Russell Lee Maze and Kaye M. Maze v. State of Tennessee

10/31/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 13, 2025 Session

RUSSELL LEE MAZE and KAYE M. MAZE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

Nos. 99-B-1308; 2002-D-2361 Steve R. Dozier, Judge

No. M2024-00666-CCA-R3-PC

The Petitioners, Russell Lee Maze and Kaye M. Maze, seek post-conviction relief from

their respective convictions related to their infant son’s death in 2000 from abusive head

trauma (“AHT”). The post-conviction court afforded the Petitioners an evidentiary hearing

at which they presented purported “new scientific evidence” through various experts in an

effort to establish their actual innocence. The State, through the Office of the District

Attorney General for the Twentieth Judicial District (“District Attorney”), admitted the

facts asserted by the Petitioners and agreed that the Petitioners were actually innocent of

these offenses. Nonetheless, the post-conviction court determined that the Petitioners had

failed to carry their burden of producing clear and convincing proof to establish their actual

innocence, a determination which the Petitioners now challenge. On appeal, the State,

through the Office of the Attorney General and Reporter (“Attorney General”), contends

that the Petitioners failed to prove their actual innocence based on new scientific evidence,

instead proffering only new opinions on previously presented evidence, which supports the

post-conviction court’s denial of relief. In addition to the underlying substantive merits of

their actual innocence claims, the Petitioners also raise certain procedural issues: (1)

whether review of Mr. Maze’s appeal, which began as a motion to reopen his prior post-

conviction petition, is permissive or an appeal as of right; (2) whether Mrs. Maze’s petition

for post-conviction relief, her first, is time-barred; (3) whether the State improperly

changed its position on appeal in violation of due process, judicial estoppel, and waiver;

(4) whether the post-conviction court’s ruling infringed upon prosecutorial discretion and

violated the party-presentation principle; (5) whether the post-conviction court erred by

denying Mrs. Maze relief without independent review of her actual innocence claim; and

(6) whether this case should be remanded to the post-conviction court for consideration of

the original medical examiner’s recent recantation of his trial testimony, which has

occurred during the pendency of this appeal. After review, we determine that a remand is

unnecessary and affirm the judgments of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

KYLE A. HIXSON, J., delivered the opinion of the court, in which J. ROSS DYER, J., joined.

TOM GREENHOLTZ, J., filed a separate opinion, concurring in part and dissenting in part.

Jason Gichner, Connor A. Webber (on appeal and upon motion to reopen), Madison

Lowery (on appeal), Katie Hagan (upon motion to reopen), The Tennessee Innocence

Project; and Charles E. Elder (on appeal and upon motion to reopen), Claire Fox Hodge,

and Casey Miller (upon motion to reopen), Nashville, Tennessee, for the appellant, Russell

Lee Maze.

Melissa K. Dix, Daniel A. Horwitz (on appeal and upon motion to reopen), Sarah L. Martin

(on appeal), and Lindsay Smith (upon motion to reopen), for the appellant, Kaye M. Maze.

Jonathan Skrmetti, Attorney General and Reporter; Nicholas S. Bolduc, Senior Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Anna B. Hamilton and

Sunny M. Eaton, Assistant District Attorneys General, for the appellee, State of Tennessee.

Timothy Carter, Nashville, Tennessee; and James C. Dugan, Ferdinand G. Suba, Jr., Jung

Hyun Lee, and Autumn Adams-Jack, New York, New York, for the Amicus Curiae, Legal

Scholars.

Brian K. Holmgren, Franklin, Tennessee, and Katrin Novak Miller, Thompson Station,

Tennessee, for the Amicus Curiae, Trial Prosecutors.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY1

On the afternoon of May 3, 1999, Mrs. Maze left the couple’s home to run an errand,

leaving Mr. Maze alone with their five-week-old son (“the victim”). State v. Maze, No.

M2004-02091-CCA-R3-CD, 2006 WL 1132083, at *1 (Tenn. Crim. App. Apr. 28, 2006),

perm. app. denied (Tenn. Aug. 28, 2006). While Mrs. Maze was away, something

happened to the victim that caused him to stop breathing, which prompted Mr. Maze to call

911. Id. When the paramedics arrived, they performed CPR as they carried the victim to

the ambulance. Id. The victim’s heart started beating spontaneously once they were inside

the ambulance, and the victim was intubated to induce breathing. Id. at *2. According to

1

Much of this summary comes from the various courts that have issued opinions on this case over

the years. However, where citations are absent, we have supplemented these facts with our own review of

those records. See Tenn. R. App. P. 13(c); Harris v. State, 301 S.W.3d 141, 147 n.4 (Tenn. 2010) (noting

that an appellate court may take judicial notice of its own records). Many of said records are also attached

as exhibits to these proceedings.

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one paramedic, the victim’s pupils were fixed and dilated, indicating to him that the victim

had been oxygen deprived for some time. Id.

The victim was taken to Vanderbilt Children’s Hospital (“Vanderbilt”) where he

was examined by medical professionals and received treatment. Id. That examination

revealed that the victim had suffered head and abdominal bruising, subconjunctival and

retinal hemorrhaging in both eyes, and a fractured clavicle, as well as severe, irreparable

brain damage. Id. at *2-6. Following extensive treatment, the victim was ultimately

discharged from the hospital on May 29, 1999, and placed in foster care. Id. at *6.

Thereafter, the victim required constant care; his respiration had to be closely monitored;

and he could not swallow unassisted. Id. “[A]s a result of the May 3 injuries, the [victim]

had severe cerebral palsy and recurrent seizures that became worse over time.” Id.

Eighteen months later, on October 19, 2000, the victim was readmitted to Vanderbilt,

where he died on October 25. Id.

A. Initial Charges and Early Proceedings

Based upon a theory of AHT as the cause of the victim’s May 3 injuries, a Davidson

County grand jury indicted the Petitioners as codefendants on June 4, 1999. In the

indictment, Mr. Maze was charged with one count of Class A felony aggravated child abuse

(count 1). See Tenn. Code Ann. § 39-15-402. Mrs. Maze was charged with one count of

Class C felony aggravated assault due to her failure to protect the victim (count 2). See id.

§ -102.

On May 25, 2000, Mrs. Maze entered a best-interest, or Alford,2 plea to reckless

aggravated assault, a Class D felony, in exchange for a two-year sentence, suspended to

three years’ probation. At the guilty plea hearing, the prosecutor provided a factual

recitation of the offense, alleging that Mrs. Maze began observing bruises on the victim

“following a doctor’s visit” and that she questioned Mr. Maze about the cause of the

bruising, but he was unable to provide an explanation. During the following week, Mrs.

Maze “observed additional bruising” about the victim’s head and abdomen. Nonetheless,

on three separate occasions, she “continued to leave” the victim in Mr. Maze’s care, which

resulted in the victim’s being “violently shaken and assaulted, producing significant

injuries[.]” After the conclusion of Mrs. Maze’s probation, several years later, the trial

court denied her request to expunge all public records related to her case.

2

This type of plea is named after North Carolina v. Alford, 400 U.S. 25 (1970), in which the United

States Supreme Court discussed the right of an accused to plead guilty in his or her best interest while still

professing his or her actual innocence.

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Mr. Maze proceeded to his first trial by jury in January 2000 and was found guilty

as charged of aggravated child abuse. State v. Maze, No. M2000-02249-CCA-R3-CD,

2002 WL 1885118, at *1 (Tenn. Crim. App. Aug. 16, 2002), no perm. app. filed. However,

on direct appeal, this court reversed his conviction and remanded the case for a new trial

due to the trial court’s failure to properly instruct the jury on lesser included offenses. Id.

After the case was remanded to the trial court, the State sought and obtained a superseding

indictment charging Mr. Maze with first degree felony murder of the victim, now deceased,

in addition to aggravated child abuse. Maze, 2006 WL 1132083, at *1. Mr. Maze was

retried in April 2004.

B. Evidence Presented at Mr. Maze’s Second Trial

1. State’s Proof

The April 2004 trial centered on the medical evidence regarding the victim’s

suffering AHT. See generally Maze, 2006 WL 1132083, at *1-14. Mr. Maze “fiercely

contested the charges . . . , and both he and the [S]tate introduced prodigious expert medical

evidence to support their respective positions.” Id. at *1.

The victim’s regular pediatrician, Dr. Lesa Sutton-Davis, testified that she first saw

the victim in her office on April 9, 1999, shortly after his birth. Id. at *7. According to

Dr. Sutton-Davis, the victim was “a healthy newborn,” weighing four pounds, nine ounces

and measuring eighteen and one-half inches long. Id. Likewise, his “neurological and

developmental assessments . . . were normal.” Id. When Dr. Sutton-Davis saw the victim

again on April 26, “she saw no injuries or bruising about the [victim’s] head or abdomen,

and she saw nothing suggesting any neurological abnormality.” Id. When the State asked

her “about medical records purporting to document that the [victim’s] head circumference

had increased three centimeters within several days[,]” Dr. Sutton-Davis “speculated that

the measurements may have been taken by different nurses who were not using the same

location on the [victim’s] head for measurement.” Id.

Following the victim’s injuries on May 3, 1999, he “was admitted to the intensive

care unit [at Vanderbilt] where he received emergency treatment and underwent diagnostic

testing.” Id. at *2. A Vanderbilt emergency room physician, Dr. Ian Jones, testified that

the victim presented with “very significant neurological insult,” there was bruising about

the victim’s head and chest, and the victim was not breathing on his own or moving

spontaneously, effectively in a coma. Id. “His findings were that the [victim] had a

‘subarachnoid bleed’ in the layers of the brain, a brain contusion, and a subdural

hemorrhage.” Id. at *3. Dr. Jones “was suspicious of traumatic injury,” so Dr. Suzanne

Starling, an expert in the fields of pediatric medicine and child abuse, including head

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trauma, was asked to consult and assist in evaluating the victim’s condition. Id. at *2-3.

Similarly, Dr. Starling described the victim’s “injuries as ‘fairly obvious,’ and they

included bruising along the eye area, subconjunctival and retinal hemorrhaging in both

eyes, and abdominal bruising.” Id. at *3. Dr. Starling described the victim’s abdominal

bruising: “He had a large, purplish bruise on his abdomen, all the way from his ribs to his

groin and from his belly button around his side, a very large bruise on his belly.” Dr.

Starling “also identified x-rays[, taken two days apart,] showing the [victim’s] fractured

clavicle bone, and she estimated that the fracture was recent because the x-rays did not

detect any callus development[,]” which would have been indicative of healing. See id. at

*4.

Dr. Starling spoke with the Petitioners to obtain a medical history and find out what

had happened to the victim. Id. at *3-4. Both Petitioners described the victim to Dr.

Starling as an affable child until the day before, when he cried constantly and was unusually

“fussy.” Id. Mrs. Maze indicated that when she returned home late that evening from

work, she fed the victim four ounces of liquid that he promptly vomited. Id. at *4. The

victim remained “fussy” throughout the evening and did not sleep that night. Id. at *3-4.

Mrs. Maze said that the victim tolerated his feeding at 5 a.m., but he again vomited when

she fed him at 8:30 a.m. Id. at *4. According to Mrs. Maze, around noon that day, the

victim “had a slight temperature, was ‘whimpering,’ and dozed with his eyes half open,”

so she gave him “a dropper of Tylenol” before leaving to go to the store. Id. Mr. Maze

told Dr. Starling that, as he was about “to shave and shower[,]” he noticed that the victim

was no longer “fussing,” so he went to check on him. Id. at *3. At that time, the victim

“was pale and gasping,” and his eyes were only partially open. Id. Mr. Maze indicated

that he “picked up the limp infant, . . . ‘patted’ him on the face to revive him,” and then

checked his heart with a stethoscope. Id. Because the victim stopped breathing, Mr. Maze

called 911 and initiated CPR. Id.

However, Mr. Maze could not explain the bruising on the victim’s face, and Mrs.

Maze, although she had noticed the bruising three to four days earlier, could also not

account for the cause. Id. at *3-4. Regarding the abdominal bruising, which was more

recent, Mr. Maze said that it might have been caused by massaging the victim’s stomach

to soothe stomach pains. Id. at *3. But Mrs. Maze did not believe that this level of

massaging could have caused the victim’s abdominal bruising. Id. at *4. Dr. Starling

testified that Mr. Maze’s “explanation for the [victim’s] injuries did not coincide with her

observations and findings.” Id. at *3.

Dr. Starling ultimately “diagnosed the [victim] as having ‘a constellation of things

wrong with him,’ including the brain injury, massive internal bleeding throughout the brain

area, and a fractured [clavicle].” Id. at *4. She also stated that there was “clearly” some

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impact to the victim’s head. In Dr. Starling’s opinion, when the victim’s injuries were

viewed in combination, “the only way . . . [to] get that significant an injury in all those

places is to be a battered child.” Id. Dr. Starling indicated that the victim’s clavicle could

have been injured either by squeezing on the clavicle itself or squeezing on the chest

causing the clavicle to “pop out” and snap. Dr. Starling concluded that, to a reasonable

degree of medical certainty, the victim suffered from “‘[AHT]’ or ‘inflicted cerebral

trauma,’ more commonly known as ‘battered child syndrome’ or ‘shaken-baby syndrome’”

(“SBS”). Id. According to Dr. Starling,

[t]he major diagnostic features of the syndrome/trauma include: (1) the

child’s medical history does not account for the injuries; (2) the primary care

givers provide different or conflicting accounts of the injuries; (3) the

[caregivers’] versions of events will change over time; and (4) the child

exhibits swelling inside the brain, bleeding inside and around the brain, and

retinal hemorrhages.

Id. In terms of brain swelling, Dr. Starling “explained that it presses upon brain areas that

regulate breathing and heart circulation and ‘forces the body to shut down.’” Id.

As for other possible ailments, Dr. Jones testified that the victim had no signs of

infection, a spinal tap proved negative for meningitis, and a Computerized Axial

Tomography (“CAT” or “CT”) scan revealed no injuries to the victim’s internal organs,

such as the liver, kidneys, and spleen. Id. at *2. Dr. Jones explained “that trauma can have

curious indicators and that he had seen individuals with significant abdominal bruising but

no internal-organ injury and vice versa.” Id. at *3. Dr. Starling confirmed this information

from Dr. Jones, and she added that the victim’s blood “clot[ted] normally” and that he

tested negative for bleeding disorders. See id. Dr. Starling also confirmed that the victim’s

liver function tests were normal and that he “did not have Alagille Syndrome, an inherited

liver disorder that can cause clotting dysfunctions.” Id. at *5. She affirmed that “tests were

conducted[] to eliminate other medical causes for [the victim’s] particular condition” and

that “everything else” was excluded.

Dr. Starling “could name no other equivalent trauma that would cause similar

patterns of injuries” besides AHT, specifically excluding premature birth, neonatal

jaundice, or complications during pregnancy such as the mother suffering from

hypertension and gestational diabetes. Id. at *4-5. She confirmed that “a great many

children” are born with “very minor, little, tiny hemorrhages in the backs of their eyes, that

resolve within several days[,]” but explained that the victim was several weeks old by May

3 and that his retinal hemorrhages were much more severe than those that might have been

caused at birth. Dr. Starling also stated her awareness that the victim “suffered from

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tachycardia” and “hyperbilirubinemia,” but she said that these conditions were common in

infants and typically resolved quickly. Also, according to Dr. Starling, the victim had

stopped taking medication for his fast heartbeat a few weeks prior to his May 3 injuries.

Dr. Sutton-Davis and Dr. Starling both testified regarding the administration of the

Hepatitis B vaccine to the victim and about the possibility of adverse side effects from the

vaccine. Id. at *5, *8. Dr. Starling agreed with Dr. Sutton-Davis that the “U.S. Public

Health Service and the American Academy of Pediatrics [had] called for the elimination

of mercury content in childhood vaccines, including Hepatitis B, and recommended a roll

back on vaccinating all newborn infants with the Hepatitis B vaccine.” Id. at *5, *8. While

Dr. Starling “recognized that ingesting ‘massive amounts of mercury’ can cause brain

damage[,]” she, like Dr. Sutton-Davis, was not aware of any “credible scientific evidence

showing any ‘neurologic devastation’ associated with Hepatitis B vaccines.” Id. at *5, *8.

While “there were reports claiming that the vaccine ‘might be’ associated with

[Guillain-Barré] Syndrome or with worsening of multiple sclerosis[,]” Dr. Sutton-Davis

emphasized that “these illnesses . . . do not exhibit the same symptoms seen in” SBS cases.

Id. at *8. Finally, Dr. Starling “flatly disagreed that the Hepatitis B vaccine [could] lead

to retinal hemorrhaging.” Id. at *5.

Dr. Starling was also questioned regarding the continuing evolution of the medical

community’s understanding of SBS and her knowledge of the modern-day medical science

surrounding the diagnosis. She indicated her understanding that other medical conditions

could cause the triad of symptoms—retinal hemorrhaging, subdural hematoma, and

encephalopathy—that were present in the victim on May 3. As for the disagreement

amongst medical professionals regarding the diagnosis, she verified that “[t]here is

a . . . longstanding conversation among physicians of whether or not just shaking cause[s]

the injury received or if there’s some sort of impact.” She agreed that “[t]here’s a lotta

scientific research going on, there are groups of people who disagree with each other, as in

every other field of medicine, on any given day.” She further noted that CAT scans were

relatively new around the time of the victim’s injuries, but she confirmed that she reviewed

the reports and findings associated with the victim’s scans. When asked about the lack of

evidence of any neck injury in the victim, she responded that “neck trauma” was “not part

of the definition” of SBS. She explained that some children have neck trauma, while others

do not, and that only some children “who are shaken have bleeding along the muscles in

their neck or bleeding around the spine of the neck[.]”

Dr. Mark Jennings, an expert in the field of pediatrics and neurology, first saw the

victim on the evening of May 3 at approximately 11:40 p.m. Id. at *6. Dr. Jennings

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testified in detail about the findings from the [victim’s magnetic resonance

imaging (“MRI”)] scans performed on May 12. He pointed out a large

collection of blood mainly on the left side of the upper part of the brain

indicating a “severe acceleration-deceleration injury.” He reconstructed the

injury as resulting from a blow applied to the left forehead; “the [victim’s]

head was then struck against an object hitting primarily the right parietal

occipital area and posterial portion of the skull” which threw the [victim’s]

head “back and then may’ve rebounded forward again in order to produce

[the] acceleration/deceleration injury.” Doctor Jennings also observed that

pressure within the brain increased to the point of causing a “herniation

syndrome,” meaning that the pressure forced the brain “down through the

boney opening at the base of the skull.” The head trauma was non-accidental

in his opinion.

Id. Ultimately, Doctor Jennings concluded “that the [victim’s] injuries could not have

occurred days—or even hours—before [Mr. Maze] summoned emergency services.” Id.

While the victim was hospitalized, Investigator Lee Allen with the Department of

Children’s Services in Davidson County also spoke with Mr. Maze. Id. at *8. According

to Investigator Allen, Mr. Maze “attributed the bruising on the [victim’s] head to an earlier

injury caused by the aspirator and the stomach bruising to stomach cramps.” Id. Mr. Maze

informed Investigator Allen that, “as he was getting into the shower, he noticed that the

[victim] had stopped crying and was pale.” Id. When Mr. Maze picked up the victim, the

victim “was limp and gasping for air,” and his “eyes were half open and dilated.” Id. Mr.

Maze “said that he ‘tapped [the victim] on the cheek,’ checked the heart rate with a

stethoscope, began CPR, and called E 911.” Id.

Detective Ron Carter, who was assigned to the Youth Services division of the

Metropolitan Nashville Police Department, spoke with both Petitioners at the hospital. Id.

at *9. Det. Carter’s recorded interview with Mr. Maze was played for the jury. Id. In the

recording, Mr. Maze “gave inconsistent statements regarding whether the shower water

was running as he listened for the [victim].” Id. He also “repeatedly denied shaking the

[victim], but he eventually conceded first that he ‘might’ have shaken the [victim] and

second that he shook the [victim] because he ‘freaked out.’” Id.

When the victim was released from the hospital on May 29, 1999, he was placed in

the care of Sandra Roberts, a social worker with the Center for Family Development in

Bedford County, and her husband. Id. The couple “had received foster-care training

involving children with special needs.” Id. Ms. Roberts testified that the victim “could

not feed himself or swallow and could not sit up or crawl” and that he “had seizures on a

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daily basis and was frequently congested.” Id. According to Ms. Roberts, the victim’s

blood was tested frequently “[b]ecause of the possible side effects from the seizure

medicines . . . . Ms. Roberts noticed no negative reactions to any vaccines that the [victim]

received.” Id.

Dr. Jennings remained the attending neurologist following the victim’s May 29,

1999 discharge from the hospital until the victim’s subsequent death on October 25, 2000.

Id. at *6. During that time, he saw the victim on an outpatient basis on six different

occasions. Id. According to Dr. Jennings, the victim’s “medical problems were the direct

result of the May 3 head trauma, and he described the problems as ‘progressive,

predictable, perhaps, almost inevitable.’” Id. Dr. Jennings said that, when the victim was

brought to the hospital on October 19, 2000, he “was profoundly comatose with signs of

multi-organ failure.” Id. at *7. This included “elevated liver functions,” meaning that “the

liver was not making the necessary enzymes to clot blood.” Id.

Dr. Mary Baraza Taylor, a pediatric critical-care physician at Vanderbilt, attended

the victim upon his second hospitalization in October 2000. Id. at *8. After the victim was

found in an unresponsive condition, he regained his pulse, but Dr. Taylor “estimated a lapse

of approximately [twenty] minutes” had occurred by that time. Id. Dr. Taylor indicated

that the victim “had no meaningful response and no spontaneous movements and showed

symptoms of ‘anoxic brain injury’ from lack of oxygen to the brain and other organs,

including the liver. Even so, when the [victim] was admitted, his white blood cell count

was normal, and no infection was detected.” Id. Dr. Taylor opined that it was unlikely the

victim was suffering from severe liver hepatitis on October 19 because the victim’s liver

enzymes were normal at that time. Id. However, according to Dr. Taylor, the victim’s

liver enzymes showed a “dramatic change” following his admission, and “an individual

with fatal liver disease would gradually go into a coma and die after a period of days.” Id.

Finally, Dr. Bruce Levy, the Chief Medical Examiner for Tennessee and the county

medical examiner for Davidson County, testified that he performed the victim’s autopsy

on October 26, 2000. Id. at *9. Dr. Levy had “obtained the medical records of the injury

that [the victim] sustained at five weeks of age, as well as subsequent follow-up

examinations of [the victim], up to and through the final admission that resulted in his death

in October of [2000].” Dr. Levy testified that the manner of death was homicide,

explaining as follows: “I determined the cause of death as anoxic encephalopathy due to a

seizure disorder due to shaken-baby syndrome. The anoxic encephalopathy is a condition

when the brain is deprived of oxygen for a long period of time.” Id.

According to Dr. Levy, a seizure “most likely” caused the victim to stop breathing.

See id. He also noted that the victim “had documented periods of apnea[,]” a condition

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that caused him to stop breathing for short periods, which might have “very well

contributed to that terminal event.” Dr. Levy said that the underlying cause for the victim’s

seizure disorder and apnea condition was the traumatic brain injury that occurred in May

1999. See id. He testified that he did not simply review the victim’s medical records and

rush to judgment, but rather he examined the body, and based upon “the pattern of those

injuries” he observed, determined that it was consistent with SBS.

Moreover, Dr. Levy testified that, “on x-ray and visually during the autopsy[, he

observed] a deformity of the left clavicle, 3 which was consistent with the fracture that had

been described in May of [1999].” He also said that he “found the deposition of iron in the

back of the [victim’s] eyes” upon review of the autopsy slides, indicating prior retinal

hemorrhaging. Dr. Levy related that roughly one-third of infants are born with retinal

hemorrhages, that it was possible the victim’s prior retinal hemorrhaging occurred at birth,

and that the victim’s prematurity increased the risk of brain hemorrhaging.

Dr. Levy testified that he found no signs of infection or “other medical conditions

or medical disorders” in the victim’s body upon autopsy. He further opined that nothing

unrelated to the original brain injury of May 3, 1999, including hepatitis, caused or

contributed to the victim’s death. Id.

He explained that the cause of damage to the victim’s liver came from the

deprivation of oxygen on October 19, 2000, and he found similar evidence of damage in

the victim’s “intestines” and the “musculature throughout his body[,]” including the

victim’s diaphragm. He noted that he had reviewed the reports from the defense experts

suggesting that the victim “had a liver disorder or a liver disease,” but this did not change

his opinion as to cause and manner of death because there “was no sign of liver failure on

[the victim], at the time of his death.” He clarified that he had observed the victim’s liver

“with the naked eye as well as under the microscope”; that there was no evidence of any

liver injury in the victim’s medical records prior to his admission on October 19, 2000; and

that the victim had been vaccinated against Hepatitis B. “As corroboration, Dr. Levy noted

that from May 1999 through October 10, 2000, the [victim’s] liver enzymes were normal,

but they became markedly elevated as of October 19, 2000, and continued to elevate.

Those test results were consistent with an acute hepatic injury rather than a chronic

hepatitis infection.” Id. He also said that hepatitis would cause damage “throughout the

entire liver[,]” which was not what he observed during the autopsy examination, and that

hepatitis would be a much longer disease process. Id. Dr. Levy explained that liver injury

was a possible side effect of the anticonvulsants being given to the victim to control his

seizures. Id.

3

He later confirmed that his autopsy report noted a deformity to the right clavicle, rather than the

left, which was incorrect.

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Following the conclusion of Dr. Levy’s autopsy of the victim, Dr. Jennings

reviewed the autopsy slides and learned that, upon the victim’s death, his liver showed

signs of “‘hepatic necrosis,’ or, in other words, dead liver tissue.” Id. at *7. According to

Dr. Jennings, the victim “never displayed liver disease prior to the October 19

hospitalization[.]” Id. Dr. Jennings confirmed that the victim’s “liver injury [was] a

possible side effect of the anticonvulsants being given to control seizures.” Id. Dr.

Jennings did not believe that the victim had “a pre-existing liver disease that caused cardiac

arrest or interruption of breathing on October 19[,]” but rather, “[h]e believed that the liver

abnormalities ‘were secondary to the respiratory arrest’ of October 19.” Id.

2. Defense’s Proof

Mr. Maze testified in his own defense. Maze, 2006 WL 1132083, at *10-12.

Regarding any discoloration or bruising seen on the victim prior to his May 3, 1999

hospitalization, Mr. Maze

said that he and his wife had noticed some skin discoloration, including a

“blotchy mark” when the infant left the hospital, a bruise on the left side of

the [victim’s] head, a more recent bruise on the right side of the [victim’s]

forehead, which he attributed to [Mrs. Maze’s] wristwatch or the [victim’s]

aspirator, and a light bruise on the [victim’s] stomach.

Id. at *10. Mr. Maze relayed that he decided to take a shower on the morning of May 3,

but “after he disrobed and reached to turn on the water, he noticed that the [victim] was

making no noises.” Id. at *11. When he went to check on the victim, the victim “was pale

white,” limp, and lifeless. Id. So, he picked up the victim, “called out [the victim’s] name,”

and rubbed the victim’s head and “little cheeks.” Id. Mr. Maze said that he called

emergency services and began CPR after he checked the victim’s heart rate. Id.

When Mr. Maze was asked whether he shook the baby at all, he responded, “[N]ot

that I recall . . . I may have.” Id. at *11. He denied intentionally lying to the officers and

physicians when he failed to mention shaking the victim, explaining that he was very

emotional and distraught. Id. He then claimed “that his memory of the events was unclear”

and said that “what [he] considered shaking was not [to] the point that was described on

May 3rd.” Id. According to Mr. Maze, “the purpose of the shaking was to revive or

awaken” the victim, and he “described what he did as ‘jostling’ rather than shaking.” Id.

Mr. Maze “insisted that he did not shake the [victim] ‘to the violent extent’ to which the

doctors referred.” Id. When, however, Mr. Maze made his admission to Det. Carter after

being asked repeatedly about the shaking, he “prefaced it by saying that he would only talk

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outside [Mrs. Maze’s] presence because he did not want [her] to know what happened.”

Id. Regarding the fractured clavicle, Mr. Maze “acknowledged the possibility that he could

have caused the injury[,]” explaining, “I think, when I picked him up outta the crib and

jostled him to revive him or to see if he was responsive, I possibly could have done that

then.” Id. at *12.

Mr. Maze also presented testimony from Mrs. Maze. See id. at *12-13. Mrs. Maze

related her pregnancy complications, which included cramps, bleeding, gestational

diabetes, hypertension, and low amniotic fluid. Id. at *12. According to Mrs. Maze,

“[s]even days after receiving the second Hepatitis B vaccine, the [victim] collapsed, and

during that seven-day period, . . . the [victim] developed a slight discoloration on his temple

and seemed to get ‘fussier and fussier.’” Id. Mrs. Maze admitted that there was a

“possibility” that she told Dr. Starling the victim was “normal until brought to the hospital

and that she told Detective Carter that [the victim] did not become fussy until she began

her part-time job” and left him in Mr. Maze’s care. Id. at *13. Indeed, she told Det. Carter

that “the bruises first appeared the weekend that she began her part-time employment.” Id.

Mrs. Maze acknowledged that Mr. Maze admitted to her that “it was possible that he

‘might’ have shaken the [victim] and that in picking up the [victim], it was possible that he

could have fractured the clavicle.” Id.

The three remaining defense witnesses were physicians. Id. at *13-14. Dr. Nicole

Schlechter, Mrs. Maze’s attending obstetrics and gynecology physician, testified about

Mrs. Maze’s “high-risk” pregnancy, which included “chronic hypertension, gestational

diabetes, inter-uterine growth restriction, and low amniotic fluid level[.]” Id. at *13.

Despite the high-risk nature of the pregnancy, Dr. Schlechter “did not use forceps to deliver

the baby; she considered the baby to be healthy, despite being small for his gestational age,

and detected no adverse effects from [Mrs. Maze’s] pregnancy complications.” Id.

Dr. Edward Willey, an expert in pathology, reviewed Dr. Levy’s autopsy report and

the autopsy slides, and he agreed with many of Dr. Levy’s findings, “but not all of them.”

See id. In Dr. Willey’s opinion, “liver disease” caused by “aggressive hepatitis” was a

“reasonable explanation for [the victim’s] death.” Id. Also, Dr. Willey noted that the

victim had “an abnormal diaphragm,” resultant from “a typical hereditary-type myopathy,”

that would make it difficult for him to breathe. See id. Dr. Willey “did not believe it [was]

medically reasonable to attribute the death of the [victim] in October 2000 to a trauma that

occurred on May 3, 1999.” Id. Regardless, Dr. Willey “did not dispute that the [victim]

had definite and severe brain injuries.” Id. On cross-examination, the State challenged Dr.

Willey’s hepatitis diagnosis, but he refused to agree that oxygen deprivation for fifteen to

twenty minutes “would cause the degree of liver damage shown on the slides, although he

did acknowledge that oxygen deprivation would elevate the liver enzymes.” Id. Moreover,

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Dr. Willey maintained that, whatever the cause of the victim’s cessation in breathing, “the

myopathy of the [victim’s] diaphragm aggravated the situation.” Id.

Finally, Dr. Mary Kay Washington, a professor of pathology at Vanderbilt

University and board certified in anatomical and clinical pathology, with expertise in liver

and gastrointestinal pathology, criticized Dr. Levy’s autopsy findings concerning the

victim’s liver and his failure to note a myopathy or “inflammation in the diaphragm.” See

id. at *14. Dr. Washington said that, unlike Dr. Levy, she observed “significant

abnormalities” in the victim’s liver. Id. When asked to identify the type of hepatitis seen

in the victim, she indicated that it could have been viral or caused by medication.

According to Dr. Washington, the “abnormalities and inflammation indicated a pattern of

injury attributable to hepatitis,” the degree of which “certainly could’ve been a significant

contribution to death.” Id. However, Dr. Washington conceded “that the [victim’s] brain

injury was the overriding cause of death” and that a liver disorder did not cause the victim

to stop breathing on October 19, 2000. Id.

Following the conclusion of the proof, the jury convicted Mr. Maze as charged of

first degree felony murder and aggravated child abuse. Id. at *1. He received concurrent

sentence terms of life imprisonment and twenty-five years, respectively. Id.

3. Direct Appeal

Mr. Maze appealed his convictions to this court. On appeal, he challenged (1) the

sufficiency of the evidence; (2) the trial court’s preclusion of defense expert witness

testimony from pediatrician Dr. Edward Yazbak that there are “many known and reported

cases” of adverse effects from Hepatitis B vaccinations, including retinal hemorrhaging

and subdural hemorrhaging; and (3) the jury’s alleged exposure to prejudicial extraneous

influences from third parties. Maze, 2006 WL 1132083, at *1, 19.

As for his sufficiency of the evidence claim, Mr. Maze advanced several medically

based arguments. Specifically, he argued as follows:

(1) that the evidence supported the defense theory that the [victim] had some

pre-existing intercranial pressure, probably from a subdural hemorrhage,

which was the result of a spontaneous re-bleeding of an older hemorrhage;

(2) that the evidence showed that the [victim] had significant and fatal liver

disease such that it was not medically reasonable to attribute death to the

incident that occurred in May 1999; (3) that from examining the brain at the

autopsy, it was not possible to determine what caused the injury and that no

degree of medical certainty directly tied the cause of death to the May 3, 1999

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incident; (4) that the myopathy or deterioration in the [victim’s] diaphragm

could not be excluded as contributing to the breathing cessation on October

19, 2000; (5) that the Hepatitis B vaccine administered to the [victim]

contained thimerosal, a preservative containing mercury which can cause

brain damage, and that adverse reactions to the Hepatitis B vaccine had been

reported; and (6) that the [victim] was not healthy from birth as a result of

pregnancy complications of [Mrs. Maze].

Id. at *15. This court concluded that (1) a rational jury “could conclude from the medical

evidence and testimony that the [victim’s] ‘neurologic devastation,’ per Dr. Starling’s

description, was not caused by premature birth, jaundice, liver disorder, or Hepatitis B

vaccines”; and (2) “the jury was entitled to credit the [S]tate’s medical evidence that no

intervening causes unrelated to the original brain injury on May 3, 1999, were responsible

for the [victim’s] death.” Id. at *16-17. Moreover, this court mentioned the non-medical

evidence that supported a guilty verdict, noting that Mr. Maze had “admitted at trial that

he had shaken [the victim], although he insisted that the shaking was not violent, and he

conceded that he could have fractured the [victim’s] clavicle.” Id. at *16.

Relative to the presentation of Dr. Yazbak’s testimony, this court held that the trial

court abused its discretion by excluding the testimony “without exploring other

possibilities.” Id. at *19. Nonetheless, “the exclusion of the expert testimony did not affect

the result of the trial” because the defense was able to “explore[] medical issues favorable

to its position[,]” and “Dr. Yazbak’s testimony would not have explained the [victim’s]

neurologic devastation and severe brain trauma.” Id. Ultimately, this court affirmed Mr.

Maze’s convictions. Id. at *1.

C. Mr. Maze’s Subsequent Litigation

1. State Proceedings

On August 23, 2007, Mr. Maze filed a pro se petition for post-conviction relief.

Maze v. State, No. M2008-01837-CCA-R3-PC, 2010 WL 4324377, at *1 (Tenn. Crim.

App. Nov. 2, 2010), perm. app. denied (Tenn. Mar. 9, 2011). In the petition, Mr. Maze

argued that he was denied the effective assistance of counsel at trial. Id. Specifically, he

contended that trial counsel (1) failed to make an offer of proof regarding the testimony of

Dr. Yazbak; (2) failed to consult with a qualified medical expert regarding imaging

evidence of the victim’s neurological damage; and (3) failed to present a qualified medical

expert to contradict the State’s medical evidence regarding causation of the victim’s brain

and neurological damage. Id.

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He also filed a petition for a writ of error coram nobis in October 2007, “claiming

that he had discovered medical evidence that his son died as a result of coagulopathy

originating from birth-related trauma or other disorders, not child abuse.” See Maze v.

Lester, 564 F. App’x 172, 174 (6th Cir. 2014), cert. denied, 574 U.S. 1028 (2014); see also

Maze, 2010 WL 4324377, at *1, *28-30. Mr. Maze attached to the writ the affidavits of

two physicians—a pediatric neuroradiologist, Dr. Patrick Barnes with Lucile Packard

Children’s Hospital, and a forensic pathologist, Shaku S. Teas—both of whom “opined

that there was nothing in the reviewed medical evidence that was specific for, or

characteristic of, non-accidental injury.” Maze, 564 F. App’x at 174. Mr. Maze “averred

that he [had] only recently discovered this evidence and did not know of its existence at

the time of his trial.” Id.

An evidentiary hearing on the post-conviction and error coram nobis petitions was

held on June 9, 2008, where Mr. Maze presented testimony from Dr. Barnes, Dr. Yazbak,

and his trial attorney. Id. at 174-75. “The physicians’ testimony supported a theory that

[the victim’s] injuries were not caused by SBS, but rather were non-abusive in origin.” Id.

at 175.

Dr. Barnes testified that there had “been significant changes in medical literature

concerning [SBS] since 1998 and that ‘evidence-based medicine’ is now applied rather

than the triad of retinal hemorrhages, subdural hemorrhages, and brain injury

(encephalopathy).” Maze, 2010 WL 4324377, at *25. According to Dr. Barnes, he had

reviewed “the victim’s MRIs, CT scans, x-rays, and medical history,” which led him to

determine “that under both the old and new diagnostic standards, the damage to [the

victim’s] brain was not characteristic of SBS[,]” and “[h]e was of the opinion that [the

victim’s] injuries were not a result of non-accidental trauma.” Maze, 564 F. App’x at 175.

Dr. Barnes indicated his disagreement with the “doctors from Vanderbilt [who had] ruled

out venous thrombosis in their reports[.]” Maze, 2010 WL 4324377, at *17. Dr. Barnes

believed that “the victim may have suffered from coagulopathy, a bleeding or clotting

problem, which caused the hemorrhages in his brain.” Id. at *25. In Dr. Barnes’s medical

opinion, “the injury to the victim’s brain . . . was consistent with a stroke.” Id. Dr. Barnes

also observed “that the victim had no injury to the neck or spinal cord, which was unusual

for [SBS] ‘because that’s the weakest part of the head and neck.’” Id. Dr. Barnes “did not

feel that the victim in this case had a fractured clavicle,” but he “agreed that the shaking of

an infant could cause the fracture.” Id. at *18.

Nonetheless, Dr. Barnes admitted that the victim’s case, although unusual for SBS,

“was consistent with battered child syndrome.” Id. at *25. He further acknowledged that

he “did not consider the photographs of the victim’s bruises in his findings”; the “other

evidence of traumatic injury to the victim because ‘it[ was] not within [his] area of expertise

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or practice with regard to the ethics in medicine’”; nor “the victim’s history as part of his

diagnostic process.” Id. Lastly, “Dr. Barnes admitted that his testimony was contradictory

to other medical literature on the subject and to what he had previously written in 1999.”

Id.

Dr. Yazbak then testified. Importantly, Dr. Yazbak opined that the total pediatric

history must be examined when diagnosing infants and that a “diagnosis of inflicted head

injury is a diagnosis by exclusion[,] . . . the last thing on the list.” Id. at *19. Dr. Yazbak

testified that he reviewed Mrs. Maze’s pregnancy records and that he observed several risk

factors with regard to her pregnancy, “including the mother’s age, high blood pressure, and

gestational diabetes.” Id. at *18. Dr. Yazbak also testified about the victim’s

complications in utero and accompanying his premature birth, noting an “intrauterine

growth retardation,” a short umbilical cord twice wrapped around the victim’s neck, and

the lack of sufficient amniotic fluid. Dr. Yazbak further noted that, post-birth, the victim

suffered from jaundice, tachycardia, and anemia. Id.

Regarding the administration of the Hepatitis B vaccine to the victim, Dr. Yazbak

observed that, after the first dose, the victim gained five ounces overnight and had a

sizeable increase in head circumference in the subsequent days. Id. at *18-19. To Dr.

Yazbak, this weight gain and increase in head size indicated “some kind of a thrombosis

happened in the nursery.” Id. at *20. He also noted that the victim’s second dose was

administered earlier than recommended. Id. at *19. However, Dr. Yazbak could not say

“if any of the victim’s problems on May 3, 1999, could be attributed to the Hepatitis B

vaccine.” Id.

To Dr. Yazbak, although he was not a neuroradiologist, the victim’s hospital records

on and after May 3, 1999, indicated that “the victim ‘may have had some minute strokes,

some thrombosis, some problems with the vascular [system] . . . in the texture of the brain,

not outside of it.’” Id. (second alteration in original). Moreover, “Dr. Yazbak testified that

in addition to brain and retinal hemorrhages, the victim in this case ‘had other very striking

intra cranial events and intra cranial problems’” that were “more consistent with epoxy

[sic] injury.” Id. at *19-20. However, as far as he was concerned, “if someone had shaken

the victim hard enough to cause the ‘devastating intercranial findings,’ the victim’s neck

would have been injured.” Id. at *20. He further opined that “a series of vaccinations”

given to the victim after his May 3 hospitalization “would increase [his] seizures and could

cause his eventual death[,]” which Dr. Yazbak attributed to liver disease. Id.

Dr. Yazbak conceded that “there was no evidence based on the CT scan that the

victim had extra collections of blood or cerebral spinal fluid prior to May 3, 1999, and no

evidence of any birth related subdural hemorrhage.” Id. In addition, he “admitted that

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there were no symptoms associated with an altered neurological status between birth and

May 3, 1999.” Id. Moreover, Dr. Yazbak acknowledged that “medical literature

recognizes that when there is a collapse,” like the victim’s on May 3, 1999, “the only way

in which it would happen would be by abuse” if there were no other “well-documented

traumatic event.” Id. Still, Dr. Yazbak believed that, since “all of the things needed to rule

out some other causation were not done[,]” it was wrong to attribute the victim’s collapse

and subsequent death to abuse. Id.

Trial counsel was next to testify. Trial counsel said that,

in preparation for [Mr.] Maze’s trial, he consulted with a pediatric radiologist

(Dr. Boulden) and sent him a copy of the victim’s x-rays (not the MRIs, CT

scans, or retinal photos), but he did not call Dr. Boulden as a witness because

the doctor’s conclusion that the victim suffered a fractured clavicle would

not have supported the defense. [Trial counsel] also consulted with another

expert, Dr. Cleland Blake, a pathologist, about the evidence (including the

MRIs and scans) but likewise decided not to call him as a witness because

he was of the opinion that the victim suffered from child abuse or

non-accidental trauma. Although [trial counsel] attempted to call Dr. Yazbak

as an expert witness at trial (to testify about the adverse effects of Hepatitis

B vaccines), [trial counsel] recalled that he never presented an offer of proof

in this regard at trial and his belated pre-trial, in-chambers motion was denied

by the trial court, which treated the issue as a discovery notification matter.

[Trial counsel] could not recall if he presented the trial court with [Dr.]

Yazbak’s affidavit or a letter from him as a proffer of his testimony. [Trial

counsel] testified that after conducting his own research in preparation for

trial, he arrived at the conclusion that Dr. Yazbak’s theory was “not

something that [he] was going to readily be able to support through his

testimony” because it was not in the mainstream of medical opinion at that

time.

Maze, 564 F. App’x at 175; see also Maze, 2010 WL 4324377, at *21-23.

Regarding evidence of the victim’s clavicle fracture, trial counsel was asked if, from

“a layperson’s standpoint,” he thought he saw a fracture “on the x-rays that were used at

trial” and shown to the jury. Trial counsel said that he “absolutely did” and agreed that it,

in fact, “was fairly readily identifiable.”

Thereafter, the original post-conviction court issued separate orders denying Mr.

Maze’s petitions for post-conviction relief and for the writ of error coram nobis. Maze,

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564 F. App’x at 175. On appeal, this court affirmed the denial of all post-conviction relief.

Maze, 2010 WL 4324377, at *1. Specifically, this court held that Mr. Maze failed to show

that trial counsel’s assistance, relative to either presentation of Dr. Barnes or Dr. Yazbak,

fell below acceptable standards or that he was prejudiced by any aspect of his trial counsel’s

performance. Id. at *23-28. With regard to Mr. Maze’s petition for a writ of error coram

nobis, the post-conviction court determined that Dr. Yazbak’s testimony was not “newly

discovered evidence” because Mr. Maze was aware of Dr. Yazbak at the time of trial.

Then, this court, like the original post-conviction court, determined that Dr. Barnes’s

testimony was cumulative of other evidence presented at trial and was not “newly

discovered evidence” so as to qualify for the writ; rather, the testimony “serve[d] no other

purpose than to contradict or impeach the evidence adduced during the course of the trial.”

Id. at *28-30.

2. Federal Proceedings

On May 23, 2011, Mr. Maze, proceeding pro se, filed a petition for a writ of habeas

corpus in the United States District Court for the Middle District of Tennessee. Maze v.

Lester, No. 3:11-0483, 2011 WL 3758608, at *1 (M.D. Tenn. Aug. 25, 2011). Therein,

Mr. Maze raised several claims alleging that trial counsel was ineffective. Id. As relevant

here, Mr. Maze argued that trial counsel was ineffective by failing to submit an “Amicus

Brief” that “was going to be favorable evidence for” him. Id. Specifically, the Amicus

Brief included a chronology of events that had been constructed by Mrs. Maze from the

time of the victim’s birth until his death. Maze, 564 F. App’x at 177. Also, as part of his

Amicus Brief, Mr. Maze submitted a compilation, gathered by Mrs. Maze, of affidavits

from eleven medical experts. Id. These affidavits, including one from both Dr. Barnes and

Dr. Yazbak, “set forth various non-abusive causes and explanations for [the victim’s]

injuries and death.” Id. Specifically, “the Amicus Brief include[d] the opinions of nine

additional physicians who, with varying degrees of certainty, suggest[ed] other possible

causes of death not previously advanced in [Mr.] Maze’s post-conviction arguments—such

as hepato-cellular necrosis or liver damage, anti-convulsant drugs, vaccinations, and severe

anemia.” Id. at 179. In addition, Mr. Maze argued that trial counsel should have consulted

with a neurologist, rather than a radiologist. Maze, 2011 WL 3758608, at *1. The district

court denied Mr. Maze’s petition in its entirety and declined to issue a certificate of

appealability. Id. at *2-4.

As to Mr. Maze’s “Amicus Brief” claim, the district court held that it had not been

fully exhausted in state court and that no fundamental miscarriage of justice occurred to

excuse the default. Id. at *2-3. The district court noted that, although Mr. Maze claimed

he was actually innocent of the charges, “[h]e ha[d] offered nothing . . . to place his guilt

in serious doubt.” Id. at *3. As for the allegation regarding trial counsel’s failure to consult

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with a neurologist, the district court held that the claim had been fully exhausted and that

the record supported this court’s determination “that counsel had, under the circumstances,

acted reasonably and in a manner that did not prejudice the defense.” Id. at *4. In so

holding, the district court observed,

At the post-conviction evidentiary hearing, counsel testified that he

had consulted with Dr. Boulden, a pediatric radiologist, and Dr. Blake, a

pathologist, about the victim’s injuries and the cause of his death. These

physicians were not called as defense witnesses because they would not

support the defense theory of the case. . . . Counsel also was unsuccessful in

having Dr. Yazbak, a pediatrician, testify for the defense.

Counsel was assisted at trial by Toni Blake who had expertise in

defending against allegations of child abuse. . . . Counsel vigorously cross

examined the prosecution experts as to other possible causes of the victim’s

death.

Id.

Following appeal of the district court’s determination to the Sixth Circuit Court of

Appeals, the Sixth Circuit issued an order granting a certificate of appealability as to the

issues raised by Mr. Maze in his habeas corpus petition. Maze, 564 F. App’x at 176. The

Sixth Circuit, like the district court, found the “Amicus Brief” claim to be procedurally

defaulted, given Mr. Maze’s “failure to present ‘the same claim under the same theory’ to

the state and federal courts[.]” Id. at 179 (citing Hicks v. Straub, 377 F.3d 538, 552 (6th

Cir. 2004)). The Sixth Circuit noted that this claim “advanc[ed] different and expanded

factual theories as to the cause of [the victim’s] death.” Id. Mr. Maze argued that, even if

this claim was procedurally defaulted, the “actual innocence” exception applied to

equitably toll the statute of limitations. Id. at 180. Mr. Maze contended that he had

“new reliable evidence” of actual innocence, asserting that in the last ten to

fifteen years new scientific studies have discredited the previous consensus

that infants exhibiting a triad of symptoms are the victims of SBS; rather, it

is now known that there are other causes of this triad or its components,

including accidental injury, non-traumatic medical conditions, and diseases.

Id. In addition to this medical literature, he cited Dr. Barnes’s testimony at the

post-conviction hearing. Id.

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The Sixth Circuit rejected this argument of actual innocence, determining that Mr.

Maze failed to show that it was “more likely than not that no reasonable juror would have

found [him] guilty beyond a reasonable doubt[.]” Id. at 181 (quoting Cleveland v.

Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012)). The federal appellate court “acknowledged

the controversy surrounding a diagnosis of SBS and the ongoing debate in the scientific

community regarding the accuracy of the SBS triad[,]” but it observed that “[t]he debate

continue[d] and d[id] not suggest that the presence of the triad symptoms [in this case was]

inconsistent with abuse.” Id. at 180 (citations omitted). Significantly, here “‘the diagnosis

[of SBS] was not based solely on the [victim’s] brain injuries’ or triad symptoms, but

evidence of blunt force trauma as well.” Id. (quoting Lutze v. Sherry, 392 F. App’x 455,

459 (6th Cir. 2010)). The Sixth Circuit continued,

Although Dr. Barnes reviewed [the victim’s] medical records, CT scans,

MRI images, and x-rays, he testified that he did not review any of the

photographs taken of the victim—which showed bruising to [the victim’s]

head and abdomen—or any other evidence of traumatic injury to the victim,

including a fractured clavicle. The prosecution’s experts agreed that

considering all of these significant injuries, there was no explanation other

than abuse that would account for [the victim’s] condition. Thus, there was

“ample testimony provided at trial demonstrating the severity of [the

victim’s] abuse that extended well beyond being shaken.”

Id. at 180-81. The court also mentioned the prosecution’s “non-medical evidence”

indicating guilt, which included “inconsistencies in [Mr.] Maze’s behavior and statements

to the police and his concession, after earlier denials, that he might have shaken or ‘jostled’

[the victim] in an attempt to revive him and thus could have caused the injury to [the

victim’s] clavicle.” Id. at 181.

As for Mr. Maze’s claim that trial counsel was ineffective for failing to consult with

a neurologist, the Sixth Circuit determined that, although the claim had been fully

exhausted in the state court post-conviction proceedings, Mr. Maze had failed to show that

this court’s “prejudice determination constituted an unreasonable application of federal

law.” Id. at 181-82. The court concluded that Mr. Maze had failed to show a substantial

“likelihood of a different result.” Id. at 183. Citing to this court’s explanation in Mr.

Maze’s state post-conviction proceedings, the Sixth Circuit observed that, “although trial

counsel did not consult with a neurologist such as Dr. Barnes, counsel presented a

significant amount of medical testimony in an attempt to demonstrate that [Mr.] Maze did

not abuse the victim and, alternatively, that the victim’s brain injury did not cause his

death.” Id. Accordingly, the Sixth Circuit affirmed the district court’s denial of relief. Id.

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D. Current Post-Conviction Proceedings

On December 12, 2023, the District Attorney, through its Conviction Review Unit

(“CRU”), filed notice of its intention “to remedy” the Petitioners’ convictions “by utilizing

the appropriate procedural process to bring this matter within the jurisdiction” of the

post-conviction court pursuant to Tennessee Supreme Court Rule 8. According to the

District Attorney, his office had conducted “an extensive investigation” and concluded that

there was “clear and convincing evidence establishing [the Petitioners] were both convicted

of crimes they did not commit.” Attached to this notice was an extensive report prepared

by the CRU, and included with this report were affidavits from six medical professionals:

Dr. Lawrence Hutchins, Dr. Michael Laposata, Dr. Carla Sandler-Wilson, Dr. Franco

Recchia, Dr. Darinka Mileusnic-Polchan, and Dr. Megan L. Avery. These respective

affidavits, each signed in either November or December of 2023, listed the professional’s

qualifications and the materials reviewed, and each professional adopted the conclusions

made in their attached “expert reports” of various lengths. These reports appear to have

been prepared between July and November of 2023. Dr. Julie Mack’s report, prepared in

October of 2023, was also attached to the notice, but no affidavit accompanied that report.

On the same day as the CRU’s notice was filed, Mr. Maze filed a motion to reopen

his petition for post-conviction relief pursuant to Tennessee Code Annotated section

40-30-117(a)(2) “based upon new scientific evidence establishing that [he was] actually

innocent of the . . . offenses for which [he] was convicted[.]” Mr. Maze relied on opinions

from multiple experts that determined “it was a medical issue that caused the

illness . . . [the victim] was suffering from,” which led to the victim’s eventual death, and

not any act committed by Mr. Maze. According to Mr. Maze, “[t]hese expert opinions are

based, in part, on new medical research showing that there are non-traumatic causes (such

as stroke, possibly caused by medical disorders) for symptoms like [the victim’s] which at

the time were presumed by doctors to be evidence of abuse.” Mr. Maze concluded that

this new scientific medical evidence clearly and convincingly established his actual

innocence “because the State’s theory of the case [at trial, AHT,] was wrong[,]” and

therefore, his convictions for first degree felony murder and aggravated child abuse should

be vacated. No affidavits were attached to Mr. Maze’s motion to reopen his petition for

post-conviction relief.

Three days later, on December 15, 2023, Mrs. Maze filed her first petition for

post-conviction relief, noting that her guilt “depend[ed] on [Mr. Maze’s] having assaulted

[the victim.]” She requested that the court vacate her reckless aggravated assault

conviction due to Mr. Maze’s actual innocence because “[t]he foundations of [the victim’s]

SBS diagnosis no longer align with modern science[.]” She also cited multiple expert

opinions and submitted that Tennessee Code Annotated section 40-30-102(b)(2) provided

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a basis for tolling the statute of limitations because “new scientific evidence establish[ed]

that [she was] actually innocent of the offense . . . for which [she] was convicted[.]”

The State, by and through the District Attorney, filed a response to the Petitioners’

requests for post-conviction relief. The District Attorney admitted the facts set forth in the

petition and agreed that the appropriate remedy was for the court to vacate the Petitioners’

convictions.

The post-conviction court held a two-day evidentiary hearing on the Petitioners’

pleadings beginning on March 26, 2024. At the hearing, the Petitioners’ allegations of fact

in support of their actual innocence claims were endorsed by the District Attorney. The

parties also presented the testimony of seven medical professionals from various

institutions across the country, all of whom were declared experts in their respective fields. 4

The parties argued that the new scientific evidence presented through these experts’

opinions constituted evidence of the Petitioners’ actual innocence, specifically by showing

that (1) the victim’s brain and retinal bleeding were not indicative of abuse, (2) the victim

did not suffer a broken clavicle, (3) any bruising or skin discoloration noted on the victim

was “prematurely and incorrectly diagnosed as evidence of abuse,” and (4) there existed

“better medical explanations” for the victim’s symptoms and ultimate death than the

diagnosis of SBS, particularly some kind of stroke.

Dr. Darinka Mileusnic-Polchan testified that she served as Chief Medical Examiner

for Knox and Anderson counties and as Chief Medical Officer for the Regional Forensic

Center, Knox County, and she was declared an expert in forensic pathology. Dr.

Mileusnic-Polchan stated that, in preparation for the hearing, she had reviewed the victim’s

autopsy report, including photographs and histological slides, medical records from both

Mrs. Maze and the victim, and any prior testimony of doctors from the various proceedings

that had been provided to her.

Dr. Mileusnic-Polchan reviewed the autopsy photographs, and in her opinion, “they

did not reflect [an SBS] diagnosis.” She further observed that the victim had “two distinct

lesions in his brain” and that SBS “never presents like that.” Rather, according to Dr.

Mileusnic-Polchan, there would be evidence of neck and brainstem injuries due to

shaking—which were not present in the victim’s case—but no “impact on the head.” While

no direct lesion would be present, there might be evidence of an “anoxic brain injury[,]”

with or without “tearing of the bridging veins on top of the head,” due to oxygen

4

The Petitioners also presented brief testimony from the investigating officer, Kristen Vanderkooi,

regarding how the investigation and charging decision were driven by the definitive diagnosis of abuse.

Because this testimony did not constitute “new scientific evidence,” the post-conviction court declined “to

put any weight or value on her testimony.”

- 22 -

deprivation. However, there was no anoxic brain injury present in the victim, and

therefore, SBS could be excluded.

Regarding the two lesions seen on the victim’s brain, Dr. Mileusnic-Polchan

determined that those were not inflicted by blunt-force trauma given her observations of

destruction, or lack thereof, to the several layers of the victim’s brain; the absence of a

“membrane on top of the brain” indicative of substantial brain hemorrhaging; the lack of

“residual hemosiderin in the eyes” indicative of retinal hemorrhaging; and no evident

damage to the victim’s scalp. While she commented that Dr. Levy’s autopsy report noted

“hemosiderin in soft tissue behind the eyes[,]” she thought this was a mistake because there

was no corresponding slide from the victim to confirm this, only a standard slide. In her

opinion, the lack of hemosiderin in the eyes meant that the original treating doctors in this

case “overstated” the amount of retinal hemorrhaging. Although retinal hemorrhaging was

initially only associated with trauma, articles regarding new etiologies began being

published in the 1990s and 2000s, an admission which prompted the post-conviction court

to note that Mr. Maze’s trial occurred in 2004. Dr. Mileusnic-Polchan clarified that this

view “became actually more prominent in the 2000s, and especially by 2010 and in the

last, kind of couple [of] decades[.]” She confirmed that the “bilateral subconjunctival

hemorrhages” present in the victim were abnormal for SBS. She then confirmed “that it

was inaccurate and misleading for Dr. Starling to say that trauma was the only cause of

retinal hemorrhaging[,]” even in 2004.

Moreover, the shape of the lesions in the victim’s brain indicated a stroke to Dr.

Mileusnic-Polchan because, when smaller blood vessels in the brain are blocked from a

stroke, the resulting lesions are “frequently wedged-shaped,” as she observed in the

victim’s case. Based upon the presentation of the victim’s brain, she opined that he

“probably [suffered] a thromboembolic event[,]” meaning that a clot formed somewhere

in the victim’s body, “probably in the heart” due to the victim’s “[s]upraventricular

tachycardia,” which broke off and traveled through his bloodstream to his brain.

Additionally, Dr. Mileusnic-Polchan said that the victim’s overall health at the time

of his death was poor, noting the presence of “inflammation throughout” the victim’s lungs

and his “extremely unhealthy liver . . . , kind of acute chronic hepatitis[.]” In her opinion,

this provided further evidence of “some sort of systemic disorder” that, in addition to “his

ineffective heartbeat,” made him “prone to create these blood clots[.]”

Dr. Mileusnic-Polchan explained that “any severe trauma can cause retinal

hemorrhag[ing,]” including a “very difficult vaginal birth,” as well as “a lot of other

medical conditions, whether they’re metabolic or blood dyscrasia, meaning some clotting

issues,” and “some other blood disorders,” such as leukemia and meningitis. She also noted

- 23 -

that she “didn’t see [a clavicle fracture] on the x-rays done at the time of the autopsy,” that

the victim “did not have rib fractures that [were] classically present with [SBS,]” that no

other fractures were observed, and that she did not see any abdominal bruising from the

photographs taken at the hospital. However, when asked by the post-conviction court if

one of the causes of retinal hemorrhaging was SBS, Dr. Mileusnic-Polchan agreed that it

was. Moreover, Dr. Mileusnic-Polchan later confined her expertise to “the pathology and

especially [the] microscopic presentation,” and she noted that she could not “comment

much” on the x-rays or the victim’s “clinical presentation.”

Dr. Mileusnic-Polchan qualified her “expert opinion to a degree of medical

certainty” that she could “rule out abuse as a cause for the victim’s condition.” Dr.

Mileusnic-Polchan maintained that she believed the slides of the victim’s brain were

conclusive as to her findings. She further indicated that she had presented the victim’s case

for an internal office peer review, and her team had “reached a unanimous conclusion that

[the victim] was not a shaken baby[,]” but “[t]his was actually a case of a stroke, probably

thrombosis strokes.”

Dr. Mileusnic-Polchan believed that Dr. Levy had “based his opinion on previous

conclusions [drawn] by Dr. Starling rather than [on] his own analysis[.]” However, she

opined that this was not uncommon in her professional experience as medical examiners

frequently rely “a lot on clinical information.” She observed that there was “a lot of room

for interpretation [in the victim’s case,]” reasoning that “there were not good original

photos taken” at the time of the victim’s injuries on May 3, 1999, and that CT scans and

MRIs at the time were not as good as those produced today, “so it was really hard to discern

what was tra[u]ma and what was not.” She opined that Dr. Levy’s inaccurate SBS

conclusion likely occurred because “he was just too busy to really dedicate enough time to

study this case thoroughly.” Ultimately, Dr. Mileusnic-Polchan disagreed with the prior

assertions made at trial that “the only reasonable cause [of] the bleeding in [the victim’s]

brain was a sever[e] acceleration/deceleration injury[,]” and further disagreed that the

victim suffered “a blow.” At the conclusion of Dr. Mileusnic-Polchan’s testimony, the

following exchange with the post-conviction court took place:

[DR. MILEUSNIC-POLCHAN]: And I am almost certain if I were to bring

Dr. Levy here and just kind of slow him down maybe just a minute –

THE COURT: There is no way you can say that. Really? What you’re about

to say.

[DR. MILEUSNIC-POLCHAN]: I – I think that any pathologist looking at

the brain slides.

- 24 -

THE COURT: You are going to be able to say that I can bring in the doctor

who testified and did the autopsy and he’s going to admit he was wrong?

[DR. MILEUSNIC-POLCHAN]: Well. It happened, not with Dr. Levy, but

with other pathologists.

THE COURT: And you know that? That Dr. Levy would –

[DR. MILEUSNIC-POLCHAN]: No. Well, I don’t know with certainty.

No, I don’t know with certainty.

Dr. Joseph Scheller, an expert in pediatric neurology and neuroimaging, prepared a

report in the victim’s case based upon his review of the trial testimony and the medical

records, which included the radiological images done on the victim’s brain in May 1999

and the doctor’s notes from that same time period. He found that the victim “presented in

very dramatic life-threatening catastrophic neurologic illness at about five or six-weeks of

age and that was due to the fact that he had suffered a stroke.” He noted that this

presentation, which did not include any injury to the scalp or skull, made it “much less

likely” that the victim “suffered an impact injury to the head on or around . . . May 3rd of

1999.” The post-conviction court asked Dr. Scheller to expound on what he meant by “less

likely,” and Dr. Scheller replied, “It’s not out of the realm of possibility[,] like it is

unlikely.”

In an attempt to discount the allegation of shaking in the victim’s case, Dr. Scheller

noted that the victim, who was “very, very small” and lacked “head control[,]” did not have

a “whiplash-type of injury,” nor was there evidence of any rib fractures. Further, Dr.

Scheller stated that, while “the clavicle is a tough bone to assess” given its shape, he “did

not see evidence of a clavicle fracture.” He noted that, if the victim’s clavicle had been

broken “a week or two or three [weeks] before [the x-ray],” there would have been evidence

of “new bone” forming as it healed, which he also did not see on the victim’s x-ray.

Dr. Scheller noted that the medical community over the last fifteen to twenty years

had learned an incredible amount in cases such as the victim’s, that MRI tests were likewise

far superior in the present day, and that there was now widespread use of ultrasound

imaging. Returning to his finding that the victim suffered a stroke, he explained that the

victim was born prematurely, which increased the likelihood of a stroke; there were

“inherited conditions that [the victim] was never tested for that” could have made “him

more likely to clot”; and there were “two other[] conditions that [the victim] seemed to

have” making his blood thicker—anemia and infection.

- 25 -

On the victim’s brain imaging from May 3, 1999, Dr. Scheller noted two areas from

which “one would conclude” that the victim had suffered a recent blood clot that was

“readily apparent,” as well as “a slight hint [that] . . . maybe there is a little bit of [a] blood

clot” in other areas. On the victim’s brain imaging from May 6, 1999, the area Dr. Scheller

observed three days earlier was now “much thicker, much larger and much more dramatic.”

He termed this “a very, very impressive progression of this blood clot,” which was not

suggestive of SBS or other trauma because the clot would not have grown under those

circumstances. According to Dr. Scheller, this May 6 scan suggested “thrombosis” or

“clots in the veins of the brain.” When asked if the clot present in the victim’s scan from

May 6 could have been caused by abuse, Dr. Scheller responded that it was “[v]ery, very

unlikely. It is in the realm of possibility, yes. But it—that’s not the first thing you think

of. . . . [A] stroke is typically a circulation problem from within, not a problem from with

out.” On the victim’s brain imaging from May 12, 1999, Dr. Scheller observed blocked

blood flow in “the vertical part of the T,” representing the “large vein that’s bringing the

blood from the front of the brain to the back so that it can get back to the heart.” This

likewise was not consistent with AHT, in Dr. Scheller’s opinion. According to Dr.

Scheller, the victim presented with “cardiorespiratory arrest . . . due to venous strokes[,]”

which is typically a slower process, and he “did not see evidence of an arterial stroke in

[the victim’s] case.”

He opined that the victim’s retinal hemorrhaging was also indicative of a stroke. He

explained that retinal veins are very delicate and are directly connected to the blood vessels

in the brain; thus, when larger blood vessels are blocked in the brain, it would cause the

retinal veins to “leak.”

Regarding the diagnosis of abuse, Dr. Scheller believed that Dr. Starling made a

rush to judgment in the victim’s case, calling it “incredible” that she could say “this [was]

inflicted trauma and the mechanism [was] from a rotation” before reviewing much of the

imaging and “detail[ed] bloodwork.” He believed that Dr. Starling’s early diagnosis

“impacted the ability of other doctors treating [the victim] to consider whether these other

causes may have contributed to his problems[.]” When pressed by the post-conviction

court on whether he could say with “medical and scientific certainty” that the victim’s

condition was not the result of abuse or trauma, Dr. Scheller replied, “I would say the much

more likely diagnosis is that he had a[] medical condition and that medical condition [was

a] stroke and whatever triggered the stroke.” He also clarified that his opinion at the time

of Mr. Maze’s trial in 2004 would “probably” have been “the same thing.”

Dr. Michael Laposata, Chair of the Department of Pathology at the University of

Texas in Galveston, and an expert in coagulation and laboratory tests, testified regarding

- 26 -

“underlying diseases that mimic child abuse,” specifically blood disorders. He became

interested in learning about the mimickers when it was “realized that of [twenty] children

who looked beaten, [nineteen] of them were[,]” but there was that one child who was

wrongly diagnosed. There are “three major categories . . . called mimics of child abuse”:

bleeding disorders, skin changes, and bone abnormalities. Dr. Laposata said, “[T]his is a

very well-known thing that emerged over the past [twenty] something years because of the

false imprisonment of innocent people.” His first study on the topic was published in June

2005. Dr. Laposata was convinced “with absolute certainty that there was an underlying

disease” in the victim’s case.

Dr. Laposata reviewed the lab work and medical records from both the victim and

Mrs. Maze. He noted numerous health problems Mrs. Maze experienced during her

pregnancy, including gestational diabetes, a “fatty liver,” and some concern that she

suffered from an autoimmune condition known as “autoimmune hepatitis.” He posited,

“[T]here are several things that are made by the patient who has an autoimmune disease

that can go across the placenta to the baby and promote clotting.” However, he could not

“point to medical evidence” that indicated “exactly what [Mrs. Maze] had.” He further

noted that Mr. Maze would also have to have these same traits for them to have been passed

to the victim. However, adequate testing was not done to establish this one way or the

other.

Dr. Laposata noted that the victim suffered from a fast heartbeat that “got worse

after birth[,]” which was indicative of “serious signs of illness.” Dr. Laposata also

compared bloodwork done on the victim at birth with that done following his

hospitalization on May 3, 1999, and he observed that the victim lost “two-thirds of his red

blood cells[,]” which would have made it difficult for him to take in enough oxygen to

breathe. If this had been caused by a bleed, Dr. Laposata explained that all three types of

blood cells, not just red blood cells, would have been diminished. He also noted that the

victim’s red blood cells were “all misshapen.” As the victim “got more and more unable

to carry enough oxygen because of his terrible anemia, he got more and more fussy until

he finally became unresponsive.” He thought it was “unquestionable” that “there [was] an

underlying disease here about red blood cells,” although without further examination of the

victim’s bone marrow, the cause was indeterminate. He could not reconcile why further

testing was not ordered to “fully evaluate the risk for clotting in [the victim].” Nonetheless,

he agreed with the assertion that these observations of the victim’s red blood cells pointed

away from abuse.

Dr. Laposata believed that a clot could have explained the victim’s presentation,

including the retinal hemorrhaging. However, he noted that there remained

- 27 -

a lot of controversy about whether there was a clot in the major vein that goes

right under the skull in the middle front to back. And some say it’s there and

some say it [is not]. The trouble is that if that was really there, it explained

virtually everything in the [victim’s] brain. And that would be hard to find

at autopsy. And it’s easy to find the clot confusing.

Some people read the imaging study as interval thrombosis, meaning

the clot was there and then it wasn’t there, then it was there. Basically it’s a

stroke-like [e]ffect that will cause damage to the brain.

Dr. Laposata lastly testified that it was “incorrect” to assert that AHT was the only

explanation for the victim’s condition.

Dr. John C. Hunsaker, III, a retired associate medical examiner and a retired

professor of pathology, testified as an expert in forensic pathology. Following his review

of the medical records in this case, he concluded that the victim “did not die of [SBS]”

because “there was no scientific or medical basis to draw that conclusion.” Noting that the

victim did not die until eighteen months after the initial hospitalization, Dr. Hunsaker

believed that “Dr. Levy based his autopsy findings on the conclusions of clinicians in the

remote past rather than any findings he observed at autopsy.” He reasoned that “there was

nothing that Dr. Levy observed at [the victim’s] autopsy that could lead him to state with

a reasonable degree of medical probability that the cause of death” was SBS. Dr. Hunsaker

said that the same findings “could [have been] explained as coming about from other

reasons and nontraumatic reasons.”

Dr. Hunsaker agreed that the “triad of symptoms” indicative of SBS—subdural

bleeding, retinal hemorrhaging, and encephalopathy—were present in the victim’s case,

although he did not believe this was dispositive of a diagnosis. He noted that recent studies

concluded that “each” of these symptoms could stem from natural causes and conditions.

Dr. Hunsaker found the victim’s “rapid increase in head circumference” to be concerning

for swelling and “the accumulation of fluid inside and around the brain.” He opined that

infants “with a large head circumference could be predisposed to retinal hemorrhaging or

subdural hemorrhaging.” While much of this information had been collected over the last

ten years, “[t]he process ha[d] been going on longer[.]”

Dr. Hunsaker confirmed his belief that “based upon the information” presently

known to the medical community, “a stroke [was] a more likely explanation for [the

victim’s] hemorrhaging in this case than trauma[.]” He further noted that he “typically”

would expect to see some evidence of external injuries in cases of suspected trauma, like

injury to the scalp or contusions, but none were evident in the victim’s case. Dr. Hunsaker

- 28 -

also noted that, in SBS cases, “it’s much more likely that there is going to be damage to

the structures of the neck rather than bleeding and inside of the skull and within the

eyeballs.” Having reviewed the reports of the other experts involved in this case, Dr.

Hunsaker confirmed that he found “their ultimate conclusions to be reasonable” despite

potentially not “agree[ing] with all of their findings[.]” He stated that it could be “very

difficult” to determine what caused the victim’s death with such a time difference between

the injury and the autopsy, but he believed it was “reasonable to conclude that various

metabolic and conditions related to clotting of blood” explained the changes in the victim’s

brain that led to the victim’s death. He lastly confirmed that, in his opinion, it was “possible

to a degree of medical certainty to rule out [the victim’s] original diagnosis of [SBS.]”

Dr. Carla Sandler-Wilson, an attending neonatologist at Centennial Medical Center

in Nashville and an expert in neonatology, testified that she reviewed Mrs. Maze’s

pregnancy records and all of the victim’s medical records up to and including the duration

of his hospitalization in May 1999. She believed Mrs. Maze was diligent in her prenatal

care but suffered multiple significant issues, including gestational hypertension, gestational

diabetes, intrauterine growth restriction, low amniotic fluid, and elevated liver enzymes.

The victim was born prematurely at thirty-four weeks of pregnancy and was “small for

gestational age.” She noted that “a good proportion” of babies found to have sinus venous

thrombosis, or “a clot in a major [blood] vessel that drains the blood from the brain[,]”

were the product of premature birth stemming from pregnancies complicated by gestational

diabetes and gestational hypertension. All of these conditions were present surrounding

the victim’s birth, leading Dr. Sandler-Wilson to opine that the victim was “definitely at

an increased risk” for clotting issues and brain bleeds. Also, while the victim was in the

hospital, he displayed “[h]yperbilirubinemia or jaundice[,]” as well as “supraventricular

tachycardia.”

Dr. Sandler-Wilson explained that it has been the standard for over fifty years to

give “every infant after birth” an injection of Vitamin K to aid with infancy clotting issues.

In the victim’s case, she saw from the medical records that a Vitamin K injection had been

“ordered,” but there was no record of when or if the injection was actually given to the

victim. This was important to Dr. Sandler-Wilson because the victim’s presentation on

May 3 was “almost identical to babies [she had] taken care of with Vitamin[] K deficiency

bleeding who presented at six weeks of age with catastrophic brain bleeds and anemia.”

She also found the “massive growth” in the victim’s head circumference over a two-week

period “very concerning” and believed that further investigation should have been done as

to the source of that growth. She further noted that “newborn screen[ing] is constantly

being evaluated and updated on a regular basis.”

- 29 -

Dr. Sandler-Wilson confirmed that, upon her review of the photographs taken

following the victim’s May 3, 1999 hospital admission, she observed bruises on the

victim’s face and abdomen. While she could not determine the cause of the bruises from

looking at the photographs, she did not observe any corresponding internal injuries. In a

case of SBS, she would expect to see bruising about the ribcage and sternum, which was

not present in the victim’s case. Although she testified that she was not a radiologist and

did not interpret the actual images, Dr. Sandler-Wilson found the timing of the victim’s

reported clavicle fracture “weird” because it had apparently not been noticed on the other

x-rays conducted in the more than twenty-four hours preceding its discovery. She further

stated that fractured clavicles are rare in cases of SBS.

Dr. Sandler-Wilson believed that the victim had “some sort of viral syndrome going

on” and that a metabolic disorder was a potential explanation for the victim’s fever,

vomiting, and fussiness. Dr. Sandler-Wilson opined that the SBS diagnosis made within

two hours of his arrival in the emergency room “was a rush” to judgment and not

reasonable. She further noted that “[t]here are many other diseases and disorders that can

present and mimic [SBS].” She did not agree with a diagnosis of SBS based upon “today’s

research standards.” When asked if she would have diagnosed the victim with SBS, she

said, “Not on the available evidence that I had at the time.”

Dr. Julie Mack5 from Penn State Hershey Medical Center, an expert in diagnostic

radiology, gave her opinion to a reasonable degree of medical certainty that “the imaging

in [the victim’s] case d[id] not have any . . . direct evidence” of severe trauma as the cause

of the brain bleeding. She said “that a conclusion of severe trauma would be unsafe based

on the imaging findings.” According to Dr. Mack, a lack of significant bleeding in the

victim’s brain indicated that the “bridging veins” had not ruptured, which she would expect

to see in a case of SBS. Dr. Mack stated that from the imaging she observed, the victim’s

brain bleeding “increased very significantly” while he was in the hospital following his

May 3, 1999 admission, which likewise would not have occurred in an SBS case. She

noted that she did not have all of the imaging in the victim’s case, but she did not “see any

evidence of displaced clavicle fractures on the imaging that [she had]” received. Dr. Mack

agreed that “a stroke or other natural disease [would] be a plausible explanation of the

bleeding that occurred over time in [the victim’s] case[.]” She also agreed that, as of the

present day, AHT was “a diagnosis of exclusion” and that further investigation “of other

potential [diagnoses] that can [cause] bleeding” would be warranted.

5

We note that Dr. Mack’s testimony was occluded by frequent “Zoom Malfunctions,” and her

affected explanations and findings were neither repeated nor clarified on the record at the hearing. The

resulting gaps in the transcript prevented this court from reviewing some of the substance of her testimony.

- 30 -

Dr. Lawrence Hutchins, a retired neuroradiologist, maintained his status as an

“emeritus physician with the Marshfield Clinic” in Wisconsin, where he had been “a

permanent member” of the “child abuse team” for twenty-five years. He reviewed the CT

scans from May 3 and May 6 of 1999 and the MRI from May 12, 1999, in the victim’s

case, as well as “the pertinent relevant medical records as they pertained to

neuroradiology.” From his review of the case, he did not believe that the victim “suffer[ed]

inflicted trauma or accidental trauma[,]” but rather an “ischemic arterial stroke.” He opined

that the injury mechanism in this case was due to an arterial stroke, rather than a venous

stroke, as he observed it to be arrayed in a typical arterial distribution pattern. He said that

while he disagreed with the other experts who had diagnosed a venous stroke, such,

nonetheless, was “a reasonable consideration.” Dr. Hutchins stated that, in his opinion, the

likelihood that the victim suffered inflicted brain trauma was “as close to zero as [one] will

get in medicine.”

In discussing various reasons for misdiagnosis, he noted that the CT request in the

victim’s case said “trauma,” which would have framed the diagnostic tools in both

performance and interpretation of the scan. Here, the images showed only a collection of

“[e]xtremely small” subdural hematomas, and there was no evidence of contusions;

moreover, the accumulation of blood seen in the victim’s brain was not “seen early” as

with a contusion, but it instead appeared “late” as with a stroke. In a case of AHT, there

should be “at least some . . . primary traumatic brain injuries . . . in the breathing center in

the brain stem[,]” which were not observed in the victim’s brain. Dr. Hutchins noted that

subdural hematomas could have many causes: “And [] trauma is obviously a cause of

subdural hematomas and – and should be a consideration every time you see one. But

subdural hematomas that are caused by trauma usually have associated other findings . . .

such as skull fractures or scalp swelling.” There was no “external evidence of trauma,”

such as a skull fracture or scalp swelling, in the victim’s images. Here, there was

“premature closure of the case[,]” in Dr. Hutchins’ opinion. Dr. Hutchins indicated that,

when Dr. Starling told the jury during Mr. Maze’s trial that trauma was “a common cause

of pediatric stroke[,]” she was incorrect.

During his testimony, Dr. Hutchins was asked, “Can you tell us some of the other

causes that would have been known around the time that [the victim] presented in

1999/2000?” In response, he referenced a “rather limited” journal article published in 2000

that discussed bleeding abnormalities, motor vehicle accidents, and tumors as causes in

infants who presented with subdural hematomas but lacked external evidence of abuse. He

then noted that, in an article published nine years later, the list was far more expansive. He

also explained that subdural hematomas can be birth-related and that birth was the most

common cause for their presence in newborns. Dr. Hutchins believed that the cause of the

victim’s brain bleeding was “[a] birth related subdural hematoma[.]”

- 31 -

At the conclusion of the proof, counsel for Mrs. Maze asserted that the District

Attorney’s admission of the facts in the petitions was “controlling and they limit[ed] the

fact finding mission that [the post-conviction] court ha[d] to conduct.” Counsel then

averred that the post-conviction court’s “task [was] fairly easy[,]” which prompted the

post-conviction court to respond, “So why did we have this hearing?” Counsel stated that

the post-conviction court was bound by the parties’ factual admissions but that,

“obviously,” application of the “the law [was] up” to the post-conviction court.

Counsel for Mr. Maze said, “There’s a lot of theories that are [thrown] at the wall

that are never actually connected to the evidence in this case, and that’s what matters. It’s

why we actually brought doctors in to show you the imaging to say it doesn’t fit.” Counsel

for Mr. Maze asserted that the experts who testified during the hearing only “disagreed on

one issue, on whether it was a venous or arterial stroke[,]” and that “[t]here [was] no

daylight between any of these doctors on whether this [was] inflicted trauma.” Counsel

for Mrs. Maze expounded upon this argument stating, “[I]t doesn’t matter what the type of

stroke was [twenty-five] years after the fact, it matters that they agree that it was more than

likely some type of stroke and not abuse.”

When asked if the testimony from these doctors at the hearing amounted to new

scientific evidence, counsel for the Petitioners cited the studies since 2004 that had been

referenced by the doctors at the hearing and explained, “[T]here has been significant

development in the medical community’s understanding of what causes the classic [SBS]

triad, other than shaking.” The post-conviction court asked the prosecutor if it would “be

strong evidence if Dr. Starling had been consulted and came in and said [she] was wrong?”

The prosecutor noted that the District Attorney had “consulted experts in every possible

field that could be relevant to this case” and responded that Dr. Starling’s testimony would

“be biased evidence” not in tune “with the most updated science” because she had changed

her field of practice.

At the conclusion of the hearing, the post-conviction court took the matter under

advisement and informed the parties it would issue a written ruling on the petitions. On

April 25, 2024, the post-conviction court entered an extensive written order memorializing

its findings of fact and conclusions of law as to Mr. Maze’s claim of actual innocence. The

court first detailed the procedural history of the case and provided a summary of each

expert’s testimony from the evidentiary hearing.

Relative to the procedural posture of Mr. Maze’s motion to reopen, the

post-conviction court noted that it “ha[d] already accepted the instant post-conviction claim

for review” and that Tennessee law required one to “show[] clearly and convincingly that

- 32 -

one is actually innocent” in order to obtain relief. Citing Tennessee Code Annotated

section 40-30-117(a)(2), the post-conviction court “determined that [Mr. Maze’s] basis for

re-opening his original post-conviction relief petition under a new scientific evidence claim

[was] appropriately filed” and timely.

Turning to the issue of Mr. Maze’s actual innocence, the post-conviction court

indicated that it was “limited in its role as a fact finder” due to the District Attorney’s

admission to all of the allegations. The post-conviction court noted that, despite this, it

“retain[ed] the equally important roles of determining credibility of the witnesses along

with weighing and valuing the proof presented.” The post-conviction court also noted the

lack of cross-examination of the experts at the evidentiary hearing and that the opinions

stated therein remained untested and instead “were packaged as the wholesale truth.” The

post-conviction court cited to previous proceedings in Mr. Maze’s case—first quoting

Maze, 2006 WL 1132083, at *1; and then quoting Maze, 564 F. App’x at 174—observing

that “prodigious expert medical evidence” had been produced “to support [the] respective

positions” of the parties and that “the ‘devastating injuries’ suffered by [the victim] ha[d]

been chronicled at length.” The post-conviction court stated that it had “heard several

learned voices opine on the medical evidence collected nearly twenty-five years ago” and

that “old data was viewed with different perspectives.” The post-conviction court then

observed that, while all of the experts presented at the hearing “did not believe the

[victim’s] injuries were trauma-inflicted[,]” they “disagreed with each

other . . . , definitively asserted different etiologies . . . , and disagreed with unspecified

medical ‘opponents’[.]” The post-conviction court classified the proof presented “as new

ammunition in a ‘battle of the experts[,]’” but it “diminishe[d] the value of the newly

presented evidence where fresh opinions were offered but not probed” through

cross-examination. The post-conviction court concluded, “Courts should undoubtedly be

the champion of justice and be willing to correct a wrongdoing wherever it may exist.

However, in doing so, a court’s main purpose and ultimate goal must be upholding the rule

of law both constitutionally and statutorily.” Ultimately, the post-conviction court was

“unconvinced the ‘new scientific evidence’ present[ed] substantially more than different

opinions on extant proof.”

The post-conviction court, quoting Cribbs v. State, No. W2006-01381-CCA-R3-

PD, 2009 WL 1905454, at *35 (Tenn. Crim. App. July 1, 2009), concluded that Mr. Maze

had not “established by clear and convincing evidence that ‘no jury would have convicted

him in light of the new evidence’ presented at this post-conviction hearing.” The court

reasoned that “[d]iffering views ha[d] been provided in two different jury trials and in post-

conviction proceedings” regarding the victim’s cause of death; that now “additional experts

ha[d] weighed in with their opinions”; that, “[o]bjectively, the facts remain[ed] the same

as in 1999 when [the victim] was hospitalized and evidence was initially collected”; and

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that “[s]ubjectively, opinions ha[d] been offered for more than two decades on the same

facts.” Accordingly, because the post-conviction court “[did] not find an injustice nor that

[Mr. Maze was] actually innocent based on new scientific evidence[,]” it ruled that “the

petition [was] dismissed.” After concluding that the petition was dismissed, the post-

conviction court instructed Mr. Maze that he had thirty days to appeal this decision

pursuant to Tennessee Code Annotated section 40-30-117(c).

Observing that Mrs. Maze’s claim for post-conviction relief “[rose] and [fell] on the

merits of Mr. [] Maze’s claim,” the post-conviction court likewise “dismissed” her petition.

That same day, the court filed a separate order in Mrs. Maze’s case, referring to its “order

detailing its denial of post-conviction relief” to Mr. Maze, and then denying relief to Mrs.

Maze on the basis that “the cases were intrinsically tied to one another.”

E. Appellate Proceedings

Both Petitioners filed timely notice of appeal documents pursuant to Tennessee Rule

of Appellate Procedure 3. In Mr. Maze’s case, this court filed an order on May 14, 2024,

stating that Mr. Maze was required to receive permission from this court to appeal pursuant

to Tennessee Code Annotated section 40-30-117(c) and Tennessee Supreme Court Rule

28, section 10(B). This court observed that there is no appeal as of right under Rule 3 from

the denial of a motion to reopen a petition for post-conviction relief and that Mr. Maze’s

notice of appeal document did not otherwise comply with the statutory filing requirements

for an application for permission to appeal. The court concluded that Mr. Maze’s notice

of appeal document would be dismissed for lack of jurisdiction unless he “complie[d] with

[Code] Section 40-30-117(c) before the expiration of the applicable thirty-day filing

deadline.”

In accordance with this court’s directive, Mr. Maze filed an application for

permission to appeal on May 21, 2024, wherein he challenged the determination by this

court, arguing that his appeal had been properly filed as a Rule 3 appeal as of right. The

State, by and through the Attorney General in the proceedings before this court, filed an

answer on June 20, 2024. By order dated July 9, 2024, this court consolidated the

Petitioners’ cases for review. In the order, this court also stated,

Upon the filing of the record, briefing shall commence in accordance

with the Rules of Appellate Procedure. In addition to any other issues the

parties raise, Mr. Maze and the State shall address whether appellate review

of the trial court’s order denying him post-conviction relief is permissive or

a matter of right. Compare Tenn. R. App. P. 3(b) (petitioner has right to

appeal denial of post-conviction relief) with Tenn. Sup. Ct. R. 28, Sec. 10(B)

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(petitioner must seek permission to appeal denial of motion to reopen). Mr.

Maze and the State may incorporate into their briefs the arguments already

advanced in their respective application and answer already on file.

Thereafter, the appellate record was filed on August 14, 2024.

Then, in September 2024, the Petitioners moved to temporarily stay the appellate

proceedings. They requested that this court remand the case to the post-conviction court

to consider a newly submitted affidavit from Dr. Levy, the medical examiner who

performed the victim’s autopsy and who testified at trial as to the nature and cause of the

victim’s death. In this affidavit, Dr. Levy stated that he had recently reviewed the victim’s

medical records from birth until his death in October 2000, as well as Mrs. Maze’s obstetric

records, but he did not “believe many of these records” had been provided to him

previously. He also averred that he had “reviewed more recent reports from medical

experts who have re-examined this case since [he had] last reviewed the case over two

decades ago.” Based upon his review of this information, “as well as changes in medical

opinions regarding [SBS] and improved knowledge regarding natural conditions present in

[the victim] that increased the risks for sudden catastrophic neurologic events that are

non-traumatic in origin,” Dr. Levy recanted much of his trial testimony. Specifically, he

disavowed his prior determination that the victim suffered from SBS, that the victim was

subjected to child abuse, and that the victim died as a result of “injuries” sustained from

the May 3, 1999 event. Additionally, Dr. Levy attested that he would no longer testify

with any reasonable degree of medical certainty that the child had a healed clavicle fracture.

He, “more likely than not,” now attributed the victim’s death to “a natural disease process,”

rather than inflicted trauma, and would reclassify the cause of death as “[u]ndetermined”

and the manner of death as “[n]atural.”

The Attorney General filed a response to these motions opposing any remand to the

post-conviction court for reopening of the post-conviction proceedings. The Attorney

General maintained that the Petitioners were “asking for the proverbial second bite at the

apple.” The Attorney General noted that the post-conviction court’s order had become

final and that jurisdiction had attached in this court. According to the Attorney General,

there was no authority or caselaw under these circumstances that provided this court with

the ability to remand the matter and order the post-conviction court to consider evidence

that was not originally submitted before it.

This court denied the motions to stay proceedings, but it noted that the assigned

panel could revisit the issue. During the oral argument in this case, the Petitioners renewed

their requests to stay the appellate proceedings in light of Dr. Levy’s affidavit and remand

the matter to the post-conviction court for consideration.

- 35 -

This case, along with these procedural anomalies, is now before us for our review.

II. ANALYSIS

We will discuss the following procedural issues in addition to a review of the

substantive merits of the Petitioners’ claims of actual innocence based upon new scientific

evidence: (1) whether review of Mr. Maze’s appeal is permissive or an appeal as of right;

(2) whether Mrs. Maze’s petition for post-conviction relief is time-barred; (3) whether the

State improperly changed its position on appeal in violation of due process, judicial

estoppel, and waiver; (4) whether the post-conviction court’s ruling infringed upon

prosecutorial discretion and violated the party-presentation principle; (5) whether the

post-conviction court erred by denying Mrs. Maze relief without independent review of her

actual innocence claim; and (6) whether this case should be remanded to the

post-conviction court for its consideration of additional testimony from Dr. Levy.

A. Jurisdiction

The Petitioners come before this court in distinct yet closely related legal postures:

Mr. Maze’s action arose as a motion to reopen his post-conviction proceedings, while Mrs.

Maze appeals the denial of her original post-conviction petition. Nevertheless, both claims

turn on whether there is new scientific evidence establishing that the Petitioners are actually

innocent of the offenses for which they were convicted. Before we can explore the merits

of their respective claims, however, we must first determine the precise posture of these

post-conviction proceedings and the procedural avenue through which the Petitioners are

invoking this court’s jurisdiction. These determinations will dictate the appropriate

standard of appellate review, particularly in Mr. Maze’s case.

1. Mr. Maze’s Motion to Reopen

Mr. Maze argues that the post-conviction court in this case “implicitly” granted his

motion to reopen and then held a substantive hearing on the merits of his actual innocence

claim. According to Mr. Maze, because the post-conviction court denied his substantive

claim, his appeal is governed by Tennessee Rule of Appellate Procedure 3(b) as a matter

of right, which calls for de novo review with no presumption of correctness. The Attorney

General responds that the post-conviction court did not reopen the post-conviction petition,

averring that the motion to reopen remained pending at the time of the evidentiary hearing

and that the post-conviction court ultimately determined that the proof did not support

reopening Mr. Maze’s post-conviction petition. Thus, according to the Attorney General,

this court’s review is permissive pursuant to Tennessee Code Annotated section 40-30-

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117(c) and Tennessee Supreme Court Rule 28, section 10(B), which would result in an

abuse of discretion standard of review. Both parties rely on various statements of the

post-conviction court as set forth in its April 25, 2024 order, as well as certain entries in

the minutes of the post-conviction court, to support their conflicting positions.

First, we recognize that this court initially issued an order on May 14, 2024,

designating Mr. Maze’s case as a Code section 40-30-117(c) appeal and ordering Mr. Maze

to file an application for permission to appeal, rather than a Rule 3 notice of appeal. Mr.

Maze then complied with this court’s directive and filed an application for permission to

appeal, wherein he also challenged this court’s designation. Thereafter, this court issued

another order on July 9, 2024, seemingly retreating from its prior determination by ordering

that briefing would commence and that Mr. Maze and the Attorney General should address

therein the appropriate procedure governing Mr. Maze’s appeal and the corresponding

standard of appellate review. Importantly, the appellate record was not filed until after the

completion of both these orders. With the appellate record now filed, and oral argument

and briefing completed, we are fully able to address this issue.

The Post-Conviction Procedure Act “contemplates the filing of only one (1) petition

for post-conviction relief[,]” which Mr. Maze filed on August 23, 2007, and relief was

subsequently denied by the original post-conviction court. Tenn. Code Ann. § 40-30-

102(c). His direct appeal of that decision was likewise unsuccessful. See generally Maze,

2010 WL 4324377. Nonetheless, there are limited statutory circumstances whereby a

petitioner may allege later arising claims via a motion “to reopen the first post-conviction

petition[.]” Tenn. Code Ann. § 40-30-117(a). As relevant here, a motion to reopen post-

conviction proceedings is cognizable only if “[t]he claim in the motion is based upon new

scientific evidence establishing that the petitioner is actually innocent of the . . . offenses

for which the petitioner was convicted.” Id. § -117(a)(2); see also Keen v. State, 398

S.W.3d 594, 607 (Tenn. 2012). The motion must assert facts underlying the claim which,

“if true, would establish by clear and convincing evidence that the petitioner is entitled to

have the conviction set aside or the sentence reduced.” Tenn. Code Ann. § 40-30-

117(a)(4). Additionally, the motion must be supported by an affidavit. Id. § -117(b). The

post-conviction court shall deny the motion to reopen “unless the factual allegations, if

true, meet the requirements of subsection (a).” Id.

When a post-conviction court denies a motion to reopen a post-conviction petition,

the petitioner is not afforded an appeal as of right pursuant to Tennessee Appellate

Procedure Rule 3(b). See Tenn. R. App. P. 3(b) (stating that, in post-conviction

proceedings, a petitioner is only entitled to an appeal as of right “from a final judgment”).

Rather, such denial may be challenged on appeal only by the filing of an application for

permission to appeal in this court no later than thirty days after the denial by the post-

- 37 -

conviction court. Tenn. Code Ann. § 40-30-117(c); Tenn. Sup. Ct. R. 28, § 10(B). This

court shall not grant the application unless it appears that the post-conviction court abused

its discretion by denying the motion. Tenn. Code Ann. § 40-30-117(c). In contrast, once

a motion to reopen is granted, “the procedure, relief and appellate provisions” of the

Post-Conviction Procedure Act apply. Id. § -117(b); see also id. § -116 (stating that the

post-conviction court’s final order is appealable “in the manner prescribed by the

Tennessee Rules of Appellate Procedure”). If this occurs, then this court reviews the

post-conviction court’s order granting or denying relief after assessing the substantive

merits of the post-conviction claim de novo. Arnold v. State, 143 S.W.3d 784, 786 (Tenn.

2004).

Code section 40-30-117, by its very language, contemplates a post-conviction

court’s preliminary review of a motion to reopen before reopening the post-conviction

petition and proceeding to an evidentiary hearing on the merits of the claim. See Tenn.

Code Ann. § 40-30-117(a)(4) (stating that a petitioner may file a motion to reopen when

“it appears that the facts underlying the claim, if true” as plead, meet one of the statutory

exceptions for relief, thereby implying that a subsequent determination of their actual truth

is necessary), -117(b) (indicating that “[t]he factual information set out in the affidavit shall

be limited to information which, if offered at an evidentiary hearing, would be admissible

through the testimony of the affiant under the rules of evidence” (emphasis added)); see

also Tenn. Sup. Ct. R. 28, App’x F (providing a form preliminary order for when a

post-conviction court determines that a post-conviction petition or motion to reopen

presents a cognizable claim, indicating that an evidentiary hearing would follow);

Abdur’Rahman v. State, 648 S.W.3d 178, 195 (Tenn. Crim. App. 2020) (determining that

the post-conviction court’s preliminary order amounted to a grant of the petitioner’s motion

to reopen).

Most of the time a motion to reopen “contemplates a summary proceeding in which

the trial court can readily determine whether or not one of the three very narrow grounds

for reopening exists.” Harris v. State, 102 S.W.3d 587, 592 (Tenn. 2003), overruled on

other grounds by Nunley v. State, 552 S.W.3d 800, 828 (Tenn. 2018). Our supreme court

has advised,

Because [these three very narrow] grounds [for reopening] can and likely

will be proven by documentary evidence alone, there will rarely be a factual

dispute as to their existence. When a ground for reopening is proven, the

only factual dispute will be whether or not the petitioner has established by

clear and convincing evidence that he or she is entitled to have the conviction

set aside or the sentence reduced. . . . Again, because of the nature of the

- 38 -

grounds for reopening, even this factual issue should be relatively

uncomplicated.

Id. Ideally, to effectuate the granting of a motion to reopen, a post-conviction court should

first assess whether the petitioner has complied with the procedural requirements. Then,

the post-conviction court should enter a preliminary order finding that the petitioner has

presented a cognizable claim for relief—in this instance, factual allegations that, if true,

constitute clear and convincing proof of actual innocence—before proceeding to a hearing.

See Tenn. Sup. Ct. R. 28, App’x F; see also Abdur’Rahman, 648 S.W.3d at 195 (noting

that the remedy available to either party concerning a post-conviction court’s preliminary

determination on a motion to reopen is to seek an interlocutory appeal).

In the appellate record at hand, the post-conviction court is silent until the two-day

evidentiary hearing took place in March 2024. There is no preliminary order, minute entry,

or any other indication of a prior proceeding involving the post-conviction court apparent

from the record. We agree with the Attorney General that it was not the holding of a

hearing itself that necessarily transformed these proceedings into a substantive review of

Mr. Maze’s actual innocence claim. From our assessment of the record, however, we do

not think the post-conviction court held a hearing while Mr. Maze’s motion to reopen

remained open and pending adjudication, as the Attorney General contends. Instead, the

post-conviction court held an extensive evidentiary hearing over two days and heard

testimony from multiple medical experts regarding the advancements in science and

medicine on SBS and AHT. At the hearing, the parties presented proof of their allegations

and argued at its conclusion for the post-conviction court to vacate the Petitioners’

convictions and dismiss the charges against them. The post-conviction court then, on April

25, 2024, issued a lengthy order containing findings of fact and conclusions of law. In the

order, the post-conviction court recounted the procedural history of the case, reviewed the

evidence introduced at the hearing, cited caselaw on various issues, and ultimately

“dismissed” Mr. Maze’s “petition” and denied him post-conviction relief.

The post-conviction court also made statements in the April 25 order concerning the

procedural posture of the case, which indicated that the post-conviction court had reopened

Mr. Maze’s post-conviction petition: (1) The post-conviction court “ha[d] already accepted

the instant post-conviction claim for review”; and (2) Mr. Maze’s “basis for re-opening his

original post-conviction relief petition under a new scientific evidence claim [was]

appropriately filed” and timely. Similarly, in the order dismissing Mrs. Maze’s petition for

post-conviction relief, the post-conviction court stated that it was denying both Petitioners’

requests for post-conviction relief. These statements clearly demonstrate the overall

intention of the post-conviction court to grant Mr. Maze’s motion to reopen and address

his substantive claim of actual innocence on the merits.

- 39 -

The post-conviction court’s statement in its order regarding Mr. Maze’s avenue of

appeal pursuant to Code section 40-30-117(c), although inaccurate, does not sway us from

this conclusion. First, we will not read this statement by the post-conviction court in

isolation, particularly given the apparent intent of the post-conviction court to hear the

matter on the merits, and the also notable procedural complexity and unique circumstances

present here. Moreover, the post-conviction court, by this statement, does not have the

authority to confer or divest this court of appellate jurisdiction. See Depew v. King’s, Inc.,

276 S.W.2d 728, 729 (Tenn. 1955) (“[T]he right of appeal is wholly constitutional or

statutory in origin[.]”). This is a matter we must determine independently. See Tenn. R.

App. P. 13(b) (stating that this court is required to “consider whether the trial and appellate

court have jurisdiction over the subject matter, whether or not presented for review”).

Furthermore, contrary to the Attorney General’s assertion, the minute entries do not

show that the post-conviction court treated the two cases differently—Mr. Maze’s as a

motion to reopen, and Mrs. Maze’s as a petition for post-conviction relief. Instead, as Mr.

Maze points out, in the minute entries, the post-conviction court was merely identifying

the nature of the filings by the Petitioners before summarizing the court proceedings that

followed. After the conclusion of the evidentiary hearing on March 27, 2024, the minute

entries provided that, “[a]fter due consideration and all the evidence introduced,” said

“PCR [was] taken under advisement with an order to be entered.” The minute entries

support, rather than discredit, Mr. Maze’s position that the post-conviction court was

indeed adjudicating the merits of his actual innocence claim.

Seemingly, just as the State did in Abdur’Rahman, the Attorney General “does not

contend that [Mr. Maze’s] motion to reopen failed to comply with the pleading

requirements of subsection (a); it simply disagrees with [his] claim on the merits.” See 648

S.W.3d at 195. From our review of the procedure utilized, coupled with the totality of the

statements by the post-conviction court in its April 25, 2024 order and the minute entries,

we are constrained to agree with Mr. Maze that the post-conviction court implicitly 6

granted his motion to reopen his post-conviction petition and then proceeded to an

evidentiary hearing followed by a determination on the merits of his substantive claim of

actual innocence. See id. (noting that preliminary consideration amounted to a grant of the

petitioner’s motion to reopen when that order was followed by a hearing during which the

parties presented both arguments and evidence on the ultimate issue). Accordingly, we

conclude that Mr. Maze properly filed a Rule 3 notice of appeal, and this court will review

his claim as a direct appeal as of right with application of a de novo standard of review.

6

We do not mean to foreclose the possibility of an explicit determination regarding such that

occurred in a proceeding absent from the record on appeal.

- 40 -

2. Mrs. Maze’s Petition and the Statute of Limitations

Initially, Mrs. Maze did not present any argument on appeal regarding tolling the

statute of limitations of her post-conviction petition, presumably because the

post-conviction court agreed that the Petitioners’ actual innocence claims were timely.

However, on appeal, the Attorney General argues that Mrs. Maze’s petition for

post-conviction relief, her first, was barred by the statute of limitations. Mrs. Maze

responds that the post-conviction court properly allowed tolling of the statute of limitations

and heard her actual innocence claim on the merits.

Generally, under Tennessee Code Annotated section 40-30-102(a), a

post-conviction petition must be filed “within one (1) year of the date of the final action of

the highest state appellate court to which an appeal is taken or, if no appeal is taken, within

one (1) year of the date on which the judgment became final, or consideration of the petition

shall be barred.” Tenn. Code Ann. § 40-30-102(a). No one disputes that Mrs. Maze’s

petition was filed long after the one-year statute of limitations had expired. However, there

are three narrow statutory exceptions under which an untimely petition may be considered

on the merits. Id. § -102(b). And, those statutory grounds for tolling the limitations period

are coextensive with those for granting a motion to reopen. Compare § -102(b) with

§ -117(a). As relevant here, “[n]o court shall have jurisdiction to consider a petition filed

after the expiration of the limitations period unless . . . [t]he claim in the petition is based

upon new scientific evidence establishing that the petitioner is actually innocent of the

offense or offenses for which the petitioner was convicted[.]” Id. § -102(b)(2).

Furthermore, Code section -106 provides that “[i]f it plainly appears from the face

of the petition, any annexed exhibits or the prior proceedings in the case that the petition

was not filed . . . within the time set forth in the statute of limitations, . . . the judge shall

enter an order dismissing the petition.” Id. § -106(b).

The petition must contain a clear and specific statement of all grounds upon

which relief is sought, including full disclosure of the factual basis of those

grounds. A bare allegation that a constitutional right has been violated and

mere conclusions of law shall not be sufficient to warrant any further

proceedings. Failure to state a factual basis for the grounds alleged shall

result in immediate dismissal of the petition.

Id. § -106(d); see also Tenn. Sup. Ct. R. 28, § 5(E) (setting forth the required contents of a

post-conviction petition, including “specific facts supporting each claim for relief asserted

by petitioner”), (F) (providing grounds for summary dismissal of a post-conviction

petition, including untimeliness, for failure to include specific factual allegations and for

- 41 -

failure to include reasons why the claim is not barred by the statute of limitations). “[T]he

petitioner bears the burden of pleading and proving that the statute of limitations should be

tolled.” Anderson v. State, 692 S.W.3d 94, 104 (Tenn. Crim. App. 2023) (citing Tenn. Sup.

Ct. R. 28, § 5(F)(4)). The question of whether the post-conviction statute of limitations

should be tolled is a mixed question of law and fact and is subject to de novo review. Bush

v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn.

2011)).

Similarly to a motion to reopen, a trial court’s preliminary consideration of whether

the limitations period should be tolled is contemplated by statute to occur prior to

proceeding to an evidentiary hearing on the merits of an actual innocence claim. See Tenn.

Code Ann. §§ 40-30-102(b), -106(b); Saulsberry v. State, No. W2002-02538-CCA-R3-PC,

2004 WL 239767, at *1 (Tenn. Crim. App. Feb. 9, 2004) (“Given the post-conviction

statute’s language conferring jurisdictional import to the timely filing of a petition, it is

essential that the question of timeliness be resolved before any adjudication on the merits

of the petitioner’s claims may properly occur.” (citing Tenn. Code Ann. § 40-30-102(b));

Seals v. State, No. 03C01-9802-CC-00050, 1999 WL 2833, at *3-4 (Tenn. Crim. App. Jan.

6, 1999) (determining that the petitioner’s allegations, as a matter of preliminary

consideration, were sufficient to save his petition from summary dismissal based upon

untimeliness), aff’d, 23 S.W.3d 272 (Tenn. 2000). In fact, Code section -106, which

encompasses the one-year statute of limitations, is titled, “Preliminary Consideration.”

This court has previously observed, “When a court receives a post-conviction petition, it

must conduct a preliminary review to determine, among other matters, whether the petition

is timely and whether it states a colorable claim.” Carter v. State, No. W2018-00285-

CCA-R3-PC, 2018 WL 6266166, at *2 (Tenn. Crim. App. Nov. 30, 2018) (citing Tenn.

Code Ann. § 40-30-106(b), (d)).

For the same reasons expressed above regarding Mr. Maze, we conclude that the

post-conviction court, at the preliminary consideration phase, tolled the statutory

limitations period for Mrs. Maze’s petition and heard her claim of actual innocence on the

merits. Once again, the Attorney General seemingly “does not contend that [Mrs. Maze’s]

petition failed to comply with the pleading requirements for statutory tolling; it simply

disagrees with [her] actual innocence claim on the merits.” See Abdur’Rahman, 648

S.W.3d at 195. Upon our de novo review, we conclude that, as a preliminary matter, Mrs.

Maze met her burden of presenting sufficient factual allegations in support of her statutory

tolling claim “based upon new scientific evidence” establishing her actual innocence. See

Tenn. Code Ann. § 40-30-106(b), (d); -117(a)(2); Tenn. Sup. Ct. R. 28, § 5(E), (F). The

post-conviction court did not err by proceeding to a merits hearing on her petition. See

Bush, 428 S.W.3d at 16. Thus, we will review the post-conviction court’s order as a Rule

3 appeal of the denial of Mrs. Maze’s petition on the merits of her actual innocence claim.

- 42 -

B. Additional Procedural Issues

The parties have raised several additional procedural issues that must be addressed

before we can turn to our review of the substantive merits of the Petitioners’ actual

innocence claims. These issues again arise from the current posture of this case—the

District Attorney’s taking the position below to join in the Petitioners’ request for

post-conviction relief, and the Attorney General’s taking the contrary position on appeal

arguing that this court should affirm the denial of post-conviction relief. The Petitioners

argue that the State cannot oppose the stance it took in the post-conviction court, and they

further contend that the post-conviction court impeded upon prosecutorial discretion and

violated the party-presentation rule by failing to properly “credit the State’s fact

admissions.”

1. Relevant Law

Both the Attorney General and District Attorney are constitutional officers

established by article VI, section 5 of the Tennessee Constitution, and the legislature has

codified their respective duties and responsibilities. The legislature has given the District

Attorney the power to prosecute criminal cases at the trial level, whereas the Attorney

General has been given exclusive authority over criminal cases at the appellate level. See

Tenn. Code Ann. §§ 8-6-109(b)(2), -7-103(1); see also State v. Simmons, 610 S.W.2d 141,

142 (Tenn. Crim. App. 1980). The same division of authority applies in post-conviction

proceedings. Abdur’Rahman, 648 S.W.3d at 191. Under the Post-Conviction Procedure

Act, the District Attorney “shall represent the [S]tate” in responding to the petition and

asserting “the affirmative defenses the [District Attorney] deems appropriate.” Tenn. Code

Ann. § 40-30-108(a), (d). Additionally, the District Attorney “has the option to assert”

certain defenses by filing a motion to dismiss. Id. § -108(c). Also, “[w]hen [the District

Attorney] knows of clear and convincing evidence establishing that a defendant was

convicted in the [District Attorney’s] jurisdiction of an offense that the defendant did not

commit, the [District Attorney] shall seek to remedy the conviction.” Tenn. Sup. Ct. R. 8,

RPC 3.8(h). During proceedings in the post-conviction court, the Attorney General shall

“lend whatever assistance may be necessary to the [District Attorney] in the trial and

disposition of the cases.” Tenn. Code Ann. § 40-30-114(b)(1). However, “[i]n the event

an appeal is taken[,]” the Attorney General “shall represent the [S]tate and prepare and file

all necessary briefs in the same manner as now performed in connection with criminal

appeals.” Id. § -114(b)(2).

Prior to 1967, persons convicted in Tennessee largely utilized federal habeas corpus

petitions to challenge criminal convictions. See Case v. Nebraska, 381 U.S. 336, 338

- 43 -

(1965) (per curiam) (Clark, J., concurring); see also 1967 Tenn. Pub. Acts 801, ch. 310.

“The sheer volume of federal habeas corpus petitions filed by state inmates, as well as

principles of comity, eventually led the United States Supreme Court to suggest that states

enact statutory post-conviction procedures,” allowing criminal defendants “an avenue to

litigate alleged constitutional errors in state courts, at least in the first instance.” Baker v.

State, 417 S.W.3d 428, 433 (Tenn. 2013) (citing Case, 381 U.S. at 339-40). In response,

the Tennessee General Assembly enacted the Post-Conviction Procedure Act. Id. at 434

(citing 1967 Tenn. Pub. Acts 801, ch. 310). “From its inception, the purpose of the

[Post-Conviction Procedure] Act has been to provide a procedural avenue for litigating in

Tennessee courts alleged constitutional errors in Tennessee criminal convictions.” Id.

“A post-conviction case is not a criminal prosecution, but [it] is a means to address

a petitioner’s allegations of constitutional wrongdoing in a previous convicting or

sentencing process.” Bryan v. State, 848 S.W.2d 72, 81 (Tenn. Crim. App. 1992). It is not

the State in a collateral review proceeding, but the convicted defendant “who commences,

institutes, or brings the legal proceeding to challenge the validity of an otherwise final

conviction.” McKay v. State, No. W2023-01207-CCA-R9-CO, 2024 WL 4404318, at *7

(Tenn. Crim. App. Oct. 4, 2024) (citations omitted), vacated in part on other grounds by

McKay v. State, 706 S.W.3d 338 (Tenn. 2025). Accordingly, the State is typically placed

in the position of defense in collateral proceedings such as this one. Id. (citations omitted).

However, “[t]his is not to say that the representative of the State is obligated to

defend the conviction at all costs; rather, the ethical duty remains to seek justice.” Id. at

n.8 (first citing State v. Culbreath, 30 S.W.3d 309, 314 (Tenn. 2000); and then citing State

v. Superior Oil, Inc., 875 S.W.2d 658, 661 (Tenn. 1994)). “We will not presume that one

representative of the State is more likely to uphold this ethical duty than another[,]”

although this concept does not prohibit reasonable minds from disagreeing. Id. (citing

State ex rel. Com’r of Transp. v. Med. Bird Black Bear White Eagle, 63 S.W.3d 734, 775

(Tenn. Ct. App. 2001) (“noting that ‘the courts must always presume that public officials,

including the Attorney General, will discharge their duties in good faith and in accordance

with the law’”)).

“Prior to indictment, the [D]istrict [A]ttorney ‘has virtually unbridled discretion in

determining whether to prosecute and for what offense.’” State v. Mangrum, 403 S.W.3d

152, 163 (Tenn. 2013) (quoting Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978))

(emphasis added). However,

[T]he scope of prosecutorial discretion changes as a criminal case proceeds,

narrowing as the case nears completion. At the outset, a prosecutor has

almost unfettered power to charge, or not charge, as he or she sees fit. Once

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charges are filed, the prosecutor may withdraw them by nolle prosequi,

subject to judicial oversight. A prosecutor may also choose to enter into a

plea agreement, again subject to appropriate judicial oversight. . . .

After trial and the entry of a . . . verdict, however, a district attorney’s

prosecutorial discretion narrows significantly. . . . A representative cross

section of the community has issued its decision, and the prosecutor . . . may

not thereafter unilaterally alter that decision. The community now has an

interest in the verdict, which may thereafter be disrupted only if a court finds

legal error.

McKay, 2024 WL 4404318, at *9-10 (quoting Commonwealth v. Brown, 196 A.3d 130,

146 (Pa. 2018)).

Thus, “[a]ny discretion the [D]istrict [A]ttorney may have in the context of collateral

review proceedings is curtailed due to the finality of the conviction.” Id. at *10. For

instance, “[c]ertain defenses, such as the statute of limitations or the prior determination of

issues, cannot be waived.” Id. (first citing Nunley, 552 S.W.3d at 828; then citing

Anderson, 692 S.W.3d at 104; and then citing Black v. State, No. M2022-00423-CCA-R3-

PD, 2023 WL 3843397, at *9-10 (Tenn. Crim. App. June 6, 2023)). In addition, “[a]ny

agreements made to forego a collateral review proceeding must pass stricter judicial

scrutiny than a plea agreement [entered into] under Tennessee Rule of Criminal Procedure

Rule 11 because the trial court’s jurisdiction is limited by statute to granting only certain

forms of relief under specific circumstances.” Id. (citing Abdur’Rahman, 648 S.W.3d at

197 (“holding that under the Post-Conviction Procedure Act, ‘[o]nly upon a finding that

either the conviction or sentence is constitutionally infirm can the post-conviction court

vacate the judgment and place the parties back into their original positions, whereupon they

may negotiate an agreement to settle the case without a new trial or sentencing hearing’”)

(internal citation omitted)). Similarly, “[w]hile a district attorney has sole discretion to file

or withdraw a notice of intent to seek the death penalty prior to conviction, . . . he cannot

bypass the statutory requirements of a collateral review proceeding by entering an

agreement to amend a final judgment from death to life imprisonment.” Id. (first citing

Abdur’Rahman, 648 S.W.3d at 198; then citing State v. Avila-Salazar, No. M2019-01143-

CCA-R3-PC, 2020 WL 241605, at *2 n.1 (Tenn. Crim. App. Jan. 15, 2020) (“noting that

‘[n]othing in the record explains how the State would nolle prosequi a final judgment of

conviction’ offered to settle a pending post-conviction petition”); and then citing Bennett

v. State, 10 Tenn. (2 Yer.) 472, 475 (Tenn. 1830) (“holding that the attorney for the State

could not enter an extrajudicial agreement regarding the payment of fines because he ‘had

no power over the final judgment’ in a criminal case”)).

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2. Changing Theories on Appeal

The Petitioners contend that allowing the Attorney General to change theories on

appeal by departing from the concessions of the District Attorney in the post-conviction

court violates principles of due process, judicial estoppel, and waiver. The Petitioners

observe that, although there is an exception to this tenet for challenging jurisdictional issues

on appeal, such exception is not applicable here because jurisdiction has been established.

Mrs. Maze notes that the District Attorney called and questioned four of the seven experts

at the evidentiary hearing, but the State is now, through the Attorney General, arguing that

the post-conviction court “appropriately discounted the testimony” of the State’s own

witnesses. In Mr. Maze’s words, “the State has changed its position on facts that it admitted

in the court below.” According to the Petitioners, precedent dictates that this court should

“refuse to accept” the State’s position change.

Generally speaking, it is true that “[t]he same rules that apply to defendants likewise

apply to the State” with regard to the waiver of issues raised for the first time on appeal,

even when the Attorney General “on appeal apparently disagrees with the [District

Attorney’s] concession in the trial court[.]” Abdur’Rahman, 648 S.W.3d at 192 (first

quoting State v. Smith, No. M2014-01130-CCA-R3-CD, 2015 WL 4656553, at *7 (Tenn.

Crim. App. Aug. 6, 2015); then citing State v. Watkins, 804 S.W.2d 884, 886 (Tenn. 1991)

(“noting that, ‘proverbially speaking, what is applicable to the goose ought to be applied

to the gander’ with regard to waiver”); and then citing State v. Adkisson, 899 S.W.2d 626,

635-36 (Tenn. Crim. App. 1994) (“It is elementary that a party may not take one position

regarding an issue in the trial court, change his strategy or position in mid-stream, and

advocate a different ground or reason in this [c]ourt.”)). Despite this, it also “is not

uncommon” for the Attorney General to take a different position on appeal from the one

held by the District Attorney in the lower court, “even when such position is contrary to an

agreement between the District Attorney [] and the defendant.” Id. (collecting cases).

The Petitioners rely on this court’s opinion in Abdur’Rahman for the proposition

that the Attorney General is bound by the facts and the “merits arguments” made by the

District Attorney in the post-conviction court. See generally id. In Abdur’Rahman, the

Attorney General appealed an agreed order entered between the petitioner and the district

attorney, arguing that the post-conviction court lacked jurisdiction to accept the agreed

order and amend the petitioner’s sentence. Id. at 183. The petitioner responded that this

court lacked jurisdiction to hear the appeal because the State consented to the agreed order

in the post-conviction court, thereby foreclosing any right of the State to appeal. Id. This

court agreed with the Attorney General that it had a right to challenge the jurisdiction of

the post-conviction court regardless of any agreement below, emphasizing that

jurisdictional defects may never be waived by consent. Id. at 193.

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Similarly, in Simmons, the Attorney General filed a motion to dismiss the State’s

appeal as to certain defendants, but the district attorney filed a motion objecting to the

dismissal insisting that it had the right to pursue the appeal notwithstanding the position of

the Attorney General. 610 S.W.2d at 141. This court, citing to the statutes governing the

duties of the various district attorneys and setting forth the duties of the Attorney General,

affirmed that the Attorney General had the exclusive authority to pursue remedies in

appellate courts, even if such pursuit differed from a district attorney’s position in the trial

court. Id. at 142. Accordingly, this court sustained the Attorney General’s motion to

dismiss.

The Petitioners correctly note that jurisdiction has been established in this

matter—i.e., the post-conviction court had both the authority to grant the motion to reopen

and to toll the statute of limitations before hearing the Petitioners’ claims of actual

innocence. However, contrary to Mr. Maze’s assertion, the Attorney General is in fact

presenting argument on appeal concerning the dispositive legal question, that being

whether Mr. Maze’s actual innocence has been established from the proof. This is not

merely the changing of an evidentiary theory or the failure to object to an error during the

heat of trial; instead, there is no real change to the facts as being argued by the Attorney

General on appeal but rather the application of those facts to the ultimate legal issue at

hand.

“[T]he legislature may enact statutes and rules requiring judicial scrutiny of a

district attorney’s discretionary decision to dispose of a charge other than through a trial

verdict.” McKay, 2024 WL 4404318, at *9. In the post-conviction context, “the trial

court’s jurisdiction is limited by statute to granting only certain forms of relief under

specific circumstances.” Id. at *10 (citing Abdur’Rahman, 648 S.W.3d at 197 (holding

that under the Post-Conviction Procedure Act, “[o]nly upon a finding that either the

conviction or sentence is constitutionally infirm can the post-conviction court vacate the

judgment and place the parties back into their original positions, whereupon they may

negotiate an agreement to settle the case without a new trial or sentencing hearing”)

(internal citation omitted)); see also State v. Payne, --- S.W.3d ---, 2025 WL 1682152, at

*6 n.7 (Tenn. June 16, 2025) (noting that, for post-conviction purposes, “a court may

exercise jurisdiction over a final judgment only when it has been given the authority to do

so”) (citing Edwards v. State, 269 S.W.3d 915, 920-21 (Tenn. 2008))). Again, reasonable

minds may differ on the ultimate issue of the Petitioners’ actual innocence, and the

Attorney General has been given the statutory authority to pursue the appropriate remedy

on appeal, including challenging agreements or settlements that exceed a trial court’s

jurisdiction or fail to comply with statutory requirements for post-conviction relief.

- 47 -

Also, as noted, this is a collateral proceeding established by the legislature, and

prosecutorial discretion has lessened significantly by this point in the life cycle of a case.

For instance, the District Attorney cannot simply agree to vacate the Petitioners’

convictions, as any agreed-upon decision in this regard must first be reviewed—and

approved—by the post-conviction court. While the Abdur’Rahman court noted that it was

dealing with a jurisdictional issue, which could never be ignored, it did not specifically

hold that its rationale was inapplicable outside the jurisdictional context. As in

Abdur’Rahman, the issue presented here goes to the very heart of a post-conviction court’s

authority to adjudicate a matter and set aside a criminal conviction, although not in a

traditional jurisdictional context. If the Attorney General may appeal an agreement

between a petitioner and a prosecutor that was accepted by the post-conviction court, then

it certainly follows that the Attorney General may also argue for this court to affirm the

post-conviction court’s determination refusing to accept a similar agreement. See, e.g.,

Nichols v. State, No. E2018-00626-CCA-R3-PD, 2019 WL 5079357, at *11 (Tenn. Crim.

App. Mar. 26, 2019) (although not specifically raised as an issue, agreeing with the State’s

changed position on appeal). This conclusion underscores the importance of the Attorney

General’s independent role in ensuring that post-conviction proceedings adhere to legal

standards and statutory mandates. Finally, as a matter of observation, we note that this

court is tasked with applying the law to the facts under a de novo standard independently

of the Attorney General’s appellate argument, a matter we discuss in more detail in the

following section.

3. Prosecutorial Discretion and the Party-Presentation Rule

The Petitioners also argue that the post-conviction court failed “to credit the

[District Attorney’s] fact admissions[,]” instead making “contrary findings [of] fact [on]

issues that the [District Attorney’s] judicial admissions foreclosed[.]” According to the

Petitioners, the post-conviction court improperly “discounted the weight of the new

evidence because the experts were not subject to cross-examination, violating the party

presentation principle and infringing upon prosecutorial discretion.” Mrs. Maze asserts

that the post-conviction court should have given the District Attorney’s concession of error

“great weight.” The Legal Scholars contend as Amicus Curiae that the post-conviction

court’s decision “undermines the purpose of conviction integrity units by giving short shrift

to the prosecutor’s duty of candor and responsibility to do justice.”

At the conclusion of the post-conviction hearing, counsel for Mrs. Maze averred

that the post-conviction court’s “task [was] fairly easy[,]” prompting the post-conviction

court to ask, “So why did we have this hearing?” Counsel also said that the post-conviction

court was bound by the parties’ factual admissions but that, “obviously,” application of the

“the law [was] up” to the post-conviction court. In its order denying relief, the

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post-conviction court observed that the experts were not cross-examined at the hearing and

that their opinions stated therein “were packaged as the wholesale truth.” The

post-conviction court “diminishe[d] the value of the newly presented evidence where fresh

opinions were offered but not probed.” The post-conviction court further noted that

counsel at the hearing had insinuated the court was limited in its role as fact-finder given

the District Attorney’s concession. However, the post-conviction court responded by

maintaining that it “retain[ed] the equally important roles of determining credibility of the

witnesses along with weighing and valuing the proof presented.” The post-conviction court

concluded, “Courts should undoubtedly be the champion of justice and be willing to correct

a wrongdoing wherever it may exist. However, in doing so, a court’s main purpose and

ultimate goal must be upholding the rule of law both constitutionally and statutorily.” We

believe this to be an accurate expression of the post-conviction court’s, as well as this

court’s, statutorily mandated responsibility to independently analyze the evidence

presented and make a neutral determination of whether the Petitioners had clearly and

convincingly established their actual innocence.

The Post-Conviction Procedure Act requires the post-conviction court to “state the

findings of fact and conclusions of law with regard to each ground” in its final order

disposing of the post-conviction petition, regardless of whether it is granting or denying

relief. Tenn. Code Ann. § 40-30-111(b); see also Tenn. Sup. Ct. R. 28, § 9(A); State v.

Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984) (noting that this is a mandatory

requirement designed to facilitate appellate review of the post-conviction proceedings).

Post-conviction relief is only warranted “[i]f the court finds that there was such a denial or

infringement of the rights of the prisoner as to render the judgment void or voidable[.]”

Tenn. Code Ann. § 40-30-111(a) (emphasis added). Indeed, the post-conviction court was

tasked with following the statutory requirements of the Post-Conviction Procedure Act and

independently analyzing the facts and issues “to determine whether the concession

reflected an accurate statement of the law.” Nichols, 2019 WL 5079357, at *12 (first citing

Barron v. State Dep’t of Human Servs., 184 S.W.3d 219, 223 (Tenn. 2006); and then citing

State v. Shepherd, 902 S.W.2d 895, 906 (Tenn. 1995) (“independently analyzing the

defendant’s death sentence after finding ‘no legal basis in this record for outright

modification of the sentence to life [imprisonment],’ despite the State’s concession at oral

argument”)).

Again, article VI, section 5 of the Tennessee constitution protects “the exercise of

the prosecutorial discretion traditionally vested in the [district attorney] in determining

whether, when, and against whom to institute criminal proceedings[,]” Superior Oil, Inc.,

875 S.W.2d at 660 (emphasis added), but the prosecutor’s discretion narrows significantly

as the case reaches its final conclusion. The prosecutor’s discretion at this point is limited

to attempts, through the exercise of effective advocacy, to persuade the courts to agree that

- 49 -

error occurred as a matter of law. To accept any argument otherwise would reduce the

post-conviction court to nothing more than a “rubber stamp” for the agreement reached

between the District Attorney and the Petitioners in this collateral proceeding. More

importantly, enforcement of the agreement as suggested by the Petitioners would reverse a

jury’s verdict without any judicial review. “Only upon a finding that either the conviction

or sentence is constitutionally infirm can the post-conviction court vacate the judgment and

place the parties back into their original positions, whereupon they may negotiate an

agreement to settle the case without a new trial or sentencing hearing.” Nichols, 2019 WL

5079357, at *11 (citing State v. Boyd, 51 S.W.3d 206, 211-12 (Tenn. Crim. App. 2000)).

As discussed above, “courts must consider not only the maximizing of protection to

convicted defendants but the avoidance of impossible burdens on prosecutors and the need

to preserve the finality of convictions rendered after trials as nearly faultless as human

frailties will permit.” United States v. Keogh, 391 F.2d 138, 146 (2nd Cir. 1968).

In their various arguments, the Petitioners heavily emphasize the post-conviction

court’s statements regarding the lack of cross-examination of the expert witnesses at the

evidentiary hearing. From our review of these comments, we think the post-conviction

court was simply noting it lacked the benefit of the value of cross-examination in

performing its statutory fact-finding responsibility, given that cross-examination has been

regarded as “the greatest legal engine ever invented for the discovery of truth.” California

v. Green, 399 U.S. 149, 158 (1970) (quoting Wigmore, Evidence in Trials at Common Law

§ 1367 (1904)). It was not punishing the Petitioners, as they contend, by “discounting the

hearing evidence” because of the District Attorney’s decision to concede the facts and

forego cross-examination, but instead, was noting the limitations imposed upon it by this

decision. Surely, in this case, the post-conviction court would have been aided in

complying with its statutory mandate of independent assessment of the facts in relation to

the law by hearing testimony about the various experts’ methodologies, their findings and

recommendations, and to have this testimony tested by the “crucible of vigorous

cross-examination.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997).

For these reasons, we cannot say that the post-conviction court erred in refusing to accept

the District Attorney’s concession regarding the facts or purported legal error on the

Petitioners’ post-conviction claims. See Nichols, 2019 WL 5079357, at *12 (holding that

the post-conviction court did not abuse its discretion in refusing to accept the district

attorney’s concession of error on the petitioner’s post-conviction claims, but it, instead,

acted well within its authority by independently analyzing the issues to determine whether

the concession reflected an accurate statement of the law (first citing State v. Hester, 324

S.W.3d 1, 69 (Tenn. 2010); and then citing Barron, 184 S.W.3d at 223)).

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C. Substantive Merits of Actual Innocence Claims

1. Standard of Review

Post-conviction relief is available when a “conviction or sentence is void or voidable

because of the abridgment of any right guaranteed by the Constitution of Tennessee or the

Constitution of the United States.” Tenn. Code Ann. § 40-30-103. A free-standing claim

of actual innocence may be brought under the Tennessee Post-Conviction Procedure Act,

but those claims are limited to allegations supported by newly discovered scientific

evidence. Dellinger v. State, 279 S.W.3d 282, 291 (Tenn. 2009) (citing Tenn. Code Ann.

§§ 40-30-102(b)(2), -117(a)(2)). The Petitioners must show that new scientific evidence

clearly and convincingly establishes that they are actually innocent of the underlying

offenses. Tenn. Code Ann. § 40-30-110(f) (“The petitioner shall have the burden of

proving the allegations of fact by clear and convincing evidence.”); see also Dellinger, 279

S.W.3d at 293-94. In defining “actual innocence” in the post-conviction context, our

supreme court has said plainly that “‘actually innocent of the offense’ means nothing other

than that the person did not commit the crime.” Keen, 398 S.W.3d at 612.

To meet the clear and convincing standard, the trial court must

determine that the evidence offered . . . is not vague and uncertain. The clear

and convincing evidence standard is more exacting than preponderance of

the evidence but less exacting than beyond a reasonable doubt, and it requires

that there [be] no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.

Clardy v. State, 691 S.W.3d 390, 408 (Tenn. 2024) (citing State v. Jones, 450 S.W.3d 866,

893 (Tenn. 2014)). Stated another way, the new scientific evidence of actual innocence

should leave the court with no serious or substantial doubt that the petitioner did not

commit the offense. Id.

Furthermore, “questions concerning the credibility of the witnesses, the weight and

value to be given their testimony, and the factual issues raised by the evidence are to be

resolved” by the post-conviction court. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001).

On appeal, we are bound by the post-conviction court’s findings of fact unless we conclude

that the evidence in the record preponderates against those findings. Id. Because a claim

of actual innocence is a mixed question of law and fact, we review the issue de novo with

no presumption of correctness. See Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006)

(“The appellate court’s review of a legal issue, or of a mixed question of law or fact such

as a claim of ineffective assistance of counsel, is de novo with no presumption of

- 51 -

correctness.”), abrogated on other grounds by Brown v. Jordan, 563 S.W.3d 196, 202

(Tenn. 2018).

2. Analysis

Both Petitioners submit that the “uncontested new scientific evidence” clearly and

convincingly establishes their actual innocence. The Petitioners again spend much of their

time focusing on the methodology the post-conviction court utilized in reaching its ultimate

determination. As for substance, Mr. Maze notes that it is “now undisputed that the

[victim’s internal] bleeding was not caused by abuse[,]” and he asserts that the

post-conviction court “ignore[d] the two decades of new medical research and data on”

SBS and AHT “in favor of the roughly [twenty]-year-old evidence presented in an earlier

criminal trial[.]” As for his production of new scientific evidence, Mr. Maze states, “None

of the experts who testified at [his] trial in 2004 had the benefit of the twenty years of

scientific development that informed the testimony of the seven physicians who testified

at [his 2024] hearing, all of whom agreed that objective medical evidence today proves

[his] innocence.” In the words of Mrs. Maze, “[as] all seven experts explained in their

testimony [at the hearing], new scientific knowledge that is supported by the consensus of

the modern medical community exonerates [the Petitioners], while old scientific evidence

is no longer sound.”

The Attorney General asserts that the Petitioners failed to provide new scientific

evidence of Mr. Maze’s actual innocence, but instead, merely provided cumulative

evidence comprised of “different perspectives” on “[o]ld data[.]” The Amicus Curiae Trial

Prosecutors also have much to add about the veracity of the new scientific evidence,

arguing vigorously that “[t]he State and their medical experts did not ‘get it wrong’ in

2004[.]”

Certainly, for post-conviction purposes, advancements in medicine may constitute

new scientific evidence of actual innocence under the right circumstances. See Maze, 564

F. App’x at 180. However, a claim of actual innocence is not satisfied by evidence that is

vague, speculative, or cumulative. See Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012)

(stating that a petitioner cannot premise relief for actual innocence on evidence “which is

merely cumulative or ‘serves no other purpose than to contradict or impeach’” (quoting

State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995))), abrogated on other grounds

by Frazier v. State, 495 S.W.3d 246, 248 (Tenn. 2016); see also Larsen v. Soto, 742 F.3d

1083, 1096 (9th Cir. 2013). Further, if the evidence relied upon is not truly “new” but,

instead, was in substance already before the jury, it is unlikely to weigh heavily in favor of

a finding of actual innocence. See Barnes v. State, No. M2017-02033-CCA-R3-ECN, 2018

WL 3154346, at *7 (Tenn. Crim. App. June 26, 2018) (observing, in the context of tolling

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an error coram nobis claim of actual innocence, that the petitioner already “had the

opportunity to present this theory at trial and again at his post-conviction hearing”).

Here, the Petitioners only vaguely allude to why their experts’ opinions should be

classified as “new” scientific evidence due to the medical community’s expanded

knowledge of AHT and SBS and its potential mimickers. As we see it, the expert testimony

offered at the evidentiary hearing was largely speculative, given that many of the

Petitioners’ experts disagreed upon the actual cause of the victim’s death, if they came to

a conclusion at all, and several were unwilling to definitively rule out a diagnosis of child

abuse. Finally, these recently-acquired expert opinions are cumulative as they merely add

to the lengthy history of medical opinions that have been elicited throughout the pendency

of this case—both at Mr. Maze’s trial and through his subsequent litigation in state and

federal courts. For these reasons, as discussed in more detail below, we conclude that the

Petitioners have failed to establish that their scientific evidence is truly “new” or that this

evidence provides clear and convincing proof that Mr. Maze is actually innocent of these

offenses, i.e., that he did not commit aggravated

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