Dellinger v. State

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 4, 2008 Session

JAMES A. DELLINGER V. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Blount County

No. C-14432 D. Kelly Thomas, Judge

No. E2005-01485-SC-R11-PD - Filed January 22, 2009

We granted this appeal to decide an issue of first impression: whether a freestanding claim of actual

innocence is cognizable in an initial petition for post-conviction relief under the Tennessee Post-

Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 through -122. We have

also chosen to discuss the petitioner’s ineffective assistance of counsel claims and the burden of

proof for prevailing on such claims. In 2003, the petitioner filed a petition for post-conviction relief.

The post-conviction trial court denied his petition, and the Court of Criminal Appeals affirmed. The

Court of Criminal Appeals held that: (1) a freestanding claim of actual innocence is not cognizable

in an initial petition for post-conviction relief; (2) the post-conviction trial court applied the correct

burden of proof to the petitioner’s ineffective assistance of counsel claims; and (3) the petitioner was

not denied the effective assistance of counsel. We hold that a claim of actual innocence based on

new scientific evidence is cognizable in an initial petition for post-conviction relief. We affirm the

Court of Criminal Appeals’ denial of relief, however, because the petitioner has not met his burden

of proof to support such claim. We also hold that the post-conviction trial court applied the correct

burden of proof to the petitioner’s ineffective assistance of counsel claims. To provide clarity in the

law, however, we concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1). Finally,

we hold that the petitioner was not denied the effective assistance of counsel. We affirm the

judgment of the Court of Criminal Appeals in all other respects.

Tenn. R. App. P. 11 Appeal by Permission;

Judgment of the Court of Criminal Appeals Reversed in Part and Affirmed in Part

JANICE M. HOLDER, C.J., delivered the opinion of the court, in which WILLIAM M. BARKER,

CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH , JR., JJ., joined.

Catherine Y. Brockenborough, Donald E. Dawson, and Sara Willingham, Nashville, Tennessee, for

the appellant, James A. Dellinger.

Robert E. Cooper, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E.

Davidson, Assistant Attorney General; Jennifer L. Smith, Associate Deputy Attorney General;

Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney

General, for the appellee, State of Tennessee.

Wade V. Davies, Knoxville, Tennessee, for the amicus curiae, Tennessee Association of Criminal

Defense Lawyers.

Patricia Head Moskal, Nashville, Tennessee, and Meir Feder, New York City, New York, for the

amicus curiae, The Innocence Project.

OPINION

Actual Innocence

Proof at Trial

In 1996, the petitioner, James A. Dellinger, and his co-defendant, Gary Sutton, were

convicted of the first degree premeditated murder of Tommy Griffin and sentenced to death. In the

direct appeal of State v. Dellinger, we described the evidence at trial:

On the afternoon of [Friday,] February 21, 1992, Dellinger, Sutton, and

Griffin spent several hours at Howie’s Hideaway Lounge (Howie’s) on Highway 321

in Maryville, Tennessee. The three men drank beer and played pool until

approximately 7:00 p.m., when they left the bar in a dark-blue Camaro. Witnesses

testified that there was no evidence of hostility among the men while they were in the

bar.

Around 7:00 p.m. Cynthia and Kenneth Walker were traveling north on Alcoa

Highway near the Hunt Road exit. They observed three men who appeared to be

fighting in a dark-colored Camaro on the side of the road. Two of the men were

standing outside of the car attempting to forcibly remove the third man from the back

seat. Kenneth Walker used his portable radio to report the incident to the dispatcher

for Rural Metro Blount County Ambulance.

Sharon Davis, who was also driving north on Alcoa Highway around the

same time, observed a shirtless and shoeless man stumbling down the side of the road

near the Hunt Road exit. When Davis passed the same area about thirty or forty

minutes later, she saw two men standing outside of a dark-colored Camaro on the

side of the road. They appeared to be looking for something.

. . . . Officer [Drew] Roberts found two men, not Dellinger and Sutton,

standing next to a pickup truck [on the side of Hunt Road]. A shirtless man sitting

on the bed of the truck identified himself as Griffin. Griffin told the officer that his

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friends had put him out of a car. Griffin would not identify his friends or tell the

officer what had happened. Officer Roberts arrested Griffin for public intoxication.

Griffin was booked at the Blount County jail at 7:40 p.m. Dellinger arrived about

forty-five minutes to an hour later to ask about Griffin’s release. Sergeant Ray

Herron explained to Dellinger that department policy required a minimum four-hour

detention for public intoxication and advised him to come back at 10:30 or 11:00

p.m.

Alvin Henry was a resident of Bluff Heights Road, where Dellinger and

Griffin both lived. At approximately 9:00 p.m., Henry looked out of his trailer

window and saw Dellinger’s white Dodge pickup truck. Henry saw someone enter

the passenger side of the truck. The truck drove up the road and pulled into

Dellinger’s driveway. Henry then noticed fire shooting from Griffin’s trailer down

the road. . . . Arson investigator Gary Clabo concluded that the fire was set

intentionally . . . .

Jennifer Branam, Griffin’s niece, ran to Dellinger’s trailer when she learned

that Griffin’s trailer was on fire. Just as Dellinger’s wife was telling Jennifer that

Dellinger was not home, Dellinger and Sutton walked down the hall from the living

room. The two men were still wearing their jackets, and their pants were wet up to

the knees. Jennifer asked them if Griffin was in his burning trailer, and Sutton told

her that Griffin was in Blount County with a girl. When Jennifer asked the men to

accompany her to the trailer, Dellinger responded that they were already in enough

trouble.

After returning home, Jennifer looked out the window and saw Dellinger

remove an object wrapped in a sheet from his truck and place it into the back of his

wife’s Oldsmobile. Jennifer testified that the object resembled a shotgun. Herman

Lewis, a relative of Jennifer, also observed Dellinger moving an object from his truck

to his wife’s car shortly after 10:00 p.m. Dellinger and Sutton then left in the

Oldsmobile.

At around 11:25 p.m. Dellinger and Sutton returned to the Blount County jail.

Dellinger paid a cash bond for Griffin. Officers in the jail lobby overheard one of the

defendants tell Griffin that they needed to get him back to Sevier County.

79 S.W.3d 458, 462-64 (Tenn. 2002).

No witnesses testified to seeing Griffin alive or speaking to him after he left the Blount

County jail. Jason McDonald and his mother, Brenda McKeehan, testified that they heard two loud

gunshots at 11:55 p.m. and that it was very unusual to hear gunshots at that time of night. Both

witnesses also testified that the gunshots were fired from an area on the Little River in Blount

County called the Blue Hole, which is approximately 500 yards down the hill from their residence.

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At the time he heard the shots, Mr. McDonald was writing in his journal. His entry, which

documented that he had heard the shots from “down the hill,” was entered into evidence.

The next morning, [Saturday,] February 22, Jennifer Branam saw Dellinger

leave his trailer, remove the object he had placed in his wife’s car the night before,

and place the object under his trailer.

. . . . At about 2:00 p.m., Connie Branam [Jennifer’s mother and Griffin’s

sister] went to Jerry Sullivan’s grocery store in Townsend asking if anyone had seen

her brother. Sullivan then saw Branam speaking with two men in a white Dodge

pickup truck in the grocery store parking lot.

Later that afternoon, Connie Branam accompanied Dellinger and Sutton to

Howie’s. . . .

. . . . When [Terry Lilly Newman] approached Branam, Dellinger, and Sutton

to ask if they needed anything . . . Branam explained that she was looking for her

brother and asked with whom he had left the bar. Newman became confused because

she knew that Griffin had left with Dellinger and Sutton. Dellinger asked Newman

if she remembered them returning to Howie’s after they bailed Griffin out of jail, but

Newman knew that the three had not returned to Howie’s because she had worked

until closing. After unsuccessfully attempting to convince Newman to join them in

their search for Griffin, Sutton asked Newman if she was married. When Newman

responded that she was married, Sutton stated, “[W]ell, your husband is going to be

surprised whenever you’re missing one morning, when he wakes up and you’re

missing.” Dellinger, Sutton, and Branam left Howie’s around 6:30 p.m.

About 8:00 p.m. that night, James and Barbara Gordon observed a fire in the

woods near the Clear Fork area of Sevier County. The following morning, Barbara

Gordon watched a white truck occupied by two men leave the woods and head

toward the main road. She testified that the truck was traveling rapidly and that it

came from the general area where they had observed the fire the night before.

On Monday, February 24, around 3:30 p.m. Griffin’s body was discovered

lying face-down on a bank at the Blue Hole. He had been shot in the back of the

neck at the base of the skull with a shotgun. Two 12-gauge shotgun shell casings and

beer cans were found near the body. The shotgun shells were fired from the same

gun that fired shells later found in Dellinger’s yard. . . . Dr. Eric Ellington with the

Blount County Medical Examiner’s Office conducted the autopsy on Griffin’s body.

He concluded that the cause of death was the destruction of the brain stem from the

shotgun wound. Ellington retrieved two metal pellets and two pieces of shotgun

wadding from Griffin’s brain. The pellets were consistent with pellets loaded in the

12-gauge “00” buckshot casings found near Griffin’s body.

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On Friday, February 28, Connie Branam’s body was discovered in her burned

vehicle in the wooded area where the Gordons had observed the fire on February 22.

Arson investigator Gary Clabo determined that the fire had been set by human hands

. . . . Investigators discovered a rifle shell in the burned vehicle that had been fired

from the .303 rifle later found in Dellinger’s trailer.

Id. at 464-65.

The State’s theory at trial was that Griffin died late on Friday, February 21, 1992, after

leaving the jail with Dellinger and Sutton. In his defense, Dellinger called Dr. Larry Wolfe, a

medical doctor and former county coroner. Dr. Wolfe opined that Griffin was killed between

twenty-four and thirty-six hours before his body was found, placing the time of death between 3:30

a.m. and 3:30 p.m. on Sunday, February 23, 1992. In forming his opinion, Dr. Wolfe reviewed

photographs of the body from the crime scene, the report of the paramedic who responded to the

scene, autopsy photographs, Dr. Ellington’s autopsy report, and the reported temperatures on the

weekend of February 21, 1992. His opinion was based on the physical condition of the body,

including evidence of “rigor mortis; . . . early transitional lividity, which is skin color change; the

presence of bright red blood or coagulum; the lack of findings of early decomposition . . . ; a lack

of fluid accumulation within certain tissues of the body, and a lack of softening of the G.I. tract.”

The State did not call an expert to opine on Griffin’s time of death in its case-in-chief but

called Dr. Charles Harlan, a forensic pathologist, on rebuttal.1 After reviewing the photographs and

reports, Dr. Harlan testified that the victim was killed between 11:30 p.m. on Friday, February 21,

1992, and 8:00 a.m. on Saturday, February 22, 1992. Dr. Harlan agreed with Dr. Wolfe that rigor

mortis was present when Griffin’s body was found. He stated, however, that the presence of rigor

mortis was consistent with the State’s theory of the time of death because a body can remain in rigor

up to seventy-two hours after death. Dr. Harlan disagreed with Dr. Wolfe’s conclusion that the

autopsy photographs and report indicated a “lack of finding of early decomposition.” Finally, he

testified, contrary to Dr. Wolfe, that the presence of early transitional lividity, bright red blood, and

softening of the G.I. tract were not helpful in determining the time of death in this case.

Based on the evidence presented at trial, the jury convicted Dellinger and Sutton of the first

degree premeditated murder of Griffin. At the sentencing hearing, the jury found that the evidence

supported the prior violent felony aggravating circumstance, Tenn. Code Ann. 39-13-204(i)(2) (2006

& Supp. 2008),2 and outweighed any mitigating circumstances beyond a reasonable doubt. The jury

sentenced Dellinger and Sutton to death. The convictions and sentences were affirmed on direct

appeal. Dellinger, 79 S.W.3d at 462, cert. denied, 537 U.S. 1090 (2002). Dellinger filed his initial

1

Dr. Ellington testified for the State in its case-in-chief but stated that he was not qualified to render an opinion

on Griffin’s time of death.

2

The prior violent felony aggravating circumstance was based on the convictions of Dellinger and Sutton in

Sevier County in 1993 for the first degree premeditated murder of Connie Branam. In addition, Sutton had been

convicted of aggravated assault in Cobb County, Georgia, in 1983.

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petition for post-conviction relief from his conviction and sentence, pro se, on March 3, 2003. He

was appointed counsel and filed an amended petition on August 11, 2003. The post-conviction trial

court conducted a hearing on October 26-29, 2004, and on January 28, 2005.

Proof at the Post-Conviction Hearing

Dellinger presented the testimony of two experts who had reviewed the photographs and

reports presented at Dellinger’s original trial. Dr. Neal Haskell, a board-certified forensic

entomologist,3 testified that the apparent lack of evidence of insects and insect eggs on the body

indicated that it had been lying in the open less than twenty-four and no more than forty-eight hours

when found. He placed the time of death between 3:30 p.m. on Saturday, February 22, 1992, and

after sunrise on Monday, February 24, 1992. Dr. Haskell also evaluated climatological data at the

site where the body was found, including the reported weekend temperatures and rain on February

23, 1992, but was unable to explain the absence of insect activity. He admitted that it was possible

that others had overlooked the presence of insect activity but that fly eggs are “fairly large” and

“observable.” On cross-examination, Dr. Haskell conceded that none of the reports he reviewed

expressly stated that no insect activity was observed. In his opinion, however, the lack of any

reference to insect activity indicated that none was present.

Dr. Stanton Kessler, a forensic pathologist, testified that Griffin died within twelve to

twenty-four hours before his body was found, placing the time of death between 3:30 p.m. on

Sunday, February 23, 1992, and 3:30 a.m. on Monday, February 24, 1992. He based his opinion on

evidence of rigor mortis, the absence of fixed lividity, the lack of evidence of decomposition, the

presence of undigested food in Griffin’s stomach, changes in the appearance of the wound, and the

absence of insect activity. In Dr. Kessler’s opinion, rigor mortis disappears within twenty-four to

thirty-six hours after death. On cross-examination, Dr. Kessler stated that a white substance on

Griffin’s neck and head in one of the crime scene photographs was grains of unburned gunpowder,

not fly eggs, but that a small “blackish” image next to Griffin’s body in one of the crime scene

photographs was a fly.

The State called Dr. William Bass, the forensic anthropologist who had testified regarding

the death of Connie Branam in Dellinger’s Blount and Sevier County trials. After reviewing the

photographs and reports regarding Griffin’s death, Dr. Bass testified that the fixed lividity visible

on Griffin’s face was consistent with the State’s theory that Griffin was killed late on Friday,

February 21, 1992. Dr. Bass also reviewed the reported weekend temperatures, which indicated a

low of twenty-four degrees on the morning of February 22, 1992, and a high of sixty-nine degrees

on February 24, 1992. In his opinion, the cool temperatures would have delayed the process of

decay, explaining why there was “partially digested food” in Griffin’s stomach as noted in the

autopsy report. Furthermore, the notation of the presence of partially digested food indicated to Dr.

Bass that the examiner was unable to identify specifically the food in Griffin’s stomach. Dr. Bass

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Dr. Haskell stated that “[t]he study of entomology is the study of insects,” and the work of forensic

entomologists consists of “obtaining and reviewing . . . the insects that would have been collected at the scene, on the

remains or in conjunction with the autopsy from the remains” to determine time or location of death.

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stated that the presence of rigor mortis on February 24, 1992, did not contradict the State’s theory

because “[r]igor is also controlled by temperature.” He also noted that a reduction in insect activity

was consistent with the absence of fly activity in temperatures below fifty degrees, at night, or in the

rain. Finally, Dr. Bass stated that the white substance on Griffin’s neck and head was fly eggs, not

gunpowder, and that the small, black image was a fly.

Dr. Haskell was recalled to testify after reviewing the testimony of Dr. Bass. Dr. Haskell

testified that the white substance on Griffin’s neck identified by Dr. Bass as fly eggs was buckshot

buffer and that the fly identified by Dr. Bass and Dr. Kessler was actually a leaf tip overlying another

leaf. He also stated that the reported climatological data did not contradict his finding that obvious

insect activity would have been observable had Griffin’s body been lying in the open as long as the

State claimed.

On June 2, 2005, the post-conviction trial court filed “Findings of Fact and Conclusions of

Law” denying Dellinger post-conviction relief. Dellinger filed a timely notice of appeal, and the

Court of Criminal Appeals affirmed the post-conviction trial court’s denial of relief. Dellinger v.

State, No. E2005-01485-CCA-R3-PD, 2007 WL 2428049 (Tenn. Crim. App. Aug. 28, 2007). This

Court granted Dellinger’s application for permission to appeal on February 25, 2008.

Analysis

We granted Dellinger’s application for permission to appeal to determine whether a

freestanding claim of actual innocence is cognizable in an initial petition for post-conviction relief

under the Tennessee Post-Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101

through -122 (2006) (“the Act”). Dellinger contends that he may assert a freestanding claim of

actual innocence because he has a right under the state and federal constitutions not to be imprisoned

and executed for a crime that he did not commit. Because we find that the Act expressly provides

for freestanding claims of actual innocence based on new scientific evidence, we decline to reach

the broader constitutional issue posed by Dellinger.4 See Owens v. State, 908 S.W.2d 923, 926

(Tenn. 1995) (“[U]nder Tennessee law, courts do not decide constitutional questions unless

resolution is absolutely necessary for determination of the case and the rights of the parties.”).

Assuming without deciding, however, that a petitioner might obtain post-conviction review of a

constitutional claim of actual innocence, standing alone, the evidence in this record fails to meet the

threshold showing for such an assumed right. See Herrera, 506 U.S. at 417.

The issue of whether Dellinger may assert a freestanding claim of actual innocence under the

Act is a question of law, which we review de novo with no presumption of correctness. Green v.

Moore, 101 S.W.3d 415, 418 (Tenn. 2003). Our fundamental role in construing statutes is to

ascertain and give effect to the General Assembly’s intent. Fletcher v. State, 951 S.W.2d 378,

381-82 (Tenn. 1997). We must presume that the General Assembly “did not intend an absurdity and

4

W hether the execution of an innocent person violates the federal constitution has not been decided by the

United States Supreme Court. See House v. Bell, 547 U.S. 518, 554-55 (2006) (referring to the status of freestanding

claims of actual innocence after Herrera v. Collins, 506 U.S. 390 (1993) as “left open” and “unresolved”).

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adopt, if possible, a reasonable construction which provides for a harmonious operation of the laws.”

Id. at 382.

At least two provisions of the Act are relevant to our determination of the General

Assembly’s intent concerning claims of actual innocence. First, Tennessee Code Annotated section

40-30-102(b)(2) does not bar claims for relief based on new scientific evidence establishing actual

innocence.5 Second, Tennessee Code Annotated section 40-30-117(a)(2) allows a petitioner to

reopen the first post-conviction petition by claiming actual innocence based on new scientific

evidence.6

Tennessee Code Annotated sections 40-30-102(b)(2) and -117(a)(2) therefore supply an

avenue for relief when new scientific evidence of actual innocence becomes available after the filing

of a post-conviction petition is time-barred. If new scientific evidence is available when a petition

for post-conviction is filed, both logic and judicial economy dictate that this evidence should be

permitted at that time. We can discern no rational basis for precluding new scientific evidence of

actual innocence until after the conclusion of the initial post-conviction proceedings.7

The Act requires that a petitioner prove the allegations of fact in the first post-conviction

petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Pylant v. State, 263

S.W.3d 854, 868 (Tenn. 2008). The State’s theory at trial was that Griffin died close to midnight

on Friday, February 21, 1992, after leaving the jail with Dellinger and Sutton and around the time

gunshots were heard in the area where his body was found on February 24, 1992. The jury’s verdict

convicting Dellinger and Sutton of the murder indicates that the jury accredited the State’s theory.

Dellinger’s claim of actual innocence rests primarily on the expert testimony of Dr. Haskell and Dr.

Kessler at the post-conviction hearing that Griffin died later than 3:30 p.m. on Saturday, February

22, 1992.

Assuming, without deciding, that the testimony of Dellinger’s post-conviction experts

constitutes “new scientific evidence,” we would conclude that Dellinger has failed to carry his

5

Tennessee Code Annotated section 40-30-102 provides: “(b) No court shall have jurisdiction to consider a

petition filed after the expiration of the limitations period unless: . . . (2) [t]he claim in the petition is based upon new

scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner

was convicted[.]”

6

Tennessee Code Annotated section 40-30-117 provides: “(a) A petitioner may file a motion in the trial court

to reopen the first post-conviction petition only if . . . (2) [t]he claim in the motion is based upon new scientific evidence

establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted[.]”

7

Claims of actual innocence not based on new scientific evidence may be brought in a petition for writ of error

coram nobis, Tenn. Code Ann. § 40-26-105 (2006), within one year after the judgment of conviction in the trial court

becomes final, State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999), or later if the petitioner shows that due process

precludes application of the statute of limitations, W orkman v. State, 41 S.W .3d 100, 103 (Tenn. 2001). Such a claim

may also be brought in an application for executive clemency once “all possible state judicial remedies” have been

exhausted. Tenn. Code Ann. § 40-27-109 (2006).

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burden of proof. The most compelling evidence Dellinger presented was the testimony of Dr.

Haskell that the photographs and reports do not indicate the presence of insect activity. Dr. Bass

stated, however, that one of the photographs depicted a fly next to the body as well as fly eggs on

Griffin’s head and neck. He also explained that flies are not active in temperatures below fifty

degrees, in the rain, or at night. In his opinion, the temperatures also explained the presence of

undigested food in Griffin’s stomach. Finally, contrary to Dr. Kessler, Dr. Bass stated that fixed

lividity was present on Griffin’s face in the photographs.

In short, we agree with the State that the post-conviction trial court heard the classic “battle

of the experts” with regard to Griffin’s time of death. Dellinger argues nonetheless that this Court

should afford more weight to the testimony of Dr. Haskell and Dr. Kessler because they are more

qualified than Dr. Bass to render an opinion on the time of death. In denying Dellinger relief,

however, the post-conviction trial court implicitly accredited Dr. Bass’s testimony. It is well

established that appellate courts do not reassess credibility determinations. R.D.S. v. State, 245

S.W.3d 356, 362 (Tenn. 2008) (“Questions surrounding the credibility of witnesses and the

‘resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.’”)

(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)).

Furthermore, “‘[w]here there is any conflict between expert testimony and the testimony as

to the facts, the jury is not bound to accept expert testimony in preference to other testimony, and

must determine the weight and credibility of each in the light of all the facts shown in the case.’”

State v. Sparks, 891 S.W.2d 607, 616 (Tenn. 1995) (quoting Edwards v. State, 540 S.W.2d 541, 647

(Tenn. 1976)). Jason McDonald and his mother, Brenda McKeehan, testified that they heard two

gunshots at 11:55 p.m. on Friday, February 21, 1992, fired from the area where Griffin’s body was

discovered. They both stated that it was highly unusual to hear gunshots at that time of night. Also,

no witnesses testified to having seen or heard from Griffin after he left the jail and before 3:30 p.m.

the next day, the earliest time of death proffered by Dellinger’s experts. If Griffin were alive, it is

improbable that no one would have been in contact with him during that time, especially considering

that his home had burned down and his family was looking for him.

Ineffective Assistance of Counsel

Proof at the Post-Conviction Hearing

In support of his ineffective assistance of counsel claim, Dellinger presented the testimony

of his appointed trial counsel, Mr. Charles Deas and Mr. Eugene Dixon.

Mr. Deas and Mr. Dixon both began practicing law in the mid-1970s. Dellinger’s case was

their first capital murder case to go to trial although they had each tried non-capital murder cases.

Both Mr. Deas and Mr. Dixon were aware, however, of the heightened standards required of

attorneys representing capital defendants. In preparation for trial, they attended portions of

Dellinger’s Sevier County trial and a death penalty seminar. They also worked closely with co-

defendant Sutton’s attorneys. The attorneys allocated the responsibility for preparation, with Mr.

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Deas taking the “mitigation phase” and Mr. Dixon taking the “factual witnesses” during the guilt

phase.

Mr. Dixon testified that he consulted with a forensic pathologist, Dr. Cleland Blake, as a

potential expert witness regarding the time of Griffin’s death. Dr. Blake’s opinions, however, were

not helpful to the defense. In fact, the State unsuccessfully attempted to call Dr. Blake as an expert

witness during its case-in-chief. The trial court did not permit Dr. Blake’s testimony because he had

been retained previously by the defense. Mr. Deas and Mr. Dixon instead obtained the expert

testimony of Dr. Larry Wolfe to establish that Griffin died later than the State theorized. In reference

to Dr. Wolfe’s testimony, Mr. Deas stated, “We knew it was coming. We knew we had it. We were

hoping, factually speaking that it would carry the day.”

Trial counsel filed a pre-trial motion requesting that the State provide the names of its

rebuttal witnesses. Dr. Harlan’s name was not provided as a potential rebuttal witness, and Mr. Deas

and Mr. Dixon were surprised when the State called Dr. Harlan to rebut the testimony of Dr. Wolfe.

Mr. Deas could not recall, however, why neither he nor Mr. Dixon objected to the State’s lack of

notice of Dr. Harlan’s rebuttal testimony. They did, however, object to the State’s introduction of

opinion testimony on rebuttal. Mr. Dixon stated that he and Mr. Deas discussed the unanticipated

testimony but decided not to move for a continuance because Dr. Wolfe’s testimony had already

discredited the State’s theory of the time of death.

Burden of Proof

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend VI. The right

to effective assistance of counsel is inherent in this right. Cuyler v. Sullivan, 446 U.S. 335, 344

(1980). In Strickland v.Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth

a two-prong test to prove ineffective assistance of counsel. The test requires the petitioner to prove

both deficient performance of counsel and prejudice to the defense. Id. at 687. Deficient

performance requires proof that “counsel’s representation fell below an objective standard of

reasonableness,” id. at 687-88, despite a “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” id. at 689. Prejudice requires proof of “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

Dellinger argues that Tennessee procedural rules, specifically Tennessee Code Annotated

section 40-30-110(f) and Tennessee Supreme Court Rule 28 section 8(D)(1), are contrary to the

requirements of Strickland and that the post-conviction trial court therefore applied an incorrect

burden of proof to his ineffective assistance of counsel claims. Whether the post-conviction trial

court applied the correct burden of proof is a question of law that we review de novo with no

presumption of correctness. Green, 101 S.W.3d at 418.

Tennessee Code Annotated section 40-30-110(f) (2006) provides that the “petitioner shall

have the burden of proving the allegations of fact by clear and convincing evidence.” (emphasis

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added). This inquiry does not implicate the Strickland inquiry. Pursuant to section 40-30-110(f),

the petitioner is required to prove the fact of counsel’s alleged error by clear and convincing

evidence. If that burden of proof is met, the court then must assess under Strickland whether that

error “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 687-88, and

whether the error raised “a reasonable probability . . . that the result of the proceedings would have

been different,” id. at 694.

While not identical to section 40-30-110(f), Tennessee Supreme Court Rule 28 section

8(D)(1) provides that the “[p]etitioner shall be required to present petitioner’s case and to establish

the grounds alleged and the entitlement to relief by clear and convincing evidence.” (emphasis

added). Dellinger contends that the post-conviction trial court applied this standard and thereby

applied an erroneous burden of proof to his claims of ineffective assistance of counsel. Dellinger

supports his contention by pointing to a single statement in the post-conviction trial court’s

“Findings of Fact and Conclusions of Law”: “[t]he burden is on the petitioner to prove both prongs

[of the Strickland test] by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f); State

v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).” Although this statement is imprecise, we agree with the

State that the post-conviction trial court did not misapply the law.

First, the post-conviction trial court’s direct citation to Tennessee Code Annotated section

40-30-210(f)8 indicates that it limited its application of the clear and convincing standard to

allegations of fact in accordance with that statute. Moreover, in Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001), we determined that an almost identical misstatement of law was “one of imprecision

in the use of [the Court of Criminal Appeals’] language, as it [is] clear from the opinion that the

court applied the correct legal standard.” We relied in part on the intermediate appellate court’s

earlier reference to the Strickland standard. Id. at 458 n.6. Similarly, in the case at bar, the post-

conviction trial court’s “Findings of Fact and Conclusions of Law” includes an earlier reference to

the correct Strickland standard: “Dellinger must establish that the advice given or the services

rendered were not within the range of competence demanded of attorneys in criminal cases and that

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’ Strickland, 466 U.S. at 693 (1984).”

To provide needed clarity concerning the burden of proof in claims of ineffective assistance

of counsel and to avoid any appearance of inconsistency between Tennessee Supreme Court Rule

28 and Tennessee Code Annotated section 40-30-110(f), we concurrently amend Tennessee Supreme

Court Rule 28 section 8(D)(1) to read as follows: “Petitioner shall be required to present petitioner’s

case and to establish the factual grounds alleged by clear and convincing evidence.”

Analysis

Our review of Dellinger’s ineffective assistance of counsel claims, a mixed question of law

and fact, is de novo with no presumption of correctness. Finch v. State, 226 S.W.3d 307, 315 (Tenn.

8

Tenn. Code Ann. § 40-30-210(f) was renumbered as Tenn. Code Ann. § 40-30-110(f) in 2003.

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2007). This Court is bound by the factual findings of the post-conviction trial court unless the

preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Vaughn v. State, 202 S.W.3d

106, 115 (Tenn. 2006).

Dellinger first argues that his trial counsel was deficient in failing to obtain a qualified

forensic pathologist to testify as to Griffin’s time of death. The testimony of Mr. Deas and Mr.

Dixon at the post-conviction hearing indicates that both attorneys were aware that Griffin’s time of

death was a critical issue. Mr. Dixon testified that he met and exchanged correspondence with a

forensic pathologist, Dr. Blake, as a potential expert witness. Dr. Blake’s opinions, however, were

not helpful to the defense.

It was only after consulting with a forensic pathologist that trial counsel chose to utilize the

expert testimony of Dr. Wolfe, a medical doctor and former county coroner. Although Dr. Wolfe

was not a board-certified forensic pathologist, he had experience in examining bodies and had given

his opinion as to cause and time of death in up to forty-five cases. In reference to Dr. Wolfe’s

testimony, Mr. Deas stated, “We knew it was coming. We knew we had it. We were hoping,

factually speaking that it would carry the day.” Dr. Wolfe did testify, consistent with the theory of

the defense, that Griffin had been dead no more than thirty-six hours when his body was found.

Dellinger also argues that trial counsel was deficient in failing to obtain another expert to

rebut the State’s expert, Dr. Harlan. The State did not provide Mr. Deas and Mr. Dixon with notice

that Dr. Harlan would be called to testify on rebuttal. Although Mr. Deas and Mr. Dixon did not

object to Dr. Harlan’s testimony on this ground, they did object to permitting the State to offer

opinion evidence on rebuttal. The State responded by reminding the court that the State had

presented a witness earlier, presumably Dr. Blake, but that defense counsel’s objection prevented

Dr. Blake from testifying.

Mr. Dixon testified that he and Mr. Deas decided not to move for a continuance because they

felt that Dr. Wolfe’s testimony had discredited the State’s time of death theory. On a claim of

ineffective assistance, “the petitioner is not entitled to the benefit of hindsight, may not second-guess

a reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision

made during the course of the proceedings.” Thompson v. State, 958 S.W.2d 156, 162 (Tenn. Crim.

App. 1997) (citing Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994)).

Furthermore, Dellinger has not proven a reasonable probability that the result of his trial

would have been different if the testimony of Dr. Haskell and Dr. Kessler had been presented during

his original trial. First, both experts’ testimony was rebutted by Dr. Bass. Second, neither expert’s

testimony undermines the testimony of Jason McDonald and Brenda McKeehan, which the jury

implicitly accredited. Both witnesses testified that they heard two gunshots at 11:55 p.m. on Friday,

February 21, 1992, fired from the area where Griffin’s body was discovered. As we previously

stated, “the jury is not bound to accept expert testimony in preference to other testimony, and must

determine the weight and credibility of each in the light of all the facts shown in the case.’” Sparks,

891 S.W.2d at 616 (quoting Edwards, 540 S.W.2d at 647).

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Conclusion

We conclude that a freestanding claim of actual innocence based on new scientific evidence

is cognizable in an initial petition for post-conviction relief under the Tennessee Post-Conviction

Procedure Act. Therefore, we reverse the Court of Criminal Appeals’ disposition of that issue. We

affirm the Court of Criminal Appeals’ denial of relief, however, because Dellinger has not met his

burden of proof to support such claim. We also hold that Dellinger is not entitled to relief on his

claims of ineffective assistance of counsel or his claim that the post-conviction trial court applied

an erroneous burden of proof to his ineffective assistance of counsel claims. Finally, we

concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1) to read as follows:

“Petitioner shall be required to present petitioner’s case and to establish the factual grounds alleged

by clear and convincing evidence.”

The Court of Criminal Appeals properly determined all of the remaining issues raised by

Dellinger. Specifically, the intermediate appellate court applied the appropriate standard of review

and held that: (1) Dellinger was not entitled to relief on his claim under Brady v. Maryland, 373 U.S.

83 (1963); (2) Dellinger was afforded a full and fair hearing of his post-conviction petition; and (3)

none of Dellinger’s constitutional challenges to the death penalty were meritorious. Dellinger, 2007

WL 2428049, *19-43. We affirm the judgment of the Court of Criminal Appeals with respect to

each of these issues.

Dellinger’s sentence of death shall be carried out on June 3, 2009, unless otherwise ordered

by this Court or other proper authority. It appearing that Dellinger is indigent, the costs of this

appeal are taxed to the State of Tennessee.

JANICE M. HOLDER, CHIEF JUSTICE

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