Burgess v. Clendenion

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

PHILLIP BURGESS, # 508657, )

)

Petitioner, )

)

v. ) No. 1:22-cv-00014

)

JASON CLENDENION, ) JUDGE CAMPBELL

) MAGISTRATE JUDGE HOLMES

Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Phillip Burgess, who is currently in the custody of the Turney Center Industrial

Complex in Only, Tennessee, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254

challenging his convictions for first-degree murder and attempted first-degree murder.

(Doc. No. 1). For the reasons below, the petition will be denied.

I. PROCEDURAL HISTORY

A. Trial and Direct Appeal

Petitioner was convicted in 2012 for first-degree murder of Joey Perryman, attempted first-

degree murder of Jordan Beavers, and aggravated assault against Hunter Keel. (Doc. No. 10-19

at 6); State v. Burgess, No. M2013-00252-CCA-R3CD, 2014 WL 309644 (Tenn. Crim. App.

Jan. 28, 2014). He was sentenced to life imprisonment for first-degree murder, plus 15 years for

attempted first-degree murder and three concurrent years for aggravated assault. (Doc. No. 1 at 1;

Doc. No. 10-19 at 2.)

On direct appeal, Petitioner argued that the State failed to disclose evidence to trial counsel,

thereby denying Petitioner a fair trial, and that the trial court erred in denying Petitioner’s motion

for new trial based on alleged evidentiary errors, violations of Brady v. Maryland, 373 U.S. 83

(1963), and new evidence. (Doc. No. 10-12 at 6−8, 15−33). The Tennessee Court of Criminal

Appeals affirmed the judgments of conviction. (Doc. No. 10-19 at 23). Petitioner did not timely

apply for permission to appeal to the Tennessee Supreme Court.

B. State Postconviction Proceedings

In October 2014, Petitioner filed a pro se petition for state postconviction relief. In it, he

raised the following grounds for relief:

 trial counsel was ineffective for

o failing to move to dismiss the prosecution as sanction for the State’s failure to

preserve a broken beer bottle found in the garbage at the scene of the shootings;

o coercing Petitioner not to testify;

o failing to pursue a defense theory of diminished capacity;

o failing to subpoena Petitioner’s telephone records;

o failing to investigate and call various witnesses, including Shawn Julian and an

expert to testify about the effects of Xanax; and

o failing to withdraw due to a conflict of interest; and

 appellate counsel1 was ineffective for failing to raise these issues in the motion for new

trial and on appeal, as well as for failing to subpoena Ms. Belew to testify at sentencing.

(Doc. No. 11-1 at 3−46).

At a postconviction hearing, Petitioner’s counsel orally moved to amend the postconviction

petition to state a claim based on appellate counsel’s failure to file an application for permission

to appeal to the Tennessee Supreme Court. (Doc. No. 11-3 at 13).

The postconviction court granted partial relief and allowed Petitioner to file an untimely

application for permission to appeal to the Tennessee Supreme Court on direct appeal.

(Doc. No. 11-2 at 26). The Tennessee Supreme Court granted Petitioner permission to file the

1 Petitioner’s appellate counsel also represented him at sentencing and litigated a motion for new trial.

For consistency with the state-court opinions, this Court refers to the attorney as “appellate counsel.”

application out of time but denied the application itself. (Doc. No. 10-24). Following Petitioner’s

unsuccessful application to the Tennessee Supreme Court, the postconviction court denied relief

on Petitioner’s remaining claims. (Doc. No. 11-2 at 72−94).

On appeal, Petitioner argued the same grounds as those raised in his postconviction

petition. (Doc. No. 11-13). The Tennessee Court of Criminal Appeals affirmed. (Doc. No. 11-15);

Burgess v. State, No. M2020-00028-CCA-R3-PC, 2021 WL 928475 (Tenn. Crim. App.

Mar. 11, 2021). Petitioner did not file an application for permission to appeal in the Tennessee

Supreme Court.

C. Federal Section 2254 Proceedings

Petitioner next filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in this Court.

The Petition raises the following grounds for relief:

1. trial counsel was ineffective for

a. failing to move to dismiss the prosecution as sanction for the State’s failure to

preserve the broken beer bottle found in the garbage at the scene of the

shootings;

b. coercing Petitioner not to testify;

c. failing to pursue a defense theory of diminished capacity;

d. failing to subpoena Petitioner’s telephone records;

e. failing to investigate and call Shawn Julian and an expert to testify about the

effects of Xanax as witnesses at trial; and

f. failing to withdraw due to a conflict of interest; and

2. appellate counsel was ineffective for

a. failing to subpoena Ms. Belew to testify at sentencing; and

b. failing to prepare and file an adequate record on appeal.

(Doc. No. 1 at 5−22).

II. SUMMARY OF THE EVIDENCE

A. Trial Evidence

The Tennessee Court of Criminal Appeals on postconviction review summarized the trial

evidence as follows:

[I]n early August 2011, the Petitioner allowed a friend of a friend, Jeanette Belew,

to stay at his apartment with her infant daughter for about six days after she moved

to Lewisburg. Ms. Belew testified that she became uncomfortable with the

arrangement after the Petitioner asked her to pretend to be his girlfriend, then later

asked her to become his girlfriend. Ms. Belew decided to stay at another male

friend’s vacant apartment and moved her belongings there on August 6, 2011.

Ms. Belew stated at trial that the Petitioner helped her pack. While at her new

apartment complex, Ms. Belew encountered Mr. Perryman, as well as Traci

Beavers, who was Mr. Perryman’s sister, Mr. Beavers, and Mr. Keel, who were both

Mr. Perryman’s nephews. Ms. Belew was previously acquainted with

Mr. Perryman, and the group made plans to eat together at Ms. Belew’s new

apartment the following day.

Ms. Belew testified that throughout the morning of August 7, 2011, the Petitioner

sent her text messages accusing her of stealing his Xanax; he also told her that he

would bring her mail to the new apartment. In the afternoon, Ms. Belew was in the

shower when she heard a knock at the door. She exited the bathroom and found the

Petitioner standing in the living room holding a cell phone, pieces of mail, and a

beer. Ms. Belew averred that his presence surprised her because she had not

informed him of her new address.

Ms. Belew testified that she “cursed” the Petitioner and told him to leave; however,

he instead sat down at the kitchen table. At this point, Mr. Perryman and

Mr. Beavers arrived; when Mr. Perryman asked what was happening, Ms. Belew

told him that she could not “get this MF’er out.” According to Ms. Belew,

Mr. Perryman began cursing and told the Petitioner that he needed “to get the hell

out.” The Petitioner left the apartment calmly without saying anything.

Ms. Belew testified that after the Petitioner left, she asked Mr. Perryman and

Mr. Beavers to remain in the apartment while she finished her shower. While she

was in the shower, she heard another knock at the door and heard the Petitioner say,

“F--- you, mother f-----s” followed by sounds she later realized were gunshots.

Mr. Beavers came into the bathroom bleeding from a gunshot wound to his chest,

told Ms. Belew that Mr. Perryman had been shot, and tried to hide in the closet.

Ms. Belew heard Mr. Perryman calling for help, but she was unable to open the

bathroom door. Mr. Beavers then used an electric guitar he found in the closet to

smash a hole in the bathroom door, and Ms. Belew called 911 and attended to

Mr. Perryman. Mr. Perryman eventually succumbed to his injury, which at autopsy

reflected a fatal gunshot wound to the torso.

On cross-examination, Ms. Belew acknowledged that she initially told police that

the Petitioner had driven her to the new apartment and helped her move in her

belongings. She said that she changed her statement the following day and

acknowledged that she blamed her initial mistake on the fact that she had consumed

too much beer on the day of the incident.

Jordan Beavers, who was sixteen years old at the time of the June 2012 trial,

testified that he, Mr. Keel, and Mr. Perryman arrived at Ms. Belew’s apartment to

find Ms. Belew wrapped in a towel and seated at the table talking to a heavyset man

wearing a voluminous Hawaiian-print shirt, whom Mr. Beavers later identified as

the Petitioner. Mr. Beavers recalled that Mr. Perryman asked the Petitioner why he

was in the apartment, and the Petitioner replied that he was delivering Ms. Belew’s

mail. Mr. Perryman cursed the Petitioner and told him to leave. According to

Mr. Beavers, the Petitioner “just said, ‘Okay,’” and left. No physical altercation

occurred between the men.

Mr. Beavers testified that while Ms. Belew was taking a shower, the three men

heard a knock, and Mr. Perryman answered the door. Mr. Beavers said that

Mr. Perryman saw the Petitioner standing at the door, cursed at him, and asked why

he had returned. The Petitioner replied that he had forgotten something, and he

raised a gun and fired it at Mr. Perryman, who fell into the kitchen counter. After

the Petitioner shot Mr. Perryman, he came into the apartment, pointed the gun at

Mr. Beavers, and fired. Not realizing he had been shot, Mr. Beavers ran into the

bathroom, where he hid in a closet. While he was in the bathroom, he heard

Mr. Perryman plead for his life. Mr. Beavers testified consistently with Ms. Belew

regarding his using a guitar to break through the bathroom door.

Mr. Beavers said that upon emerging from the bathroom, he left the apartment

without checking on Mr. Perryman and saw Ms. Beavers and his girlfriend, Isabella

Jacobson, waiting in Ms. Beavers’s car. Ms. Beavers drove toward the hospital,

flagging down a police car on the way and alerting them to the situation at

Ms. Belew’s apartment. Mr. Beavers suffered a “through-and-through” gunshot

wound to the chest.

On cross-examination, Mr. Beavers admitted that Mr. Perryman had told the

Petitioner, “Get the f--- out. Before I beat your a--.” Mr. Beavers denied that

Ms. Belew was arguing with the Petitioner when he initially arrived at the

apartment. He affirmed that Ms. Belew asked Mr. Beavers not to call the police

after the shooting.

Hunter Keel, who was fourteen years old at the time of the June 2012 trial, testified

consistently with Mr. Beavers regarding the circumstances in which they initially

encountered the Petitioner, including Mr. Perryman’s cursing the Petitioner and

telling him to leave. Mr. Keel affirmed that the Petitioner left without comment.

Mr. Keel noted that Mr. Perryman was not generally “nice” to anyone.

Mr. Keel also testified that when Mr. Perryman opened the door a short time later,

the Petitioner claimed to have forgotten something, pulled out a gun, and shot

Mr. Perryman. Mr. Keel “shut the door and got on the ground.” After he saw

Mr. Beavers run into the bathroom, Mr. Keel ran out the front door. Mr. Keel heard

an additional gunshot and believed the Petitioner was shooting at him. Mr. Keel

eventually ran to Ms. Beavers’s apartment and waited for the police to arrive before

returning to Ms. Belew’s apartment. Mr. Keel admitted that he “might have been

dramatic” in his initial police statement, in which he relayed that he attacked the

Petitioner with an object and that the Petitioner chased him out of the apartment

and shot at him; he acknowledged that his trial testimony was “somewhat different”

from the statement.

Nolan Pippen, a resident of the apartment complex, said that at approximately

1:00 p.m. on August 7, 2011, he saw “a very large man, very large proportioned

man, who was unusual looking” and wearing a large “flowery” shirt go into

Ms. Belew’s apartment. Mr. Pippen saw the man leave, and sometime later, he

heard gunshots and saw a Caucasian teenager run out of Ms. Belew’s apartment

“like he was running a 100-yard dash.”

Sixteen-year-old Isabella Jacobson testified that she was outside Ms. Beavers’s

apartment when she saw the Petitioner walk to Ms. Belew’s apartment door and

knock; when someone opened the door, Ms. Jacobson saw the Petitioner’s hand

raise, and she heard gunshots. The Petitioner entered the apartment, and Mr. Keel

ran outside. Ms. Jacobson alerted Ms. Beavers, and they drove in Ms. Beavers’s car

toward the apartment complex parking lot. As Ms. Beavers drove Ms. Jacobson

toward the parking lot, they saw the Petitioner, and Ms. Beavers asked him, “Did

you just shoot my son and my brother?” The Petitioner responded, “No, I don’t

know what you are talking about.” Upon arriving at Ms. Belew’s apartment,

Ms. Jacobson walked inside and saw broken glass and spilled beer on the floor.

Mr. Perryman was on the floor holding his side; he asked her for help because he

had been shot. Ms. Jacobson also saw Ms. Belew and Mr. Beavers inside the

bathroom; upon realizing that Mr. Beavers had been shot, Ms. Jacobson and

Ms. Beavers took him to the hospital.

Lewisburg Police Sergeant Jerry Broyles testified that at the crime scene,

Ms. Belew was standing in the doorway wrapped in a towel. She told him that the

Petitioner had shot Mr. Perryman and Mr. Beavers and that the Petitioner had left

the area. Sergeant Broyles later responded to a location in which the Petitioner was

sitting in his car; after the Petitioner was arrested, another officer pointed out to

Sergeant Broyles a Hawaiian-print shirt and a pistol inside the vehicle.

Lewisburg Police Detective James Johnson testified that he interviewed the

Petitioner after the Petitioner had waived his rights; the Petitioner gave a written

statement and a corresponding one-hour recorded statement. In the written

statement, the Petitioner recounted that a friend brought “some girl” to his

apartment who needed a place to stay. He said that the woman stayed with him from

Sunday to Friday and then left with “no goodbye or anything.” The Petitioner wrote

that when the woman would not answer his calls, he asked a friend where she had

gone. The Petitioner went to that location, and a maintenance man told him where

she was staying. He knocked on the door, and the woman told him to come inside

and that she was in the shower. When he went inside, the two of them sat at a table

discussing “forgiveness.” The Petitioner described what happened next:

Then some bad [M]exicans came and saw me the[y] said I was a FN

cop and the[y] was going to kick my ass and kill me because I’m

and [sic] pig he came at me with a beer bottle and called me more

names then the others came at me the girl disappeared I put out my

[hip] 380 cocked it and it did not matter they was going to kill me I

shot at the ... wall and the bathroom wall door area not aiming at

anyone then I left and some chick called the cops.

After the conclusion of the State’s proof, the trial court conducted a Momon

colloquy, see Momon v. State, 18 S.W.3d 152, 161−62 (Tenn. 1999), after which the

Petitioner elected not to testify, saying, “The statement made with the audio tape

was good enough[.]” The defense did not present any further proof. The jury

convicted the Petitioner of the first degree murder of Mr. Perryman, the attempted

first degree murder of Mr. Beavers, and the aggravated assault of Mr. Keel.

However, the jury acquitted the Petitioner of the aggravated assault of Ms. Belew.

(Doc. No. 11-15 at 2−6) (footnotes and citations omitted).

The Tennessee Court of Criminal Appeals summarized the evidence introduced during

postconviction proceedings as follows:

a. First evidentiary hearing

The Petitioner testified that the Public Defender’s Office represented him in

General Sessions Court, at his preliminary hearing, and throughout his trial in

Circuit Court. The Petitioner stated that the first time he met trial counsel, he told

counsel that he “shot the beer bottle next to the bathroom door and the wall.” When

the Petitioner received a copy of the discovery materials, he realized that the beer

bottle fragments were not collected as evidence. The Petitioner averred that he told

counsel the bottle was important because Mr. Perryman used the bottle to attack

him. The Petitioner did not recall, though, whether he asked counsel to file a motion

related to the fragments.

The Petitioner agreed that the crime scene photographs of the fragments were taken

after Ms. Belew swept up and discarded them; he further agreed that beer visible

on the floor in the photographs was consistent with the location in which the bottle

fell. The Petitioner stated that Mr. Perryman “slung” the bottle at him, that the pistol

touched the bottle, and that the Petitioner shot the bottle. The Petitioner asserted

that the bottle fragments and beer from the bottle would have contained gunshot

residue because according to the police, no gunshot residue was found elsewhere

at the crime scene or on Mr. Perryman’s body. The Petitioner stated that the

fragments “could have been tested” and that the police knew the bottle was “part of

[the Petitioner’s] statement.”

The Petitioner acknowledged that trial counsel could not have done anything to

retrieve the bottle fragments or reassemble them, that the fragments were thrown

away before he met counsel, and that he never asked counsel to file a motion to

dismiss based upon the missing fragments. The Petitioner averred that the

fragments would have proven his theory of self-defense because they would reflect

that he “shot the beer bottle that was swung at [him].” The Petitioner thought that

Ms. Belew testified at trial that the beer bottle fell on the floor.

The Petitioner testified that at trial, trial counsel talked to him for about thirty

minutes about whether he would testify. According to the Petitioner, counsel told

him that because he “had nothing entered on [his] behalf,” the Petitioner “was

probably going to get yelled at and stuff by [the prosecutor]” and that the

Petitioner’s written and audio-recorded statements were sufficient to prove self-

defense. The Petitioner said that counsel recommended against his testifying

because he “didn’t have [any]thing else up there backing [him].” The Petitioner

decided not to testify based upon counsel’s recommendation. When asked whether

he felt counsel “forced” him not to testify, the Petitioner stated, “I understood what

they were saying when I didn’t have [any]thing to back ... up ... what I would say

on the stand.” He agreed that the evidence was “[his] word versus the word of

everybody else that was there.” When asked whether his credibility might have

been enhanced by giving consistent accounts of events in comparison to witnesses’

varying stories, the Petitioner responded negatively.

The Petitioner testified that trial counsel visited him in jail before the trial and told

him that he could testify if he wanted to do such, although it would be the

Petitioner’s word against that of the witnesses. The Petitioner denied that counsel

ever prepared him to testify. When asked how counsel “coerced” him into not

testifying, the Petitioner said, “I took their advice ... and I don’t know the process

that well[.]” The Petitioner noted that he did everything counsel told him to do.

The Petitioner testified that he wanted several witnesses called to testify at trial on

his behalf. He said that “T[-]Roy,” whose legal name he did not know, would have

testified about why the Petitioner was parked “on the hill” and why he was carrying

a gun. According to the Petitioner, T-Roy told the Petitioner that the Petitioner’s

transmission was going bad and that the Petitioner should “do all [his] running all

at one time.” The Petitioner noted that he had the pistol on the day of the shooting

because he was taking it to his father’s house for safekeeping after multiple

burglaries occurred at the Petitioner’s apartment complex.

The post-conviction court interjected and asked what difference the location of the

car would have made to the Petitioner’s self-defense argument. The Petitioner

replied, “I guess it wouldn’t matter, would it?”

The Petitioner testified that he saw Dr. Jon Garrison for two one-hour appointments

before his trial. The Petitioner stated that at one jail visit, trial counsel conveyed

Dr. Garrison’s report that the Petitioner was “a little bit off”; counsel did not discuss

Dr. Garrison’s findings again or tell the Petitioner how they might help or hurt his

defense. On December 24, 2014, the Petitioner saw for the first time a letter

Dr. Garrison wrote to the parties and the trial court discussing diminished capacity.

The Petitioner agreed that diminished capacity could “help your mental state down

a level or two.” The Petitioner stated that at his sentencing hearing, Dr. Garrison

testified “that if you back somebody into a corner that they’re going to defend

themselves like [the Petitioner] had to.” The Petitioner opined that had Dr. Garrison

testified at trial, it might have made a difference to his case.

The Petitioner testified that he had been going to “Centerstone” for mental health

treatment for more than one year before the shooting. He said that he saw “an

elderly lady” and a man who prescribed him Bupropion and Xanax for anxiety. The

Petitioner suffered from anxiety attacks in which he felt closed in, “like [he was]

going to freak out,” and as though he would have a heart attack. The Petitioner

stated that he had clinical depression and anxiety and that he did not know whether

Dr. Garrison reviewed his Centerstone records. The Petitioner averred that he told

trial counsel about his taking Xanax on the day of the incident and asked counsel

whether it would help the defense if the Petitioner had “too much in [him]”;

however, counsel were not “interested in that.” The Petitioner stated that his mental

health had improved somewhat since the shooting.

The Petitioner affirmed that he suffered a “closed head injury” in a 1999 automobile

accident during which the Petitioner’s head went “halfway” through his windshield

after a car pulled in front of him and hit his vehicle. When asked whether the injury

affected his ability to think, the Petitioner replied, “I don’t know, it may have. I’d

say, yes.” Although the Petitioner thought that he “probably” told trial counsel

about the accident and that the other driver died, he did not believe he told counsel

about his mental health history and previous head trauma.

The Petitioner testified that he wanted trial counsel to question Ms. Belew at trial

about their lack of a romantic relationship; he noted, though, that he did not know

if this information was “actually relevant to self-defense.” The Petitioner stated that

he also wanted Ms. Belew questioned about the Petitioner’s telephone call to her

before the incident, noting that he did not have the ability to send text messages.

The Petitioner opined that Ms. Belew lied about receiving text messages from him.

He added that Ms. Belew knew he was coming to her apartment to drop off mail.

The Petitioner testified that Shawn Julian was the mutual friend who arranged for

Ms. Belew to stay with the Petitioner. The Petitioner wanted Mr. Julian called as a

witness because he could impeach Ms. Belew’s testimony that she had not met the

Petitioner previously; the Petitioner asserted that he met Ms. Belew at Mr. Julian’s

home one year prior to the incident. The Petitioner stated that he asked trial counsel

to subpoena Mr. Julian as a witness, but that counsel did not do such.

The Petitioner testified that at the time he received the discovery materials, he was

dissatisfied with trial counsel and did not believe they were “really doing anything

to help” him. He elaborated that every time he told counsel his version of events,

“they would be combative ... about it” and that “[it] just seem[ed] like they didn’t

believe” the Petitioner. The Petitioner noted that counsel told him “well, they’re

going to say this and that if you go to trial.” The Petitioner opined that counsel were

not representing his interests. He said, though, that counsel visited him in jail when

they had questions for him or wanted to tell him something.

The Petitioner testified that in early March 2012, three months before trial, trial

counsel filed a motion to withdraw because the Public Defender’s Office had also

represented Mr. Beavers in an unrelated criminal case. According to the Petitioner,

the prosecutor said at a hearing on the motion that the State “didn’t mind” counsel’s

continuing to represent the Petitioner, and the trial court “agreed” with the State.

The Petitioner was not asked to sign a waiver of the conflict of interest. The

Petitioner stated that at some point after the hearing, he asked counsel to “go back

up and tell them to give [him] another lawyer” but that the District Public Defender

refused. The Petitioner said that he wished he would have asked the trial court for

another lawyer. Post-conviction counsel noted that during the motion to withdraw

hearing, another defendant was “sitting back there and he asked for a different

attorney and he got one.”

The Petitioner estimated that in an effort to obtain other counsel, he contacted

between seventeen and twenty attorneys after asking jail staff for their contact

information. However, he could not find another attorney to take his case, and he

noted that it was difficult to retain an attorney while in jail with no money.

The Petitioner testified that the Public Defender’s Office represented him through

the end of his trial, that the Petitioner’s family then hired appellate counsel, and that

at an August 8, 2012 hearing, the District Public Defender “and them quit

[the Petitioner].” As a result, appellate counsel represented the Petitioner during his

sentencing hearing and at the motion for new trial proceedings.

The Petitioner testified that appellate counsel did not subpoena Ms. Belew to the

sentencing hearing; according to the Petitioner, at some point, Ms. Belew informed

appellate counsel that the Petitioner told her about seeing shadow demons. The

Petitioner denied, though, that he saw shadow demons at the time of the shooting.

Relative to the Petitioner’s statement to police that “bad Mexicans” attacked him,

the Petitioner testified that as he approached Ms. Belew’s apartment he saw three

people in the parking lot who “looked like Mexicans[.]” The Petitioner noted that

the discovery materials reflected Mr. Perryman’s having had cirrhosis, which had

altered his skin tone. The Petitioner further described Mr. Perryman as having “a fu

manchu, like thing going on, and he was tatted down both sides, and tattoos down

both sides of him, and he looked like he was Hispanic.” The Petitioner asserted that

appellate counsel should have introduced a photograph of Mr. Perryman to show

why the Petitioner thought he was Mexican and in order to “have a better

understanding of what [the Petitioner] was up against that day.” The Petitioner

expressed his belief that Ms. Belew stole his prescription medication, that she knew

he had “extras that she didn’t get,” that she told him to come to the apartment in

order to set him up for a robbery, and that Ms. Belew arranged for the men to come

inside, attack the Petitioner, and take his medication and money.

The Petitioner testified that appellate counsel never discussed with him filing an

appeal to the Tennessee Supreme Court after his direct appeal was denied.

The Petitioner noted that he “had to” communicate with counsel through the

Petitioner’s family members and that he had no personal conversations with counsel

after they met in court. The Petitioner affirmed that he did not sign a written waiver

relative to a Rule 11 appeal and that no Rule 11 appeal was filed. The Petitioner

also noted that counsel never informed him that counsel was withdrawing or that

counsel was not responsible for filing a Rule 11 appeal.

The Petitioner testified that he filed a complaint with the Board of Professional

Responsibility regarding appellate counsel’s failure to respond to a letter in which

the Petitioner requested a copy of his file. Thereafter, counsel sent the Petitioner a

letter and provided the file to the Petitioner’s family.

On cross-examination, the Petitioner acknowledged that his testimony differed

from his police interview, and he noted that he “added to it.” The Petitioner stated

that Mr. Keel was Caucasian, and Mr. Beavers had “light brown” skin or was

biracial. The Petitioner did not know whether Ms. Belew discarded the bottle

fragments before the police arrived. The Petitioner reviewed his written statement

and agreed that it established how he knew Ms. Belew. The Petitioner said that

when he arrived at Ms. Belew’s apartment, he had a sixteen-ounce can of beer.

He agreed that Ms. Belew testified at trial to “fussing at” him and telling him to

leave, as well as refusing to become his girlfriend.

The Petitioner acknowledged Mr. Pippen’s testimony that he saw the Petitioner

walking away from Ms. Belew’s apartment and later heard gunshots, as well as

Isabelle Jacobson’s testimony that she saw the Petitioner knock on Ms. Belew’s

door and heard gunshots immediately afterward. The Petitioner denied that these

respective events occurred.

The Petitioner read his written statement aloud, and he added that after Ms. Belew

“disappeared,” the Petitioner pulled out his gun; he added that the three men

surrounded him. When asked whether he told police that he had time to pull out the

gun and chamber a round, the Petitioner said,

When I was sitting there, and they came in, Perryman, the first thing

he said to me was, cop, pig. He called me like [fourteen] different

names. Then, Belew was sitting at the other side of the table. He

goes over by [Ms.] Belew, and he’s like right behind her. He has a

Colt 45 beer bottle in one hand and a cigarette in the other, and he

looks right at me and says, I’m going to beat you to death and throw

your body into the Duck River, and you’ll be lucky if you’re ever

found.

....

Okay. He said that to me, and then he leans over and puts his

cigarette out and says, leave, [b--ch]. I thought he was talking to me.

I said I don’t want no problems.... And [he] like moves back. She

disappears. She went into the bathroom is what she did[.]

The Petitioner stated that he believed the men were going to kill him and that he

“shot at the bottle” after the bottle made contact with the barrel of the pistol. Upon

questioning by the post-conviction court, the Petitioner opined that the bottle broke

when he shot it, but he acknowledged that the bottle “might have shattered even if

[he] didn’t shoot it” when the bottle touched the pistol.

The Petitioner agreed that he gave his written statement on the day of the incident,

including his claims that he acted in self-defense and that he did not leave the

apartment and return. When asked whether it made sense for a defense lawyer to

argue alternative theories of self-defense and diminished capacity, the Petitioner

replied that it “would be a smart thing.” The prosecutor then attempted to explain

why diminished capacity was incompatible with a theory of self-defense, but the

Petitioner did not understand this line of questioning.

Relative to the Petitioner’s asking appellate counsel about filing a Rule 11 appeal,

the Petitioner testified that his parents communicated to him counsel’s response that

the Petitioner could file one if he desired, but that “only five get accepted a year, so

it might not make a difference to do it.” The Petitioner said that appellate counsel

did “everything” that the Public Defender’s Office “should have” done, although

the Petitioner was unhappy that appellate counsel did not subpoena Ms. Belew to

the sentencing hearing. The Petitioner said that if Ms. Belew had testified regarding

the Petitioner’s mental illness at the sentencing hearing, it “might have made a

difference, [or] it might not have.”

The Petitioner reiterated that he wanted the Tennessee Bureau of Investigation and

police detectives to reconstruct the broken beer bottle and test it for gunshot residue

because the beer might not have washed any such residue off the glass fragments.

The prosecutor asked the Petitioner if he knew whether a method existed by which

such testing was possible, but the Petitioner did not understand the question.

The Petitioner testified that during trial, he told trial counsel that he wanted to

testify to “clear up some stuff.” The Petitioner acknowledged the trial court’s

Momon colloquy and his answers under oath. The Petitioner noted that he “tried to

talk to” the trial court about the issue but could not; he admitted, though, that the

occasion to which he referred did not occur at the time of the colloquy.

The Petitioner testified that he wanted trial counsel to ask Ms. Belew additional

questions during her testimony. When asked whether he understood why counsel

might have declined to question Ms. Belew if counsel knew her answers would

contradict the Petitioner’s police statements, the Petitioner replied that at the time

he gave his police statements, he was “freaked out.” He acknowledged, though, that

he told the police “what happened,” including his shooting the beer bottle.

Relative to Mr. Julian, the Petitioner averred that Ms. Belew told the Petitioner that

she was a lesbian and that Mr. Julian’s testimony on this point would have

undermined the State’s theory that the shooting arose from a “love-triangle.” The

Petitioner stated that during the sentencing hearing, Dr. Garrison “said

[the Petitioner] had a ground to argue” diminished capacity. The Petitioner agreed,

though, that Dr. Garrison made no statement about whether he would have testified

at trial in support of the Petitioner’s diminished capacity.

The sentencing hearing transcript, which was received as an exhibit, reflected that

at the hearing, Dr. Garrison acknowledged his November 7, 2011 letter assessing

the Petitioner’s competency to stand trial, including a statement that the Petitioner

“[did] appear to have a basis for a claim of diminished capacity.” Dr. Garrison

agreed that the letter reflected the “standard” matters he addressed in response to

an order for a psychological evaluation. When asked to elaborate on his statement

regarding diminished capacity, Dr. Garrison responded, “I am saying it is

potentially an issue. I am not concluding he has diminished capacity. I am saying

he has an issue that needs to be argued.” Dr. Garrison agreed that the prosecutor

visited him before trial to discuss the Petitioner’s case. He stated that if he were

able to modify the statement about diminished capacity, he would have written that

the Petitioner had a “basis for arguing diminished capacity, not concluding

diminished capacity, but at least arguing it.” Dr. Garrison explained that he based

his opinion upon the Petitioner’s having two “Axis I” diagnoses; according to Dr.

Garrison, another practitioner at Centerstone diagnosed the Petitioner in December

2010 with “agoraphobia, with panic disorder, and also major depression or

depressive disorder, recurrent severe, with no mention of psychosis.” Dr. Garrison

noted that the Petitioner’s diagnoses predated the shooting incident. Dr. Garrison

opined that his assessment of the Petitioner’s potential diminished capacity was

“conservative” and based upon Dr. Garrison’s finding enough “evidence” to “allow

the defense attorney to make the argument if they choose to.”

On cross-examination, Dr. Garrison testified that he also concluded that the

Petitioner had a “personality disorder” that probably resulted from “his upbringing”

and subsequent experiences; he noted that the Petitioner reflected “a lack of social

interactions and a lack of social skills[.]” Dr. Garrison declined to render an opinion

of the Petitioner’s “mental development,” and he commented that he knew of no

test to determine a patient’s mental “age.”

Appellate counsel testified at the post-conviction hearing that he began practicing

law in Spring 2011, that he ran for District Public Defender in 2014, and that he

represented the Petitioner for his sentencing hearing, motion for a new trial hearing,

and direct appeal. Counsel noted that he was “not really allowed to raise ineffective

assistance on direct appeal, [and] that’s mostly what this case [was] about.” Counsel

stated that upon reviewing the trial record, “the most glaring thing” he noticed was

“a golden Easter egg that came out of Centerstone,” Dr. Garrison’s evaluation.

According to counsel, Dr. Garrison thought the Petitioner’s “mental condition was

so bad that Dr. Garrison actually included in his report that” the Petitioner had

diminished capacity. Counsel noted that in his experience, such a statement was

rare in a competency determination, and he posited that Dr. Garrison “sort of sua

sponte ... threw that in.” Appellate counsel opined that trial counsel’s failure to

“explore that avenue ... was really glaring.”

Appellate counsel testified that Dr. Garrison offered “very favorable” testimony at

either the sentencing or motion for a new trial hearing, although he could not

remember at which hearing Dr. Garrison testified. Counsel noted that he was “very

impressed” with Dr. Garrison and opined that Dr. Garrison would have been a

“great witness for the jury.” Counsel stated that he had a “huge amount” of the

Petitioner’s medical records from Centerstone; however, he did not recall whether

he entered them into evidence at the sentencing hearing. Appellate counsel stated

that although the records were relevant to proving diminished capacity, in light of

the fact that trial counsel’s defense strategy did not involve diminished capacity, the

records would not have been useful. When asked whether self-defense and

diminished capacity could be presented together as a joint defense, appellate

counsel replied,

Absolutely. As a matter of fact, that is common even because the

whole question really is because we’re dealing with self-defense ...

we want to know this particular person, this particular situation. We

deal commonly with post-traumatic stress clients. We want to know

that particular person that particular situation, that particular time

did they have some basis. So, when we talk to the jury, it’s very

common that we weave those two together, yes.

....

In this particular case, to be clear about this, I think it would have

been a mistake to do either without the other.... [The Petitioner was]

very consistent the entire time. The facts made out a case for self-

defense. And then, after you do the basic due diligence that any trial

counsel or criminal defense counsel did with respect to [the

Petitioner’s] background, then his mental health problems ... just

jumped out -- so, I really think that if you had pursued either strategy

in isolation of that, the effectiveness would have been much more

limited.

Appellate counsel testified that although it was his opinion that Dr. Garrison

“needed to talk to a jury,” he was not called as a witness. Counsel also recalled that

“agents of the State” were aware of the Petitioner’s “serious delusions” involving

seeing “demons” before the trial; counsel noted that this issue should have been

raised before trial.

Relative to the beer bottle fragments, appellate counsel testified that before he filed

the motion for a new trial, he was aware that the bottle was not collected as

evidence. Nevertheless, counsel did not raise an issue in the motion for a new trial

or on direct appeal regarding the bottle.

Appellate counsel did not recall discussing with the Petitioner his decision not to

testify, although counsel acknowledged that he “spent a lot of time talking to” the

Petitioner and that such a conversation may have occurred. Appellate counsel

disagreed that the Petitioner would have been better served by trial counsel’s

continuing to represent him through the sentencing and motion for a new trial

proceedings.

Appellate counsel testified that he did not file a Rule 11 appeal in the Petitioner’s

case and that he did not recall obtaining a waiver from the Petitioner. He similarly

did not remember whether he filed a motion in this court to withdraw as counsel.

When asked whether he sent the Petitioner a letter explaining the Rule 11 appeal

process, counsel did not recall sending any letters to the Petitioner or speaking to

the Petitioner on the telephone after the Petitioner was transferred to prison.

Counsel noted that he communicated with the Petitioner’s family members “daily.”

Counsel stated that if he was required to file a Rule 11 appeal “and ... didn’t do it,

then, yeah, it’s definitely an error.”

On cross-examination, appellate counsel testified that as of the date of the post-

conviction hearing, he had handled seven or eight criminal trials; none of the trials

resulted in acquittal for his clients or involved diminished capacity, self-defense, or

a murder charge. Counsel did not recall ever speaking with Dr. Garrison. Counsel

acknowledged that he had never tried a case in which he argued both self-defense

and diminished capacity; he noted, however, that this fact “in no way change[ed] ...

what should have been done.”

Relative to Ms. Belew’s not having testified at the sentencing hearing, appellate

counsel testified that he “tried desperately” to call Ms. Belew at every hearing and

that he “spent days of everyone in our office searching all over Marshall County

looking for [Ms.] Belew.” Appellate counsel stated that although he spoke with

Ms. Belew at “great length” prior to the sentencing hearing and considered her “the

linchpin of this case,” he was unable to subpoena her to court. Appellate counsel

noted that Ms. Belew was “apparently homeless at the time.” Appellate counsel did

not recall when he informed the Petitioner that Ms. Belew could not be located.

Appellate counsel denied doing anything improper at the Petitioner’s sentencing

hearing that would have affected the outcome of the case. Appellate counsel stated

that he had about one hundred clients who had been treated at Centerstone and that

Dr. Garrison had not mentioned diminished capacity in any of those reports except

for the one in which he assessed the Petitioner. Appellate counsel stated that it

would surprise him to learn that Dr. Garrison often mentioned diminished capacity

in his reports.

A copy of Dr. Garrison’s letter to the trial court was received as an exhibit and

reflected that the Petitioner was competent to stand trial and that he was not

experiencing a severe mental disease or defect that caused him to be unable to

appreciate the wrongfulness of his actions. However, Dr. Garrison noted, “The

[Petitioner] does appear to have a basis for a claim of diminished capacity.”

Appellate counsel did not recall whether he asked Dr. Garrison if he could “support

diminished capacity.”

Appellate counsel testified that the Petitioner filed a complaint against him and that

counsel sent his entire file to the regulatory body, possibly after the “time frame

had run out on the appeal[.]” Appellate counsel stated that he did not customarily

save form letters to clients on his electronic system because the letters “[took] up

too much data space.”

At this juncture, the State moved to continue the proceedings relative to appellate

counsel’s testimony in order to subpoena the Petitioner’s file from “Lincoln

County” and allow appellate counsel to search his computer system for records of

his communication with the Petitioner. The State noted that it was not informed of

the Rule 11 issue until the day of the hearing. With the Petitioner’s agreement, the

post-conviction court granted the State’s motion.

Continuing with further testimony, trial counsel testified that he had been an

Assistant Public Defender for “several years” and had performed numerous jury

trials. He stated that after he was appointed to represent the Petitioner in General

Sessions Court, the Petitioner mentioned seeing shadow demons; as a result,

counsel requested a mental evaluation. Counsel said that he received Dr. Garrison’s

letter and that he discussed the letter with the Petitioner and mailed him a copy.

Although counsel initially stated that his office sent “copies of everything” to the

Petitioner, counsel later stated that as a result of an “oversight,” Dr. Garrison’s letter

was not mailed to the Petitioner. Counsel maintained, however, that he specifically

discussed the letter with the Petitioner. Counsel recalled that during this

conversation, counsel told the Petitioner that “insanity was not supported” and that

he was competent to stand trial. Counsel also explained “the diminished capacity

issue,” which he agreed was a difficult concept for clients to understand. Counsel

also agreed that diminished capacity was difficult to prove to a jury.

Trial counsel said that either he or another member of the defense team spoke to

Dr. Garrison, although they did not visit him in person. Trial counsel did not think

that the defense team requested the Petitioner’s Centerstone records or contacted

his mental health practitioners, and he noted that “from the beginning” they focused

on self-defense.

Trial counsel testified that the Petitioner filed a “board complaint” against his office

regarding “his discovery and his file.” In response, counsel sent the Petitioner and

the board “copies of letters of everything that we had stating ... what we had sent

in.” Counsel did not recall whether Dr. Garrison’s letter was included in those

materials.

Trial counsel agreed that he did not argue diminished capacity in the Petitioner’s

case. Counsel agreed that in some cases, a person with diminished capacity could

be in unreasonable fear for his life. When asked whether counsel could “weave”

diminished capacity into a self-defense argument to explain the Petitioner’s

behavior before and after the shooting and his statement about “Mexicans,” counsel

said that the Petitioner’s police statements made no mention of shadow demons or

feeling anxious. Counsel recounted the Petitioner’s statement indicating that he

acted in self-defense when three individuals threatened him and tried to hit him

with a bottle. Counsel did not recall the Petitioner’s making strange statements to

the police about an impending war and Social Security’s “fixing to go bankrupt.”

Trial counsel testified that they “of course” considered having the Petitioner testify

at his trial. Counsel averred that the Petitioner was incorrect when he stated that

counsel never prepared him to testify. Counsel said that every time the defense team

visited the Petitioner in jail, they questioned him about his version of events and

“were going through essentially direct examination” and that they also asked the

Petitioner “harder questions” to prepare him for cross-examination. Counsel stated

that although the Petitioner had no previous criminal record, he would not have

been a good witness because he had “inconsistencies in his story. When [trial

counsel] would ask him about his inconsistencies, he would shift his story ... and

then create another inconsistency or even ... change what he stated all together.”

Counsel elaborated,

For example, one of the things was the bottle and the gun, and [at] one point,

[the Petitioner] would state that, I’m a terrible shot, so I could not have possibly

been intending to kill these people, because I’m such a bad shot, it was an accident

that I hit them in the first place. But, then the next sentence would be, but I shot the

bottle out of his hand. So, all of a sudden he becomes a trick-shot artist.

But, then when you point that out, ... the story will become, well, when he swung

the bottle, he hit the gun and knocked it down and that’s what caused the bullet to

hit him. On cross[-]examination, we had real concerns that his story would fall apart

in the eyes of the jury.

Counsel stated that the Petitioner’s police statements “covered the set up” of a self-

defense argument and that at trial, they argued that the Petitioner’s identification of

Mr. Perryman, Mr. Beavers, and Mr. Keel as “Mexicans” was explained by the

Petitioner’s unfamiliarity with the men and their general skin tones. Counsel noted

that the Petitioner’s statement “was not some paranoid delusion. It[ was] a mistake

of who they were.” Counsel denied that the defense team threatened the Petitioner

or forced him not to testify. Counsel stated that after the State closed its proof, they

discussed with the Petitioner the evidence presented, the Petitioner’s police

statements, the arguments the defense could make based upon the statement, and

counsel’s concerns about the Petitioner’s testifying.

Trial counsel testified that he did not recall Mr. Beavers’s having been charged in

an unrelated criminal case; counsel noted that “[w]e didn’t represent [him] on that

case.” Counsel affirmed that “from the beginning,” the Petitioner discussed the beer

bottle fragments and his wish that the fragments had been collected. Counsel stated

that he filed no motion relevant to the bottle because in his opinion, any such motion

would have been frivolous. Counsel noted that when the police arrived, the bottle

had already been swept up and discarded and that the police photographed the

fragments in a garbage can. Counsel stated that the police “made a point” to

document the bottle and that the defense was able to argue that the bottle’s presence

was consistent with the Petitioner’s version of events.

Upon examination by the post-conviction court, trial counsel testified that the

Petitioner’s police statements included discussion of the bottle and that the

witnesses’ testimony indicated that Mr. Perryman did not strike the Petitioner with

a bottle. To counsel’s recollection, Ms. Belew testified that Mr. Perryman had a

bottle in his hand, although counsel did not recall whether Ms. Belew conveyed

how or when the bottle fell to the floor.

On cross-examination, trial counsel testified that the Petitioner was arrested within

one hour of the shooting and that in his police statement, the Petitioner only

mentioned shooting the bottle, not touching the bottle with his pistol. Counsel

affirmed that the Petitioner conveyed to the police his belief that he did not shoot

anyone in the apartment. Counsel stated that at the time of the Petitioner’s trial, he

had tried more than thirty cases, “multiple” of which resulted in acquittals. Counsel

agreed that he discussed the defense strategy with his co-counsel, including self-

defense and diminished capacity. Counsel said that they also discussed diminished

capacity with the Petitioner and its potential usefulness in obtaining a conviction

for a lesser-included offense, but that the Petitioner “was not interested in that” and

was “dead set” on arguing self-defense. Counsel noted that although the Petitioner’s

police interview contained “some odd statements,” the Petitioner set out “a straight

self-defense” account of events. Counsel stated that at trial, Mr. Beavers admitted

on cross-examination that Mr. Perryman had threatened to “kick [the Petitioner’s]

a--.”

Trial counsel testified that the defense team explored a potential diminished

capacity argument by telephoning Dr. Garrison. Counsel stated that after speaking

to Dr. Garrison, he did not feel that Dr. Garrison would have helped the Petitioner’s

case. Counsel said that the Petitioner had “agoraphobia and panic attacks,” for

which he took medication, and that the Petitioner mentioned having a beer in

Ms. Belew’s apartment, which counsel did not find to “provide a very strong

argument” for diminished capacity. Counsel opined that the Petitioner’s police

statements provided the strongest self-defense argument. Counsel agreed that in

Tennessee, diminished capacity was not, standing alone, a defense to guilt. He said

that the Petitioner appeared to understand the concept of diminished capacity after

they discussed it. Counsel stated that the Petitioner had always agreed with the self-

defense theory.

Trial counsel averred that relative to the Petitioner’s testifying, counsel was

concerned that in light of the fact that the Petitioner did not experience mental

health symptoms during the shooting, his bringing up his mental health issues

would confuse the jury. Counsel noted that if the Petitioner had discussed shadow

demons or his mental health issues during his testimony, counsel would have called

Dr. Garrison as a defense witness. Counsel stated that he believed a self-defense

argument was stronger and easier for the jury to understand.

Trial counsel testified that in his opinion, the defense team handled the Petitioner’s

case as best it could given the circumstances. Counsel did not believe that forensic

analysis of the broken beer bottle would have changed the outcome of the trial, and

he noted the Petitioner’s hearing testimony that the bottle might have broken when

it hit the pistol rather than having been shot. Counsel stated that the defense argued

generally that the presence of the broken bottle at the crime scene supported the

Petitioner’s version of events.

Trial counsel testified that relative to Ms. Belew’s testimony, the Petitioner was

“very hung up on” whether he spoke to Ms. Belew before arriving at her apartment.

Counsel stated that co-counsel cross-examined Ms. Belew and that although

counsel did not recall if co-counsel questioned Ms. Belew on this point, counsel

felt that co-counsel’s cross-examination was “very effective” and “put some big

holes into her story.” Counsel noted his belief that as a result of co-counsel’s cross-

examination, the jury acquitted the Petitioner of aggravated assault relative to

Ms. Belew.

Trial counsel testified that relative to T-Roy’s proposed testimony, the location in

which the Petitioner parked his car was of no consequence to his case. Counsel

noted that the Petitioner wanted to impeach Ms. Belew’s statement that he parked

in front of her apartment. Counsel agreed that the Petitioner’s police statements

indicated that he parked in front of a tire shop and that part of the State’s

premeditation argument was that the Petitioner walked back to his truck to retrieve

the gun.

Relative to the motion to withdraw filed prior to the Petitioner’s trial, trial counsel

testified that another attorney in his office represented Mr. Beavers in a Bedford

County case; after the case was closed, the attorney realized that Mr. Beavers was

also a witness in the Petitioner’s case. Trial counsel did not discuss the Petitioner’s

case with the attorney, and he did not believe that the attorney discussed it with co-

counsel or the District Public Defender. Counsel stated that they filed a motion to

withdraw based upon the appearance of impropriety; he noted, however, that the

conflict “ran more towards Mr. Beavers rather than [the Petitioner], because [they]

were in a position ... where [they were] going to have to cross[-]examine

[Mr.] Beavers and there could be an appearance [they] would be potentially using

inside information against him.” Counsel said that he explained the conflict in these

terms to the Petitioner multiple times and that the trial court found that no conflict

existed and denied the motion to withdraw. Counsel did not recall the Petitioner’s

expressing any concern about the conflict, although counsel acknowledged that it

was a confusing issue.

Trial counsel testified that generally, during a jail visit at a date close to trial, he

would have explained to the Petitioner the right to testify, the State’s evidence, the

expected witnesses’ testimony based upon defense interviews with the State’s

witnesses, and the Petitioner’s police statements. Counsel stated that they

interviewed every witness apart from Ms. Jacobson. Counsel stated that the

Petitioner appeared to understand the discussions about what would happen if he

testified and in which counsel “test[ed] his ability” to be a witness. Counsel noted

that he always advised clients to decide whether to testify after the close of the

State’s proof so that counsel could give the client a better-informed opinion about

the desirability of testifying. Counsel said that at the close of the State’s evidence,

he advised the Petitioner that the defense team was able to “poke several sizeable

holes” in the witnesses’ testimony, which gave them room to argue self-defense,

along with the police statements and the photograph of the broken bottle. Counsel

also advised the Petitioner of his concern that inconsistencies would arise during

direct or cross examination, that it was in the Petitioner’s best interest not to testify,

and that the decision was ultimately the Petitioner’s. Counsel affirmed that the

Petitioner understood the conversation. Counsel denied that he ever told the

Petitioner that the prosecutor would “holler at” him; counsel stated that he told the

Petitioner that the prosecutor would “try to get him angry” or confuse him.

Upon examination by the post-conviction court, trial counsel affirmed that the

defense team’s telephone call to Dr. Garrison occurred in advance of trial and that

counsel could have subpoenaed Dr. Garrison as a trial witness if his testimony

would have been favorable to the Petitioner’s case. Counsel stated that the fact that

the Petitioner was taking anxiety medication made it difficult to argue to the jury

that he was “having some kind of mental attack” during the shooting.

b. Second evidentiary hearing

At the second evidentiary hearing on March 13, 2015, post-conviction counsel

stated that consistent with the post-conviction court’s instructions, she brought the

Petitioner’s complete file to the hearing. She averred that this file only reflected one

letter from appellate counsel to the Petitioner.

In the context of explaining why two representation agreements existed in the

Petitioner’s case, appellate counsel testified that because the Petitioner had “a very

strong diminished capacity situation,” which had been described to counsel by

“everyone” as the Petitioner’s having “the approximate mentality of like a [twelve]

or [thirteen]-year-old,” counsel had the Petitioner’s stepmother sign an agreement

in his office in addition to the one the Petitioner signed in jail. Counsel stated that

the Petitioner repeatedly asked counsel to explain concepts to his stepmother when

the Petitioner did not understand them and that “whenever [counsel] explained

things, they didn’t stay explained.”

The post-conviction court stated that it would issue a written order and that it had

reached “a mixed conclusion.” The court found no deficiencies in trial counsel’s

representation. However, the court found that appellate counsel’s performance was

deficient, and the court granted the Petitioner a late-filed Rule 11 application for

permission to appeal to our supreme court.

* * *

e. Motion to Produce Evidence

On January 30, 2019, the Petitioner filed a pro se motion to produce evidence.

According to a March 19, 2019 order denying the motion, the Petitioner sought to

“produce a timely filed” Rule 11 application or a petition for post-conviction relief.

Judge Burk, acting as the post-conviction court, reviewed the motion and found that

the Petitioner’s avenues for Rule 11 and post-conviction relief had been

“exhausted.” The court incorrectly noted that the August 24, 2017 order granting

partial post-conviction relief “dismissed” the Petitioner’s remaining post-

conviction issues, and the court concluded that “due to the fact that all relief prayed

for in the [Petitioner’s] previously filed Petition for Post-Conviction Relief has been

satisfied ... and/or dismissed this matter is hereby CONCLUDED.”

The Petitioner subsequently filed a pro se notice of appeal on April 17, 2019; this

court observed in a May 6, 2019 order dismissing the appeal that it was unclear

from the post-conviction court’s order whether it complied with Tennessee

Supreme Court Rule 28, section 9(D), which provides that after unsuccessfully

pursuing a delayed appeal, a petitioner should be permitted to amend his post-

conviction petition to include any new issues arising during the appeal and that the

post-conviction court should lift the previously-imposed stay in order to hear “any

remaining grounds” raised in the post-conviction petition. Although the Petitioner

did not have a right to appeal the post-conviction court’s denial of his motion to

produce evidence, this court noted that the Petitioner could appeal from any final

post-conviction order if the post-conviction proceeding remained active.

On August 26, 2019, in accordance with this court’s order, the post-conviction court

acknowledged in a written order that the previous post-conviction court had stayed

consideration of the remaining issues raised in the post-conviction petition. The

court ordered that the first post-conviction hearing be transcribed to facilitate

review of the remaining post-conviction issues, relieved second post-conviction

counsel, appointed third post-conviction counsel, and set a hearing date at which

the Petitioner could raise any additional issues.

f. Third evidentiary hearing

At a November 8, 2019 hearing, the post-conviction court commented that the

previous court’s memorandum opinion adequately addressed the post-conviction

issues and that the current court would draft a new order dismissing the post-

conviction petition in order to facilitate appellate review. The court found relative

to the Rule 11 issue that the Petitioner received a late-filed appeal and that he

consequently was not prejudiced by appellate counsel’s deficiency. The court noted

relative to the remaining issues that it would adopt the previous court’s findings.

When asked whether the Petitioner had additional issues to raise, third post-

conviction counsel indicated that the Petitioner was unhappy with the amount of

time it took the first post-conviction court to issue its memorandum opinion and for

first post-conviction counsel to provide the Petitioner with his file. The State

responded that the Petitioner received his Rule 11 appeal notwithstanding any

delay.

(Doc. No. 11-15 at 7−26).

III. GOVERNING STANDARDS

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). The Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). The AEDPA creates both procedural and substantive limits on the Court’s authority to

grant habeas corpus relief for a petitioner in custody pursuant to a state court judgment. The Court

sets forth the standards applicable to this Petition below.

A. Procedural Default

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available

state remedies, 28 U.S.C. § 2254(b), thereby giving the State the ‘opportunity to pass upon and

correct’ alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(citations omitted). “To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly

present’ his claim in each appropriate state court . . ., thereby alerting that court to the federal

nature of the claim.” Id. (citation omitted). In Tennessee, a petitioner is “‘deemed to have exhausted

all available state remedies for [a] claim’” when the claim is presented to the Tennessee Court of

Criminal Appeals. Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003) (quoting Tenn. Sup. Ct.

R. 39). If a petitioner fails to properly exhaust a claim in state court, and the claim can no longer

be raised in state proceedings because of a failure to follow state procedure for presenting such a

claim, the claim is “technically exhausted” but procedurally defaulted. Woodford v. Ngo, 548 U. S.

81, 126 (2006).

A petitioner may obtain merits review of a procedurally defaulted claim by demonstrating

“cause and prejudice” for the default. Sutton v. Carpenter, 745 F.3d 787, 791 (6th Cir. 2014).

To establish cause, the petitioner must show that “some objective factor external to his defense

impeded his ability to comply with the state’s procedural rule.” Bies v. Sheldon, 775 F.3d 386, 396

(6th Cir. 2014). In Tennessee and many other states, a petitioner who raises a procedurally

defaulted claim alleging ineffective assistance of trial counsel may demonstrate cause by showing

that postconviction counsel was ineffective for failing to raise the claim in initial state

postconviction proceedings. See Martinez v. Ryan, 566 U.S. 1, 17 (2012) (“Where, under state law,

claims of ineffective assistance of trial counsel must be raised in an initial-review collateral

proceeding, a procedural default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.”); Trevino v. Thaler, 569 U.S. 413, 429

(2013) (extending Martinez to states with procedural frameworks that make unlikely a meaningful

opportunity to raise ineffective assistance claim on direct appeal); Sutton, 745 F.3d at 795−96

(holding that Martinez and Trevino apply in Tennessee).

B. Merits Review

Under the AEDPA, a federal court may grant a writ of habeas corpus on a claim that was

adjudicated on the merits in state court only if that adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that 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).

If a claim was not adjudicated on the merits in state court, this Court applies the

“pre-AEDPA standard of review: de novo for questions of law (including mixed questions of law

and fact), and clear error for questions of fact.” Robinson v. Howes, 663 F.3d 819, 823

(6th Cir. 2011); see 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination

of a factual issue made by a State court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

IV. ANALYSIS

Petitioner raises multiple grounds of ineffective assistance of trial counsel and ineffective

assistance of appellate counsel. Respondent argues that one aspect of Petitioner’s ineffective-

assistance-of-appellate-counsel claim is procedurally defaulted and that the remainder of

Petitioner’s claims do not warrant relief under 28 U.S.C. § 2245(d). The Court will first address

the procedural default argument before turning to the merits of Petitioner’s claims.

A. Procedural Default

Respondent argues that Petitioner procedurally defaulted any claim that appellate counsel

was ineffective for failing to compile and file an adequate record on appeal, because Petitioner did

not present this claim in state court and there is no vehicle available for him to do so now.

(Doc. No. 20 at 55). Petitioner concedes that he did not present the claim in state court. (Doc. No. 1

at 22) (“‘Failed to prepare and file an adequate record on appeal’ was not previously presented in

any other court, State or Federal.”). It is therefore procedurally defaulted. Woodford v. Ngo,

548 U.S. 81, 126 (2006) (such a claim is “technically exhausted” but procedurally defaulted).

Petitioner seeks to rely on postconviction counsel’s alleged ineffectiveness to excuse the

default. (Doc. No. 1 at 22) (“Post-Conviction counsel procedurally defaulted this obvious issue at

the initial-review collateral proceedings.”). But the Martinez exception—which allows a petitioner

to assert postconviction counsel’s ineffectiveness as cause to excuse a default—does not apply

when the underlying defaulted claim asserts ineffective assistance of appellate counsel. Davila v.

Davis, 582 U.S. 521, 529 (2017) (declining “to extend Martinez to allow a federal court to hear a

substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a

prisoner’s state postconviction counsel provides ineffective assistance by failing to raise that

claim”).

Petitioner cannot rely on postconviction counsel’s alleged ineffectiveness to excuse the

defaulted claim of ineffective assistance of appellate counsel, and Petitioner asserts no other basis

to excuse the default. Therefore, this claim will be denied as procedurally defaulted.

B. Merits Review

The Court will address the merits of Petitioner’s remaining grounds of ineffective

assistance of counsel in turn.

1. Motion to Dismiss Based on Failure to Preserve Evidence

Petitioner argues that trial counsel was ineffective for failing to file a motion to dismiss his

prosecution as a sanction because the State failed to preserve the broken beer bottle found in the

garbage at the scene of the shootings. (Doc. No. 1 at 5−8). The Tennessee Court of Criminal

Appeals found that trial counsel’s performance was neither deficient nor prejudicial:

(Doc. No. 11-15 at 30).

Petitioner argues, as he argued on postconviction appeal, that there is a reasonable

probability a motion to dismiss the prosecution for failure to preserve evidence would have been

successful under Tennessee law. (See Doc. No. 1 at 6−8) (arguing that trial counsel should have

filed a motion pursuant to State v. Ferguson, 2 S.W. 3d 912 (Tenn. 1999)). The Tennessee Court of

Criminal Appeals rejected this argument, finding that such a motion would have failed.

(Doc. No. 11-15 at 30).

It is not this Court’s role in federal habeas proceedings to disturb a Tennessee state court’s

application of Tennessee law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). And in light of the

Tennessee Court of Criminal Appeals’ determination that any motion to dismiss would have failed

as a matter of state law, Petitioner cannot demonstrate that the state court unreasonably concluded

that Petitioner failed to demonstrate deficient performance or prejudice.2 See Gillepsie v. Ohio

State Penitentiary, No. 16-3991, 2017 WL 3951851, at *2 (6th Cir. Apr. 5, 2017) (holding

petitioner could not demonstrate prejudice for failing to make a state-law argument that state court

of appeals had rejected). He is therefore not entitled to habeas corpus relief.

2. Petitioner’s Decision Not to Testify

Petitioner alleges that trial counsel “coerced” him into not testifying. (Doc. No. 1 at 8−11).

The Tennessee Court of Criminal Appeals found, as a factual matter, that “the record does not

reflect[] that counsel pressured or coerced the Petitioner in any way.” (Doc. No. 11-15 at 31−32).

Based on this finding, the Tennessee Court of Criminal Appeals held that Petitioner had not

demonstrated deficient performance. (Id. at 32.)

2 Petitioner rightly does not argue that a motion to dismiss based on federal constitutional law would have

been successful. Under clearly established Supreme Court precedent, “unless a criminal defendant can show

bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial

of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Petitioner has not made a showing

of bad faith, either in this Court or in the state courts.

Petitioner testified at a postconviction hearing about his decision not to testify at trial:

A: I went back and talked to Mr. Collins and Harold for about half an hour back there.

Q: When was that?

A: That was the day that I was supposed to testify while during my trial. They told me

back there that since I had nothing entered on my behalf that I was probably going

to get yelled at and stuff by Mr. Barnard and that’s what they had told me. And they

said that tape and my written statement would be sufficient to prove the self-

defense, but because I didn’t have nothing else up there backing me, getting on the

stand wasn’t good. They recommended against me testifying.

Q: And did you follow their recommendation?

A: Yes.

Q: Do you feel like they forced you not to testify.

A: I understood what they were saying when I didn’t have nothing to back me up of

what I would say on the stand.

Q: It was your word versus the word of everybody else that was there?

A: Right.

Q: Did you not think that maybe telling the same story the exact way two times might

give you some credibility where maybe they cannot tell the exact same story the

same two times?

A: No.

Q: Was there any discussion with you prior to your trial about you testifying at your

trial?

A: They just said if I wanted to testify, I could at my trial before that.

Q: Anybody try to prep you to testify at trial? Anybody go through any preparations

with you for testifying in a jury trial?

A: No. I remember them coming to the jail and saying it’s my word against the others.

Q: Your word against everybody else’s?

A: Yeah.

Q: So, the Court is going to want to know this, how is it that the PD’s office coerced

you into not testifying?

A: I took their advice and didn’t testify, and I don’t know the process that well like

that.

Q: You just did everything they told you to do?

A: Yes, ma’am.

(Doc. No. 11-3 at 27−29).

Based on this testimony, the Tennessee Court of Criminal Appeals reasonably found that

Petitioner was not coerced and instead made a voluntary decision not to testify based on counsel’s

advice. (Doc. No. 11-15 at 31−32). And because trial counsel did not coerce Petitioner into not

testifying, his ineffective assistance of trial counsel claim based on this allegation was reasonably

denied. (Id.)

3. Diminished-Capacity Theory of Defense

Petitioner alleges that trial counsel was ineffective for failing to pursue a diminished-

capacity theory of defense. “Diminished capacity” is not a stand-alone defense under Tennessee

law. State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997). Instead, it represents “an attempt to prove

that the defendant, incapable of the requisite intent of the crime charged, is innocent of that crime

but most likely guilty of a lesser included offense. . . . In other words, ‘diminished capacity’ is

actually a defendant’s presentation of expert, psychiatric evidence aimed at negating the requisite

culpable mental state.” Id. at 688.

The Tennessee Court of Criminal Appeals found that trial counsel made a well-reasoned

tactical decision not to pursue such a defense. (Doc. No. 11-15 at 33). The appellate court also

found no prejudice because Petitioner failed to show that such a defense would have been viable.

(Doc. No. 11-15 at 32−33) (“[W]e agree with the post-conviction court’s finding that the Petitioner

has not presented any evidence to indicate that he would have successfully argued diminished

capacity at trial.”). Both conclusions were reasonable.

Petitioner asserts that testimony from Dr. Garrison would have supported a diminished-

capacity theory of defense. (Doc. No. 1 at 11−15). But Dr. Garrison clarified at Petitioner’s

sentencing hearing, “I am not concluding he has diminished capacity.” (Doc. No. 10-6 at 7).

Indeed, Petitioner has not presented or identified any evidence to indicate that he was incapable of

forming the requisite mental state to be convicted of first-degree murder or attempted first-degree

murder.

Petitioner was diagnosed with depression, anxiety, and agoraphobia. (Doc. No. 11-11

at 10). But Petitioner has not shown how these disorders prevented him from forming the requisite

mental state. And, as trial counsel recognized, in Petitioner’s written and oral statements to police

immediately after the shootings, he did not mention having experienced any symptoms of panic,

anxiety, or depression at the time of the shootings. (Doc. No. 11-3 at 131).

Trial counsel’s decision to forego a diminished capacity theory of defense was reasonable,

and the Tennessee Court of Criminal Appeals therefore reasonably found that trial counsel’s

performance was not deficient. Additionally, failed to show any reasonable probability that such a

defense would have been successful, so the Tennessee Court of Criminal Appeals also reasonably

found lack of prejudice. Petitioner is not entitled to relief on this claim.

4. Telephone Records and Uncalled Witnesses

Petitioner alleges that trial counsel was ineffective for failing to subpoena Petitioner’s

telephone records and for failing to investigate and call Shawn Julian and an expert on the effects

of Xanax. (Doc. No. 1 at 15−19). The Tennessee Court of Criminal Appeals found that Petitioner

had failed to demonstrate ineffective assistance of counsel because he did not present the telephone

records, Mr. Julian’s testimony, or the testimony of an expert regarding the effects of Xanax.

(Doc. No. 11-15 at 34) (“This court may not speculate on the content of the records or the proposed

testimony.”). This holding was reasonable. Indeed, the Sixth Circuit has similarly held that a

petitioner alleging ineffective assistance of counsel for failure to call a witness must cannot

demonstrate prejudice without admissible evidence of how the witness would have testified.

Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007) (finding no prejudice where petitioner “offered

no evidence, beyond his assertions, to prove what the content of [the proposed witness’s] testimony

would have been”). Accordingly, Petitioner is not entitled to relief on these claims.

5. Conflict of Interest

Petitioner alleges that trial counsel operated under a conflict of interest because other

attorneys in the same public defender’s office had represented one of the victims, Mr. Beavers, in

an unrelated matter. (Doc. No. 1 at 19−20). The Tennessee Court of Criminal Appeals denied relief

on this claim, finding that Petitioner had not demonstrated that any alleged conflict of interest

influenced trial counsel’s performance. (Doc. No. 11-15 at 34−35). This conclusion was

reasonable.

At most, Petitioner alleges a potential conflict of interest based on “successive

representation,” because he has not demonstrated that trial counsel (or any other attorney at the

public defender’s office) represented Mr. Beavers at the time of trial. See Moss v. United States,

323 F.3d 445, 459 (6th Cir. 2003) (“Successive representation occurs where defense counsel has

previously represented a co-defendant or trial witness.”). In such cases, a Petitioner must

demonstrate prejudice resulting from the alleged conflict. Lordi v. Ishee, 384 F.3d 189, 193

(6th Cir. 2004).

Petitioner does not identify any prejudice resulting from the alleged conflict. (Doc. No. 1

at 19−20). He has therefore failed to show that the Tennessee Court of Criminal Appeals relied on

an unreasonable determination of fact or unreasonable application of clearly established law, and

he cannot obtain relief on this claim. See 28 U.S.C. § 2254(d).

6. Ms. Belew

Finally, Petitioner alleges that appellate counsel was ineffective for failing to subpoena

Ms. Belew to testify at sentencing. (Doc. No. 1 at 20−22). The Tennessee Court of Criminal

Appeals denied relief, finding that Petitioner had failed to introduce admissible evidence regarding

how Ms. Belew would have testified at sentencing. (Doc. No. 11-15 at 36). Petitioner asserts that

Ms. Belew had told prosecutors that Petitioner had mentioned seeing “shadow demons.”

(Doc. No. 1 at 20). But the Tennessee Court of Criminal Appeals found that Petitioner had failed

to introduce admissible evidence regarding how Ms. Belew would have testified.3 (Doc. No. 11-15

at 33, 36). This finding was reasonable, and Petitioner has therefore failed to demonstrate prejudice

from the failure to subpoena Ms. Belew at sentencing. See Clark, 490 F.3d at 557.

V. CERTIFICATE OF APPEALABILITY

Because Petitioner has failed to demonstrate that he is entitled to relief under 28 U.S.C.

§ 2254(d) as to any of his claims, the Petition will be denied.

Federal Rule of Appellate Procedure 22 provides that an appeal of the denial of a habeas

corpus petition may not proceed unless a certificate of appealability (COA) is issued under

28 U.S.C. § 2253. Rule 11 of the Rules Governing § 2254 Cases requires that a district court issue

or deny a COA when it enters a final order. A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s

3 At a post-trial hearing, Petitioner sought to introduce testimony from a defense investigator that Ms. Belew

had told the investigator that she mentioned in a statement to police that Petitioner had reported seeing

shadow demons. (See Doc. No. 11-15 at 6). This testimony was excluded as inadmissible hearsay. (Id.)

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El V. Cockrell, 537 U.S. 322, 327

(2003). The district court must either issue a COA indicating which issues satisfy the required

showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3);

Fed. R. App. P. 22(b).

Here, because jurists of reason would not disagree with the resolution of Petitioner’s

claims, the Court will deny a certificate of appealability. However, Petitioner may seek a certificate

of appealability from the Sixth Circuit.

VI. CONCLUSION

For the reasons set forth above, Petitioner’s 28 U.S.C. § 2254 petition for a writ of habeas

corpus is DENIED, and this action is DISMISSED with prejudice. This Court DENIES a

certificate of appealability.

Petitioner’s Motion to Compel (Doc. No. 28) is DENIED as moot.

This Order resolves all claims in the action. The clerk SHALL enter final judgment in

accordance with this Order.

It is so ORDERED.

Mle C. Lh

ble L. CAMPBELLJR.

CHIEF UNITED STATES DISTRICT JUDGE

32