# Rivera v. Boyd

> District Court, E.D. Tennessee · July 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10669393

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** July 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10669393

## How later opinions describe it (automated extraction)

- holding Martinez exception does not extend beyond claims of ineffective assistance of trial counsel
- noting Tennessee petitioner “no longer has any state court remedies to exhaust” when he failed to present claim in initial post-conviction petition
- holding prisoner’s procedural default forfeits his federal habeas claim
- declining to apply Martinez to claims of suppressed evidence, prosecutorial misconduct, trial error, ineffective assistance of appellate counsel, and cumulative error

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JOSEPH A. RIVERA, )
)
Petitioner, )
)
v. ) No.: 3:21-CV-299-DCLC-JEM
)
BERT BOYD, )
)
Respondent. )

MEMORANDUM OPINION
Petitioner Joseph A. Rivera, an inmate serving a life sentence in the custody of the
Tennessee Department of Correction (“TDOC”), has filed a pro se federal habeas action brought
pursuant to 28 U.S.C. § 2254 challenging the legality of his confinement under Knox County,
Tennessee, judgments of conviction for first-degree felony murder, especially aggravated burglary,
and aggravated assault [Doc. 1]. Having considered the submissions of the parties, the State-court
record, and the law applicable to Petitioner’s claims, the Court finds that the petition should be
denied.
I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
The Tennessee Court of Criminal Appeals (“TCCA”) summarized the evidence presented
at Petitioner’s trial as follows:
This case arises from the June 5, 2010 killing of Michelle Rivera, the [Petitioner]’s
estranged wife. At the trial, Gerald Ross testified that he met the victim online and
that they decided to meet for dinner in late April 2010. He said that the victim
worked as a massage therapist at a West Knoxville office, that she also had private
clients, and that she taught massage therapy. He said the victim was loving, caring,
and gentle. Mr. Ross knew that the victim was married but separated from her
husband when they met and that she lived alone in an apartment.

Mr. Ross testified that on one occasion before May 16, 2010, he was at the victim’s
apartment visiting when the [Petitioner] arrived unexpectedly. Mr. Ross said that
the [Petitioner] beat on the door and that Mr. Ross went upstairs because he did not
trust the [Petitioner]. Mr. Ross noted the victim had discussed some of her and the
[Petitioner]’s relationship issues. Mr. Ross heard the [Petitioner] and the victim
talking downstairs and saw from the upstairs bedroom window the [Petitioner]
standing outside the front door.

Mr. Ross testified that on May 16, 2010, he and the victim made plans to “go to the
mountains” for a day trip, that he drove his Geo Tracker to the victim’s apartment,
that he parked his vehicle beside the victim’s Toyota Corolla, and that the victim
drove her car to Sevier County. He said he left the key to his vehicle, along with
additional keys on the ring, on the victim’s kitchen table. He said the apartment was
secure when they left around 9:45 a.m. He said he suggested the trip in order for
the victim to get out of town for a few hours because she had been upset about the
[Petitioner]’s aggravating her by sending her text messages and calling her cell
phone. Mr. Ross said that the victim received a telephone call from the [Petitioner]
while they were in Pigeon Forge. He said that although he could not hear everything
the [Petitioner] said, he knew it was the [Petitioner] when he heard the caller’s
voice. Mr. Ross said the look on the victim’s face was “great, here we go again” or
“I’m not in the mood for you right now.” He said the victim handed him the phone
and told him that the [Petitioner] wanted to speak to him. Mr. Ross said he declined
and noted he and the [Petitioner] had never spoken before that day.

Mr. Ross testified that he ultimately took the cell phone from the victim because
Mr. Ross heard the [Petitioner] yelling at the victim. Mr. Ross said the [Petitioner]
stated, “Hey, Buddy, you know you’re f––– a married woman.” Mr. Ross said that
he attempted to explain he and the victim were friends but that the [Petitioner] told
Mr. Ross to “get [his] game on” because the [Petitioner] wanted to fight Mr. Ross.
Mr. Ross said that he explained he would not fight the [Petitioner] and that the
[Petitioner] responded, “Well, I’m going to go in the apartment and f––– your truck
up.” Mr. Ross admitted he told the [Petitioner] he knew where the [Petitioner] lived
and worked and threatened the [Petitioner]. Mr. Ross said the victim grabbed the
phone and ended the call.

Mr. Ross testified that he and the victim returned to the victim’s apartment around
3:00 or 4:00 p.m. and that he saw the “side canvas” of his vehicle was “ripped
down.” He noted that the front passenger seat had been slashed and the radio
removed. He said that the seat was not slashed and the radio was not missing before
he and the victim left that morning. He denied giving anyone permission to damage
his vehicle. He said that he and the victim entered the victim’s apartment, that he
saw the back door was open and the door frame damaged, and that he noticed his
keys were missing from the kitchen table. He said water had been poured on the
victim’s laptop. He said the victim called the police to report the incident, and he
identified photographs of the damage to his vehicle and to the victim’s apartment,
which were consistent with Mr. Ross’s testimony. Mr. Ross identified a photograph
of the [Petitioner]’s truck taken after the [Petitioner]’s arrest on June 5, 2010, and
identified Mr. Ross’s key ring inside the [Petitioner]’s truck. Mr. Ross said that he
and victim discussed whether to file charges against the [Petitioner] for the damage
to Mr. Ross’s vehicle and that he decided against it. Mr. Ross said the damage to
his vehicle was about $1000.

Mr. Ross testified that his relationship with the victim “increased” in the weeks
following the May 16, 2010 incident and that they became close friends. He said
that on June 5, he spoke to the victim in the morning and that they made plans for
the victim to come to his home around 7:00 p.m. for dinner. He said the victim
taught massage therapy that day and called him a few times throughout the day. He
said he sent the victim a text message around 4:30 p.m. but received no response,
which was unusual because the victim always responded quickly. He said he sent a
second message but received no response. Mr. Ross said that he had a bad feeling
and that he drove to the victim’s apartment. He said he arrived at 5:30 or 6:00 p.m.
and saw police, emergency medical personnel, and news reporters.

On cross-examination, Mr. Ross testified that he did not know what transpired at
the victim’s apartment on June 5, 2010. He said that on May 16, he and the victim
were at the victim’s apartment for thirty minutes before leaving for Sevier County.
He agreed it was possible they did not leave the victim’s apartment until 10:15 a.m.
He said that he and the victim were at a convenience store in Pigeon Forge when
the [Petitioner] called the victim’s cell phone. When asked if it was possible the
victim called the [Petitioner], Mr. Ross said that when he left the store, the victim
was on the telephone talking to the [Petitioner]. Mr. Ross said it would not have
surprised him that the victim frequently called him after the victim called the
[Petitioner]. Mr. Ross agreed that at the time his vehicle was vandalized, he had
known the victim for about two weeks.

A petition for an order of protection was received as an exhibit. The petition was
completed by the victim on May 17, 2010, and the victim alleged that the
[Petitioner] broke into her apartment on May 16, took her friend’s keys from the
kitchen table, and vandalized her friend’s vehicle. The victim stated in the petition
that the [Petitioner] said “he was going to f––– up my friend’s truck since he was
f––– me.” The victim also alleged that on May 17, the [Petitioner] left a voicemail
message on her cell phone stating, “Remember what happened to Shawn?” The
victim explained that “Shawn was shot by his lover’s husband.” Finally, the victim
stated that several months previously when she and the [Petitioner] were engaged
in “intimate relations,” the [Petitioner] became angry and began slapping her across
the face, “while he was hurting [her] inside.” The ex parte order of protection was
served upon the [Petitioner] on May 24. An order to show cause why the
[Petitioner] should not be held in contempt of court was issued and served upon the
[Petitioner] on June 10. The motion for an order to show cause was submitted by
the victim’s attorney, who alleged that on June 5, the [Petitioner] knocked the
victim to the ground, climbed on top of her, held her down, choked her, hit her
multiple times, and dragged her inside her apartment after being confronted by the
victim’s neighbor. The motion alleged that after closing the door to the victim’s
apartment, the [Petitioner] killed the victim. The petition, ex parte order, and show
cause motion were dismissed on October 28, 2010.
The recordings of two 9–1–1 calls placed on the day of the killing were received as
exhibits and played for the jury. During the first call, a male caller, later identified
as Stephen Wicks, reported a domestic dispute at the victim’s apartment and stated
the victim was being beaten by her boyfriend. Mr. Wicks described the boyfriend’s
clothes, noting the man was not wearing a shirt and had gray hair. Mr. Wicks said
he approached the man and woman because Mr. Wicks heard the woman’s screams.
Mr. Wicks said that he asked if “you” were okay and that the man said they were
having a dispute. Mr. Wicks said the man “was on top” of the woman and looked
as though he was choking or hitting the woman. Mr. Wicks said the woman
continued screaming, and the man closed the door to the apartment, at which time
it became quiet.

During the second call, Angela Rivera, the [Petitioner]’s former spouse, stated that
police were at her home asking questions about the [Petitioner] earlier in the
evening and that she had information about the [Petitioner]. Ms. Rivera was crying,
and she reported that the [Petitioner] called her and said he had “killed his wife.”
She said the [Petitioner] refused to tell her his location and told the 9–1–1
dispatcher that she was at home. She said the [Petitioner] threatened to kill himself
because of “what he did.” She said the only detail the [Petitioner] provided was that
he killed his wife because she threatened to kill Ms. Rivera’s and the [Petitioner]’s
children. Ms. Rivera stated that she told the [Petitioner] “not to do anything” and
that the [Petitioner] responded he was not going to spend the remainder of his life
in prison. When asked what the victim threatened to do to the [Petitioner]’s
children, Ms. Rivera said the victim threatened to kill Ms. Rivera’s and the
[Petitioner]’s children. She did not know the [Petitioner]’s whereabouts.

Eric Dilworth testified that in June 2010, he and Jennifer Parsons were the victim’s
neighbors at the apartment complex where the killing occurred. He recalled that the
victim moved into her apartment about one month before her death and that she
introduced herself not long afterward. He said generally they only spoke in passing
but recalled one conversation about her husband a few weeks before her death. He
said the victim told him that she was having problems with her former husband,
that she described her former husband’s truck, and that she told Mr. Dilworth to
“just keep a heads-up.” Mr. Dilworth said the victim did not describe the
[Petitioner].

Mr. Dilworth testified that on June 5, 2010, at 3:30 p.m., he was walking from his
apartment to his car when he saw the victim. He said the victim was sitting on the
front step outside her apartment talking to the [Petitioner], who was kneeling in
front of the victim. Mr. Dilworth could not hear their conversation but saw a blue
truck parked beside the victim’s car. Mr. Dilworth said that he asked the victim if
she was okay in order to gauge her demeanor and that the victim waved at him and
returned to her conversation with the [Petitioner], although the victim was possibly
crying. Mr. Dilworth left and returned before 5:00 p.m.
Mr. Dilworth testified that when he returned home, the blue truck was gone and
nobody was outside the victim’s apartment. He said that Ms. Parsons was getting
ready for work when he arrived, that he began watching television, and that he and
Ms. Parsons heard a woman screaming, “thuds against the wall,” and loud noises.
Mr. Dilworth said he opened the front door and looked to his left, the direction from
which they heard the noises. He said he saw the [Petitioner] on top of the victim,
dragging her inside the victim’s apartment while she screamed. He noted that the
[Petitioner] was straddling the victim’s body and that the [Petitioner] had his hands
around the victim’s neck. He said that he did not recall any particular noises as the
[Petitioner] dragged the victim inside her apartment but that he remembered the
victim’s kicking her legs.

Mr. Dilworth testified that the events occurred quickly, that the apartment door
closed before he could run twenty yards, and that he heard the door lock. He said
that although he did not hear the victim scream after he left his apartment, he saw
the victim kicking her legs in an odd manner and noted that her legs were “kicking
in the air.” He said that as the [Petitioner] dragged the victim, Stephen Wicks
walked to Mr. Dilworth’s location. Mr. Dilworth and Mr. Wicks had never met,
and Mr. Dilworth said he had never seen the [Petitioner] before June 5.

Mr. Dilworth testified that he banged on the victim’s apartment door and yelled at
the [Petitioner] to come outside. Mr. Dilworth said he heard the [Petitioner] say
from inside the apartment, “Go away. This is a domestic dispute.” Mr. Dilworth
recalled Mr. Wicks’s calling 9–1–1. Mr. Dilworth and Mr. Wicks discussed what
to do and decided to walk around to the back door of the victim’s apartment. Mr.
Dilworth said that when he and Mr. Wicks arrived at the rear of the building, Mr.
Dilworth saw the [Petitioner] “walking briskly away” from the building. Mr.
Dilworth said he saw the [Petitioner] remove a prescription bottle from his pocket
and throw it into a pile of brush. Mr. Dilworth said he lost sight of the [Petitioner]
but seconds later saw the [Petitioner] jump over a fence. Mr. Dilworth and Mr.
Wicks split up to find the [Petitioner], and Mr. Dilworth said he saw the [Petitioner]
climb over the same fence again. Mr. Dilworth lost sight of the [Petitioner] again
and did not see the [Petitioner] until the blue truck was leaving the complex. He
said the [Petitioner] wore the same clothes he wore earlier that afternoon and was
driving the same truck. On cross-examination, Mr. Dilworth stated that he refused
to talk to the defense investigator.

Jennifer Parsons testified that on June 5, 2010, the victim had been her and Mr.
Dilworth’s neighbor for three to five months. Although Ms. Parsons did not know
the victim well, the women spoke when they walked their dogs. Ms. Parsons noted
the victim had a beagle named Sarah. Ms. Parsons said that in the weeks before the
killing, the victim told her to be on the lookout for a blue truck. Ms. Parsons recalled
the victim’s stating that the truck belonged to her former husband and that they had
been having problems.
Ms. Parsons testified that on June 5, 2010, between 1:00 and 3:00 p.m., she heard
a loud noise and banging coming from next door and that she looked out the
window and saw the [Petitioner]’s blue truck parked in front of the victim’s
apartment. She described the noises she heard as a struggle and said she heard a
man and a woman yelling. She was home alone at the time but reported what she
heard to Mr. Dilworth when he returned home. She said that when Mr. Dilworth
returned, the victim and the [Petitioner] were sitting on the step outside the victim’s
apartment.

Ms. Parsons testified that later that afternoon, she was upstairs getting ready for
work when she heard banging coming from the victim’s apartment. She heard the
victim screaming and noted the screams were like nothing she had ever heard. She
said the screams were “scary” and “desperate.” Ms. Parsons said she ran downstairs
and was met by Mr. Dilworth, who also heard the screams. She said that she and
Mr. Dilworth opened their apartment door and that Ms. Parsons saw the victim’s
lower body being pulled inside the victim’s apartment. Ms. Parsons said that the
victim was not walking, that the victim’s toes were pointing toward the sky, and
that the victim’s heels were dragging the ground. She said that she “barely saw” the
[Petitioner] but saw enough to know it was the [Petitioner] who was dragging the
victim inside the apartment and was holding the victim by her neck. Ms. Parsons
said that she and Mr. Dilworth attempted to help the victim but that by the time
they reached the victim’s apartment, the [Petitioner] had closed and locked the
door. She said that after the door was locked, she no longer heard the victim. She
recalled that Mr. Dilworth banged on the door but said that nobody answered,
although she heard sounds of a struggle.

Ms. Parsons testified that on the victim’s porch, Ms. Parsons saw a purse, makeup
bag, and massage table. Ms. Parson said she did not see the [Petitioner]’s blue truck
parked outside the victim’s apartment when Ms. Parsons saw the [Petitioner]
dragging the victim inside. Ms. Parsons said that Mr. Wicks assisted her and Mr.
Dilworth and that she told Mr. Wicks to call 9–1–1. She said that while Mr.
Dilworth banged on the door, the [Petitioner] yelled from inside the apartment “to
go away, that this was a domestic dispute, kind of mind our own business.” She
said that after a few minutes, everything became “dead quiet.”

Ms. Parsons testified that she followed Mr. Dilworth and Mr. Wicks to the rear of
the apartment building but returned to her apartment when Mr. Dilworth told her to
return. She said that as she walked to her apartment, she saw the [Petitioner] jump
twice over a fence along an adjoining property and that the [Petitioner] ran in the
direction of the swimming pool. She said that she decided to run to the victim’s
apartment and that she banged on the door and begged the victim to open the door.
Ms. Parsons did not see the [Petitioner] or the blue truck again.

On cross-examination, Ms. Parsons testified that Mr. Dilworth did not mention the
defense investigator’s wanting to speak with her before the trial. She recalled
speaking to the [Petitioner]’s previous attorneys and possibly speaking to an
investigator. She said that the [Petitioner] was standing in the doorway of the
victim’s apartment at the foyer when Ms. Parsons saw the [Petitioner] dragging the
victim.

Stephen Wicks testified that on June 5, 2010, he was visiting his sister-in-law and
niece, who lived at the apartment complex. He said he and about fourteen other
individuals were celebrating his niece’s college graduation. He said that he did not
know the victim, the [Petitioner], Mr. Dilworth, or Ms. Parsons before the incident
in this case. He said that around 5:00 p.m., he retrieved a football from the trunk of
his car and that he heard a scream. He said he turned to the direction from which
the scream came but did not see anything unusual. He said, though, he heard a
second scream seconds later.

Mr. Wicks testified that he saw Mr. Dilworth and a partially opened apartment door
and walked toward the apartment. Mr. Wicks saw a bare foot visible through the
open doorway and asked if everything was okay. He said that the apartment was
dark but that he saw a bare back and asked if everything was okay. Mr. Wicks said
that it appeared the [Petitioner] was leaning over something and that the [Petitioner]
turned toward him and said, “Yes, it’s just a domestic.” Mr. Wicks said the
[Petitioner] closed the door. Mr. Wicks turned around hoping to find someone who
knew what was happening and saw Mr. Dilworth. Mr. Wicks and Mr. Dilworth
talked for a few seconds and agreed to call 9–1–1. Mr. Wicks said he did not hear
any noises coming from the apartment after the door closed.

Mr. Wicks testified that after speaking to the 9–1–1 dispatcher, he rejoined the
graduation party but returned to the victim’s apartment because he felt as though
something was wrong. He said that he walked to the rear of the building and that
Mr. Dilworth followed him. He said he saw the [Petitioner] leaving the victim’s
apartment through what appeared to be a sliding-glass door. Mr. Wicks followed
the [Petitioner] and saw the [Petitioner] throw something in the weeds, climb over
a fence, and run through the apartment complex’s parking lot toward a blue truck.
Mr. Wicks chased the [Petitioner] but said the [Petitioner] got into the blue truck
and drove away.

Mr. Wicks testified that he returned to look for the item the [Petitioner] threw in
the weeds. He said that he saw two prescription bottles reflecting the [Petitioner]’s
name. Mr. Wicks said he picked up the bottles using a napkin and delivered them
to the responding police officers.

On cross-examination, Mr. Wicks testified that Mr. Dilworth was not standing on
the porch of the victim’s apartment when he saw the [Petitioner]’s bare back and
the victim’s bare foot. He said it would not have surprised him if the building did
not contain sliding-glass doors and noted a privacy fence was on the back porch
area. He agreed that the prescription bottles were empty and that no pills were lying
on the ground.
Angela Childers testified that she lived at the victim’s apartment complex at the
time of the incident and that on June 5, 2010, at around 5:00 p.m., she left her
apartment to attend a party. She said that after she stepped out of her apartment, she
saw the [Petitioner] running toward a blue truck. Ms. Childers said she “took down”
the truck’s license plate number because the [Petitioner]’s behavior was odd and
because someone was chasing him. She said the [Petitioner] drove away in a hurry.

On cross-examination, Ms. Childers testified that she recalled an investigator’s
contacting her about the present case and that she had nothing to say to the
investigator. She agreed, though, she told the investigator that she saw the
[Petitioner] run to the truck.

Debra Stutsman testified that she managed the apartment complex where the victim
lived and a nearby apartment complex. She said she knew the [Petitioner] because
he, the victim, and the [Petitioner]’s two sons from a previous marriage initially
moved into the nearby apartment complex in February 2009. She recalled the
[Petitioner] performed a couple of odd jobs while he lived at the complex. She said
the victim moved out of the unit the victim shared with the [Petitioner] at the nearby
complex in March 2010. Ms. Stutsman said that the victim stayed with friends and
that the victim said she and the [Petitioner] were having “difficulties.” Ms.
Stutsman said the victim rented the apartment unit where the killing occurred. Ms.
Stutsman understood that the victim and the [Petitioner] decided to separate until
they worked through their marital issues.

Ms. Stutsman testified that sometime in 2008, the victim rented a two-bedroom
apartment unit at the nearby complex. She said that in February 2009, she met with
the victim and the [Petitioner], who wanted to transfer the lease without having to
undergo the full application process again. Ms. Stutsman asked “if there would be
problems,” and the [Petitioner] responded, “N[o], there would not.” She approved
the request and said the victim, the [Petitioner], and the [Petitioner]’s sons moved
into the unit and stayed until March 2010.

Ms. Stutsman testified that in the spring 2010, the victim and the [Petitioner]
requested the victim move into an apartment unit at the complex where the killing
occurred. The victim signed a lease for a unit, and Ms. Stutsman noted the
[Petitioner]’s name was not on the lease. She said the [Petitioner] and his two sons
moved into a one-bedroom unit at the nearby complex.

Ms. Stutsman testified that she knew about the break-in at the victim’s apartment
in 2010 and that the victim obtained an order of protection. She said the [Petitioner]
drove a dark blue truck. After learning of the order of protection, Ms. Stutsman said
she asked a tenant, who collected rent checks, to be on the lookout for the
[Petitioner]’s blue truck. Ms. Stutsman said she told the [Petitioner] to stay away
from the property. She noted that after the victim obtained the order of protection
but before the killing, she saw the [Petitioner] drive through the apartment complex.
She said she called the [Petitioner], who said he was only looking around the area,
and told him not to return to the property. She said that although she did not see the
[Petitioner] on the property afterward, she received communications from other
people reporting the [Petitioner]’s presence.

On cross-examination, Ms. Stutsman testified that she told the defense investigator
that she would have never thought “anything like this would happen.” She said that
although she only saw the [Petitioner] on the property once after the victim obtained
the order of protection, she saw the [Petitioner]’s truck parked near the pool another
time. She said she unsuccessfully attempted to find the [Petitioner].

Knox County Sheriff’s Patrolman Jeremy McCord testified that he and additional
patrolmen responded to the scene after receiving information about a domestic
assault in progress. He said his responsibility was to talk to anyone who might have
been inside the victim’s apartment. He said, though, the doors were locked. He said
that his supervisor was informed and that he was granted permission to enter the
victim’s apartment. Patrolman McCord said that he entered the apartment and that
he saw the victim was deceased and lying on the floor with something around her
neck. He identified photographs of the victim’s apartment, which depicted the
living room area where the victim was found.

Lenoir City Police Officer Jason Felts testified that on June 5, 2010, at 9:20 p.m.,
he received information to be on the lookout for a blue Toyota Tacoma truck with
a specific license plate number. He said that sometime later, he received
information that GPS tracking of the [Petitioner]’s cell phone placed him at a
particular location. Officer Felts responded to the general location and saw the truck
drive by his police cruiser. Officer Felts said he followed the truck for about three
miles, did not observe any traffic violations, and initiated a stop after Loudon
County Sheriff’s Patrolman Mike Watkins arrived to provide assistance. Officer
Felts said that when he activated his blue lights, the truck’s speed increased. He
said that the truck’s speed fluctuated, that the truck failed to stop at a traffic light,
and that the truck ultimately crashed in a ditch. Officer Felts stated that he and
Patrolman Watkins approached the truck and told the [Petitioner] to show his hands
and that the [Petitioner] refused. Officer Felts said that Patrolman Watkins opened
the driver’s side door, pulled out the [Petitioner], and placed him under arrest.
Officer Felts said the [Petitioner]’s nose was bleeding when they approached the
truck. A video recording from Patrolman Watkins’s vehicle was played for the jury,
which was consistent with Officer Felts’s testimony.

Officer Felts testified that the [Petitioner] did not resist or speak when Patrolman
Watkins arrested the [Petitioner]. Officer Felts did not attempt to question the
[Petitioner] but attempted to learn if the [Petitioner] needed medical attention. On
cross-examination, Officer Felts stated that he thought the [Petitioner]’s facial
injuries were the result of the [Petitioner]’s driving his truck into the ditch.

Knox County Sheriff’s Crime Scene Officer Traci Tassey testified that on June 5,
2010, she processed the scene where the victim was found and the scene where the
[Petitioner] was apprehended. She said that at a later date, she took photographs of
the clothes the victim wore at the time of her death. Officer Tassey identified
photographs she took at the victim’s apartment, which showed the victim’s purse,
cosmetic bag, and massage table on the front porch, the victim’s lying on the floor
just inside the front door with a vacuum cleaner cord around her neck, a box cutter
and a necklace lying on the floor beside the victim, and a muddy shoe print just
inside the back door. Photographs of the area surrounding where the victim was
found showed overturned furniture.

Officer Tassey testified that she also processed the victim’s apartment two weeks
before the victim’s death when the victim’s back door had been kicked in by
someone. She noted that the photographs she took on June 5 reflected the back door
had been repaired. Photographs taken at the times of the break-in and the killing
were received as exhibits, and were consistent with Officer Tassey’s testimony.
Photographs of two prescription bottles reflecting the [Petitioner]’s name were
received as exhibits.

Officer Tassey testified that she took photographs at the location where the
[Petitioner] was apprehended. Photographs of the interior of the [Petitioner]’s truck
showed a white shirt with a red substance on it, a checkbook reflecting the
[Petitioner]’s name, and a ring of keys, including a key reflecting the GEO emblem.
Officer Tassey identified photographs she took of the [Petitioner] after his arrest.
The photographs showed the bottom of the [Petitioner]’s shoes and the
[Petitioner]’s face. The photographs showed injuries to the [Petitioner]’s face and
a red substance on the [Petitioner]’s shirt. Photographs of the [Petitioner]’s hands
showed no injuries, but Officer Tassey stated the [Petitioner] had injuries that were
not visible in the photographs. Photographs of the [Petitioner]’s neck and shoulder
showed old bruises and a “minor scratch” on the left side of the collar bone.

On cross-examination, Officer Tassey testified that a Bible was found in the
[Petitioner]’s truck, although the item was identified in the police evidence log as
a red book. She agreed that the red substance on the white shirt found inside the
[Petitioner]’s truck was the [Petitioner]’s blood and that the blood was the result of
the [Petitioner]’s face striking the steering wheel or dash when the [Petitioner]’s
truck entered the ditch.

Knox County Sheriff’s Detective Dale Dantzler testified that he responded to the
victim’s apartment on June 5, 2010, and that he became the officer-in-charge. He
had previous encounters with the victim and the [Petitioner] and said the officers
began looking for the [Petitioner] based upon witness statements. He said that three
cell phones were recovered during the investigation, including a BlackBerry at the
victim’s apartment and two phones inside the [Petitioner]’s truck.

Tennessee Bureau of Investigation (TBI) Special Agent Jennifer Millsaps, an
expert in DNA science, testified that she analyzed the victim’s right and left
fingernail clippings, the power cord found around the victim’s neck, and buccal
swabs obtained from the [Petitioner]. Relative to the left and right fingernail
clippings, Agent Millsaps detected a mixture of genetic material from two people
and concluded that the major contributor was the victim and that the minor
contributor was the [Petitioner]. She said relative to the left-hand fingernail
clippings, the probability of another person in the Caucasian population having the
same profile was one in 601,000. Relative to the right-hand fingernail clippings,
Agent Millsaps said the probability of another person in the Caucasian population
having the same profile was one in 6,169,000.

Agent Millsaps testified that the [Petitioner]’s DNA was found on the white shirt
found inside the [Petitioner]’s truck and the clothing the [Petitioner] wore at the
time of his arrest. Relative to the power cord, her analysis showed a mixture of
genetic material from two people. She concluded that the major contributor was the
victim, that the [Petitioner] was excluded as the minor contributor, and that further
information regarding the minor contributor was inconclusive because of
insufficient or degraded DNA.

On cross-examination, Agent Millsaps testified that it was common for people who
lived together to leave behind DNA on items they shared. She agreed she could not
determine when the DNA was deposited under the victim’s fingernails.

Knox County Sherriff’s Detective Angela Daniels testified that she analyzed an
Alltel cell phone recovered from the [Petitioner]’s truck and that the phone was
registered to the [Petitioner]. She said the phone had a Louisiana number and had
inactive service when it was recovered. She said the phone’s data was dated
between July 16, 2009, and March 18, 2010. She said every phone call and text
message, except those from the phone company, were with someone identified in
the contact list as “Donna.” She said the communications with Donna included
sixty-three incoming text messages, two outgoing text messages, and thirty
outgoing phone calls. She said that she took photographs of each screen on the
phone. She said that the two outgoing text messages were photographs of a
motorcycle and that the majority of the incoming text messages were supportive,
which included statements such as “I love you.” Photographs of each screen
reflecting the messages were received as an exhibit.

On cross-examination, Detective Daniels testified that she did not investigate the
present case and did not attempt to contact Donna, although the corresponding
telephone number was saved in the cell phone. She said, though, she learned the
billing statements for the phone number were addressed to Donna Kingsmill.

Knox County Sheriff’s Lieutenant George Edlund testified that he analyzed a U.S.
Cellular cell phone recovered from the [Petitioner]’s truck and that he received
three days’ of text message records from the service provider. Lieutenant Edlund
said his examination of the phone showed no text messages and no dialed, received,
or missed telephone calls. He said, though, the records from the service provider
showed various communications between the [Petitioner] and the victim. He said
that the records between May 14, 2010, and June 5, 2010, showed 214 telephone
calls from the [Petitioner] to the victim. The records showed that the victim
answered sixty-seven calls and that 147 calls were answered by the victim’s
voicemail. The records reflected that the [Petitioner] placed a final call to the victim
on June 5, at 3:18 p.m., which was answered by the victim’s voicemail. Relative to
the victim’s calling the [Petitioner], the records showed that the [Petitioner]
answered forty-one of the victim’s forty-seven calls. Six phone calls were answered
by the [Petitioner]’s voicemail. The records showed that the victim last called the
[Petitioner] on June 5, at 2:22 p.m., that the [Petitioner] answered the phone, and
that the conversation lasted seventy-three seconds. Relative to text messages, the
records showed 160 messages, fifty-seven of which were sent by the victim and
103 of which were sent by the [Petitioner]. The victim’s last message to the
[Petitioner] was sent on June 4, at 10:22 p.m., and the [Petitioner]’s last message to
the victim was June 5, at 1:16 p.m. The records did not reflect the substance of the
voicemail and text messages.

On cross-examination, Lieutenant Edlund testified that he did not analyze the
victim’s cell phone and that he only examined the [Petitioner]’s U.S. Cellular phone
for communications between the [Petitioner] and the victim. Lieutenant Edlund did
not know how many of the [Petitioner]’s incoming phone calls were answered by
voicemail. He was unaware the [Petitioner] was involved in a violent collision
before the phone was recovered by the police and agreed the wreck could have
impacted the phone’s data.

On redirect examination, Lieutenant Edlund testified that he found images and
names in the contact list on the phone. On recross-examination, he stated that “low-
end” phones such as the phone analyzed did not allow for data to be downloaded
by the computer software used by the sheriff’s office.

Knox County Sheriff’s Officer Edward Wassman, Jr., testified that he examined a
BlackBerry cell phone recovered near the victim’s body. He said that his
examination focused on May 17, 2010, through June 5, 2010, and that he received
the victim’s cell phone records from the service provider. Relative to text messages,
Officer Wassman said the phone contained few messages, although the phone
records showed additional messages. He said the records showed messages from
the [Petitioner]’s phone that were not stored on the victim’s cell phone. Officer
Wassman said the victim’s phone contained a message dated June 2, 2010, at 9:13
p.m., from the [Petitioner]’s phone, which read, “The kids want to know if you got
[sic] thar tix.” Officer Wassman said no response was stored on the victim’s phone.
Officer Wassman testified that the service provider’s records showed more than
seventy-six telephone calls between the [Petitioner]’s and the victim’s cell phones
between May 17, 2010, and June 5, 2010. He said that the victim’s phone showed
few text messages before June 2. He said that on June 2, at 7:31 p.m., the victim’s
phone received a message from someone identified as Tony in the contact list
stating, “The beginning was good but things fell apart. I blame no one for it because
I have everything I need now. Dad talks about things. He’s done it ... Dad talks
about things he’s done to you. It’s a nightmare. He’s—he’s sorry and so am I. –T.”
The victim’s phone received a second message from Tony at 7:31 p.m. stating, “I
hope you’re getting better. You can text me back anytime. There won’t be any
trouble. We love you. –T.” The third message at 8:38 p.m. stated, “Michelle, I don’t
know where we went wrong. Let’s stop fighting and get along. Dad told us stuff,
and I know he is really sorry. I really hope this can be fixed.”

Officer Wassman testified that on June 5, 2010, at 4:00 p.m., a text message was
sent from the victim’s cell phone to someone identified as Angie Awake Reiki in
the contact list asking about the victim’s work schedule and stating the victim was
attempting to plan her weekend. The incoming response stated that the victim was
scheduled to finish work no later than 7:00 p.m. At 4:03 p.m., a message was sent
from the victim’s phone stating she wanted to be finished with work by 7:00 p.m.
because she had things to do in the Maryville area. Officer Wassman said the last
outgoing communication from the victim’s phone was a telephone call to Angie
Awake Reiki at 4:37 p.m. and lasted one minute. He noted, though, that the victim’s
phone received a text message at 5:18 p.m. from someone identified as Jerry Work
in the contact list, which was marked as unread. Officer Wassman said any
incoming communications after 5:18 p.m. were unread or unanswered.

On cross-examination, Officer Wassman testified that communications between the
[Petitioner]’s and the victim’s cell phones occurred before May 16. He agreed the
victim’s phone called the [Petitioner]’s phone numerous times. He agreed that on
May 16, the [Petitioner]’s phone called the victim’s phone at 5:33 a.m. and that the
call lasted about fifty-three minutes. He said that a second May 16 call was placed
from the [Petitioner]’s phone to the victim’s phone at 6:57 a.m. and lasted about
ten minutes and that there were no additional calls between the phones until 7:04
p.m. Officer Wassman said he was not able to recover the deleted text messages
from the victim’s phone.

Knox County Sheriff's Detective Greg Faulkner testified that he assisted Detective
Brad Hall during the [Petitioner]’s police interview. A video recording of the
interview was played for the jury.

In the recording, the detectives asked the [Petitioner] to explain the events leading
to the day’s events. The [Petitioner] said that he had learned the victim was dating
one of her clients, that he had confronted her about the relationship, and that they
had been arguing for a few months. The [Petitioner] recalled previous incidents in
which the victim was violent toward him and his son Tony. He discussed one
incident in which the victim entered his and his children’s apartment at 1:00 a.m.
He said the victim kicked in the apartment door, held a knife, and attempted to hurt
him. He said he took the knife from the victim, threw it on the floor, and told the
victim she could not treat him this way. He recalled a second incident in which the
victim blocked the [Petitioner]’s truck with her car and chased the [Petitioner] and
Tony on the interstate. The detective asked the [Petitioner] why the victim would
act violently toward him when the victim was dating another person, but the
[Petitioner]’s response was inaudible. The [Petitioner] said that he and the victim
had been separated since November 2009 and that he paid the initial costs for the
victim’s apartment.

Relative to the events on the day of the killing, the [Petitioner] said he and the
victim argued about the victim’s “boyfriend.” He did not recall when he arrived at
the victim’s apartment but knew it was daylight. He said that the victim was home
when he arrived, that the victim allowed him inside the apartment, and that they
argued.

The [Petitioner] stated that a couple weeks before the killing, he went to the victim’s
apartment, that he told the victim he loved her, and that the victim told him she
wanted the [Petitioner] to “get another woman.” Although the [Petitioner] said he
did not have “another woman” at that time, he did at the time of the interview. The
[Petitioner] said he wanted to repair the marriage. He said he began but later
abandoned divorce proceedings because he and the victim wanted to reconcile.

When asked about the day of the killing, the [Petitioner] said he went to the victim’s
apartment because he wanted to discuss how to repair the marriage. He said the
victim, though, was in a relationship with someone else and wanted to “move on”
with her life. He said the victim wanted a divorce, although he did not. He said the
victim threatened to kill his son if he did not agree to a divorce. The [Petitioner]
said, though, this incident occurred two weeks before the killing.

The detectives again attempted to focus the [Petitioner]’s attention to the day of the
killing. When asked what happened at the victim’s apartment on the day of the
killing, the [Petitioner] said the victim called him and told him to come to her
apartment. He said they talked, and he recalled the victim’s saying, “I can do better
than you.” The [Petitioner] denied arguing on the front porch. He could not recall
what time he arrived or how long he stayed at the apartment. The [Petitioner] stated
that the day of the killing was the first time their arguments became physical. He
said that while they argued in the kitchen, he slapped and punched the victim in the
face. He said later, though, they were in the living room. He said that the victim fell
on the floor after he hit her and that he had never seen the look in the victim’s eyes.
He denied grabbing the vacuum cleaner or leaving the apartment through the back
door. When asked where he parked his vehicle, the [Petitioner] said he parked it “in
the other parking lot,” although he did not know why. The detectives asked the
[Petitioner] if he left the apartment through the back door, walked behind the
building, walked by additional apartment buildings, jumped over a fence, and
returned to his truck. The [Petitioner] said that the person who gave that report to
the detectives lied. The [Petitioner] had no explanation why prescription bottles
with his name were found behind the victim’s apartment building but said the
victim might have taken them. He also said he did not remember if he threw them
in the bushes.
On cross-examination, Detective Greg Faulkner testified that the [Petitioner] was
coherent, although the [Petitioner] talked about events one month before the killing
when the detectives asked him about the day of the homicide. Detective Faulkner
thought the [Petitioner] was attempting to avoid discussing the killing by talking
about previous events. He denied the [Petitioner] appeared confused during the
interview.

Detective Faulkner testified that he believed the [Petitioner]’s stating he received a
telephone call was related to the [Petitioner]’s learning that the victim was
romantically involved with a client. He agreed the [Petitioner] filed a complaint for
divorce but later told his attorney to stop the proceedings. Detective Faulkner
agreed that during the interview, he and Detective Hall were deceptive about the
evidence against the [Petitioner] relative to what witnesses saw and fingerprints on
the prescription bottles.

Angela Rivera, the [Petitioner]’s former wife, testified that she and the [Petitioner]
married on June 30, 1984, and that they were married fourteen years before
divorcing on August 23, 1998. She said she and the [Petitioner] had two adult
children, Anthony and Maria Rivera. She said that she thought the [Petitioner] and
the victim married in 1998 but did not know which month. She said that beginning
in 2006, the children lived with the [Petitioner] and the victim. Ms. Rivera said that
in 2010, the [Petitioner] periodically called her to discuss his and the victim’s
marital difficulties.

Ms. Rivera testified that on June 5, 2010, she learned of the victim’s death from the
[Petitioner]’s girlfriend, Lisa Whittaker. Ms. Rivera said the police came to her
home looking for the [Petitioner]. Ms. Rivera said she attempted to contact the
[Petitioner], but he did not answer his cell phone. She said the [Petitioner] called
her around 9:20 p.m. and initially sounded normal. She said she questioned the
[Petitioner] about what he had done and told him the police had been to her home
and had handcuffed their children. She said the [Petitioner] calmly responded, “I
did it. I killed Michelle.” She noted the [Petitioner] slurred his words and said the
[Petitioner] might have been drinking alcohol. When Ms. Rivera asked the
[Petitioner] why he killed the victim, he said that the victim threatened to kill Maria
and Anthony, whom they referred to as Tony, and that he could not allow the victim
to hurt them. Ms. Rivera said that the [Petitioner] threatened to kill himself, that
she told him the children were traumatized enough, and that the [Petitioner] said,
“You want to see me spend the rest of my life in jail? It’s not worth it.” She said
that the [Petitioner] ended the conversation quickly and that she contacted the
police.

On cross-examination, Ms. Rivera testified that the [Petitioner]’s mental
breakdown and his psychiatric hospitalization were factors leading to her and the
[Petitioner]’s divorce. She denied, though, knowing about any additional mental
health hospitalizations. She said that the [Petitioner] sought treatment after they
were separated and that the [Petitioner] became upset after learning “something was
wrong with his brain chemistry.”

Ms. Rivera testified that she had a poor opinion of the victim and that she probably
told the [Petitioner]’s previous attorney that the victim “was a b–––– from h–––.”
She said the victim was “an evil person,” who destroyed Ms. Rivera’s relationship
with her children. Ms. Rivera agreed the victim prevented Ms. Rivera from visiting
her children when the children lived with the [Petitioner] and the victim. Although
she denied the police told her that the [Petitioner] had killed the victim, she agreed
she might have stated in the voicemail she left on the [Petitioner]’s cell phone that
the police said he had killed the victim. Relative to the [Petitioner]’s returning her
call, she denied the [Petitioner] said, “Yeah, the police said I did it. They’re my
judge, jury, and executioner. They’ve already decided I did it.”

On redirect examination, Ms. Rivera testified that the [Petitioner]’s admission to
the psychiatric hospital was in early 1995 after returning home from their
separation. She said that the previous admission occurred in Nashville when the
[Petitioner]’s then-girlfriend lived in Nashville. Ms. Rivera said the [Petitioner]
threatened suicide.

Ms. Rivera testified that she learned the victim had moved out of the apartment the
victim shared with the [Petitioner] and the children. Ms. Rivera said that after the
victim moved out of the apartment, Ms. Rivera’s relationship with her children
began to heal but that Ms. Rivera had no contact with her children at the time of the
trial. Ms. Rivera said she was not provided a reason for the children’s ending their
relationship with her, but she recalled the [Petitioner] told her that the victim said
she was going to kill the children and that he was going to commit suicide. Ms.
Rivera, though, did not believe the [Petitioner] because his threatening suicide
became a habit and a means to garner attention.

Dr. Steven Cogswell, an expert in forensic pathology, testified that he performed
the victim’s autopsy. He identified numerous photographs taken during his
examination. Photographs showed a small contusion on the right middle finger, a
healing scrape on the right arm, and no injuries to the left hand or to the palms of
the hands. Photographs also showed a vacuum cleaner cord around the victim’s
neck, and Dr. Cogswell noted that the cord was around the neck five times and that
it was wrapped tight, causing deep impressions and blistering “at the margins.” Dr.
Cogswell concluded that the victim would have been unable to breathe.

Dr. Cogswell identified a photograph of the victim’s closed left eye and testified
the small “pinpoint areas” on the eyelid were petechial hemorrhages. He said the
hemorrhages were common as a result of manual strangulation because the repeated
application and release of pressure around the neck affected blood flow. Two
photographs of retracted eyelids showed hemorrhages inside the right and left
eyelids and on the scleras. Dr. Cogswell noted that the hemorrhages were associated
with the pressure-related phenomenon caused by manual strangulation. He said the
petechial hemorrhages found in the victim’s eye were not associated with ligature
strangulation because it was the application and release of pressure that caused the
hemorrhages.

Dr. Cogswell identified photographs of the front right and left shoulder areas and
the chest, which showed purple bruises. He noted the bruising was more intense on
the left shoulder. He said that based upon the shape and location, the bruises could
have represented fingerprints, although he was uncertain. Photographs showed
bruises on the rear left shoulder area. Dr. Cogswell said that the bruises on the rear
shoulder were consistent with a hand pressing in the area when considered in
conjunction with the bruises on the front shoulder areas.

Dr. Cogswell testified that the internal examination showed a fracture to the thyroid
horn and hemorrhages to the strap muscles located above the collarbones where the
power cord was around the neck. He concluded that the lower injury to the muscles
was associated with the power cord and the upper deep injury to the thyroid horn
was associated with manual strangulation. He noted that the deep injury
compressed the neck enough to cause the larynx and the spine to bruise from the
significant pressure applied to the neck. He noted that although the thyroid horn
was commonly fractured during manual strangulation, it was uncommon to find
bruising on the rear of the larynx and at the front of the spine.

Dr. Cogswell testified that the lack of injuries to the victim’s hands reflected that
the victim did not struggle while she was strangled and that the lack of “claw
marks” on the victim’s neck reflected that the victim did not attempt to remove the
power cord from her neck. As a result, Dr. Cogswell concluded that the manual
strangulation occurred first, rendering the victim semiconscious or unable to defend
herself and that the ligature strangulation was the “final blow.” He said that
strangulation was relatively quick but took minutes to cause death. He believed the
victim struggled for at least one minute. Dr. Cogswell concluded based on a degree
of medical certainty that the victim’s cause of death was manual and ligature
strangulation and that the manner of death was homicide.

On cross-examination, Dr. Cogswell testified that generally, in cases of ligature
strangulation, he expected to find a victim’s DNA under the victim’s fingernails
and claw marks on the victim’s neck caused by attempts to remove the ligature. He
said that in cases of manual strangulation, he expected to find injuries to an
attacker’s hands or arms because the attacker’s wrists were accessible targets and
that a victim usually did not have self-inflicted injuries. Relative to the hemorrhages
on the victim’s front neck muscles, Dr. Cogswell stated that constant pressure on a
muscle caused blood to compress out of the muscle and that when a muscle was
exposed to alternating pressure and release, hemorrhaging resulted. He said that the
hemorrhages indicated the ligature was tightened and loosened as it was applied.
Dr. Cogswell said that the victim weighed 230 pounds and that he did not note any
injury to her feet. He could not speak to the attacker’s state of mind.
The [Petitioner] testified that he grew up in New Orleans, Louisiana, and lived with
his grandparents until age twenty. He said that he shared a bedroom with his father
in his grandparents’ home. The [Petitioner] stated that his grandfather was the “big
boss” in the household and that if his grandmother did not obey his grandfather, “it
... got rough.” The [Petitioner] said that his aunt sexually abused him between ages
six and nine. He said he did not disclose the abuse because his father and
grandfather would have been angry and because “it would have been my fault.”
The [Petitioner] said that he suffered physical abuse from his grandfather when the
[Petitioner] did not “do things his way.”

The [Petitioner] testified that he had spinal meningitis as a child and that as a result,
he had to wear glasses, undergo speech therapy, and relearn how to walk and talk.
The [Petitioner] said that he worked between ages seven and sixteen unloading
produce trucks with his grandfather. The [Petitioner] said that he had a ninth-grade
education and that he learned to read and write at age twenty before the birth of his
first child. He stated that he married Angela Rivera when he was age eighteen but
that after four days, Ms. Rivera left and the marriage was annulled.

The [Petitioner] testified that he and Ms. Rivera remarried, that they moved to
Knoxville when the [Petitioner] was in his late twenties, and that they had two
children, Tony and Maria Rivera. The [Petitioner] said that he worked for Mitchell
Electric and that Ms. Rivera attended Pellissippi State Community College. The
[Petitioner] said that his and Ms. Rivera’s relationship was good until the
[Petitioner] became ill and that he “woke up one day ... in the [psychiatric]
hospital.” He said that the marriage deteriorated, that he left the family home, and
that he lived in his truck for a few months. The [Petitioner] said that Ms. Rivera
had custody of the children, that he asked to visit the children, and that Ms. Rivera
beat, hit, and scratched him, resulting in Ms. Rivera’s arrest.

The [Petitioner] testified that he met the victim during a two-month, work-related
trip to Virginia. He said that they began dating, that he returned to Tennessee, and
that the victim did not accompany him. He stated that he and a coworker rented a
room from a friend named Amanda. The [Petitioner] said that he helped Amanda
move to Nashville and that after arriving in Nashville, the [Petitioner] woke up in
a psychiatric hospital with no recollection of what had occurred.

The [Petitioner] testified that his next memory was awaking at the victim’s parents’
home in Virginia and not knowing how he got there. The [Petitioner] said that he
and the victim married while he was in Virginia and that he did not remember the
ceremony, although he had seen photographs of the wedding. He said they lived in
Virginia for about one year and moved to New Orleans because the victim fought
with her family. The [Petitioner] said that the victim’s minor son lived with his
father.

The [Petitioner] testified that he first knew his and the victim’s marriage was
troubled when the victim required the [Petitioner] to sleep lower in bed than the
victim in order for the victim to hold the [Petitioner]’s hair. The [Petitioner]
identified a photograph of a last will and testament in which Donna Kingsmill, a
family friend, bequeathed to the [Petitioner] a house in New Orleans. He noted he
repaired the house after Hurricane Katrina. The [Petitioner] also identified the
Alltel cell phone as the phone he used to contact workmen at Ms. Kingsmill’s
house.

The [Petitioner] testified that he and the victim lived in Kenner, Louisiana, and that
their relationship deteriorated when the victim began “crying, acting kind of
different, didn’t want me to go to work.” The [Petitioner] said that the behavior
lasted four or five months and that he lost his job. He said, though, that he thought
he could “handle things” and did not contact the victim’s family. He said the
victim’s uncle spoke to the victim on the telephone when she became upset. The
[Petitioner] said that he and the victim lived with his brother in Covington,
Louisiana, for two months but left because of tension between the [Petitioner]’s
brother’s wife and the victim. The [Petitioner] noted he had a close relationship
with his brother’s wife. The [Petitioner] said that the victim set fire to the
[Petitioner]’s brother’s property and that as a result, they moved to another house
in 1999. The [Petitioner] said that after they moved, the victim did not want the
[Petitioner] to leave the house or spend time with other people, including his
brother’s wife. The [Petitioner] said that he stopped meeting his brother’s wife and
that the [Petitioner]’s friends stopped spending time with him.

The [Petitioner] testified that he and the victim moved to Baton Rouge, Louisiana,
and that while living there, the victim hit him with a baseball bat. He recalled
coming home from work one day to find a Wiccan meeting in his living room and
said that he made everyone leave, that he and the victim argued, and that the victim
hit him in the face with the bat. The [Petitioner] said that he pushed and slapped the
victim away and that his right eye was damaged, although he did not call the police.
On another occasion, the [Petitioner] stated that he arrived home to find the victim
in bed with another woman, that he and the victim argued, and that the victim hit
him in the groin with the bat. He said that he did not contact the police, that he went
to the hospital, and that he lied when he told the doctor he awoke with the injury.
The doctor told the [Petitioner] that as a result of his injury, he could not father any
more children.

The [Petitioner] testified that the necklace found on the victim’s living room floor
belonged to him and that it was a gift from his daughter after Hurricane Katrina. He
stated that he and the victim moved to Knoxville in 2005 and that his children, who
were teenagers at the time, had a good relationship with the victim until the children
began living with the [Petitioner] and the victim in 2006. The [Petitioner] stated
that the victim did not like the [Petitioner]’s children living with Ms. Rivera and
that the victim became unhappy with the [Petitioner]’s and Maria’s close
relationship. The [Petitioner] said the victim thought Maria “[c]ouldn’t do anything
right.”
The [Petitioner] testified that the victim remained involved with Wicca after
moving to Knoxville, that he and the victim began attending church, and that the
victim laughed at the pastor. The [Petitioner] said that the victim bought him a Bible
and that he discussed the Bible with the victim’s father. He said the victim became
upset and accused the [Petitioner] of acting like her parents and told the [Petitioner]
to stop speaking with her father. The [Petitioner] said that he suggested marriage
counseling and that they saw two counselors, including church counselor Mack
Card. The [Petitioner] said they attended seven sessions together. The [Petitioner]
said he continued individual sessions with Mr. Card and that when the victim
learned of the sessions, she did not permit the [Petitioner] to attend any future
sessions. The [Petitioner] said that during an argument about counseling, the victim
cut him.

The [Petitioner] testified that he knew the victim had a two-bedroom apartment unit
at the nearby complex. He acknowledged that the victim had been dating someone
else, that he and the victim would “rendezvous” at the unit, and that the
[Petitioner]’s brother’s friends used the unit, as well.

The [Petitioner] testified that Tony witnessed an altercation between the victim and
the [Petitioner]. The [Petitioner] said that the victim’s former employee told the
[Petitioner] the victim was having an affair with a coworker, that the [Petitioner]
confronted the victim about the affair, that they argued, and that the victim entered
the bedroom and slammed the door. The [Petitioner] said he took a shower and
heard a “big, giant bang.” He said he asked Tony to check on the victim, and Tony
saw holes in the bedroom wall. The [Petitioner] said he did not want his children to
witness any arguments and sent them to their rooms or outside during an argument.
The [Petitioner] testified that on one occasion, Tony witnessed the victim break the
[Petitioner]’s wine glasses, that the [Petitioner] told Tony to wait outside, and that
the [Petitioner] and Tony attempted to leave in the [Petitioner]’s truck. The
[Petitioner] said that the victim threw herself on the hood of the truck, held on to
the moving truck, and punched the [Petitioner] in the face through the driver’s side
window. The [Petitioner] said that he told Tony, “It’ll be all right, son,” and that he
moved the truck until the victim let go. The [Petitioner] said that he and Tony left,
that the victim followed them in her car, and that he drove to a shopping center and
remained there until midnight to avoid conflict.

The [Petitioner] testified that after the victim moved into the apartment where the
killing occurred, the victim broke in his apartment while he and Tony were sleeping
and threatened the [Petitioner] and herself with two knives. The [Petitioner] said
that he “talk[ed] her down” and that the victim threw the knives on the floor and
left. He recalled overturned furniture in the living room.

The [Petitioner] testified that the victim had “thrown punches” at Maria and that
the victim told Maria to move out of the family apartment when Maria was age
seventeen. He said that he told Maria it might have been better for Maria to leave
and that Maria lived with friends for a time. The [Petitioner] said that the victim
moved out of the family apartment around Thanksgiving 2009 and that Tony and
Maria lived with the [Petitioner]. The [Petitioner] stated that he continued meeting
the victim but that the victim was not permitted to visit his apartment. He said that
the victim came to his apartment on April 4, 2010, and that he called the police.
The [Petitioner] stated that he began taking medications between April and June
2010 and that he had difficulty taking the medications consistently because he
“would come home and my bottles would be empty in the bathroom. The pills
would be in the toilet.” The [Petitioner] said he received a phone call from an
unknown man, who said that he knew where the [Petitioner] and Maria lived and
worked and the cars they drove. The [Petitioner] stated that after the man finished
speaking, the victim spoke to the [Petitioner]. The [Petitioner] said that he felt
threatened and reported it to the police but that the police only gave him a “little
victim’s card.” The [Petitioner] stated that he informed Ms. Rivera, Maria, and
Tony about the call.

The [Petitioner] testified that he filed for divorce after hiring attorney John
Lockridge. The [Petitioner] said that he worked for Mr. Lockridge’s wife, Mary,
and that the victim thought the [Petitioner] and Ms. Lockridge were “getting too
close.” The [Petitioner] stated that he instructed Mr. Lockridge not to file the
divorce paperwork because the victim told the [Petitioner] that if Mr. Lockridge
remained involved, “Mary was going to remember for the rest of her life what
happens when you get involved in somebody’s life.” The [Petitioner] said that he
thought the victim would hurt Mr. Lockridge.

The [Petitioner] testified that he did not know how to delete telephone calls or
messages from his cell phone and that he did not delete any information from his
phone before the police collected it.

The [Petitioner] testified that on June 5, 2010, he walked to his truck to obtain his
medications but that the medications were gone, although he found his watch in the
truck’s glove compartment. He noted the victim was supposed to have the watch.
He stated that he knew the victim had his keys and medications because she was
the only person who had the watch. He said that he went to the victim’s apartment
to get the keys to his truck and the medications.

The [Petitioner] testified that on June 5, 2010, the victim called him at 6:40 a.m.
and again at 2:22 p.m. The [Petitioner] said that when he arrived at the victim’s
apartment, she told him to return later and to knock on the back door, that he
complied with her request, and that she permitted him to enter her apartment when
he returned. He said that the victim asked him to walk upstairs, that he found her in
the bedroom, and that she was not wearing clothes. He said that the victim wanted
the [Petitioner] to get into bed with her but that he refused and insisted she put on
clothes. He said he told the victim that he was tired of all the fighting, that he loved
her, and that he wanted to “live in peace.” He said the victim told him that she
needed him in her life. He told the victim to talk to her father, and the victim became
angry and left the room. The [Petitioner] said that when he walked downstairs, the
victim was standing in the doorway with the front door open.

The [Petitioner] testified that the victim said, “You know who’s in control of this?
I am,” that the [Petitioner] walked toward her in an attempt to leave, and that the
victim came toward the [Petitioner] with a box cutter. The [Petitioner] said that he
fell backward on the steps and that the victim fell on top of him. He said that as he
attempted to push the victim away, “all of a sudden just everything ... went into
slow motion. I thought I [saw] somebody coming in behind her ... I just started
getting real scared. It just turned purple ... weird and slow. And then it’s blank.” He
said that he saw the victim screaming at him but that he perceived it in slow motion.
He said that he did not remember closing or locking the door and that the next thing
he remembered was standing by his truck, which was parked in an adjacent parking
lot. He said he feared the victim might break the truck’s windshield as she had done
previously.

The [Petitioner] testified that his next memory was lying in the grass next to his
truck at a park and that a little boy woke him because the boy’s ball rolled between
the [Petitioner] and his truck. The [Petitioner] said that he thought he was in
Louisiana and shut his eyes and that it was night when he woke. He stated he sat in
his truck because he was scared and did not recognize his location. He said that he
received a telephone call from Ms. Rivera, who told him that the police “broke her
door down and threw her on the floor” and that the victim was dead. He denied
telling Ms. Rivera that he killed the victim. The [Petitioner] said that he called his
children and “[e]verybody was crying and screaming. They didn’t want me to come
home.” The [Petitioner] thought that he called Ms. Rivera again and left the park.
He said he had no reason to go to Loudon County and did not know where he was
going at the time.

The [Petitioner] testified that he did not intend to hurt the victim when he went to
her apartment. He denied entering the apartment against the victim’s will or with
the intent to kidnap, harm, or kill her. He did not remember restraining the victim’s
movements or strangling her.

On cross-examination, the [Petitioner] testified that both he and the victim were
responsible for the problems in their relationship. He said that on May 16, 2010,
the victim was not living at the same apartment complex as the [Petitioner] and his
children, that he knew the victim was dating another man, and that the [Petitioner]
did not know anything about the man. The [Petitioner] later denied knowing of Mr.
Ross’s existence on May 16. Relative to May 16, the [Petitioner] denied kicking in
the victim’s door and did not remember speaking with Mr. Ross or the victim.

The [Petitioner] testified that he did not know when he married the victim or when
his and Ms. Rivera’s divorce was obtained and denied that he committed bigamy.
The [Petitioner] said that the victim rented the two-bedroom apartment while they
were going through house foreclosure proceedings.
The [Petitioner] testified that Sean Powell was his former neighbor and that he saw
Mr. Powell the day before Eric McLean killed Mr. Powell. The [Petitioner] stated
that he knew the facts of the McLean case but noted that the McLean case was
different because Mr. McLean was living with Ms. McLean at the time of the
killing. The [Petitioner] stated that he spent time with the victim periodically at the
two-bedroom apartment unit. He said that the victim moved out of the family
apartment because he told the victim she was no longer welcome at the apartment
after she returned from visiting her family around Thanksgiving 2009.

The [Petitioner] testified that he did not vandalize Mr. Ross’s car and that he did
not know Mr. Ross’s keys were in his truck. The [Petitioner] said that the victim
met him to tell him about the order of protection and that they continued talking on
the telephone during the following weeks. The [Petitioner] remembered leaving the
victim a voicemail message stating, “Remember the situation with Sean? That’s
what you’ve started here ... That’s what’s going to happen.” The [Petitioner] said
that the message was a response to the threatening telephone call he received from
Mr. Ross and the victim. The [Petitioner] said that the victim’s threatening his
children created a similar situation to the McLean case. The [Petitioner] stated that
he was concerned because he did not know what the victim told Mr. Ross. The
[Petitioner] said that Mr. Ross might have thought the [Petitioner] was a horrible
person and that Mr. Ross would have been the victim’s hero. The [Petitioner] did
not think his message was threatening and said he did not believe in hurting people.
The [Petitioner] said that his intention was to communicate to the victim that a
person can get hurt when the person plays with other people’s lives.

The [Petitioner] testified that he was slightly upset when he was served with the
order of protection because he did not understand why the victim obtained it. He
noted the victim called him late at night and wanted to see him but obtained the
order of protection. The [Petitioner] said that he and the victim discussed the
victim’s renting the apartment where the killing occurred with Ms. Stutsman, that
Ms. Stutsman asked the [Petitioner] to examine a leaking swimming pool at that
apartment complex, and that he drove to the complex, examined the pool, and left.
He said that Ms. Stutsman went to his apartment after the visit and spoke to him
about the order of protection. He stated that Ms. Stutsman told him to stay away
from the victim’s apartment. He denied stalking the victim.

The [Petitioner] testified that after his conversation with Ms. Stutsman, he
continued visiting the victim’s apartment when he wanted and when the victim
requested. The [Petitioner] said that he and the victim obtained orders of protection
against the other. He stated that he tried to make the victim happy and to take care
of her. The [Petitioner] said that he did not know whether his going to the apartment
complex to examine the pool happened after his discussion with Ms. Stutsman. He
said that it was possible he went there after the order of protection was served. He
stated that he went to the victim’s apartment when she requested, which was usually
late at night. He said that when he met with the victim, he parked in the “little lower
parking lot” rather than in front of the victim’s apartment because the victim “didn’t
want the neighbors to be in our business.” He stated that he was not concerned
about his truck being seen at the victim’s apartment and that he had nothing to hide.
He did not know why the victim wanted to hide the [Petitioner]’s truck.

The [Petitioner] testified that he did not strangle or kill the victim and that his DNA
was not found on the victim. He acknowledged that his DNA was found under the
victim’s fingernails but said that the photographs taken after his arrest showed no
scratches on his arms or hands. The [Petitioner] admitted, though, struggling with
the victim on the day of her death. The [Petitioner] acknowledged Mr. Dilworth’s
testimony that at 3:30 p.m. on the day of the victim’s death, the [Petitioner] and the
victim were talking outside the victim’s apartment, but he denied the victim had
been crying.

The [Petitioner] testified that after speaking to the victim, he left the apartment
complex. He acknowledged the testimony of Mr. Dilworth and Ms. Parsons that
they heard loud noises and said it was possible he and the victim made those noises.
The [Petitioner] stated that the scream Ms. Parsons heard could have been from the
[Petitioner] as he fell backward on the stairs. He acknowledged that photographs
from the victim’s apartment showed the victim’s purse, massage chair, and makeup
bag on the front step outside the victim’s apartment. The [Petitioner] stated that he
knew the victim was scheduled to work until 7:00 p.m. He said that he arrived at
the victim’s apartment the second time around 4:00 or 5:00 p.m.

The [Petitioner] testified that he did not know the victim called her mother at 3:57
p.m. and that the victim’s mother might have said he was not there at that time. He
acknowledged that the 9–1–1 call was placed at 5:12 p.m. He said that he walked
through grass and by the front entrance of the victim’s apartment before walking to
the back door. He stated that he wiped his boots inside the door but did not remove
them. He denied dragging the victim by her throat through the front door and
slamming and locking the front door. He said that he might have bruised the
victim’s shoulders when he pushed her away. He acknowledged that the pattern of
bruises on the victim’s shoulders indicated the person stood behind her and stated
that the other person he saw in the apartment might have inflicted the bruises.

The [Petitioner] testified that he did not tell Mr. Dilworth, Ms. Parsons, and Mr.
Wicks that the conflict between the [Petitioner] and the victim was “a domestic
dispute” and to “[m]ind your own business.” Relevant to Mr. Wicks’s testimony
that nobody was outside the front door, the [Petitioner] said Mr. Wicks’s testimony
conflicted with Ms. Parsons’s and Mr. Dilworth’s assertions that they beat on the
front door in an attempt to help the victim. The [Petitioner] stated that the witnesses
could have been mistaken when they identified the [Petitioner] as the man attacking
the victim because they had previously seen the [Petitioner] working on the
property.
The [Petitioner] testified relative to his police statement that he discussed events
that occurred one or two years before the victim’s death. When questioned about
his failure to mention the box cutter in his statement to the police, the [Petitioner]
said, “I believe in my statement I was talking about things that happened” one or
two years previously. He acknowledged that photographs showed a box cutter near
the victim’s body. The [Petitioner] said that he was issued a box cutter at work, that
he was scheduled to work the night the victim died, and that he did not carry his
work box cutter away from work. He denied using the box cutter found in the
victim’s apartment to vandalize Mr. Ross’s car.

The [Petitioner] testified relative to the recording from the police cruiser that he did
not remember seeing the police cruiser’s blue lights but that he recalled someone
grabbing and pulling him from the truck. He acknowledged the officer’s testimony
that the [Petitioner] drove through a traffic light and attempted to accelerate after
his truck was disabled.

The [Petitioner] testified that he did not have a romantic relationship with Ms.
Kingsmill, although they had “pet names” for each other. The [Petitioner] denied
repairing properties as part of a joint venture with Ms. Kingsmill. The [Petitioner]
acknowledged that the Alltel cell phone was found in his truck and said that his
daughter could have erased the data on the phone. The [Petitioner] said he did not
remember erasing the phone’s data. The [Petitioner] acknowledged witness
testimony showing that he called the victim twice as much as the victim called him
after the order of protection was obtained. The [Petitioner] said he sent text
messages to three women during that time, which included the victim, a woman
known as Sherry, and Ms. Whittaker.

The [Petitioner] testified that during his police interview, he “couldn’t even
understand what [he] was saying.” He denied telling the police that his and the
victim’s disputes involved her boyfriend. The [Petitioner] acknowledged he told
the police that he slapped and punched the victim and that he had “never seen that
look in her eyes.” When asked whether he omitted from his police statement the
events inside the apartment, the [Petitioner] said, “I just told them what I know
happen[ed].”

The [Petitioner] testified that he might have told Ms. Whittaker that he did not kill
the victim and that he was not in Knoxville at the time of the victim’s death. The
[Petitioner] said that he “was saying a lot of things about that night” and that the
only time he remembered hitting the victim was after she hit him with a baseball
bat. The [Petitioner] agreed he called and sent text messages to the victim stating
that he needed her. He said that the victim did not return his call but thought she
did not call him because she was angry with him, not because she was with another
man. The [Petitioner] acknowledged a voicemail message in which he said,

You know what my guess is, is that you’re with him. And my guess
is that you f––– him, which means you cheated on me, so I’m going
to go ahead and quit calling you because I’ve been trying to make
this right . . . it would have been nice if you would have told me the
truth . . . See you in court.

The [Petitioner] did not remember leaving a message stating that the victim was
“playing games” with the [Petitioner], that the [Petitioner] was trying to get well,
and that the victim should tell the [Petitioner] if she was “with him.” The
[Petitioner] acknowledged that he could have left a message asking the victim to
tell the [Petitioner] the truth about her relationship and stating, “I can’t go on until
I know this. If you would tell me that you’re sleeping with him ... if I know that you
kissed him or you have been with him, it’s over for me.” The [Petitioner] denied
leaving the messages because he was angry the victim had a boyfriend, lived in her
own apartment, and was “fending for herself.” The [Petitioner] stated that he
obtained the apartment for the victim and thought that the victim paid for her
groceries and car with the [Petitioner]’s money.

The [Petitioner] testified that he did not know whether the victim had lupus and that
he unsuccessfully attempted to have her seek treatment. He did not remember
telling the police that he gave the victim his pain medication because she could not
afford medication. The [Petitioner] said that the victim stole his depression
medication and told him the medication made him worse. He stated that on one
occasion, the victim called him while she was in pain and that he took pain
medication to her. He acknowledged the autopsy report reflected that the victim’s
drug and alcohol tests were negative.

The [Petitioner] testified that he did not tell the victim that he wanted a divorce
throughout the marriage. He said that he discussed divorce when “we were having
problems with other people” in the relationship. He denied telling the victim that
he would not have sex with her because she was unclean. He said, though, that they
did not have sexual relations after the [Petitioner] confronted one of the victim’s
partners, who reported having an incurable sexually transmitted disease. The
[Petitioner] denied telling the victim that he would seek a divorce after his children
left home. The [Petitioner] also denied telling the victim that his divorce from Ms.
Rivera was caused by the [Petitioner]’s adultery.

The [Petitioner] testified that it was possible he called the victim a “w––––” during
the marriage but denied that he told her to move on with her life. He agreed he told
the victim that he would help her move into her apartment but that she should not
hope for reconciliation. The [Petitioner] denied telling the victim that he “had a
good mind to slit her throat.” He acknowledged that he may have told the victim
that their marriage was based on a lie, that he wanted to end the marriage because
he learned “what she was doing,” and that he felt emotionally numb. He agreed he
told the victim to move on and give him a divorce. The [Petitioner] said that he
confronted the victim when he learned she was having an affair. He said that he and
the victim’s father and uncle discussed issues relative to his and the victim’s sexual
relationship but denied that the discussions might demean a woman. The
[Petitioner] agreed he told the victim that massage therapy was not a legitimate
profession and denied accusing the victim of being gay. He acknowledged that he
might have accused the victim of having an affair with her friend. He agreed he told
the victim’s parents things about the victim’s past. The [Petitioner] denied blaming
the victim for the loss of their house but said the victim could have helped more by
working.

The [Petitioner] testified that the victim practiced Wicca but that the victim
attended church in an effort to network for her business. When asked whether the
[Petitioner]’s characterization of the victim’s mocking the church was accurate, the
[Petitioner] said the victim was angry about the “way she was raised.” The
[Petitioner] identified a letter he wrote to the victim “when the Scott situation was
going on” and said he apologized for slapping the victim after she hit him with the
baseball bat.

On redirect examination, the [Petitioner] testified that on May 16, 2010, cell phone
records did not reflect the [Petitioner] placed a midday call to the victim. Relative
to the voicemail message in which he referenced Sean Powell, the [Petitioner] said
that when he left the message, he was concerned he or Mr. Ross would be hurt. He
said he left the message after the conversation in which Mr. Ross threatened Maria.
The [Petitioner] testified that although he did not remember what occurred between
his and the victim’s confrontation at the bottom of the stairs and his waking in the
park, he did not believe he killed the victim.

The [Petitioner] testified that the victim became angry when denied something she
wanted. He agreed no DNA or fingerprint analyses were performed on the box
cutter. He did not recall what he told the police about his abilities to read and write.
The [Petitioner] said relative to the voicemail messages he left on the victim’s cell
phone, he was trying to discuss back taxes the victim owed. He stated that the victim
cashed checks from massage clients and did not deposit the money. The [Petitioner]
said that he disparaged the victim’s profession because on one occasion he saw the
victim and a client leaving a massage room in which the victim had received
flowers, candy, and coffee from the client. The [Petitioner] said the victim told him
that the client gave the items to her and noted the client was “shocked” when the
client saw him.

On recross-examination, the [Petitioner] testified that the victim received gifts from
her massage clients, including a client he knew as Scott, and that he did not like it.
He denied being jealous. The [Petitioner] agreed that the victim did not want the
[Petitioner]’s children coming to her place of business.

Tony Rivera, the [Petitioner]’s son, testified that when he lived with the [Petitioner]
and the victim, he spoke to Ms. Rivera sparingly and that Ms. Rivera came to visit
them periodically. Tony said that he spoke to Ms. Rivera less often when he lived
with the [Petitioner] but that “it wasn’t negative.” Tony stated that the victim moved
out of the family apartment in winter 2009 but visited often. He said that on
Valentine’s Day 2010, he, Maria, and the [Petitioner] were leaving their apartment
for dinner when the victim arrived in her car and motioned for the [Petitioner] to
roll down his window. Tony said that the victim was angry, that the victim said the
[Petitioner] had stated that he no longer wanted a relationship, and that the victim
said ending the relationship was not an option. Tony said that the [Petitioner] began
driving away and that the victim followed them for several miles until becoming
separated in traffic.

Tony testified that on April 4, 2010, the victim pounded on their apartment doors
and windows and demanded entry. He identified a photograph of dents in the
apartment door and said that the victim caused the damage. He stated that the
[Petitioner] told him not to open the door and to wait until she left. Tony said that
the victim called him a coward and told him the [Petitioner]’s tires were slashed.
Tony said that in early June 2010, the [Petitioner] lost weight and became pale. He
said the [Petitioner] did not eat and spent most of his time in his bedroom.

Tony testified that on June 2, 2010, he sent a text message to the victim at the
[Petitioner]’s instruction. He recalled the message stated that everything could
work out and that they all could get along. He said, though, that he did not want to
get along with the victim and that he wanted the victim to leave the [Petitioner]
alone.

On cross-examination, Tony testified that the [Petitioner] and the victim’s
relationship was “rocky” toward the end, that they fought, and that the [Petitioner]
“managed to keep a level head most of the time.” Tony denied knowing that the
[Petitioner] went to the victim’s apartment when he was prohibited from being
there. Tony said that he knew the victim obtained an order of protection against the
[Petitioner] on May 17, 2010. Tony stated that the [Petitioner] said the victim had
threatened Tony’s life and that Tony obtained an order of protection against the
victim on May 18. Tony said that the [Petitioner] had a “group meeting” regarding
the victim’s order of protection and that the group decided to obtain orders of
protection against the victim.

Relative to the Valentine’s Day incident, Tony testified that the victim did not exit
her car, cling to the [Petitioner]’s truck, or hold onto the tailgate. Tony said that the
[Petitioner] started a romantic relationship with Ms. Whittaker in early 2010 and
that Tony visited Ms. Whittaker’s apartment with the [Petitioner]. Tony stated that
he was happy the [Petitioner] was moving on with his life. Tony said he thought he
learned from the [Petitioner] in May 2010 that the victim had a boyfriend. He
denied knowing the [Petitioner] was jealous.

Tony testified that he knew Sean Powell but denied hearing the [Petitioner] talk
about Mr. Powell in relation to the victim’s boyfriend. Tony said that in the days
before the victim’s death, the [Petitioner]’s demeanor and actions did not change.
He stated that he saw the [Petitioner] the night before the victim’s death.
On redirect examination, Tony testified that he obtained the order of protection
because the [Petitioner] told him that the victim had threatened to kill Tony and
Maria. Tony said that in early 2010, he was present during an incident in which the
victim jumped on the hood of the [Petitioner]’s truck to keep him from leaving the
apartment complex.

Maria Rivera, the [Petitioner]’s daughter, testified that she lived with the victim
and the [Petitioner] for about three years after the couple returned to Knoxville.
Maria said that the victim criticized her for playing trombone in her high school
marching band and for participating in the Reserve Officers’ Training Corps
(ROTC) because “girls don’t do that.” Maria said she never witnessed physical
violence between the [Petitioner] and the victim. Maria identified a photograph of
a Hurricane Katrina survivor pendant found at the crime scene and said she bought
it for the [Petitioner]. Maria said that on June 3, 2010, she sent the victim a text
message at the [Petitioner]’s request. She thought the message stated that “we
wanted to work things out, that everything will be okay.” She said, though, she
wanted the victim to leave them alone. She said that around June 2010, the
[Petitioner] lost significant weight and muscle tone, did not eat, and was pale.

On cross-examination, Maria testified that she knew the victim obtained an order
of protection against the [Petitioner] but that she did not know the victim alleged
the [Petitioner] kicked in the victim’s apartment door and vandalized a car. She said
that the [Petitioner] called a “group meeting” to discuss the order of protection, that
the [Petitioner] suggested Maria obtain an order of protection against the victim,
and that Maria thought it was a good idea because the victim had threatened Maria
previously. Maria said later, though, that the victim had not threatened her life prior
to this occasion.

On redirect examination, Maria testified that on one occasion, the victim said that
she would have punched Maria in the face if the victim had not feared losing her
massage license. Maria did not know why the [Petitioner] asked her to send a text
message to the victim.

Mary Lockridge testified that she was a bank teller supervisor and that the victim
and the [Petitioner] banked with her employer. She said that she also worked
staging houses and that the victim approached her about hiring the [Petitioner] as
an assistant. Ms. Lockridge stated that the [Petitioner] worked for her as an
electrician and plumber, moved furniture, and hung draperies. She said that the
[Petitioner] assisted in staging about 100 homes.

Ms. Lockridge testified that the [Petitioner] was “a very good husband ... very
dedicated to their having a better life[.]” She said that the [Petitioner] and the victim
purchased a home while the [Petitioner] worked for her, that the [Petitioner] held
another job, and that the [Petitioner] performed maintenance work at her
condominium. She stated that the [Petitioner] was generally alert, attentive,
efficient, and punctual. She said that around June 2010, the [Petitioner] became
unkempt, erratic, distant, and unfocused, that he went to the wrong jobs sites
multiple times, and that he damaged furniture. She said that the [Petitioner] was
confused regarding when he was paid for work performed, that he lost his home,
and that she thought the [Petitioner] was having financial difficulty.

Ms. Lockridge testified that she and the [Petitioner] discussed his taking
medications and that she asked about the types of medication he took because he
had lost a significant amount of weight. She said she encouraged the [Petitioner] to
obtain a divorce. She recalled one occasion during which she and the [Petitioner]
were traveling to a job site and noted the victim called him fifty times. Ms.
Lockridge said that the victim sent the [Petitioner] a text message threatening to
kill the [Petitioner] and Ms. Lockridge, that Ms. Lockridge saw the message, and
that Ms. Lockridge took the threat seriously. Ms. Lockridge said she feared for the
[Petitioner]’s safety.

Ms. Lockridge testified that her husband was a divorce attorney and that Ms.
Lockridge promised to advance the [Petitioner] money in exchange for the
[Petitioner]’s meeting with Mr. Lockridge to discuss a divorce because “things
were getting very scary.” She noted that the victim usually picked up Tony from
work but that the victim called Ms. Lockridge asking her to send the [Petitioner] to
pick up Tony. Ms. Lockridge said that Tony did not live with the victim at the time.

On cross-examination, Ms. Lockridge testified that the victim sent the threatening
text message in April 2010. She said that she and the [Petitioner] discussed his
medications in May 2010 and that the [Petitioner] did not mention he was taking
medications when he began acting erratically.

John Lockridge, the [Petitioner]’s divorce attorney, testified that he met the
[Petitioner] when the [Petitioner] worked for Ms. Lockridge. Mr. Lockridge stated
that the [Petitioner] retained him to file a complaint for divorce and that Mr.
Lockridge filed the complaint in May 2010. Mr. Lockridge said that sometime after
he filed the complaint, the [Petitioner] came to his office parking lot at 8:30 a.m.,
that the [Petitioner] was upset and agitated, and that the [Petitioner] wanted Mr.
Lockridge to dismiss the divorce proceedings.

Dr. Kathryn Smith, an expert in psychological evaluations, testified that she
evaluated the [Petitioner] for approximately nine hours. She said she conducted a
clinical interview, reviewed the [Petitioner]’s medical and police records, observed
his behavior, and spoke with him and family members about his mental state at the
time of the victim’s death. She stated that at time of her evaluation, the [Petitioner]
was taking medications administered by the jail. She said that she evaluated the
[Petitioner] using four standardized instruments and concluded that the [Petitioner]
had a major recurrent depressive disorder, which meant lifelong, severe, and
repeated episodes of depression without psychosis. She also diagnosed the
[Petitioner] with post-traumatic stress disorder, alcohol dependence that was in
remission, avoidant personality disorder, and depressive personality disorder. Dr.
Smith noted that she could not determine whether the [Petitioner] was suffering
from post-traumatic stress disorder at the time of the victim’s death or whether the
[Petitioner] developed it after the killing. Dr. Smith concluded that the [Petitioner]’s
symptoms were genuine and that his symptom pattern showed a genuine
psychological disorder.

Dr. Smith testified that she concluded that the [Petitioner] was suffering from
severe mental illness, severe major depression, and a panic disorder for at least two
weeks before the killing and that these conditions were cumulative to the
[Petitioner]’s underlying personality disorders. She said that two weeks before the
victim’s death, the [Petitioner] sought treatment from Dr. Antonio Ramos at the
suggestion of Ms. Lockridge. Dr. Ramos reported to Dr. Smith that the [Petitioner]
was depressed, tearful, sad, not sleeping, anxious, and unable to “get his thoughts
straight.” Dr. Smith said that Dr. Ramos prescribed the [Petitioner] two
antidepressants and that pharmacy records showed the [Petitioner] obtained both
prescriptions. Dr. Smith said the [Petitioner]’s family told her that the [Petitioner]
had stopped eating, had lost weight, and had been “preoccupied with threats,
perceived threats to his kids and their safety[.]” She stated that the [Petitioner] was
not functioning or thinking rationally and noted that antidepressants took four to
six weeks to become effective. She concluded that at the time of the victim’s death,
the [Petitioner] was incapable of forming intent.

Dr. Smith testified that she would not describe the [Petitioner]’s police interview
as a coherent discussion. She said that the [Petitioner] was fidgety and restless, did
not make eye contact with the detectives, put his head down, and did not
communicate coherently. She noted the detectives appeared confused and did not
know about what the [Petitioner] was talking. She said that the [Petitioner] had a
distorted sense of time when discussing the events and that the [Petitioner] did not
look well.

On cross-examination, Dr. Smith testified that in her opinion, the [Petitioner]
lacked the capacity to premeditate the victim’s death because of his mental
illnesses. She said that she was not asked to consider whether the [Petitioner] was
incapable of any premeditated act and could not conclude that the [Petitioner]
lacked the capacity to premeditate “anything in his life.” She stated that if the
[Petitioner] lied about his previous history, it might affect the outcome of her
evaluation but that she also relied upon other records and interviews with his family
to reach her conclusions.

Dr. Smith testified that the [Petitioner]’s major depressive disorder alone might
have rendered him incapable of acting knowingly or with premeditation. She said
that due to the severity of the [Petitioner]’s mental illnesses and his sleep
deprivation, he was “not thinking straight.” Dr. Smith said that the information she
gathered from the [Petitioner]’s family and friends was inconsistent with a person
who refused to accept the end of his marriage. She said that she spoke with Ms.
Lockridge, Tony, Maria, and Mr. Card, the church counselor, and that she reviewed
an incident report from the sheriff’s department, the recording of the [Petitioner]’s
police interview, and a portion of his medical records. Dr. Smith said that she was
unable to obtain records related to the [Petitioner]’s childhood meningitis diagnosis
and suicide attempt and agreed that the [Petitioner]’s history before the time of the
victim’s death was uncorroborated. She agreed that if the [Petitioner] lied about his
history, her conclusions were wrong. Dr. Smith said that she did not interview the
[Petitioner]’s brother or Ms. Rivera. Dr. Smith stated that if the [Petitioner] had
other therapy records, it might have been important to her evaluation.

Dr. Smith testified that she spent three hours administering tests and six hours
interviewing the [Petitioner]. She said that she evaluated the [Petitioner] eight
months after his arrest, that she knew he had been charged with first degree murder,
that the [Petitioner] knew Dr. Smith had been retained by his attorney, and that he
was very cooperative. Dr. Smith stated that she was not asked to determine the
[Petitioner]’s competency to stand trial. Dr. Smith acknowledged that she reviewed
records from Dr. Edgar Jessee relative to a 2006 “marital situation.” Dr. Smith said
that Dr. Jessee did not note any report of abuse or threats from the victim and that
Dr. Jessee’s notes were sparse. Dr. Smith stated that Mr. Card’s pastoral records
from 2008 to 2010 did not note abuse or violence. Dr. Smith said that during marital
therapy, the victim reported not wanting to have a physical relationship with the
[Petitioner]. However, Dr. Smith said that during individual therapy sessions, the
[Petitioner] stated the victim attempted to have sexual relations with him when he
attempted to become independent from the victim. Dr. Smith stated that Mr. Card
thought the [Petitioner]’s “departure [from the victim] was imminent” and that the
[Petitioner] did not report depression or anxiety to Mr. Card.

Dr. Smith testified that Dr. Ramos’s May 21, 2010 records reflected that the
[Petitioner] reported sexual performance difficulties and that the [Petitioner]’s
testosterone level, which had been low previously, was evaluated as a possible
source of the depression. Dr. Smith said she knew that four days before the
[Petitioner]’s doctor’s appointment, the [Petitioner] was accused of kicking in the
victim’s door and vandalizing a car. Dr. Smith said Dr. Ramos’s records reflected
that the [Petitioner] was crying, depressed, anxious, and unable to think. She said,
though, the records showed that the [Petitioner] denied being suicidal or homicidal
or having hallucinations or delusions.

Dr. Smith testified that the [Petitioner] was more articulate and expressive than she
expected but that being well-spoken was not inconsistent with the [Petitioner]’s
self-reported learning disabilities. She said the [Petitioner] reported having
depression, feeling hopeless, and having suicidal ideations. Dr. Smith said that the
[Petitioner] showed many symptoms, although he had been taking strong
antidepressants while in jail. She said that the [Petitioner] reported having
nightmares about the victim in which the victim beat or stabbed him and that the
[Petitioner] was afraid the victim “was . . . waiting to get him.” Dr. Smith said the
[Petitioner] felt ashamed for tolerating the victim’s abuse and blamed himself for
staying in the relationship and allowing “all the things that happened with his kids.”
Dr. Smith testified that she had not reviewed the autopsy report and that it seemed
irrational for a person to strangle another person “[t]hat much.” She stated that the
[Petitioner]’s report of the victim’s escalating violence and his belief the victim
would not “let him go” was not inconsistent with the victim’s living in her own
apartment. She said that the [Petitioner] continued giving the victim money and that
the [Petitioner]’s decision to stop the divorce proceedings may have been an
attempt to appease the victim. Dr. Smith agreed the [Petitioner] had no reliable
memory of the victim’s death and said she did not trust the timing of the
[Petitioner]’s memories. Dr. Smith said she spoke to Ms. Lockridge relative to the
[Petitioner]’s change in work performance. Dr. Smith said Tony’s report of the
[Petitioner]’s normal behavior in the days before the victim’s death was not
surprising. She said Tony and Maria reported not paying close attention to the
[Petitioner] before the victim’s death.

Dr. Smith testified that Mr. Dilworth’s testimony relative to the [Petitioner]’s
dragging the victim inside the apartment, locking the door, and telling Mr. Dilworth
it was a domestic dispute might suggest the [Petitioner] was capable of deliberate
acts. She said, though, the conduct did not exclude the possibility that the behavior
was heavily influenced by depression. She said she was not aware of the
[Petitioner]’s parking away from the victim’s apartment unit, the [Petitioner]’s
flight from the victim’s apartment complex, or the [Petitioner]’s throwing
prescription bottles into the bushes. Dr. Smith said the behavior did not sound
rational. She stated that erasing data on a cell phone might indicate “a mindfulness
of what he was doing and trying to hide his tracks.” Dr. Smith said that she knew
the [Petitioner] left the victim’s apartment through the back door, walked to the tree
line, jumped over a fence, ran to his truck, and quickly left the scene. She said these
facts indicated that the [Petitioner] knew where he parked his truck and intended to
leave the area.

Dr. Smith testified that she did not review the recordings of the 9–1–1 calls.
Relative to the [Petitioner]’s calling Ms. Rivera and reporting he had killed the
victim, Dr. Smith said that she did not know if the [Petitioner]’s statements
indicated consciousness of guilt “or just awareness of an act.” Dr. Smith did not
review text or voicemail messages the [Petitioner] sent the victim after the order of
protection was issued. Dr. Smith said that she vaguely recalled the McLean case
and that she did not know Sean Powell was the [Petitioner]’s former neighbor. She
said that it might have been important to know if the [Petitioner] had referenced
Mr. Powell to the victim.

Dr. Smith testified that the validity of the mental health evaluations was dependent
on her observations and the [Petitioner]’s self-report. Relative to whether the
[Petitioner] was malingering, Dr. Smith said that the [Petitioner] was classified as
“genuine responder.”
Dr. Smith testified that she had performed between 200 and 250 clinical forensic
evaluations on criminal defendants, that about twenty evaluations were for the
purpose of determining whether a defendant had a diminished capacity, and that
two were first-degree murder cases. Dr. Smith said that she did not utilize the most
widely accepted personality test in this case because the [Petitioner] did not have
the requisite eighth-grade reading level. Relative to other types of tests with built-
in validity scales to determine malingering, she stated those tests were problematic
because the [Petitioner]’s first language was not English and because one test had
a high rate of false positives.

Dr. Smith testified that post-traumatic stress disorder might have been caused by
one acute trauma or by the cumulative effect of many traumas. She said that the
[Petitioner]’s traumas were caused by living with the victim in his adulthood and
by his grandfather’s abuse in his childhood. She stated that people suffering from
post-traumatic stress disorder did not always experience flashbacks. She said that
it was too simplistic to conclude that the [Petitioner] would have avoided the victim
if he suffered from post-traumatic stress disorder and that the entire situation had
to be considered. On redirect examination, Dr. Smith stated that a person with the
[Petitioner]’s level of mental illness could function normally in the person’s
everyday life.

State v. Rivera, No. E2014-01832-CCA-R3-CD, 2016 WL 2642635, at *1-27 (Tenn. Crim. App.
May 6, 2016), perm. app. denied (Tenn. Sept. 22, 2016) (footnote and page numbers omitted)
(“Rivera I”).
Petitioner’s Knox County jury considered his indicted charges of (1) first-degree
premeditated murder, (2) first-degree felony murder in the attempt to perpetrate a kidnapping, (3)
first-degree felony murder in the attempt to perpetrate a burglary, (4) especially aggravated
kidnapping, (5) especially aggravated burglary, (6) aggravated assault, (7) aggravated burglary,
(8) burglary of a vehicle, and (9) vandalism [Doc. 8-1 p. 6-10]. At the conclusion of trial, Petitioner
was convicted of second-degree murder as a lesser-included offense of first-degree premeditated
murder [See Doc. 8-23 p. 78]. He was convicted as charged on the two first-degree felony murder
counts, and he was likewise convicted of especially aggravated burglary and aggravated assault
[Id. at 79, 80, 82, and 83]. The jury found him not guilty of the other charges [Id. at 81, 84, 85,
and 86]. The trial court adopted the jury’s verdict and imposed a sentence of life imprisonment
for first-degree felony murder in the attempt to perpetrate a burglary [Doc. 8-1 p. 72; Doc. 8-10 p.
137-139].
At a subsequent sentencing hearing, the trial court merged the convictions for second-
degree murder and first-degree felony murder in an attempt to perpetrate a kidnapping into the
conviction for first-degree felony murder in the attempt to perpetrate a burglary [Doc. 8-24 p. 32-

33]. The trial court imposed sentences of ten years for especially aggravated burglary and five
years for aggravated assault, and the court directed that those sentences run concurrently with
Petitioner’s life sentence for first-degree felony murder, for a total effective sentence of life
imprisonment [Doc. 8-1 p. 67-71, 92-95; Doc. 8-24 p. 38-39]. Petitioner filed a motion for a new
trial, which was denied at the conclusion of the hearing on the motion [Doc. 8-1 p. 97-99, 101-04,
106, 108; Doc. 8-26 p. 24-32].
On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the
convictions. Rivera I, 2016 WL 2642635, at *46. The Tennessee Supreme Court denied
discretionary review [Doc. 8-33].

Thereafter, Petitioner filed a petition for post-conviction relief in the trial court, to which
the State responded [Doc. 8-34 p. 4-11, 15-16]. Following the appointment of counsel, Petitioner
filed an amended petition [Id. at 21-24]. The trial court conducted an evidentiary hearing, where
trial counsel, Mike Whalen, testified that after reviewing discovery in the case, he discussed with
Petitioner what evidence he anticipated would be presented at trial [Doc. 8-35 p. 4-5]. His trial
strategy was to pursue Petitioner’s diminished capacity, explaining:
There were independent witnesses, neighbors, who saw Mr. Rivera with his
estranged wife at the apartment and then going into the apartment. There was some
testimony about the — a physical confrontation in the doorway that they claimed
to see. The doorway was closed. They heard a struggle inside, and then at some
point saw Mr. Rivera go out the back door. Police were called. When they went
inside, Ms. Rivera was — was on the floor and had been — was wrapped in a
vacuum cleaner cord and was deceased at that point.

And so the idea was to present — after discussion with Mr. Rivera about his family
history and some abuse that took place in his early life and his lack of education,
formal education, beginning work at age seven or eight and working pretty much
as a full-time employee from then on out, and the relationship between himself and
the victim, which was confrontational and ugly at times and — on her part, we
developed a defense of diminished capacity, and that extent, we put on Dr. Katie
Smith to testify.

[Id. at 5-6].
Counsel was aware from the discovery that a truck with Petitioner’s license tag number
was seen leaving the scene of the offense, that it was pursued and stopped later that night, and that
Petitioner was found in it [Id. at 6]. He was also aware that Petitioner’s ex-wife reported in a 911
call that Petitioner had killed the victim [Id.]. Counsel was additionally aware that Petitioner gave
a recorded statement to law enforcement officers that he went to the apartment and argued with
the victim about a man he believed was the victim’s boyfriend [Id. at 6-7]. Counsel explained:
They took a statement from him after the wreck in, I want to say, Lenoir City,
Loudon County, and there were some coherence problems in that — with that
statement, and so we — we felt that tied in as well with this diminished capacity,
and the place where he was actually found was — there were other issues there as
well, but — and I had also talked — spoken with the children a couple of times,
and we prepared them. They testified at trial about the relationship with the victim,
and — and their view and their experience of the relationship between Mr. Rivera
and the victim, which we felt played into the diminished capacity defense.

[Id. at 7].
Counsel was aware from discovery that the victim was found in her apartment with a
vacuum wrapped around her neck and that the medical evidence showed that she was strangled to
death both manually and by ligature strangulation [Id.]. Counsel explained his decision to pursue
a diminished capacity defense in light of Petitioner’s evidence of guilt as follows:
Well, there was a good deal of evidence in the statements from witnesses, from the
neighbors, the direct next door neighbor, and there was a discussion about the —
seeing them outside on the stoop earlier, and then hearing this argument going on
inside after that, and then at some point going over and pushing the door open and
seeing this confrontation going on inside the apartment.

So at that point, I didn’t believe there was any validity in a defense that said we —
we weren’t there and we didn’t do it, and so the question was once we’re placed
there and at the scene and involved, then how is it we can explain how this
happened, and that’s how we came to the diminished capacity defense.

[Id. at 8]. Counsel had no evidence that anyone else was inside the victim’s apartment at the time
of the offense [Id.]. When asked if this evidence was consistent with what Petitioner reported,
counsel responded:
There were inconsistences between what Mr. Rivera told me and the various other
statements that either he made to another — another witness or to the police. I
believe those inconsistencies to be a part of the diminished capacity. I think there
were parts of things he could not recall, parts of things he had blacked out, parts of
things he just didn’t recall, and parts of things he recalled differently, and I believe
that had to do with his psychological state at the time.

[Id. at 10]. Counsel was also aware that Petitioner had told someone that he was not in Knoxville
when the offense occurred [Id. at 10-11].
Concerning Petitioner’s decision whether to testify, counsel testified that he explained it
was “a hard situation, but that in this case, we had facts” that he “couldn’t do anything about except
try to explain” [Id. at 11]. Counsel believed “that the best narrator” of Petitioner’s history was
Petitioner himself, as aided by Dr. Smith’s testimony [Id. at 11-12]. Counsel also presented
testimony from Petitioner’s children, who had a “horrible relationship” with the victim and
testified about witnessing the victim’s own “violent or aggressive behavior” [Id. at 12-13]. When
asked about Petitioner’s amenability to testifying, counsel stated that Petitioner “went back and
forth” about whether to testify, but that counsel “thought [they] could get through it” [Id. at 14].
Counsel stated that he believed that Petitioner trusted him and that they “spent considerable time
discussing it and preparing for his testimony” [Id.]. Counsel made it clear to Petitioner that the
decision whether to testify belonged to Petitioner, and that, in the end, Petitioner took counsel’s
advice to testify [Id. at 15-16]. Counsel stated that he thought Petitioner “did as best he could
under the circumstances” and that “his demeanor and his limited abilities that came out through
that testimony supported . . . [the] theory of diminished capacity [Id. at 16-17]. Counsel stated at
the post-conviction hearing that he still believed that his trial strategy was sound, and that the trial

“went as well as it could have gone” [Id. at 22-23]. He did testify that he did not consider
challenging the fact that the especially aggravated burglary prosecution was based on the same
conduct as the felony murder offenses, as “[t]here were much more serious fish to fry, and that
burglary issue just didn’t rise to the top of [his] attention at that point [Id. at 23].
Petitioner testified at the evidentiary hearing that counsel went over the evidence and
discovery with him and offered advice on the trial strategy [Id. at 25-26]. They discussed whether
Petitioner should testify, and trial counsel advised him to, assuring him it would be the “best” and
“right thing” to do [Id. at 26-27]. Petitioner stated he would not have testified absent counsel’s
advice to do so, but that because he trusted counsel’s advice, he decided to testify [Id.]. Petitioner

conceded, however, that the decision was ultimately his [Id.].
At the conclusion of the proof, the trial court denied Petitioner’s claim that trial counsel
rendered ineffective assistance in advising him to testify [Doc. 8-34 p. 26-31]. 1 Petitioner filed a
notice of appeal, and the TCCA found no error in the post-conviction court’s judgment. Rivera v.
State, E2019-00798-CCA-R3-PC, 2020 WL 5988550 (Tenn. Crim. App. Oct. 9, 2020), perm. app.

1 The post-conviction court also found that trial counsel was deficient in failing to raise the
issue that Petitioner’s especially aggravated burglary and felony murder charges were based on the
same conduct, and it modified Petitioner’s especially aggravated burglary conviction to aggravated
burglary and reduced the sentence for that offense to six years in order to remedy the “slight[]
prejudice[]” caused by counsel’s deficiency [Doc. 8-34 p. 30-31].
denied (Tenn. Feb. 5, 2021) (“Rivera II”). The Tennessee Supreme Court denied discretionary
review [Doc. 8-43].
On July 30, 2021, Petitioner filed the instant § 2254 petition with a supporting
memorandum of law [Docs. 1 and 2]. The Court directed Respondent to file a response to the
petition [Doc. 7], and Respondent complied by filing the State-court record [Doc. 8] and an answer

[Doc. 13]. Petitioner filed a reply, as amended, to the State’s answer [Docs. 13-16]. This matter
is ripe for review.
II. LEGAL STANDARD
The Court’s review of the instant petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any
claim adjudicated on the merits in a state court unless that adjudication (1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established United States
Supreme Court precedent; or (2) resulted in a decision based on an unreasonable determination of
facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan,
550 U.S. 465, 473 (2007). Review under 28 U.S.C. § 2254(d) is limited to the record presented to
the state court that resolved the claim. Cullen v. Pinholster, 563 U.S. 170, 181-83 (2011).
Federal habeas relief may be granted under the “contrary to” clause where the state court

(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2)
decides a case differently than the Supreme Court on a set of materially indistinguishable facts.
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application”
clause, a federal court may grant relief where the state court applies the correct legal principle to
the facts in an unreasonable manner. Williams, 529 U.S. at 407-08; Brown v. Payton, 544 U.S.
133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn on
whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under
AEDPA is not whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable ̶ a substantially higher threshold.”); Williams, 529
U.S. at 410-11. This standard will allow relief on a federal claim decided on its merits in state
court only where the petitioner demonstrates that the State ruling “was so lacking in justification
that there was an error understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating the

evidence presented in state court, a federal habeas court presumes the correctness of the state-
court’s factual findings unless the petitioner rebuts the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e).
The doctrine of procedural default also limits federal habeas review. See O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner’s procedural default forfeits his federal
habeas claim). A procedural default exists in two circumstances: (1) where the petitioner fails to
exhaust all of his available state remedies, and the state court to which he would be required to
litigate the matter would now find the claims procedurally barred, and (2) where a state court
clearly and expressly bases its dismissal of a claim on a state procedural rule, and that rule provides
an independent and adequate basis for the dismissal. See, e.g., Coleman v. Thompson, 501 U.S.
722, 731-32, 735 n.1 (1991).
As to the first circumstance, a federal district court generally cannot consider a § 2254
petition unless the Petitioner has first exhausted all available state court remedies for each claim

in his petition. 28 U.S.C. § 2254(b)(1); O’Sullivan, 526 U.S. at 842. This requirement is satisfied
when the petiti

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669393. Public record. Not legal advice.