirement that mitigating factors be “found”

at all.

Unlike the jury instructions in Mills, 486 U.S. at 371, these instructions did not

require or even imply that the jury must agree upon the existence of a mitigating

circumstance. At most, these instructions omitted an express instruction about the

mitigating factors, or as Nichols’s counsel put it in his briefing, “[n]o instruction told the

jury what to do if some but not all of the jurors believed that a mitigating factor existed.”

As an aside, we do not agree that the absence of an express instruction left the jury

without guidance in this circumstance — the instructions required each juror to consider

any mitigating factor, listed or otherwise, in its weighing calculus. That is, if some but

not all of the jurors (or even a single juror) found the existence of a mitigating factor, the

instructions required those jurors (or that juror) to weigh it against the aggravating

factors, albeit only considering those aggravating factors that had been unanimously

agreed upon.

Regardless, based on our review and the foregoing passage, we find that with

regard to mitigating factors, these instructions contain no express requirement of

unanimity — that is, they omit any requirement of unanimity. And, as we have

previously held, “the only reasonable reading of [such] instruction [i]s that, by omission,

no unanimity [i]s required.” See Coe v. Bell, 161 F.3d 320, 338 (6th Cir. 1998) (citing

Kordenbrock v. Scroggy, 919 F.2d 1091, 1121 (6th Cir. 1990) (en banc)).

No. 06-6495 Nichols v. Heidle Page 40

The state court’s resolution of this claim was neither contrary to nor an

unreasonable application of clearly established Supreme Court precedent. Nor was the

state court decision based on an unreasonable determination of the facts. Consequently,

Nichols is not entitled to habeas relief on this claim of improper jury instructions during

the penalty phase of his death penalty proceeding.

C. Verdict Form

Nichols claims that the jury’s error in completing the verdict form was actually

an error in reaching its decision, which was uncorrectable, invalidated the original

verdict, and, consequently, necessitated a mistrial. There is no dispute that the jury erred

in completing the verdict form; the question is whether the court’s ruling or response

was an unreasonable application of clearly established constitutional law. See 28 U.S.C.

§ 2254(d)(1); Harrington, 131 S. Ct. at 786.

As detailed in the foregoing section, the court thoroughly instructed the jury on

making its sentencing decision and completing the verdict form. The court specified that

the jury had three decisions and that only a unanimous agreement on each would warrant

the death penalty:

(1) Whether the State had proven, beyond a reasonable doubt, one or

more of the listed, statutory, aggravating factors;

(2) Whether the State had proven, beyond a reasonable doubt, that

the statutory aggravating factor(s) outweighed the mitigating

factors; and

(3) Whether the punishment should be death.

After two hours of deliberation, the jury returned a unanimous verdict — on a form

signed by all 12 jurors — answering affirmatively each of these three questions. But the

verdict form also required, after the first question, that the jury write down which listed,

statutory, aggravating factors they had unanimously found. And this is the jury’s error:

in completing this portion of the prescribed form, the jury foreperson did not write down

either of the listed, statutory, aggravating factors (i.e., the prior violent crimes of rape

No. 06-6495 Nichols v. Heidle Page 41

or that the murder was committed as part of perpetrating a rape); instead, the jury

foreperson wrote down (and the other jurors signed on to) the following four factors:

(1) The first degree murder of Karen Pulley;

(2) The unfeeling brutality of the first degree murder of Karen Pulley;

(3) Nichols’s lack of remorse; and

(4) Nichols’s lack of respect for human rights.

The court had not instructed the jury on any of these four factors, nor were they listed

on the written charge sent to the jury room. These were the jury’s own creation. But,

notably, the jury did not reject the two listed aggravating factors, expressly or otherwise.

In fact, the jury foreperson explained to the court later that the jury had found that the

State had proven the two statutory aggravating factors but had mistakenly assumed that

those were not the factors to be written on the form, and instead thought, apparently, that

the form was asking them to supply additional reasons. So the court had a death verdict

in which the jury found unanimously, beyond a reasonable doubt, that the State had

proven aggravating factors, that the aggravating factors outweighed the mitigating

factors, and that death was the proper sentence. But in the part of the form explaining

its decision, the jury had listed the wrong aggravating factors and had failed to list the

right ones. The court assumed — correctly, as was confirmed in colloquy with the jury

foreperson — that the jury agreed on the listed, statutory, aggravating factors, but had

misunderstood the requirement that they copy those same listed factors onto the verdict

form.

Defense counsel moved for a mistrial on the basis that the State had not proposed

or proven the four new factors, which were not statutory factors, and argued further that

those non-statutory factors were impermissible. After hearing argument (outside the

presence of the jury), the trial court denied the motion and instead re-instructed the jury

to re-complete the form. The jury returned 15 minutes later with the four non-statutory

factors crossed out and the two listed, statutory, aggravating factors written in. In the

returned verdict, the jury again found — expressly, unanimously, and beyond a

No. 06-6495 Nichols v. Heidle Page 42

reasonable doubt — that these aggravating factors outweighed the mitigating factors and,

therefore, the appropriate punishment would be death.

As a factual matter, the Tennessee Supreme Court determined that, as part of its

original verdict, the jury had found that the State had proven the statutory aggravating

factors, even though they had failed to write those factors on the verdict form,

explaining:

[T]he jury originally had not listed these two circumstances because it

had assumed it need not copy statutory aggravating circumstances on the

form. Each juror answered affirmatively when asked by the court

whether, before reporting the verdict the first time, he or she had found

(1) that each of the two statutory aggravating circumstances had been

proved beyond a reasonable doubt, and (2) that these circumstances

outweighed any mitigating circumstances.

Tennessee v. Nichols, 877 S.W.2d 722, 730 (Tenn. 1994). Based on our careful review

of the record, this is a perfectly reasonable determination of the facts. See 28 U.S.C.

§ 2254(d)(2).

From this, the Tennessee Supreme Court held that the initial verdict was legal

and valid, despite the error in the verdict form, and affirmed the trial court’s refusal to

grant a mistrial. Nichols, 877 S.W.2d at 730-31. The court held, as a matter of state law,

that, “[w]hen the jury reports an incorrect or imperfect verdict, the trial court has both

the power and the duty to redirect the jury’s attention to the law and return them to the

jury room with directions to reconsider their verdict.” Id. at 730 (citing Tennessee v.

Mounce, 859 S.W.2d 319, 322 (Tenn. 1993)). The court further held that the four

additional factors, though non-statutory, were “factors the jury may consider under the

[Tennessee murder-sentencing] statute.” Id. at 731 (citing Tenn. Code Ann. § 39-13-

204(c)).

As a matter of federal constitutional law, the court cited California v. Ramos, 463

U.S. 992 (1983), Barclay v. Florida, 463 U.S. 939 (1983), and Zant v. Stephens, 462

U.S. 862 (1983), to support its holding that the United States Constitution would not

forbid the jury from considering those additional four factors. In Zant, 462 U.S. at 878,

No. 06-6495 Nichols v. Heidle Page 43

the Supreme Court explained that “statutory aggravating circumstances play a

constitutionally necessary function at the stage of legislative definition: they

circumscribe the class of persons eligible for the death penalty. But the Constitution

does not require the jury to ignore other possible aggravating factors in the process of

selecting, from among that class, those defendants who will actually be sentenced to

death.” In Barclay, 463 U.S. at 950, the Supreme Court said: “Once the jury finds that

the defendant falls within the legislatively defined category of persons eligible for the

death penalty, . . . the jury then is free to consider a myriad of factors to determine

whether or not death is the appropriate punishment.” We have no difficulty concluding

that the Tennessee Supreme Court reasonably applied this precedent.

In his briefing here, Nichols’s counsel points to Stringer v. Black, 503 U.S. 222,

232 (1992), as a constitutional prohibition against a capital jury’s creation of its own

aggravating factors and, therefore, contends that the Tennessee Supreme Court’s ruling

was contrary to or an unreasonable application of this clearly established law. We find

that Stringer does not stand for any such proposition. The jury in Stringer did not create

any aggravating factors of its own; rather, the state legislature defined the factors, the

court charged the jury with them, and the jury considered and decided them as charged.

Stringer, 503 U.S. at 226. When Stringer’s counsel argued that one of the factors

defined and charged was unconstitutionally vague, the Supreme Court agreed,

concluding that the “[u]se of a vague or imprecise aggravating factor” was problematic.

Id. at 237. In the present case, the court charged the jury with two explicit, statutory,

aggravating factors, which were neither vague nor imprecise. The error here was not due

to any vague or imprecise language in the charged aggravating factors, the error was due

to the jury’s misunderstanding of how to complete the verdict form. Consequently,

Stringer is inapposite to the present issue and circumstances.

Neither Stringer nor any of the other cases cited in Nichols’s brief demonstrate

that the state trial court’s decision to send the jury back to correct the verdict form was

contrary to or an unreasonable application of any federal law. Nichols is not entitled to

relief on this claim.

No. 06-6495 Nichols v. Heidle Page 44

D. Jury Re-Instruction

Nichols claims that, rather than re-instructing the jury to clarify the verdict form,

the trial court ordered a death sentence: i.e., “the court directed a death verdict”; “[t]he

judge instructed the jury to disregard mitigating evidence”; and “the jury wasn’t allowed

to consider mitigating evidence.” Apt. Br. at 76-77. These claims are not true. The trial

court began from the premise — which the Tennessee Supreme Court properly affirmed,

as explained in the foregoing section — that the jury had already announced its verdict,

and re-instructed it as follows about the form:

Jurors, Tennessee Code Annotated 39-2-203(i) provides that no

death penalty shall be imposed by a jury but upon a unanimous finding

that the State has proven beyond a reasonable doubt the existence of one

or more of the statutory aggravating circumstances, which shall be

limited to the following:

(1) The defendant was previously convicted of one or more

felonies, other than the present charge, whose statutory elements involve

the use of violence to the person.

(2) The murder was committed while the defendant was engaged

in committing, or was attempting to commit, or was fleeing after

committing or attempting to commit rape.

Members of the jury, the Court has read to you the aggravating

circumstances which the law requires you to consider if you find beyond

a reasonable doubt that the evidence was established. You shall not take

into account of any other facts or circumstances as the bases for deciding

whether the death penalty would be appropriate punishment in this

case.[31]

The form for Punishment of Death.

(1) We, the jury, unanimously find the following listed statutory

aggravating circumstance or circumstances beyond a reasonable doubt:

(Here list the statutory aggravating circumstance or circumstances

so found, which shall be limited to those enumerated by the Court for

your consideration.)

31

As was explained in the foregoing section, both Tennessee and federal law permit a jury to

consider additional aggravating factors, so this instruction was not a correct statement of either law.

Consequently, if the jury erred by failing to abide by this particular instruction, such error would not be

cognizable on habeas review as a violation of federal law.

No. 06-6495 Nichols v. Heidle Page 45

And then there is a space for the jury to fill in the statutory

aggravating circumstance.

The jury can take the Court’s charge and retire back to the jury

room.

Defense counsel urged the court, both before and after the re-instruction, to re-instruct

the jury on mitigating factors also, but the court refused, explaining that “they have

[already] found that he is guilty.” That is, the trial court was not instructing the jury to

reconsider its verdict or any aspect of it; the trial court was accepting that the jury had

already reached and announced a verdict, and was merely instructing the jury to clarify

on the form that they had properly considered — and found that the State had proven —

the statutory aggravating factors.

On direct appeal, the Tennessee Supreme Court affirmed this succinctly, based

on its earlier holding — which we approved in the foregoing section — that “the initial

verdict was a legal verdict and the jury had a right to correct it under proper instruction.”

Nichols, 877 S.W.2d at 735. Accordingly, “[t]here was no reversible error in the failure

to recharge the mitigating circumstances or to include the words ‘beyond a reasonable

doubt’ in the questions asked the jurors.” Id.

Nichols contends that the court was required to instruct the jury to reconsider

whether it found the statutory aggravating factors and, if so, to re-weigh those

aggravating factors — without considering the improper aggravating factors — against

the mitigating factors, as though it had never reached the first verdict. The district court

identified the controlling law on this issue:

The [petitioner’s] burden of demonstrating that an erroneous [jury]

instruction was so prejudicial that it will support a collateral attack on the

constitutional validity of a state court’s judgment is even greater than the

showing required to establish plain error on direct appeal. The question

in such a collateral proceeding is whether the ailing instruction by itself

so infected the entire trial that the resulting conviction violates due

process, not merely whether the instruction is undesirable, erroneous, or

even universally condemned.

No. 06-6495 Nichols v. Heidle Page 46

Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (footnotes, quotation marks, and citations

omitted). The district court also elaborated on the applicable facts and circumstances,

analyzed this claim under that law, and found no such prejudice from this particular

instruction:

[T]he sworn jury was initially properly and fully instructed on

mitigating factors and weighing aggravating and mitigating factors. The

jury was initially given the requested mitigating instructions and the

written instructions were in the jury room during deliberation. This is

not a case where the jury was not instructed or not properly instructed on

fixing punishment, at least initially after several corrected instructions.

The polling of the jury reveals [Nichols] did not suffer any prejudice due

to the trial court’s failure to re-instruct on the mitigating circumstances.

Significantly, the trial court sent the written instructions to the

jury during its initial deliberations, and nothing in the record reveals that

the jury did not have them when it returned for further deliberations.

[Nichols]’s trial attorneys argued the mitigating evidence and asked the

jury to sentence him to life based on that evidence. Moreover, the State

presented strong aggravating evidence, as shown by the relatively short

period of deliberation. [Nichols] raped and murdered the victim; after

committing that crime, [Nichols] violently raped several other women;

and [Nichols] admitted he was guilty of the felony-murder and of several

other rapes.

[T]he jury was required to decide whether to sentence [Nichols]

to life imprisonment or death. Evaluating the jury instructions as a

whole, it is clear the jury was initially fully and properly instructed on

mitigating evidence and how to weigh it against the aggravating

circumstances. There was no evidence of jury confusion in relation to

mitigating evidence and the weight to accord it but rather, the confusion

was on what aggravating circumstances to list on the death verdict

[form].

Nichols v. Bell, 440 F. Supp. 2d 730, 804-05 (E.D. Tenn. 2006) (footnotes omitted).

Nichols cannot show that the state trial court’s failure to re-instruct the jury on

mitigating factors was so prejudicial that his conviction violates due process. Nor can

Nichols show that the state court decision was contrary to or an unreasonable application

of clearly established federal law, or an unreasonable determination of the facts. Nichols

is not entitled to relief on this claim.

No. 06-6495 Nichols v. Heidle Page 47

E. Polling the Jury

Nichols claims that the trial court’s post-verdict polling of the jury, after it had

resubmitted the corrected verdict form, comprised questions that: (1) misstated the law,

in that they did not specifically ask whether each juror had found each decision “beyond

a reasonable doubt”; and (2) were coercive, in that they “were calculated to elicit an

affirmative response to give legitimacy to an otherwise illegal verdict.” The State

responds that, even assuming these questions were thus flawed, Nichols cannot point to

any Supreme Court case law holding that the trial court must conduct post-verdict

polling in a particular manner, because there is no such holding.

Recall that when the jury returned its corrected verdict form, the jury foreperson

had crossed out the four non-statutory factors and written in the two statutory

aggravating factors. The form also stated the jury’s finding, beyond a reasonable doubt,

that the aggravating factors outweighed the mitigating factors and that the death penalty

was the appropriate sentence.

The court questioned the jury foreperson, asking whether the jury had found —

before they returned the verdict the first time — that the State had proven the two

statutory aggravating factors beyond a reasonable doubt; whether the jurors had

mistakenly assumed that those were not the factors to be written on the verdict form; and

whether the reason for that assumption was because they had found the only two factors

listed. The jury foreperson answered yes to all three questions. The court then polled

the entire jury individually, asking each juror if he or she had found the statutory

aggravating factors beyond a reasonable doubt, had found the two aggravating factors

outweighed any mitigating factors, and had made that decision before returning the

verdict the first time.32 Each juror answered yes to each question.

As discussed in the two foregoing sections, the Tennessee Supreme Court began

its analysis of this issue from its holding that “the initial verdict was a legal verdict,” and

32

The court was consistent in questioning each of the jurors, but for three occasions. See fn. 25,

supra.

No. 06-6495 Nichols v. Heidle Page 48

concluded that “[t]here was no reversible error in the failure to . . . include the words

‘beyond a reasonable doubt’ in the questions asked the jurors.” Nichols, 877 S.W.2d at

735. The court also elaborated on its reasoning:

This issue is essentially a challenge of the verdict’s reliability. In this

respect, it should be noted, first, that the jurors were instructed that they

must find that aggravating circumstances outweighed mitigating

circumstances beyond a reasonable doubt and, second, that the verdict

form itself states that the jury unanimously found that the statutory

aggravating circumstances outweigh mitigating circumstances beyond a

reasonable doubt. The court was only ascertaining that this was the

jurors’ verdict and its omission of the phrase ‘beyond a reasonable doubt’

in this question during the polling does not invalidate an otherwise valid

verdict.

Id. at 736.

In his briefing here, Nichols cites three cases as putative Supreme Court

precedent — Brasfield v. United States, 272 U.S. 448 (1926), Lowenfield v. Phelps, 484

U.S. 231 (1988), and Maynard v. Cartwright, 486 U.S. 356 (1988) — but each is

significantly off point. Brasfield, 272 U.S. at 449, stands for the proposition that a trial

court may not “inquir[e] of a jury, unable to agree, the extent of its numerical division.”

Here, the jury had already agreed and the court made no such inquiry. Lowenfield, 484

U.S. at 241, stands for the proposition that a trial court may inquire of a jury, unable to

agree, whether further deliberation would enable them to arrive at a verdict. Here, the

jury had already agreed, and the court made no such inquiry. Finally, Maynard, 486

U.S. at 360, stands for the proposition that statutorily prescribed death-qualifying

aggravating factors must not be vague, arbitrary, or capricious. Maynard says nothing

whatsoever about post-verdict polling of a jury. None of these cases provides clearly

established precedent on this particular point.

In its analysis, the district court quoted from an unpublished Sixth Circuit case

for the guiding purpose behind post-verdict jury polling. See Nichols, 440 F. Supp. 2d

at 807-08. To wit:

No. 06-6495 Nichols v. Heidle Page 49

The purpose of [post-verdict] polling is to ascertain that each juror

approves of the verdict and has not been coerced or induced to concur in

a verdict to which he or she does not fully assent. [Post-verdict] [p]olling

gives effect to each juror’s right to change his or her mind about the

verdict agreed to in the jury room even though the likelihood of such

change is remote. If the trial court decides to poll the jury at all, it has

substantial discretion in determining the manner of polling.

Dunaway v. Moore, 78 F.3d 584, 1996 WL 102425, *7 (6th Cir. 1996) (table) (citing

U.S. v. Miller, 59 F.3d 417, 419 (3d Cir. 1995), Audette v. Isaksen Corp., 789 F.2d 956,

958 (1st Cir. 1986)).

Considering all of the facts and circumstances of this case, the combination of

the jury’s initial jury verdict, the re-instruction, and the post-verdict polling, Nichols has

not demonstrated that the state court decision was based on an unreasonable

determination of the facts in light of the evidence, or that the state court decision was

contrary to or an unreasonable application of any clearly established federal law.

Nichols is not entitled to habeas relief on this claim.

F. Order of the Trials

Nichols claims the State violated his rights to due process, equal protection, or

the Eighth Amendment by prosecuting later-occurring crimes first, rather than trying

them chronologically in the order he committed the crimes (i.e., Pulley first), in order

to create prior-violent-felony convictions to qualify him for the death penalty. The State

responds that, even assuming the factual predicates, Nichols cannot point to any

Supreme Court holding that requires the State to prosecute offenses in chronological

order to avoid prior convictions, because there is no such holding.

The Tennessee Supreme Court analyzed this claim under both Tennessee state

law and federal constitutional law, and rejected it outright:

As a result of the serial rapes, [Nichols] faced forty [40] charges

growing out of some fourteen [14] incidents. The murder of Karen

Pulley occurred during the first such incident. The trial court denied

[Nichols]’s motion to have the cases tried in chronological order. . . .

[Nichols] contends that allowing a prosecutor the discretion to

No. 06-6495 Nichols v. Heidle Page 50

orchestrate a series of trials in this fashion constitutes cruel and unusual

punishment and violates due process and equal protection. He

particularly claims that such discretion results in arbitrary and capricious

imposition of the death penalty contrary to the principles of Furman v.

Georgia, 408 U.S. 238 (1972).

Tenn. Code Ann. § 39–13–204(i)(2) provides that the death

penalty may be imposed where the defendant was previously convicted

of one or more felonies other than the present charge, whose statutory

elements involve the use of violence to the person. For purposes of this

aggravating circumstance, the order in which the crimes were actually

committed is irrelevant so long as the convictions have been entered

before the sentencing hearing at which they were introduced.

It goes without saying that the implementation of this aggravating

circumstance may be subject to a certain degree of prosecutorial

discretion; but implementation of the criminal laws against murder

necessarily requires discretionary judgments. McCleskey v. Kemp, 481

U.S. 279, 299 (1987). Prosecutorial discretion of this nature does not

offend the Eighth Amendment under Furman, which ‘held only that, in

order to minimize the risk that the death penalty would be imposed on a

capriciously selected group of offenders, the decision to impose it had to

be guided by standards so that the sentencing authority would focus on

the particularized circumstances of the crime and the criminal.’ Gregg

v. Georgia, 428 U.S. 153, 199 (1976). Where this fundamental discretion

is involved, it will not be assumed that ‘what is unexplained is invidious,’

McCleskey v. Kemp, 481 U.S. at 309, and ‘exceptionally clear proof’ is

required before an abuse of discretion will be found in the operation of

the criminal justice process. Id. at 299. No such showing has been made

in this case. We further find that the record does not support [Nichols]’s

assertion that the prosecutor’s decision concerning the order of

prosecution of the multiple charges facing [Nichols] violated either equal

protection or due process. Accordingly, we find no merit in this issue.

Nichols, 877 S.W.2d at 735-36 (certain quotation marks, editorial marks, and citations

omitted).

The district court echoed this reasoning and added its own analysis concerning

the application of Supreme Court precedent, finding no support for Nichols’s claim:

Under Tennessee law, the language in the statute, ‘previously

convicted,’ has been defined as clearly indicating that the date of

conviction, not the date of the commission of the crime, is the important

factor. The order in which the crimes were actually committed is

No. 06-6495 Nichols v. Heidle Page 51

irrelevant, as long as the convictions have been entered before the

sentencing hearing at which they are introduced. Tennessee law requires

that the State prove prior criminal convictions, not prior criminal activity.

Although [Nichols] claims the prosecutor’s decision to try the

cases out of chronological order was done so as to create an aggravating

circumstance of prior violent felony convictions, violating his right to

equal protection and due process, [Nichols] has not pointed to a United

States Supreme Court case which holds that it is unconstitutional for a

prosecutor to try cases out of chronological order for the purpose of

obtaining evidence for the prior felony aggravating circumstance for a

death penalty trial. In Tuilaepa v. California, 512 U.S. 967 (1994), the

Supreme Court did find that states are permitted to focus the jury’s

attention on a capital defendant’s prior criminal record. The issue in

Tuilaepa was the constitutionality of an aggravating circumstance which

permitted the sentencer to consider the defendant’s prior criminal

activity. Although the challenge was based on the allegation that the

circumstance was unconstitutionally vague, the Supreme Court explained

that the circumstance rested in part on a determination whether certain

events occurred, thus requiring the jury to consider matters of historical

fact. The Tuilaepa Court pointed out that ‘both a backward-looking and

a forward-looking inquiry are a permissible part of the sentencing

process’ and states have considerable latitude in determining how to

guide the sentencer’s decision in this respect. Id. at 976–77. [Nichols]’s

jury was permitted to conduct a backward-looking and forward-looking

inquiry when looking at the prior convictions for crimes committed after

the murder; and [Nichols] has not directed th[is] [c]ourt’s attention to any

United States Supreme Court law prohibiting this.

Nichols, 440 F. Supp. 2d at 837 (certain quotation marks, editorial marks, and citations

omitted).

In his briefing here, Nichols cites four Supreme Court cases as precedent that,

he contends, the Tennessee courts applied unreasonably: Gregg v. Georgia, 428 U.S.

153 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976), Woodson v. North Carolina, 428

U.S. 280 (1976), and Furman v. Georgia, 408 U.S. 238 (1972). These cases stand for

the broad proposition that the trial court must direct the jury to consider the individual

characteristics of the crime and the criminal, so as to limit the jury’s discretion and

ensure that it does not impose the death penalty in an arbitrary or capricious manner.

None of these cases concerns the State’s role in prosecuting multiple crimes or proving

aggravating factors in support of the death penalty. It is telling, however, that the

No. 06-6495 Nichols v. Heidle Page 52

aggravating factor at issue — i.e., Nichols’s perpetration of multiple additional violent

rapes — is certainly a characteristic of the criminal, and a very significant one. When

considering Nichols’s individual character and his suitability for the death penalty, the

fact that Nichols committed these additional crimes would be critical to the jury’s

individualized assessment, whether he committed them prior to the murder, after the

murder, or even in the courthouse hallway just prior to sentencing. The fact that

Tennessee requires “conviction” rather than merely accusation does not change the

importance of this information to the jury’s consideration, it merely protects Nichols’s

right to be presumed innocent prior to conviction and accepts that he has been proven

guilty after conviction. As the Tennessee Supreme Court explained, it is the commission

of the crimes that matters; “the order in which the crimes were actually committed is

irrelevant so long as the convictions have been entered before the sentencing hearing at

which they were introduced.” See Nichols, 877 S.W.2d at 735-36.

The Tennessee Supreme Court reasonably relied on McCleskey v. Kemp, 481

U.S. 279 (1987), for its proposition that the prosecutor has wide discretion in pursuing

the death penalty, and that nothing in Furman or Gregg contradicted this discretion. See

Nichols, 877 S.W.2d at 736. The district court relied on Tuilaepa v. California, 512 U.S.

967, 976-77 (1994),33 for its proposition that the jury can properly “consider the

defendant’s prior criminal activity” in deciding on the death sentence, and that “[b]oth

a backward-looking and a forward-looking inquiry [into a defendant’s criminal

characteristics] are a permissible part of the sentencing process.” This precedent further

refutes Nichols’s argument that the State violated the Constitution by prosecuting his

later-occurring crimes first so that it could create prior-violent-felony convictions.

Finally, it bears express mention that the Tennessee statute lists the death-qualifying

factor as prior “conviction” of violent crime, not prior “commission” of violent crime.

Presumably, the Tennessee legislature recognizes the difference, and the Tennessee

courts were not unreasonable in interpreting the statute as written.

33

The Supreme Court published Tuilaepa on June 30, 1994, almost eight weeks after the

Tennessee Supreme Court published the Nichols decision (May 2, 1994), so Tuilaepa was not guiding

precedent at the time of the Nichols decision. It does indicate, however, that the Nichols Court was correct

in its general assessment of the precedent.

No. 06-6495 Nichols v. Heidle Page 53

Nichols has not demonstrated that the state court decision was based on an

unreasonable determination of the facts or that the decision was contrary to or an

unreasonable application of any clearly established Supreme Court law. Nichols is not

entitled to habeas relief on this claim.

G. “Non-Final” Prior Convictions

Nichols claims that the prior-violent-felony convictions (i.e., the other rape

convictions) were not “prior” convictions because they were not technically “final”

under Tennessee Rule of Criminal Procedure 32(e) at the time of the Pulley murder trial,

because the trial court had not imposed sentence on those convictions or entered formal

judgments of conviction. Notably, the court had not sentenced Nichols on any of those

convictions because Nichols’s counsel had moved the court to stay the sentencing until

after the completion of the other guilt-phase determinations, specifically until after the

Pulley murder trial. The court granted the motions and did not sentence Nichols on any

of the non-capital convictions until December 13 and 14, 1990.

The Tennessee Supreme Court decided this issue as a matter of state law, holding

that the aggravating-factor statute, Tenn. Code Ann. § 39-13-204(i)(2), requires only a

“previous convict[ion],” not a final judgment; that “the indictments and minutes of the

trial court [that the State] offered to prove these convictions[,] were admissible under

either Tenn. R. Evid. 803(b) (Records of Regularly Conducted Activity) or 893(8)

(Public Records and Reports)”; and that “the convictions were [therefore] admissible.”

Nichols, 877 S.W.2d at 737. The district court recognized that Nichols had challenged

only state law and found this claim procedurally defaulted:

[Nichols] failed to raise this claim in his habeas petition or in

state court on constitutional grounds. . . . ‘The habeas petitioner must

present his claim to the state courts as a federal constitutional issue —

not merely as an issue arising under state law.’ Koontz v. Glossa, 731

F.2d 365, 368 (6th Cir. 1984). Although [Nichols] stated, in his state

appellate brief, ‘to allow the use of these cases as ‘final convictions’ was

error and violated Mr. Nichols’ rights under the Fourth, Fifth, Sixth, and

Eighth Amendments to the United States Constitution . . .’, these general

allegations of denial of these broad constitutional rights does not

constitute a fair presentation of the claim that specific constitutional

No. 06-6495 Nichols v. Heidle Page 54

rights were violated. See McMeans v. Brigano, 228 F.3d 674, 681 (6th

Cir. 2000). The factual and legal basis for a constitutional claim must be

presented to the state courts. Without specifying which particular right

identified under each amendment was violated, [Nichols] failed to fairly

present this claim as a constitutional violation in the Tennessee courts.

On direct appeal[,] [Nichols] did not rely upon any federal cases

employing constitutional analysis; [rely] upon any state cases employing

federal constitutional analysis; phrase the claim in terms of constitutional

law or in terms sufficiently particular to allege a denial of a specific

constitutional right; or allege facts were within the mainstream of

constitutional law. See Franklin v. Rose, 811 F.2d 322, 326 (6th Cir.

1987).

Consequently, [Nichols] has procedurally defaulted his claim that

the trial court erred when it allowed the prosecution to use his prior

convictions as aggravating circumstances to support the death penalty.

. . . Coleman v. Thompson, 501 U.S. 722, 750 (1991). [Nichols] did not

present the claim in state court as a matter of federal law and absent a

showing of cause and prejudice or miscarriage of justice, the claim is not

reviewable in this habeas proceeding. [Nichols] has offered nothing to

demonstrate cause and prejudice. Moreover, [Nichols] has failed to

allege a violation of any constitutional right in this habeas petition.

Assuming for the sake of argument that this claim was exhausted,

[Nichols] would [still] not be entitled to any habeas relief because he has

not demonstrated that the state court decision was contrary to, or an

unreasonable application of, federal law. Thus habeas review of this

claim is barred by [Nichols]’s state procedural default and it will be

DISMISSED.

Nichols, 440 F. Supp. 2d at 838-39 (editorial marks omitted).

In his initial briefing here, Nichols completely ignored the district court’s finding

of procedural default, whereas in his reply brief he protested that he had cited to “the

Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution” in his

brief to the Tennessee Supreme Court, but again ignored the district court’s explanation

as to why that was insufficient. In short, Nichols has offered us no basis upon which to

reverse the district court’s finding of procedural default and we find none ourselves.

Nichols has defaulted this claim.

Moreover, we agree with the district court that, even if Nichols had properly

raised this claim, he has not demonstrated that the state court decision was contrary to

No. 06-6495 Nichols v. Heidle Page 55

or an unreasonable application of clearly established federal law.34 Nichols is not

entitled to habeas relief on this claim.

H. Disclosure of Expert Psychologist’s Notes

Nichols claims that the state trial court violated his constitutional right to a fair

trial by forcing the defense to disclose the expert psychologist’s (i.e., Dr. Engum’s) notes

to the prosecution.35 The State responds that Nichols did not raise this claim in the state

courts as a constitutional violation and has, therefore, procedurally defaulted this claim.

The State correctly points out that Nichols’s primary argument to the state courts

concerned the Tennessee discovery rules and his secondary argument concerned the

attorney work-product doctrine, neither of which is cognizable on federal habeas review

because neither is a federal constitutional issue. But, as Nichols points out, he did assert

a constitutional claim in his brief to the Tennessee Supreme Court, albeit vaguely,

claiming: “The production of all of Dr. Engum’s preliminary internal notes and

memoranda, . . . and the use by the State of those notes to ridicule defense witnesses and

to condemn the defense strategy, was prejudicial error, and a violation of [Nichols]’s

rights under the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution . . . .”

34

We would perhaps be remiss if we failed to note the applicability of the of the invited-error

doctrine. Under the doctrine, “a party may not complain on appeal of errors that he himself invited or

provoked the court to commit.” United States v. Wells, 519 U.S. 482, 488 (1997) (editorial and quotation

marks omitted) (citing United States v. Sharpe, 996 F.2d 125, 129 (6th Cir.1993), and Harvis v. Roadway

Express, Inc., 923 F.2d 59, 60 (6th Cir.1991)). The reason the state trial court had not sentenced Nichols

on any of those convictions was because Nichols’s counsel had moved the court to stay the sentencing until

after the completion of the other guilt-phase determinations, specifically until after the Pulley murder trial.

Therefore, if this were error, it would be error invited by Nichols’s counsel.

35

In his briefing here, Nichols also claims that this alleged error was due to the ineffective

assistance of his trial counsel. Nichols raised a similar ineffective-assistance claim to the Tennessee

Supreme Court in his appeal from the state post-conviction proceedings, and that court affirmed the denial

of the claim as meritless. Nichols raised an ineffective-assistance claim in his § 2254 petition, but later

expressly withdrew that claim. The district court relied on that withdrawal to deny the claim. Nichols, 440

F. Supp. 2d at 797 (“This claim is withdrawn by petitioner . . . . Accordingly, petitioner is not entitled to

any habeas relief on this claim.”). But for certain narrow exceptions, we do not review claims that were

not properly presented in the district court. See Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993); Bason

v. Yukins, 328 F. App’x 323, 324 (6th Cir. 2009). Moreover, Nichols did not obtain a COA for this issue,

which further counsels against our review. See Hartman v. Bagley, 492 F.3d 347, 371 n.1 (6th Cir. 2007).

Accordingly, we decline to consider this aspect of the claim on appeal and summarily affirm the district

court’s denial.

No. 06-6495 Nichols v. Heidle Page 56

The Tennessee Supreme Court did not address this constitutional claim (and the

district court denied it as having been procedurally defaulted). “Claims that were not

adjudicated on the merits in [s]tate court proceedings receive the pre-AEDPA standard

of review: de novo for questions of law (including mixed questions of law and fact), and

clear error for questions of fact.” Robinson v. Howes, 663 F.3d 819, 823 (6th Cir. 2011)

(quotation marks omitted). We review this claim de novo.

The question — as preserved by Nichols’s state court claim — is whether the

State prosecutor’s questions and comments, based on Dr. Engum’s notes, “so infected

the trial with unfairness as to make the resulting [decision] a denial of due process.” See

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotation marks omitted). In the

Sixth Circuit, we have established a two-step test for analyzing such prosecutorial-

misconduct claims:

First, this court determines whether the prosecution’s conduct or remarks

were improper. If the answer is affirmative, then the court considers four

factors to decide whether the improper acts were sufficiently flagrant to

warrant reversal: (1) whether the evidence against the defendant was

strong, (2) whether the conduct of the prosecution tended to mislead the

jury or prejudice the defendant; (3) whether the conduct or remarks were

isolated or extensive; and (4) whether the remarks were made

deliberately or accidentally.

Slagle v. Bagley, 457 F.3d 501, 515-16 (6th Cir. 2006). We must also be mindful that

“the touchstone of due process analysis in cases of alleged prosecutorial misconduct is

the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S.

209, 219 (1982).

In his briefing here, Nichols quotes several questions or comments made by the

State prosecutor during the sentencing trial, but argues specifically only that

“prosecutorial suggestions that the defense was misleading or fooling the jury violated

Nichols’ constitutional rights.” We consider this claim under the aforementioned two-

step test.

No. 06-6495 Nichols v. Heidle Page 57

Recall that Dr. Engum is a psychologist and a lawyer who testified as a

psychological expert for the defense. Dr. Engum diagnosed Nichols with “intermittent

explosive disorder,” a type of “impulse control disorder” in which Nichols’s “ability to

resist [wa]s overwhelmed.” Dr. Engum found no organic brain injury and attributed his

diagnosis to “psychosocial factors,” such as the “punitive, hostile environment” in which

Nichols was raised, his abusive father, abandonment, lack of love or empathy,

estrangement, and his being socially isolated. Dr. Engum was careful to note his opinion

that Nichols had been aware of the wrongfulness of his actions though unable to control

them, but also emphasized that Nichols was remorseful afterwards.

On cross-examination, the State used Dr. Engum’s notes to impeach his

testimony and portray him as a defense team lawyer, not an independent psychologist,

who was actively trying to persuade the jury. For example, the State brought out that,

in his correspondence with defense counsel, Dr. Engum repeatedly referred to “us” and

“we” as though he were part of the defense team, such as in the statement: “Joanne

provides a wealth of information which I believe will help us at least support an

argument for the irresistible impulse defense.”36 Moreover, concerning potential

defense witness Rev. L. E. Butler, Dr. Engum wrote to defense counsel:

Reverend Butler is the type of individual that I characterize [as] the

limited public figure. He would probably protest all the way to the stand

and then revel and bask in the notoriety of his testimony. I believe that

his testimony could also be fairly powerful. As we have discussed, we

are trying to build a mitigating factor of irresistible impulse[37]. . . .

Reverend Butler can add to the persuasiveness of this argument by

recasting the irresistible impulse into possession by the devil. This may

have a great impact and influence upon those members of the jury with

religious leanings. . . . The only negative note that he might bring is with

regard to [Nichols]’s choice to let the devil into his heart. Reverend

Butler also states that if only [Nichols] had chosen to come back into the

church, none of this would have happened. Hence, we need to be very

careful that Reverend Butler does not recast this ‘possession theme’ into

36

Note that, ultimately, Dr. Engum did not diagnose Nichols with “irresistible impulse,” but

rather, diagnosed him with “intermittent explosive disorder.”

37

See fn. 36, supra.

No. 06-6495 Nichols v. Heidle Page 58

an active, voluntary, knowing choice. I am afraid that he might state that

the church held out their hands to [Nichols] but [Nichols] did not

reciprocate and it is for this reason that [Nichols] committed these

crimes.

During its questioning of Dr. Engum and again in closing argument, the State argued that

this was a lawyer striving to “build a mitigating factor” or “influence the jury”; not a

psychological expert presenting an objective opinion of about a defendant’s

psychological condition.

The first step of our inquiry is to determine whether the State’s questions or

comments were improper. See Slagle, 457 F.3d at 516. Given that the State was merely

confronting Dr. Engum with his own writings and that the inference being suggested

from those writings — that Dr. Engum was attempting to fool or mislead the jury by

purporting to be an independent expert while, in reality, acting as a member of the

defense team trying to persuade them against a death sentence — was not unreasonable

under these facts, we do not find these questions or comments improper in this

circumstance. But even if we were to find these questions or comments improper, we

would not find them sufficiently flagrant to warrant reversal under the second step of the

inquiry. See id.

The evidence of the aggravating factors — both that Nichols committed the

murder as part of a rape and that he had been convicted of other violent rapes — was not

only very strong, but was undisputed. The State’s questions and comments did not

mislead the jury; in fact, they were directed at clarifying for the jury Dr. Engum’s true

position and the trustworthiness of his testimony. These remarks were isolated to only

Dr. Engum and to his testimony, albeit some of which involved Rev. Butler’s testimony

by association. But the State did not impugn defense counsel or any other witnesses

with this impeachment evidence or questioning. Finally, and the only factor that would

cut against the State here, there is no dispute that these remarks were made deliberately.

Based on our review of the governing law, these particular remarks, and the

circumstances in which they arose, we do not find prosecutorial misconduct in this

No. 06-6495 Nichols v. Heidle Page 59

instance. Nichols is not entitled to habeas relief on his claims relative to the disclosure

of his psychologist’s notes.

III.

For all of the foregoing reasons, we AFFIRM the judgment of the district court.

Nichols is not entitled to habeas relief on any of the claims he has raised herein.

No. 06-6495 Nichols v. Heidle Page 60

_________________

CONCURRENCE

_________________

BOYCE F. MARTIN, JR., Circuit Judge, concurring. In this, my last death

penalty case as a judge on the Sixth Circuit, I must concur in affirming the judgment of

the district court. Despite my concurrence, I continue to condemn the use of the death

penalty as an arbitrary, biased, and broken criminal justice tool. The facts of this case

make it one of the more tragic and disturbing cases that I have heard in years. While

Nichols’ actions are despicable, I cannot ignore the fact that his actions were committed

in the late 1980s and that he was convicted in 1990. Nichols’ execution was supposed

to take place in 1994. I have been on this bench since 1979, and for twenty-three of my

thirty-four years as a judge on this Court this case has been moving through our justice

system, consuming countless judicial hours, money, legal resources, and providing no

closure for the families of the victims. Retired Supreme Court Justice John Paul Stevens

has called for a dispassionate and impartial comparison of the enormous cost that death

penalty litigation imposes on society with the benefits it produces. The time, money, and

energy spent trying to secure the death of this defendant would have been better spent

improving this country’s mental-health and educational institutions, which may help

prevent crimes such as the ones we are presented with today.