# Pollard v. Parris

> District Court, M.D. Tennessee · May 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10669664

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** May 18, 2020
- **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/10669664

## How later opinions describe it (automated extraction)

- observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES ALLEN POLLARD )
#451241, )
)
Petitioner, )
) NO. 3:20-00017
v. )
) JUDGE CAMPBELL
WARDEN MIKE PARRIS, )
)
Respondent )

MEMORANDUM
Petitioner is a state inmate serving an effective sentence of life for first-degree murder and
especially aggravated robbery. He filed a pro se petition for the writ of habeas corpus under 28
U.S.C. § 2254 in the United States District Court for the Eastern District of Tennessee, which
transferred the case to this Court pursuant to the courts’ consistent practice of reviewing habeas
petitions in the district of conviction. The Court will deny his petition for the reasons set forth
below.
I. BACKGROUND AND PROCEDURAL HISTORY
On February 12, 2009, a Davidson County jury convicted Petitioner of one count of first-
degree felony murder, one count of first-degree premeditated murder, and one count of especially
aggravated robbery. (Doc. No. 15-1 at 124–26.) The trial court merged the two murder counts and
sentenced Petitioner to life in prison for the murder. (Id. at 124–25.) The court sentenced Petitioner
to 18 years in prison for the robbery count and ordered the two sentences to run consecutively for
a total effective sentence of life plus 18 years. (Id. at 126.)
On direct appeal, the Tennessee Court of Criminal Appeals affirmed Petitioner’s
convictions and individual sentences but found that the trial court had failed to make the required
factual findings on the record to support consecutive sentencing and remanded for a new
sentencing hearing. (Doc. No. 15-19.) Both sides moved for permission to appeal to the Tennessee
Supreme Court. (Doc. Nos. 15-21, 15-22.) The state supreme court granted the state’s appeal and
denied Petitioner’s appeal. (Doc. No. 15-23.) The court went on to agree with the lower appellate

court that the trial court had failed to consider factors required to support consecutive sentencing,
affirmed the lower court’s ruling, and remanded for new sentencing. (Doc. No. 15-27.) On
February 7, 2014, the trial court entered amended judgments ordering that Petitioner’s sentences
of life and 18 years would run concurrently, for an effective total sentence of life in prison. (Doc.
No. 15-29 at 27–29.)
Petitioner, through counsel, filed a petition for post-conviction relief in the state trial court
on December 2, 2014. (Doc. No. 15-29 at 30.) After an evidentiary hearing and briefing by the
parties, the court denied relief on July 27, 2017. (Id. at 121–25.) The Tennessee Court of Criminal
Appeals affirmed on November 8, 2018. (Doc. No. 15-55.)
Petitioner’s pending federal habeas petition was received by the United States District

Court for the Eastern District of Tennessee on February 9, 2019, and Respondent does not contest
its timeliness. (Doc. No. 1 at 19; Doc. No. 16.) Respondent has filed an answer opposing the
petition along with relevant portions of the state court record. (Doc. Nos. 15, 16, 19.) Petitioner
has elected not to file an optional reply, despite the Court’s sua sponte extension of the deadline
for him to do so. (See Doc. No. 25.) This matter is thus deemed fully briefed and ripe for review.
II. STATEMENT OF FACTS

The Tennessee Supreme Court succinctly summarized the case on direct appeal:
At approximately 11:26 a.m. on March 24, 2006, officers of the Metropolitan Police
Department of Nashville and Davidson County responded to a 911 report of a
shooting at 301 North Eighth Street. Upon their arrival, they found the body of
twenty-five-year-old Jamil Branhan (the “victim”) lying on the living room floor
of his apartment with two gunshot wounds to his head. There was no evidence of a
forced entry.
During their investigation, Detectives Jeff Wiser and Michael Windsor traced the
victim’s last accepted phone call to Lakeisha Hooten. Describing her as “a person
of interest,” the detectives interviewed her on five separate occasions over a period
of months. Initially, Ms. Hooten implicated two individuals by name, both of whom
were eliminated as suspects upon further inquiry. During her fifth interview,
however, she “finally broke down,” informing the detectives that her boyfriend,
James Allen Pollard (the “Defendant”), was involved in the incident.
The detectives conducted a video-recorded interview with the Defendant. After
being informed of and waiving his Miranda rights, the Defendant stated that on the
night of the shooting Ms. Hooten had arranged for him to meet the victim at his
apartment to purchase a “dime sack” [FN: A “dime sack” refers to the amount of
marijuana that can be purchased for ten dollars. Merriam-Webster, http://merriam-
sebster.com/dictionary/dime (last visited Dec. 13, 2013). The Defendant described
this amount as two grams.] of marijuana, as he had done on prior occasions.
Admitting that he had a .38 caliber firearm in his pocket when he arrived at the
apartment, the Defendant claimed that the victim was “gone on something,” got
“spooked” when he saw the Defendant’s weapon, and, at that point, retrieved his
own gun, a nine-millimeter semi-automatic. The Defendant told the officers that he
drew his gun, and, during a struggle with the victim, his gun discharged. He
acknowledged that he shot a second time, claiming that he did so when the victim
raised his arm and pointed the semi-automatic in his direction. The Defendant also
asserted that the victim fired his own gun once during the episode. After initially
denying to Detectives Wiser and Windsor that he had “take[n] anything,” the
Defendant eventually admitted that after he shot the victim he took his weapon and
his PlayStation.
The Defendant was charged and arrested. Later, the Davidson County Grand Jury
indicted the Defendant on three counts: (1) felony murder; (2) premeditated murder;
and (3) especially aggravated robbery.
At trial, the State presented the Defendant’s video-recorded statement as evidence.
Other testimony offered by the State established that the victim’s mother, Marilyn
Branhan, had become concerned after not being able to contact her son and had
asked the apartment manager to check inside his unit. The apartment staff
discovered the body, the police were notified, and several items were found missing
from her son’s apartment, including his PlayStation, gun, keys, and cell phone. An
empty gun holster was found in a bin inside the bedroom.
Officers determined that the victim suffered two gunshot wounds, one to the chin
and one to the temple. No shell casings were found in the apartment, and no bullet
holes were found in the walls. Further testimony established that the victim’s nine-
millimeter semiautomatic would have ejected shells if fired. A forensic scientist
with the Tennessee Bureau of Investigation concluded that the bullets causing the
death of the victim were .38 caliber, typically fired from a revolver rather than a
semi-automatic pistol.
A search of the apartment did not yield any evidence indicating that the victim had
been dealing illegal drugs. Other witnesses, including the victim’s girlfriend,
Reshena Barnes, and a co-worker, Rose Reese, testified that the victim, who was
employed at AutoZone, did not sell drugs.
Anthony Bowers, a federal inmate who had shared a cell with the Defendant,
testified that the Defendant informed him that his girlfriend had arranged a meeting
with the victim so that the Defendant could “rob him for some marijuana.”
According to Bowers, the Defendant claimed that he drew his revolver after the
victim became suspicious and that, when the victim struggled and attempted to arm
himself, the Defendant shot the victim in the head. Bowers stated that the Defendant
admitted taking some marijuana, a cell phone, and a pistol from the apartment, and
he also admitted shooting the victim a second time to ensure that he would not be
identified. The Defendant explained to Bowers that he had been arrested only
because his girlfriend “broke down” and told the investigating detectives the truth;
he further recommended to Bowers that using a revolver was the better practice in
a killing because it did not leave shell casings.
The forensic pathologist who performed the autopsy concluded that one of the
bullets entered the left side of the victim’s chin, breaking his chin and lacerating
his tongue, causing him to swallow a moderate amount of blood. More blood was
found in his lungs, indicating that the victim was still alive after this shot. A second
bullet, fired within six inches, entered the victim’s left temple, fracturing the brain
and portions of the brain stem, rendering the victim immediately unconscious. The
victim’s body contained minimal levels of marijuana and had a blood alcohol
content of .04.
Although the Defendant chose not to testify, three witnesses described him as a
“good kid,” a hard worker at his full-time job, and a reliable person.
(Doc. No. 15-27 at 24.)
III. ISSUES PRESENTED FOR REVIEW
The petition asserts seven claims for relief:
1. The prosecution failed to disclose impeachment evidence pertaining to state’s witness
Anthony Bowers, in violation of Petitioner’s due process rights under Brady v. Maryland,
373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Napue v. Illinois,
360 U.S. 264 (1959). (Doc. No. 1 at 6.)
2. Petitioner’s trial counsel was ineffective for failing to investigate and discover publicly
available impeachment evidence pertaining to Bowers. (Id. at 8.)
3. Petitioner’s trial counsel was ineffective for failing to accept the prosecutor’s offer of open-
file discovery and to discover the impeachment evidence pertaining to Bowers in the
prosecutor’s file. (Id. at 9.)
4. Petitioner’s trial counsel was ineffective for failing to impeach or challenge Bowers’s
testimony and for bolstering Bowers’s credibility. (Id. at 11.)
5. Petitioner’s trial counsel was ineffective for failing to present proof at the suppression
hearing necessary to suppress Petitioner’s confession. (Id. at 12.)
6. The cumulative effect of trial counsel’s ineffective assistance resulted in denial of a
fundamentally fair trial. (Id. at 12.)
7. Petitioner’s confession was obtained in violation of his Fifth and Fourteenth Amendment
rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). (Id. at 13.)

IV. STANDARD OF REVIEW
The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a
federal court may only grant relief if it finds that the error “had substantial and injurious effect or
influence” on the outcome of the case. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson
v. Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met
before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht
v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,
AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes “a
substantially higher threshold” for obtaining relief than a de novo review of whether the state
court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams, 529 U.S. at 410).

Specifically, a federal court may not grant habeas relief on a claim rejected on the merits
in state court unless the state decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or
“was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1) and (d)(2). A state court’s legal decision is
“contrary to” clearly established federal law under Section 2254(d)(1) “if the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. at 412–13. An “unreasonable application”
occurs when “the state court identifies the correct legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A
state court decision is not unreasonable under this standard simply because the federal court finds
it erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court’s
decision applies federal law in an objectively unreasonable manner. Id. at 410–12.
Similarly, a district court on habeas review may not find a state court factual determination
to be unreasonable under Section 2254(d)(2) simply because it disagrees with the determination;
rather, the determination must be “‘objectively unreasonable’ in light of the evidence presented in
the state court proceedings.’” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002). “A state
court decision involves ‘an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding’ only if it is shown that the state court’s presumptively
correct factual findings are rebutted by ‘clear and convincing evidence’ and do not have support
in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting § 2254(d)(2) and
(e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 and n.3 (6th Cir. 2014) (observing that the

Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did not
read Matthews to take a clear position on a circuit split about whether clear and convincing
rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under Section
2254(d)(2), “it is not enough for the petitioner to show some unreasonable determination of fact;
rather, the petitioner must show that the resulting state court decision was ‘based on’ that
unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected
on the merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Petitioner carries the burden of proof.
Pinholster, 563 U.S. at 181.
V. ANALYSIS AND DISCUSSION
A. Claim 1 — Suppression of Impeachment Evidence
As reflected above in the Tennessee Supreme Court’s summary of the case, Petitioner’s
former cellmate, Anthony Bowers, testified at trial to the effect that Petitioner had confessed to
him about the murder and robbery. Petitioner alleges that the prosecution failed to disclose
evidence that could have been used to impeach Bowers, including: (1) Bowers was seeking a
reduction in his federal sentence based on his testimony against Petitioner; (2) Bowers had sought
and received sentence reductions in the past for cooperation against other defendants; (3) Bowers
claimed that at least six cellmates, including Petitioner, had “strangely” confessed to him; and (4)
Bowers had been accused of attacking another inmate. (Doc. No. 1 at 6.)
Petitioner exhausted this claim on direct appeal after failing to obtain a new trial based on

the testimony of trial counsel and the prosecutor presented at the hearing on his motion for new
trial. The Tennessee Court of Criminal Appeals summarized that testimony:
At the hearing on Defendant’s motion for new trial, the Assistant District Attorney
General Deborah Housel, who prosecuted Defendant’s case, testified that on
January 5, 2007, in response to a discovery request from Defendant, she reported
that there was no exculpatory evidence known to the prosecution at that time. In a
letter dated January 29, 2009, General Housel notified defense counsel of four
additional witnesses, including “Anthony Bowers (federal inmate),” which the
State intended to call at trial. She also prepared and filed a writ of habeas corpus ad
testificandum in order to have Mr. Bowers transported to Defendant’s trial
scheduled for February 9, 2009, and she faxed a copy to defense counsel.
General Housel testified that she called defense counsel on February 2, 2009, and
“had a long and lengthy discussion.” She told defense counsel that Mr. Bowers’
attorney had contacted her and told her that Mr. Bowers had “information regarding
admissions that were made by [Defendant] to him.” General Housel also told
defense counsel that she had interviewed Mr. Bowers along with Detective
Windsor, and that the State had initially elected not to use Mr. Bowers’ testimony
at Defendant’s trial because Mr. Bowers had been accused of raping another
inmate. However, General Housel also told defense counsel on February 2, 2009,
that Mr. Bowers had since “been cleared of all wrongdoing concerning [the rape
allegation],” and that the State intended to have Mr. Bowers brought to court,
although she “had no clue whether or not he was going to testify for [the State] or
not.” General Housel testified, however, that in light of the strength of the State’s
case against Defendant, she did not believe she needed to call Mr. Bowers as a
witness. General Housel invited defense counsel to “feel free to come by, look at
all the file, and the letter [written to General Housel by Mr. Bowers], and all the
information regarding the rape.” General Housel recalled that defense counsel
“came over to [her] office one day and [she] gave him the box with all the
information in it.” She testified that she showed defense counsel the letter from Mr.
Bowers.
General Housel testified that she met with defense counsel again on February 6,
2009, and she “brought the entire file for [defense counsel] to look through. [She]
opened it, showed him everything” and gave defense counsel the opportunity to
make copies of the file, which included the letter from Mr. Bowers and information
regarding the rape allegation and investigation. General Housel testified she was
“one hundred percent positive that [she] went into great detail with [defense
counsel], all of the allegations that were made and the letter [Mr. Bowers] sent
[her].”
General House testified that she believed that Mr. Bowers “was going to get
consideration for his testimony,” but that she did not know what relief, if any, he
received in federal court. She testified that she did not tell defense counsel that Mr.
Bowers was eligible for a sentence reduction in exchange for his testimony
“because [she didn’t] know that that’s true.” She told defense counsel that all she
could do for Mr. Bowers was “put in a good word” for him to Assistant United
States Attorney Blanche Cook, who was assigned to Mr. Bowers’ case. General
Housel acknowledged that she sent an email to Ms. Cook following Defendant’s
trial, advising Ms. Cook that Mr. Bowers “did a fabulous job” and General Housel
wrote, “I know I can’t help Mr. Bowers but if I could, I would certainly give him
any consideration and break I could. He provided crucial testimony.”
General Housel testified that she met with Mr. Bowers on November 30, 2007.
Another Assistant District Attorney, Katie Miller, accompanied her to that meeting
to discuss a case in which Mr. Bowers offered some information. Ms. Housel did
not know of any other cases in which Mr. Bowers had provided assistance to the
prosecution. Ms. Housel testified that Mr. Bowers “was not a possible witness until
[she] found out that he had been cleared of the rape allegation.”
Attorney Jack Seaman testified that he represented Mr. Bowers in federal court at
a hearing on a “Rule 35” motion to reduce Mr. Bowers’ sentence in 2008, prior to
Mr. Bowers having testified at Defendant’s trial. Mr. Seaman explained that a Rule
35 motion is filed by the government in order to seek a reduction in a defendant’s
sentence based on assistance he provided to the government. In Mr. Bowers’ case,
the motion was denied. Mr. Seaman testified that he represented to the federal court
that Mr. Bowers “provided information and assistance regarding at least five people
that got convicted” and in one case in which the defendant pled guilty, and that Mr.
Bowers “provided assistance in the prosecution of a couple of people but he [was]
not called as a trial witness.” At the time of Mr. Bowers’ resentencing hearing, Mr.
Seaman did not believe that Mr. Bowers would be called as a witness in
Defendant’s case “because of accusations he was involved in a gang rape.”
On cross-examination, Mr. Seaman testified that he contacted General Housel
“[m]ultiple times” to offer Mr. Bowers’ assistance in Defendant’s case, and Ms.
Housel advised that the State was not interested in Mr. Bowers’ testimony “because
the case was so strong.” Mr. Seaman recalled a conversation with General Housel
after Mr. Bowers was accused of rape in which General Housel advised Mr. Seaman
that she was “absolutely” not going to call Mr. Bowers to testify. Mr. Seaman
acknowledged that General Housel contacted him in January, 2009, to inquire about
the rape allegation, and Mr. Seaman informed her that the rape allegation was false.
General Housel then asked Mr. Seaman to find out whether Mr. Bowers would still
testify, and Mr. Seaman was doubtful that Mr. Bowers would testify because he
had already had his resentencing hearing. Mr. Seaman testified that Mr. Bowers did
not benefit from his testimony in Defendant’s case. Mr. Seaman also testified that
he did not inform General Housel about other cases in which Mr. Bowers provided
assistance.
Attorney Edward Gross, Defendant’s trial counsel, testified that he became aware
of Anthony Bowers on January 30, 2009, when he received a fax from General
Housel that listed four additional potential State’s witnesses. Mr. Gross testified
that in a “subsequent conversation,” General Housel disclosed that Mr. Bowers’
testimony was regarding a “jailhouse confession” and that there had been “a rape
case against Bowers but he was exonerated on that.” General Housel stated that she
was unsure whether Mr. Bowers would be called to testify. Mr. Gross testified that
if he had more time, he “would have done everything [he] could to have tried to
follow up on this.” Mr. Gross acknowledged that General Housel had “been very
open and very forthcoming, as she always is in every case” and that she had offered
for Mr. Gross to copy her file which was “probably eight to nine inches thick.” He
testified that General Housel told him that her file was “basically the same as [his],”
and Mr. Gross did not look through the file, although he did not think that General
Housel “would have objected had [he] gone through it line by line, sheet by sheet.”
Mr. Gross testified that he was not made aware of the letter from Mr. Bowers to
General Housel; however, on cross-examination, he acknowledged that General
Housel told him that she had received a letter from Mr. Bowers and that he
remembered General Housel “paraphrasing the contents of the letter.” Mr. Gross
testified, “General Housel and I had spoken pretty regularly about Bowers, and –
even to the fact that she didn’t know whether he would testify[.]” Mr. Gross
testified that he listened to the audiotape of General Housel’s interview with Mr.
Bowers on the morning before Mr. Bowers testified. Mr. Gross was aware of the
allegations against Mr. Bowers and that “he had been cleared.” However, Mr. Gross
was “not aware, or made aware, of the factual basis” for the allegation, and had he
known, he would have cross-examined Mr. Bowers about it. Mr. Gross testified, “I
would have used anything I could have to have shown any possible motive on his
behalf other than the goodness of his heart.”
Mr. Gross was not aware that Mr. Bowers had provided assistance in any
prosecutions other than the one in which Assistant District Attorney Katie Miller
also met with Mr. Bowers with General Housel present. Mr. Gross testified that he
“distinctly remembered” General Housel telling him that “there was nothing that
[she] could do to help [Mr. Bowers].” Mr. Gross testified, “General, in my opinion
you told me – you disclosed everything that you knew.” Mr. Gross testified that he
believed that “the most damning testimony” was that of the medical examiner and
the firearms expert. He testified, “I would say these two coupled together were the
things that we just weren’t able to overcome.”
(Doc. No. 15-19 at 6–9.)
The state court then went on to evaluate Petitioner’s claim on the merits:
Defendant asserts that the prosecution violated his due process right to a fair trial
by failing to disclose significant impeachment evidence regarding the State’s
witness Anthony Bowers. Defendant contends that the State should have produced
information related to Mr. Bowers’ credibility, specifically, information that he had
provided favorable testimony in other cases and information regarding his
involvement in an alleged prison rape. Defendant also alleges that the State did not
disclose that Anthony Bowers would testify against Defendant until “the very eve
of trial.” The State responds that Defendant has failed to establish that the State
purposefully withheld information from Defendant, and the State further asserts
that even if the information alleged by Defendant to have been withheld was
provided, Defendant has failed to show that it would have affected the outcome of
the trial. We agree with the State.
In Brady v. Maryland, the United States Supreme Court held that the prosecutor
has a duty to furnish exculpatory evidence to the defendant. 373 U.S. at 87.
Exculpatory evidence may pertain to the guilt or innocence of the accused and/or
the punishment which may be imposed if the accused is convicted of the crime.
State v. Marshall, 845 S.W.2d 228 (Tenn. Crim. App. 1992). The Supreme Court
in Brady reasoned that a fair trial and a just result could not be obtained when, at
the time of trial, the prosecution suppressed information favorable to the accused.
Brady, 373 U.S. at 87–88.
Any “suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87. Information useful for impeaching a witness is considered favorable
information that the prosecutor may not withhold. Giglio v. U.S., 405 U.S. 150
(1972). And, while Brady does not require the State to investigate for the defendant,
it does burden the prosecution with the responsibility of disclosing statements of
witnesses favorable to the defense. State v. Reynolds, 671 S.W.2d 854, 856 (Tenn.
Crim. App. 1984). The duty does not extend to information that the defense already
possesses or is able to obtain or to information not in the possession or control of
the prosecution. Banks v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977).
Before this court may find a due process violation under Brady, the following
elements must be established:
1. The defendant must have requested the information (unless the
evidence is obviously exculpatory, in which case the State is
bound to release the information, whether requested or not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The burden of proving a Brady
violation rests with the defendant, and the violation must be proven by a
preponderance of the evidence. Id. When determining the materiality of
undisclosed information, a reviewing court must establish whether “in [the]
absence [of the information, the defendant] received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419,
434 (1995). In other words, evidence is considered material only if there is a
reasonable probability that had the evidence been disclosed to the defense, the
results of the proceeding would have been different. Id. at 433-34 (quoting U.S. v.
Bagley, 473 U.S. 667, 682 (1985).
Furthermore, in situations where there was only a delayed disclosure of exculpatory
information, in contrast to a complete failure to disclose exculpatory information,
Brady does not apply, unless the delay itself causes prejudice. See State v.
Caughron, 855 S.W.2d 526, 548 (Tenn. 1993).
The prosecution notified Defendant of its intent to call Mr. Bowers as a “potential”
witness on January 29, 2009, eleven days prior to trial. On February 2, 2009, the
prosecution disclosed to defense counsel that: (1) Mr. Bowers’ attorney, Jack
Seaman, had notified the prosecution that Defendant made admissions to Mr.
Bowers while the two men were incarcerated together; (2) that the prosecutor had
spoken to Mr. Bowers and initially decided not to use him as a witness for the State
because Mr. Bowers had been accused of rape while incarcerated; (3) that Mr.
Bowers “had been cleared of all wrongdoing” regarding the rape allegation; and (4)
that the prosecutor was still uncertain about whether or not Mr. Bowers would
testify at trial. Defendant asserts that these representations were “grossly factually
inaccurate and highly misleading.” On February 6, 2009, General Housel brought
her file to a meeting with defense counsel and gave defense counsel the opportunity
to look through and copy any or all of the file. On February 9, 2009, the first day
of trial, defense counsel orally moved the trial court to grant a continuance to allow
defense counsel to investigate Mr. Bowers. The trial court denied the request and
allowed defense counsel to question Mr. Bowers in a jury-out hearing on the second
day of trial. During the jury-out hearing, Mr. Bowers testified that the reason he
came forward was because he remembered “back when [he] was selling drugs. The
same thing could have happened to [him] and [he] was thinking about what [his]
family would have went [sic] through.” Mr. Bowers testified that he had not been
promised anything by the State and that he had nothing to gain from testifying
against Defendant. He also testified about his prior convictions.
Defendant contends that the State failed to disclose information contained in its file
that Mr. Bowers had been accused of participating in a brutal attack on a fellow
inmate, Jon Plew. Defense counsel testified at the motion for new trial hearing that
had he known about the allegations against Mr. Bowers, he would have attempted
to impeach him and challenge his representation that he came forward against
Defendant out of concern for the victim’s family. Defendant contends that the State
also failed to disclose information contained in its file that Mr. Bowers hoped to
gain favor at a resentencing hearing based on his cooperation with the State
pursuant to Federal Rule of Criminal Procedure 35(b). Defendant introduced as an
exhibit at the motion for new trial hearing transcripts from Mr. Bowers’
resentencing hearing, at which Mr. Bowers testified as to several instances in which
he provided assistance to the government in hopes of receiving a reduced sentence.
At the resentencing hearing in the U.S. District Court, the court found that Mr.
Bowers was undeserving of any relief.
We conclude that Defendant has satisfied the first prong of the Brady inquiry. It is
undisputed that Defendant made a discovery request for any exculpatory evidence
in the State’s possession. Defendant also specifically requested the substance of
any statement made by Defendant to another person whom the State anticipated
calling as a witness. It is also clear that the evidence presented by Defendant at the
hearing on his motion for new trial would have been favorable to him at trial.
Evidence that Mr. Bowers had offered testimony in several prosecutions in
exchange for consideration of a reduced sentence, as well as evidence regarding
Mr. Bowers’ involvement in the alleged beating of Mr. Plew in prison could have
been used by Mr. Gross to impeach Mr. Bowers.
Regarding whether the State suppressed this information, the State asserts that
Defendant presented no evidence that the State purposefully withheld information
regarding Mr. Bowers. We agree. At the hearing on Defendant’s motion for new
trial, General Housel testified that it was “open file discovery” and she gave defense
counsel “the opportunity to look and copy and distribute anything that he wanted
in the file.” She denied knowledge that Mr. Bowers had testified favorably for the
prosecution in other cases, except one in which another Assistant District Attorney
accompanied her to meet with Mr. Bowers, and Mr. Gross testified that he had
listened to that interview prior to Mr. Bowers’ testimony. General Housel also
denied that she promised any consideration to Mr. Bowers for his testimony,
explaining that the she did not believe there was anything she could do to assist Mr.
Bowers. In fact, Mr. Bowers did not receive any consideration by the State in
exchange for his testimony in this case other than “a good word” from General
House. General Housel also testified that if she had any additional exculpatory
information regarding Mr. Bowers, she would have provided it to defense counsel,
and Mr. Gross testified that he believed General Housel was forthcoming and
disclosed all the information about Mr. Bowers that the State had in its possession.
Defendant has not shown that the prosecution had any of the “undisclosed”
information presented at the motion for new trial hearing in its possession prior to
trial. Therefore, Defendant has failed to establish the second prong of Brady.
In order to establish that the information was material, Defendant must show that
there is a reasonable probability that had the evidence been disclosed to the defense,
the results of the proceeding would have been different. Kyles, 514 U.S. at 434. We
conclude that the evidence presented by Defendant at the motion for new trial
hearing was not material. General Housel testified that she did not intend to call
Mr. Bowers as a witness not only because of the accusations against him, but also
because she did not perceive his testimony to be necessary to prove the State’s case.
She testified that the State’s case was strong without Mr. Bowers’ testimony based
on Defendant’s own statement to investigators, which was inconsistent with the
evidence introduced at trial. Mr. Gross also acknowledged that the key prosecution
witnesses were the medical examiner and firearms expert. We agree. Defendant has
failed to show that there is a reasonable probability that impeaching Mr. Bowers
with the information presented at the motion for new trial hearing would have
changed the outcome of his trial.
Because all four Brady factors must be established in order to afford Defendant
relief, and we have concluded that Defendant has failed to establish two of the
factors, Defendant is not entitled to relief on this issue.
(Id. at 9–13.)
The state court thus concluded that, although favorable evidence about Bowers had been
requested by Petitioner, the evidence in question had not been suppressed by the prosecution and
was not material to the outcome of Petitioner’s trial. Because the state court accurately identified
and summarized the applicable federal standard under Brady, Petitioner can only prevail on this

claim by establishing that the state court’s application of Brady was objectively unreasonable or
based on an unreasonable determination of fact.
But the Court has reviewed the transcript of the hearing on Petitioner’s motion for new trial
and finds that both the prosecutor’s testimony and trial counsel’s testimony confirm that the state
disclosed all the information in its possession about Bowers before Bowers testified through verbal
conversations, a recording of the prosecutor’s interview with Bowers, and access to the
prosecution’s file. (See Doc. No. 15-13 at 9–10, 23, 26–27, 30; Doc. No. 15-14 at 38, 45, 47, 56,

63.) That information included the fact that Bowers had been suspected of involvement in an
assault on a fellow inmate but had been cleared of wrongdoing. It also included evidence that
Bowers was in discussions with another state prosecutor about the possibility of testifying in
another state criminal case. It did not include any deal for leniency for Bowers, because he was a
federal prisoner to whom the state prosecutor had nothing to offer, particularly given that Bowers’s
federal sentencing was final before he testified in this case. And it did not include information
about Bowers’s seeking reductions in his federal assistance based on substantial assistance he
provided in other cases, because that information was not in the possession of the state prosecution
team. Accordingly, the state court’s determination that the prosecution did not suppress any

evidence pertaining to Bowers was not unreasonable.
Likewise, the state court’s additional finding that the evidence in question was not material
was also not unreasonable. Petitioner acknowledged having shot the victim, so the crucial question
for the jury was whether he shot in self-defense, as he claimed. Bowers provided testimony that
the prosecutor acknowledged was the “icing on the cake” to defeat the self-defense theory (Doc.
No. 15-14 at 62), which might have been mitigated by the additional impeachment evidence in
question. But Petitioner’s self-defense claim was also disproved by the close range of the second

shot to the victim’s head, the lack of shell casings or bullet holes that would have been present if
the victim had fired his own weapon, and the fact that Petitioner stole the victim’s property after
killing him. Accordingly, Bowers’s testimony was helpful to the prosecution, but it was far from
the only evidence against Petitioner.
Moreover, defense counsel did impeach Bowers with his criminal record and argued to the
jury that he was not a credible witness based on that record and on the likelihood that he would
use his cooperation in this case to seek a reduction in his own sentence. (Doc. No. 15-8 at 129–

33.) Counsel might have done even more damage with the additional information—not known to
the prosecution—that Bowers had an extensive history of cooperating in other federal cases in an
effort to reduce his federal sentence. (See Doc. No. 15-15 at 32, Bowers Sentencing Position in
Case No. 3:00-cr-00075.) But the other evidence against Petitioner would have remained strong
even if counsel had impeached Bowers’s credibility more than he did. The state court’s
determination that there was not a reasonable probability that Petitioner would have been acquitted
if he had the additional impeachment evidence against Bowers was not unreasonable.

Petitioner is not entitled to relief on Claim 1.
B. Claims 2–4 — Ineffective Assistance
As an alternative to Claim 1, Petitioner alleges in Claims 2 through 4 that trial counsel was
ineffective for failing to take advantage of the prosecutor’s offer to review and copy the
information in her file about Bowers, to investigate and learn on his own the same information
about Bowers, and to impeach Bowers at trial. (Doc. No. 1 at 8–11.) He exhausted these claims
in his state post-conviction proceedings.
All federal claims of ineffective assistance of counsel are subject to the highly deferential
two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether

counsel was deficient in representing the defendant; and (2) whether counsel’s alleged deficiency
prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To meet the first
prong, a petitioner must establish that his attorney’s representation “fell below an objective
standard of reasonableness,” and must overcome the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that . . . the challenged action ‘might be considered sound trial
strategy.’” Id. at 688, 689. The “prejudice” component of the claim “focuses on the question of
whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Prejudice, under
Strickland, requires showing that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
The Supreme Court has further explained the Strickland prejudice requirement as follows:
In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible
a reasonable doubt might have been established if counsel acted differently. Instead,
Strickland asks whether it is “reasonably likely” the result would have been
different. This does not require a showing that counsel’s actions “more likely than
not altered the outcome,” but the difference between Strickland’s prejudice
standard and a more-probable-than-not standard is slight and matters “only in the
rarest case.” The likelihood of a different result must be substantial, not just
conceivable.
Harrington v. Richter, 562 U.S. 86, 111–12 (2011) (internal citations omitted). “[A] court need
not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be

so, that course should be followed.” Strickland, 466 U.S. at 697.
As discussed above, however, a federal court may not grant habeas relief on a claim that
has been rejected on the merits by a state court, unless the petitioner shows that the state court’s
decision “was contrary to” law clearly established by the United States Supreme Court, or that it
“involved an unreasonable application of” such law, or that it “was based on an unreasonable
determination of the facts” in light of the record before the state court. 28 U.S.C. § 2254(d)(1) and
(2); Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus, when an exhausted claim of ineffective
assistance of counsel is raised in a federal habeas petition, the question to be resolved is not
whether the petitioner’s counsel was ineffective. Rather, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter, 562

U.S. at 101. As the Supreme Court clarified in Harrington,
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be no different than
if, for example, this Court were adjudicating a Strickland claim on direct review of
a criminal conviction in a United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different. For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from an
incorrect application of federal law. A state court must be granted a deference and
latitude that are not in operation when the case involves review under the Strickland
standard itself.

Id. (internal quotation marks and citation omitted).
The Tennessee Court of Criminal Appeals accurately identified and explained the
Strickland standard for federal ineffective-assistance claims and rejected Petitioner’s claims on the
merits:
The Petitioner argues that trial counsel was deficient in not investigating Mr.
Bowers before he testified at trial. He further argues that trial counsel’s cross-
examination of Mr. Bowers “caused the defense more harm than would have no
cross-examination at all.” The Petitioner relies on Peoples v. Lafler, 734 F.3d 503
(6th Cir. 2013), for his apparent assertion that trial counsel’s failure to impeach Mr.
Bowers was per se ineffective assistance of counsel. However, the facts in Lafler
greatly differ from those of the instant case. In Lafler, trial counsel was given a
police report and other supporting documentation showing that two of that
defendant’s accomplices were lying about a particular fact of the crime, and trial
counsel did not ask them about that fact or apparently even mention it in opening
statement or closing argument. Further, the Lafler court specifically noted that trial
counsel’s whole strategy was to cast doubt on the credibility of the two
accomplices, and his failure to impeach the two accomplices was therefore
particularly harmful to the defense, even more so because the two accomplices’
testimony was the only evidence linking that defendant directly to the actual crime.
Lafler, 734 F.3d at 507, 513.
The Petitioner fails to recognize the important differences between Lafler and the
instant case. As we have laid out, the post-conviction court found that trial counsel’s
failure to investigate Mr. Bowers did not prejudice him. The record supports such
a conclusion. Although trial counsel did not impeach Mr. Bowers’ claim that he
was testifying because it was the right thing to do, he did reference his previous
drug convictions and criminal history and during closing argument he portrayed
Mr. Bowers as a “snitch and a liar” and told the jury not to be surprised if he sought
a reduction in sentencing in exchange for his testimony. Further, although the
Petitioner argues that trial counsel “actively worked to bolster the credibility of the
prosecution’s key witness[,]” the Petitioner ignores trial counsel’s portrayal of Mr.
Bowers as a “snitch and a liar” and his mentioning to the jury that it was possible
Mr. Bowers would seek a reduction in his sentencing. Unlike the Lafler case, Mr.
Bowers’ testimony was not the only evidence the State possessed against the
Petitioner, and Mr. Bowers received no actual benefit from his testimony, unlike
the accomplices in Lafler. Although trial counsel might not have investigated Mr.
Bowers as thoroughly as [the attorney who testified as an expert on non-deficient
representation,] Ms. Morris[,] suggested he should have, there is nothing in the
record to suggest that the jury accredited Mr. Bowers’ testimony or that the jury
would have decided differently had trial counsel impeached Mr. Bowers in a
different manner.
Finally, the Petitioner argues that the State’s other evidence against him would not
have been sufficient to sustain his conviction without Mr. Bowers’ testimony,
namely because the Petitioner’s assertion that he acted in self-defense would not
have been contradicted. However, as we have laid out, despite the Petitioner’s claim
to detectives that he shot the victim in self-defense after the victim first fired a shot
at him, there is no evidence that anyone but the Petitioner fired a gun. Further, the
medical examiner, Dr. Deering, testified that the first shot to the victim was made
from between six inches and two feet away, while the second, fatal shot was made
from only six inches away, demonstrating that the Petitioner moved closer to the
victim after the first shot, just as he stated to detectives. Dr. Deering testified that it
was possible the first shot knocked the victim unconscious. Thus, the only evidence
supporting the Petitioner’s claim of self-defense is his own assertion. We agree with
the post-conviction court’s conclusion that the Petitioner did not suffer prejudice as
a result of trial counsel’s failure to impeach Mr. Bowers.
(Doc. No. 15-55 at 16–17.)
The state court thus found that Petitioner’s ineffective-assistance claims regarding the
Bowers testimony failed on the second prong of Strickland, because counsel’s allegedly deficient
performance did not prejudice Petitioner. This Court has already found above, in connection with
Petitioner’s Brady claim, that a conclusion that there was no reasonable likelihood that additional
impeachment of Bowers would have resulted in a different outcome at trial was not unreasonable.
The same is true in the context of his ineffective-assistance claims.
Because the state court’s rejection of these claims was not unreasonable, Petitioner is not
entitled to relief under AEDPA.
C. Claim 5 — Ineffective Assistance at Suppression Hearing
Petitioner alleges that his trial counsel was ineffective for failing to present Petitioner’s
testimony at the suppression hearing to prove that he was not free to leave during his interview
and that his statement was thus obtained in violation of the Fourth Amendment. (Doc. No. 1 at
12.) He exhausted this claim in his post-conviction proceedings, where the Tennessee Court of
Criminal Appeals summarized the relevant testimony and affirmed denial of relief on the merits:
Trial counsel also testified regarding his actions during the suppression hearing.
When asked why he did not call the Petitioner to testify regarding whether officers
had illegally seized him, trial counsel stated that the Petitioner had declined to
testify, even after trial counsel explained that the issue was “something [the
Petitioner] was going to have to substantiate.” Further, trial counsel stated that even
if the Petitioner had testified at the suppression hearing, he did not believe the
Petitioner would have testified that there was “any show of force by the police that
compelled him to come to the police station” because he had never mentioned a
show of force to trial counsel. Trial counsel explained that he chose to rely on the
videotape of the Petitioner’s interview with police as substantive proof at the
suppression hearing based on the Petitioner’s unwillingness to testify. Trial counsel
conceded that the Petitioner “changed his story” multiple times during his interview
with police and even asserted that he had shot the victim twice in self-defense after
the victim shot at him, though no other “bullet strikes or casings” were found at the
victim’s apartment. Trial counsel also conceded that “one of the big thing[s]” at the
suppression hearing was that the Petitioner was both “allowed to leave during the
interview to go down the hall” and to “leave after the interview.”
. . .
At the November 9, 2015 post-conviction hearing, attorney Kathleen Morris gave
expert testimony, over the State’s objection, regarding how “non-deficient” defense
counsel should operate. . . . She also stated that a non-deficient attorney would call
his client to testify at a suppression hearing regarding whether his client was
illegally seized by police.
. . .
Detective Wiser testified that he and Detective Windsor located the Petitioner in
the parking lot of Ms. Hooten’s apartment. Although he did not remember whether
he put his hand on his gun, he stated that he had a gun on his hip “[a]s [officers]
always do[,]” but that he typically d[idn’t]” keep his hand on his gun. He testified
that the Petitioner agreed to “voluntarily com[e] down to the police station for an
interview” and that they transported the Petitioner to the police station after frisking
him for weapons, as was “standard procedure.” He further explained that although
he could not remember exactly why they transported the Petitioner to the police
station, it was “not uncommon” for them to give rides to people who needed to go
to the police station, “like a courtesy.” Detective Wiser further affirmed that his
interaction with the Petitioner was not hostile, but was a “civil conversation . . .
[t]here w[eren’t] any direct commands, or nothing [] like that.”
The Petitioner also testified at the December 15, 2015 hearing. He testified that
Detective Wiser “reached for his gun” when he and Detective Windsor approached
the Petitioner in the parking lot of Ms. Hooten’s apartment. He stated that the
detectives would not allow him to go back to his apartment to tell “the kids” he was
leaving, called for a police car, and “never gave [him] [the] choice” to walk away
from them. The Petitioner further testified that he “never left custody” of the
detectives after getting in the police car, though he affirmed he was not handcuffed.
He stated that he relayed this information to trial counsel, and he responded, “Not
that I recall” when asked whether trial counsel talked to him about testifying at the
suppression hearing. On cross-examination, the Petitioner affirmed that trial
counsel had “done his homework” and presented a recently-decided case at the
suppression hearing that was similar to the Petitioner’s.
. . .
The Petitioner also argues that trial counsel was ineffective in failing to present
proof at the motion to suppress hearing that the Petitioner was seized by detectives.
Although the Petitioner asserts that trial counsel never talked to him about testifying
at the suppression hearing, trial counsel testified that he told the Petitioner that this
was an issue that would have required the Petitioner’s testimony in light of the other
evidence, namely the video of the Petitioner’s interview and subsequent confession
and the testimony of detectives. Trial counsel testified that the Petitioner elected
not to testify at the suppression hearing, and trial counsel was thus forced to rely
on the other available evidence to support the argument that the Petitioner’s
confession should have been suppressed. He further testified that the Petitioner
never discussed with him that detectives had used force. Instead, trial counsel
affirmed that the video of the Petitioner’s interview showed that he was not
handcuffed and was allowed to leave the room and walk down the hall during the
interview.
Contrary to the Petitioner’s testimony at the post-conviction evidentiary hearing
that Detective Wiser approached him with his hand on his gun, Detective Wiser
testified that he did not remember having his hand on his gun and would have only
done so in a dangerous situation, and Detective Wiser affirmed that his interaction
with the Petitioner had been civil, not threatening. Detective Wiser also testified
that Detective Windsor had spoken to the Petitioner about voluntarily coming to
the police station to be interviewed. He also affirmed that it was not unusual for
them to provide transportation to the police station to witnesses or victims. Further,
Detective Wiser stated, and the Petitioner conceded, that the Petitioner had not been
handcuffed in the patrol car or during the interview. Instead, he had been allowed
to leave the interview and walk down the hall by himself.
Except for the Petitioner’s own assertions, there is nothing in the record to support
a finding that he was seized by detectives. In fact, even without any strong evidence,
trial counsel argued for suppression and presented a recently-decided case in
support of the Petitioner. Although he was not able to keep the Petitioner’s
confession out, he was able to keep graphic photographs of the victim’s bullet
wounds out. Trial counsel testified that the Petitioner was unwilling to testify at the
suppression hearing, despite his explanation of the necessity of doing so. Without
the Petitioner’s testimony, trial counsel lacked the evidence necessary to present
proof that the Petitioner was seized. It is true that had the Petitioner’s confession
been suppressed, the State would have had a weaker case and, as Ms. Morris
suggested, trial counsel would have been deficient if he unilaterally decided that
the Petitioner would not testify at the suppression hearing. However, the post-
conviction court accredited the testimony of trial counsel and the detectives over
that of the Petitioner. The record suggests that trial counsel would have called the
Petitioner to testify at the suppression hearing had he been willing, but even so, the
testimony of the detectives and of trial counsel suggest that the Petitioner was not
seized, regardless of whether or not he testified at the suppression hearing. Further,
this court noted on direct appeal that the Petitioner had conceded that he voluntarily
met with the detectives at the police station. See State v. James Allen Pollard, 2012
WL 4142253, at *13. The Petitioner fails to establish that trial counsel’s
performance was deficient or that he suffered prejudice as a result of the alleged
deficiency.
(Doc. No. 15-55 at 11–14, 17–18.)
The state court thus found that this claim failed on both prongs of Strickland. Its finding
that counsel’s performance was not objectively deficient was based on its determination that
counsel credibly testified that Petitioner refused to testify at the suppression hearing even after
counsel explained to him that testimony was needed to support his effort to suppress his statement.

Witness credibility assessments are “predominately the business of trial courts,” and “federal
habeas courts do not have license, under § 2254(d), to redetermine witness credibility, whose
demeanor is observed exclusively by the state court.” Givens v. Yukins, 238 F.3d 420 (Table), 2000
WL 1828484, at *10 (6th Cir. Dec. 5, 2000) (citing Marshall v. Lonberger, 459 U.S. 422, 434
(1983)). The Court finds no basis in this record to conclude that the state court’s credibility
determination—and the consequent holding that counsel’s performance was not deficient—was
unreasonable.

A similar credibility determination underlies the state court’s conclusion that Petitioner
was not prejudiced by the failure to offer his own testimony at the suppression hearing. Petitioner’s
testimony that he was in custody involuntarily when he gave his statement was contradicted by
Detective Wiser’s testimony and by the video recording showing that Petitioner was able to get up
and leave the room during the interview and leave by himself after the interview. The state court
essentially found that Detective Wiser’s testimony was more credible than Petitioner’s and that
Petitioner’s statement would not have been suppressed even if he had testified at the hearing.
Petitioner does not offer any basis for this Court to find that conclusion so unreasonable that it is
beyond debate.

The state court’s disposition of this claim was not unreasonable, and Petitioner is not
entitled to relief under AEDPA.
D. Claim 6 — Cumulative Effect of Ineffective Assistance

Petitioner alleges that the cumulative effect of counsel’s alleged ineffectiveness deprived
him of a fair trial. (Doc. No. 1 at 12.) He exhausted this claim in post-conviction proceedings, and
the state court rejected it on its merits:
The Petitioner requests this court to consider the cumulative effect of the errors he
has alleged above in deciding whether to grant him relief in this post-conviction
appeal. Because we have found no single instance wherein trial counsel was
deemed ineffective, there is no basis to conclude that any cumulative error resulted
in an unfair trial.
(Doc. No. 15-55 at 19.)
This claim fails on habeas review for at least two reasons. First, cumulative-error claims
are not cognizable on habeas review because the Supreme Court has never held that cumulative
errors may form the basis for issuance of a writ of habeas corpus. Sheppard v. Bagley, 657 F.3d
338, 348 (6th Cir. 2011); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). And second, the
state court held that trial counsel did not commit any constitutional error in his representation of
Petitioner, and this Court has found those rulings to be reasonable. Accordingly, there are no
instances of ineffectiveness that could have had a cumulative effect on the outcome of Petitioner’s
case. Petitioner is not entitled to relief on this claim.
E. Claim 7 — Miranda Violation
Petitioner alleges that his incriminating statement was obtained in violation of his rights
under the Fifth and Fourteenth Amendments as defined by Miranda v. Arizona, 384 U.S. 436
(1966). As indicated above, that claim was the focus of a suppression hearing before trial and was
exhausted on direct appeal. The state court rejected the claim on the merits:

Defendant asserts that the trial court erred by denying his motion to suppress his
statement to detectives. Specifically, Defendant contends that . . . he was subjected
to the functional equivalent of a custodial interrogation before he waived his
Miranda rights, and therefore, his entire statement, including his post-waiver
statement, should have been suppressed.
. . .
The Fifth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, provides that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” In Miranda v.
Arizona, 384 U.S. 436 (1966), the United States Supreme Court concluded that in
the context of “custodial interrogation” certain procedural safeguards are necessary
to safeguard this privilege against compulsory self-incrimination. Id. at 444. More
specifically, the Court held that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.” Id. Those safeguards include the now familiar
Miranda warnings – namely, that the suspect be informed “that he has the right to
remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires.” Id.
at 479. If the police fail to provide these warnings, any statement obtained as a
result of custodial interrogation will not be admissible at trial during the
prosecution’s case-in-chief, even if the statement is otherwise voluntary. The
Miranda Court was concerned that the “interrogation environment” created by
interrogation and custody would “subjugate the individual to the will of his
examiner” so as to undermine the privilege against compulsory self-incrimination.
Id. at 457–58. In Dickerson v. United States, the United States Supreme Court
reaffirmed that “Miranda and its progeny . . . govern the admissibility of statements
made during custodial interrogation in both state and federal courts.” 530 U.S. 428,
432 (2000); see also State v. Walton, 41 S.W.3d 75, 82 (Tenn. 2001). Consequently,
if the defendant’s statement resulted from custodial interrogation, the statement
must be excluded from evidence because the police failed to provide the defendant
Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 307 (1985); Walton, 41 S.W.3d
at 86.
Miranda defined “custodial interrogation” as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at
444. Thereafter, the United States Supreme Court has explained that “interrogation”
refers not only to express questioning but also to any words, actions, or practices
that the police should know are reasonably likely to elicit incriminating information
from a suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see also Walton,
41 S.W.3d at 85.
The disputed issues in this appeal are: (1) whether Defendant was “in custody”
during the first seven minutes of the interview before he waived his Miranda rights;
and (2) whether the detectives’ words and conduct prior to the Miranda warnings
were the functional equivalent of an interrogation, rendering subsequent confession
inadmissible. To resolve this issue, we consider “whether, under the totality of the
circumstances, a reasonable person in the suspect’s position would consider himself
or herself deprived of freedom of movement to a degree associated with a formal
arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996). This test is
“objective from the viewpoint of the suspect, and the unarticulated, subjective view
of law enforcement officials that the individual being questioned is or is not a
suspect does not bear upon the question.” Id. Factors relevant to this objective
assessment include:
the time and location of the interrogation; the duration and character
of the questioning; the officer’s tone of voice and general demeanor;
the suspect’s method of transportation to the place of questioning;
the number of police officers present; any limitation on movement
or other form of restraint imposed on the suspect during the
interrogation; any interactions between the officer and the suspect,
including the words spoken by the officer to the suspect, and the
suspect’s verbal or nonverbal responses; the extent to which the
suspect is confronted with the law enforcement officer’s suspicions
of guilt or evidence of guilt; and finally, the extent to which the
suspect is made aware that he or she is free to refrain from answering
questions or to end the interview at will.
Id.
Defendant concedes that he voluntarily met with police. It is unclear from the
record how Defendant was transported to the interview. At the hearing on
Defendant’s motion to suppress, Detective Wiser could not recall whether
Defendant transported himself or whether he was transported in a patrol car;
however, at trial, Detectives Wiser and Windsor both testified that they believed
that Defendant was transported to the interview in a police car.
The videotaped recording of Defendant’s interview on July 14, 2006, is the most
helpful piece of evidence regarding this issue. According to the counter on the
video, at 14:38:20, or 2:38 p.m., Detective Windsor entered the interview room in
which Detective Wiser is seated across a table from Defendant. Both detectives sat
across the table from Defendant. Detective Windsor was closest to the door, which
was across the table from Defendant, and the door was closed during the interview.
Defendant was not handcuffed or restrained. Defendant did not ask or attempt to
leave the room. Detective Windsor is clearly armed with a holstered handgun. The
detectives spoke to Defendant in a casual and conversational tone. Detective
Windsor acknowledged that Defendant was “nervous” and suggested that
Defendant “relax.” Detective Wiser then acknowledged that withholding
information is “a heavy burden” and encouraged Defendant to tell the truth.
Detective Wiser stated that they knew what happened but that they needed to know
“the particulars.” Detective Windsor stated that they knew that the victim owned a
gun. Detectives then explained to Defendant that they believed that his co-
defendant lied to them in order to protect Defendant but that she had finally
admitted to them what had happened. The detectives stated that they knew that
Defendant had gone to the victim’s apartment to buy “a small amount of dope,” and
Detective Windsor speculated that the victim was armed and Defendant felt
threatened. Detective Windsor also stated that unless Defendant explained
otherwise, they would have to assume that this was “a cold-blooded killing.” At
14:45:35, Detective Wiser told Defendant that he would read Defendant his rights
before they took Defendant’s statement, and Defendant nodded affirmatively.
Detective Wiser then read Defendant’s Miranda rights and Defendant signed a
waiver form. Thereafter, Defendant told the detectives that he shot the victim in
self-defense during a struggle, and Defendant acted out his version of the events.
Defendant admitted to having taken the victim’s gun, cell phone, and PlayStation.
Defendant analogizes the facts of this case to those in State v. Dailey, 273 S.W.3d
94 (Tenn. 2009), in which the Tennessee Supreme Court determined, based on the
totality of the circumstances, that the interrogation of the defendant Dailey was
custodial. In its order denying Defendant’s motion to suppress, the trial court
distinguished the facts in this case from those in Dailey and found:
This case is different from Dailey. The defendant was not asked
questions prior to being read his Miranda rights. For approximately
7 minutes, the detectives in a casual conversational tone spoke with
defendant Pollard about their discussions with the [co-defendant].
During this approximate 7 minutes timeframe, the detectives did the
talking and did not ask defendant Pollard any questions. There was
a continual flow of conversation and then the detectives informed
the defendant of his Miranda rights before any questions were
asked. The defendant affirmatively waived his Miranda rights.
Furthermore, this interview was one continuous interview not two
separate interrogations.
Defendant also cites State v. Northern, 262 S.W.3d 741, 750 (Tenn. 2008), in which
our supreme court held that “[t]he functional equivalent of express questioning
refers to ‘any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect.’” First, we agree with
Defendant that the detectives[’] statements and actions were intended to elicit an
incriminating response from him. Therefore, unlike the trial court, we conclude that
the entire interview, including the pre-Miranda portion was an interrogation, even
though detectives did not ask specific questions of Defendant before giving the
Miranda warning. However, as discussed below, we conclude under the totality of
the circumstances in this particular case that Defendant was not in “custody” at
anytime prior to the Miranda warning being given.
Defendant is also correct that the facts in Dailey are very similar to the facts of this
case; however, there are some notable differences. In Dailey, “[t]he character of the
questioning was accusatory and demanding[.]” In this case, the detectives were not
accusatory or demanding and their demeanor was not threatening, although their
statements to Defendant were “aimed at convincing the Defendant that the police
already had sufficient evidence to convict him of murdering the victim and that he
had to give them an explanation.” See Dailey, 273 S.W.3d at 103. The most notable
difference between Dailey and this case is that Dailey did not waive his Miranda
rights until after he had confessed to killing the victim.
In fact, in all of the cases relied upon by Defendant, law enforcement gave Miranda
warnings after the defendants had already confessed. Defendant urges this Court to
employ the analysis set forth in Missouri v. Siebert, [sic] 542 U.S. 600 (2004), in
which a divided Supreme Court addressed the two-step interrogation process in
which police question first and warn later. The plurality opinion set forth several
factors used to determine whether the “late Miranda warnings are effective.” This
same analysis was employed by the Tennessee Supreme Court in Dailey and
Northern. However, we need not apply this analysis because, as noted below, unlike
in these cases, Defendant did not make any pre-warning statements to detectives.
Defendant asserts that “the lengthy pre-Miranda interrogation, in which he made
multiple admissions, violated his right against self-incrimination and the post-
Miranda statement is the fruit of that poisonous earlier interview (and of the illegal
seizure).” We disagree. Defendant contends that he made several pre-Miranda
admissions during the “lengthy” seven-minute pre-Miranda interview.
Specifically, Defendant asserts that he agreed with the detectives’ statements that
he was present in the victim’s house, that he had a gun, that he didn’t know the
victim very well, and that the victim felt threatened by Defendant. Defendant does
not cite where in the record these admissions are found, but we have to assume that
he is referring to the videotaped interview, which actually shows that Defendant
did not make any verbal statements to detectives before his Miranda warnings.
Although it is difficult to discern from the downward angle of the video, Defendant
may have nodded his head in response to some of the detectives’ statements, but
we do not interpret a slight nod of Defendant’s head to mean that he agreed with
the detectives’ statements, and we certainly do not interpret it as an affirmative
admission.
The first seven minutes of the interview consists of the detectives talking to
Defendant in a non-threatening manner and Defendant having little or no response.
As the trial court found in its order denying Defendant’s motion to suppress, the
detectives did not question Defendant prior to giving Miranda warnings. Further,
Defendant did not speak about the incident until after he waived his Miranda rights.
Defendant’s entire confession, in which he reenacted a struggle between himself
and the victim, was made after he waived his Miranda rights. We do not believe
the detectives in this case used questionable tactics to coerce an involuntary
statement from Defendant. As both detectives testified, they attempted to make
Defendant feel comfortable and at ease in the hopes of obtaining his confession.
Detective Windsor acknowledged that some of his statements to Defendant were
deceptive, but they were intended to elicit a response from Defendant. We have
already determined that the pre-warning portion of the interview was an
interrogation. However, Defendant made no incriminating response prior to the
Miranda warnings.
We also conclude that Defendant was not in custody during the pre-Miranda
portion of the interview. Defendant voluntarily met with detectives; Defendant was
not restrained during the interview; Defendant never requested to leave the
interview; and detectives were not accusatory or demanding in their tone or
demeanor. In fact, after Defendant confessed to shooting the victim, detectives gave
Defendant a can of soda and left the room. Defendant drank the soda and then
excused himself to the restroom, apparently unescorted. Again, however, we note
that Defendant made no incriminating response prior to waiving his Miranda rights.
In sum, because Defendant’s entire confession was made after he voluntarily
waived his Miranda rights, we conclude that the trial court did not err in denying
his motion to suppress his statement.
(Doc. No. 15-19 at 15–20.)
The state court correctly observed that Miranda warnings are not required unless an
individual is “in custody.” Miranda, 384 U.S. at 444 (“[T]he prosecutor may not use statements ...
stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”) (emphasis
added). The test for determining whether an individual is “in custody” for purposes of Miranda is
objective: whether a reasonable person in the defendant’s position, knowing the facts as the
defendant knew them, would have felt that he was under arrest or was “otherwise deprived of his
freedom in any significant way.” Id. at 477. The factors considered by the state court include those
considered by federal courts addressing Miranda claims: (1) location of the interview; (2) length
and manner of questioning; (3) whether the individual’s freedom of movement was restrained; (4)
whether the individual was told he did not have to answer questions and statements made during
questioning; and (5) whether the individual was released after the questioning. Schreane v. Ebbert,
864 F.3d 446, 452 (6th Cir. 2017) (citing Howes v. Fields, 565 U.S. 499, 509 (2012)); United
States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010). Even if another court might have reached
a different conclusion after considering those factors, the state court’s determination that Plaintiff
was not in custody for the first seven minutes of his interview was not unreasonable. The court
credited the officer’s testimony to the effect that Petitioner agreed to the interview voluntarily and
that there was nothing overtly hostile or demanding about the questioning, and Petitioner was never
restrained or prevented from leaving on his own.
The state court also found that the warnings were given before Petitioner made any
incriminating statements, thus distinguishing this case from Missouri v. Seibert, 542 U.S. 600
(2004), and two Tennessee cases applying the multi-factor test it announced. (Doc. No. 15-19 at
19.) In Seibert, a police officer questioned a suspect for thirty minutes, elicited a confession, then

gave the suspect Miranda warnings and had her repeat the confession. The Supreme Court held
that Miranda required the suppression of both the pre- and post-warning confessions and
announced five factors to consider in determining whether to suppress the post-warning confession
in such “Miranda-in-the-middle” situations. Seibert, 542 U.S. at 615. Those factors are: (1) the
completeness and detail of the pre-warning questions and answers; (2) the overlapping content
between the pre- and post-warning statements; (3) the timing and setting of both rounds of
interrogation; (4) the continuity of police personnel during both rounds; and (5) the degree to which
the interrogator’s questions treat both rounds as a continuous interrogation. See United States v.
Maddox, No. 1:18-CR-169-TRM-CHS, 2020 WL 896769, at *8 (E.D. Tenn. Jan. 29, 2020), report
and recommendation adopted, No. 1:18-CR-169, 2020 WL 888516 (E.D. Tenn. Feb. 24, 2020)

(citing Seibert, 542 U.S. at 615).
The state court found that Petitioner’s case did not require suppression under Seibert
because he did not make a pre-warning confession. Rather, the state court found that Petitioner
“made no incriminating response” and did not even say anything about the incident until after the
officer gave him the Miranda warnings. This Court has reviewed the video on which the state
court based that factual determination and observed more verbal responses prior to the Miranda

warnings than the state court acknowledged. At approximately 14:39:06 on the recording, in
response to one of the detectives’ commenting that Petitioner was nervous, he responded that he
had never been arrested. (Doc. No. 19, “Interview” disc.) At around 14:40:47, when detectives
were discussing how many times they had interviewed Petitioner’s girlfriend, he chimed in “five
or six.” (Id.) At 14:42:62, one of the detectives expressed an understanding that Petitioner was
carrying a gun the day of the incident because Petitioner did not know the victim well, and
Petitioner verbally agreed that he did not. (Id.) At 14:43:25, a detective said he did not believe

that Petitioner had the gun out pointing it at the victim when he entered his home, and Petitioner
said “no.” (Id.) And at 14:43:41, very shortly before Petitioner was read his Miranda warnings,
one of the detectives suggested that facing another person with a gun requires a difficult judgment
call for someone who has not been in that situation, and Petitioner responded “exactly.” (Id.)
Those latter three responses by Petitioner arguably acknowledged that, at least at some point, he
was in the victim’s home with a gun. Another court might reasonably find that they constitute an
incriminating pre-warning statement.

But not every pre-warning statement implicating a defendant in a crime requires
suppression under Seibert. In Bobby v. Dixon, 565 U.S. 23 (2011), the defendant was originally
arrested for forgery and acknowledged during pre-warning interrogation that he had obtained an
identification card in a murder victim’s name, signed his name to a check, and sold his car, but
denied any involvement in his disappearance. Dixon, 565 U.S. at 25–26. Hours later, after learning
that police had found the victim’s body, the defendant volunteered to make a statement, was read
and waived his Miranda rights, and gave a detailed confession to the murder. Id. at 26. The
Supreme Court summarized the material details of Seibert and found it did not require suppression
of the defendant’s murder confession:

In Seibert, police employed a two-step strategy to reduce the effect of Miranda
warnings: A detective exhaustively questioned Seibert until she confessed to
murder and then, after a 15- to 20-minute break, gave Seibert Miranda warnings
and led her to repeat her prior confession. 542 U.S., at 604–606, 616 (plurality
opinion). The Court held that Seibert’s second confession was inadmissible as
evidence against her even though it was preceded by a Miranda warning. A
plurality of the Court reasoned that “[u]pon hearing warnings only in the aftermath
of interrogation and just after making a confession, a suspect would hardly think he
had a genuine right to remain silent, let alone persist in so believing once the police
began to lead him over the same ground again.” 542 U.S., at 613; see also id., at
615 (detailing a “series of relevant facts that bear on whether Miranda warnings
delivered midstream could be effective enough to accomplish their object”). Justice
KENNEDY concurred in the judgment, noting he “would apply a narrower test
applicable only in the infrequent case . . . in which the two-step interrogation
technique was used in a calculated way to undermine the Miranda warning.” Id., at
622.
In this case, no two-step interrogation technique of the type that concerned the
Court in Seibert undermined the Miranda warnings Dixon received. In Seibert, the
suspect’s first, unwarned interrogation left “little, if anything, of incriminating
potential left unsaid,” making it “unnatural” not to “repeat at the second stage what
had been said before.” 542 U.S., at 616–617 (plurality opinion). But in this case
Dixon steadfastly maintained during his first, unwarned interrogation that he had
“[n]othing whatsoever” to do with Hammer’s disappearance. App. to Pet. for Cert.
186a. Thus, unlike in Seibert, there is no concern here that police gave Dixon
Miranda warnings and then led him to repeat an earlier murder confession, because
there was no earlier confession to repeat. Indeed, Dixon contradicted his prior
unwarned statements when he confessed to Hammer’s murder. Nor is there any
evidence that police used Dixon’s earlier admission to forgery to induce him to
waive his right to silence later: Dixon declared his desire to tell police what
happened to Hammer before the second interrogation session even began. As the
Ohio Supreme Court reasonably concluded, there was simply “no nexus” between
Dixon’s unwarned admission to forgery and his later, warned confession to murder.
101 Ohio St.3d, at 333, 805 N.E.2d, at 1051.
Moreover, in Seibert the Court was concerned that the Miranda warnings did not
“effectively advise the suspect that he had a real choice about giving an admissible
statement” because the unwarned and warned interrogations blended into one
“continuum.” 542 U.S., at 612, 617. Given all the circumstances of this case, that
is not so here. Four hours passed between Dixon’s unwarned interrogation and his
receipt of Miranda rights, during which time he traveled from the police station to
a separate jail and back again; claimed to have spoken to his lawyer; and learned
that police were talking to his accomplice and had found Hammer’s body. Things
had changed. Under Seibert, this significant break in time and dramatic change in
circumstances created “a new and distinct experience,” ensuring that Dixon’s prior,
unwarned interrogation did not undermine the effectiveness of the Miranda
warnings he received before confessing to Hammer’s murder. 542 U.S., at 615; see
also id., at 622 (KENNEDY, J., concurring in judgment) (“For example, a
substantial break in time and circumstances between the prewarning statement and
the Miranda warning may suffice in most circumstances, as it allows the accused
to distinguish the two contexts and appreciate that the interrogation has taken a new
turn”).
Dixon, 565 U.S. 23, 30–32 (2011).

The case at hand is similar to Seibert in that Petitioner’s entire interrogation was a single
continuous event, in the same place, with the same police personnel. However, it is also similar
to Dixon, in that Petitioner’s pre-warning comments—although arguably implicating him in the
murder, much like Dixon’s confession to forgery implicated him in his victim’s disappearance—
did not include a full-blown confession to homicide. Moreover, the detectives did not rely on
Petitioner’s pre-warning comments to extract additional information from him post-warning, and
there is nothing to indicate that they were intentionally employing an ask-now-warn-later strategy;
in fact, they did not ask any questions at all prior to Petitioner’s Miranda waiver. And finally, the
state court’s determination that Petitioner was not in custody at the time he made his pre-warning
incriminating statements, which this Court has already found to be reasonable, apparently

precludes Petitioner’s Seibert argument. See United States v. Evans, No. 18-20421, 2019 WL
458165, at *7 (E.D. Mich. Feb. 6, 2019) (“Because the pre-Miranda questioning was non-
custodial, the Seibert midstream Miranda warning test does not apply.”); see also United States v.
Ray, 690 F. Appx 366, 371 (6th Cir. 2017) (finding that first statement was made during custodial
interrogation, thus “triggering Seibert” analysis).
Reasonable jurists could easily debate whether Seibert required suppression of Petitioner’s

statement under these circumstances. Accordingly, the state court’s determination that suppression
was not required was not “objectively unreasonable” as required to grant relief under AEDPA,
Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002), and Petitioner is not entitled to relief on
this claim.
VI. CONCLUSION
Petitioner’s habeas claims fail on their merits for the reasons set forth above. Accordingly,
the Court will deny the requested relief and dismiss the petition.
An appropriate Order will enter.

WILLIAM L. CAMPBEI 7, J
UNITED STATES DISTRICT JUDGE

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669664. Public record. Not legal advice.