Opinion

Sutton v. Bell

683 F. Supp. 2d 640
2010 U.S. Dist. LEXIS 5292
2010 WL 339853

Court: District Court, E.D. Tennessee
Filed: Jan 22, 2010
Status: Published
Author: Varlan
On the bench: Thomas A. Varlan
Cited by: 1 cases
Authority: More cited than 46.6%

The opinion

MEMORANDUM OPINION

THOMAS A. VARLAN, District Judge.

Table of Contents

I. PROCEDURAL BACKGROUND............................................647

II. FACTUAL BACKGROUND ................................................648

A. Trial Proof............................................................648

1. Evidence Presented by State ........................................648

a. Crime ........................................................651

b. Investigation ..................................................652

2. Testimony Presented on Behalf of Sutton..............................652

3. Testimony Presented on Behalf of Both Defendants.....................653

4. Rebuttal Evidence Presented by State................................653

5. Verdict ...........................................................653

B. Sentencing Proof......................................................653

C. PosE-Conviction Proof..................................................654

III. STANDARDS OF REVIEW................................................663

A. Habeas Claims Cognizable Under 28 U.S.C. § 2254 ........................663

B. Review of Habeas Claims on the Merits...................................663

C. Factual Bases for Habeas Claims........................................664

D. Procedural Default.....................................................665

E. Miscarriage of Justice: Actual Innocence.................................666

F. Summary Judgment....................................................668

IV. ANALYSIS...............................................................669

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A. Failure to Investigate and Present Evidence and State Court’s Denial of Relief on This Claim was Objectively Unreasonable (Claim I)..............669

1. Ineffective Assistance of Counsel.....................................669

a. Brain Damage.................................................671

b. Dellinger’s Corrupting Influence and Control......................674

c. Sutton’s Family History.........................................675

B. Dr. Harlan Claim (Claim II).............................................681

C. Trial Counsel’s Irreconcilable Conflict of Interest (Claim III)................682

D. Lack of Prior Notice of Dr. Harlan’s Testimony (Claim IV)..................684

E. Counsel Failed to Present Evidence to Challenge the Branam Homicide (Claim V)...........................................................687

F. Denial of Severance Motion (Claim VI) ...................................689

G. Admission of Evidence of Ms. Branam’s Murder, Fight on Alcoa Highway, and Trailer Arson in Sevier County (Claim VII).................691

H. Confrontation Rights (Claim VIII).......................................694

I. Sutton’s Tape-Recorded Statement (Claim IX) ............................695

J. Biased Jury (Claim X)..................................................696

K. Revocation of Funding for Jury Consultant (Claim XI)......................698

L. Limiting Voir Dire (Claim XII)..........................................701

1. Restrictions on Death Penalty Questions..............................701

2. Mitigating Evidence................................................702

M. Alleged Error For Failing to Excuse Juror Who Had Been Bribed (Claim XIII)...............................................................703

N. Revelation of Sevier County Trial (Claim XIV).............................705

O. Conviction-Prone Jury (Claim XV).......................................707

P. Refusal to Instruct on Lesser Offense (Claim XVI).........................707

Q. Failure to Instruct Jury [Rebuttal Evidence & Last Person Seen] (Claim XVII)..............................................................709

1. Refusal of Rebuttal Instruction ......................................709

2. Last Person Seen Instruction........................................711

R. Reasonable Doubt Instruction (Claim XVIII)..............................712

S. Ineffective Assistance of Counsel (Claim XIX).............................714

T. Jury’s Misperception About Sutton’s Release Eligibility Date (Claim XX).....717

U. State’s Closing Argument (Claim XXI) ...................................719

V. Sentencing Instructions Reasonable Doubt and Aggravating Circumstance (Claim XXII)...........................................721

1. Reasonable Doubt Sentencing Phase Jury Instruction...................721

2. Omission of Jury Instruction.........................................722

3. Aggravating Circumstance [Insufficiently Supported and Manufactured]...................................................723

W. Refusal to Instruct on Non-Statutory Mitigation Evidence (Claim XXIII).....725

X. Other Constitutional Errors (Claim XXIV)................................725

1. Mandatory Death Sentence..........................................725

2. No Specific Findings as to Mitigating Circumstances....................726

3. The Death Penalty as Cruel and Unusual Punishment...................727

4. The Aggravator Did Not Narrow Class of Offenders....................728

5. Double Jeopardy...................................................729

6. Flawed Proportionality Review.......................................730

Y. Cumulative Error Argument (Claim XXV) ................................730

V. CONCLUSION............................................................730

Gary Wayne Sutton (“Sutton” or “Petitioner”)

, a death-sentenced inmate at the

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Riverbend Maximum Security Institution in Nashville, Tennessee, brings this amended petition for writ of habeas corpus against the Warden, Ricky Bell (“Respondent”), pursuant to 28 U.S.C. § 2254 , challenging the legality of his confinement for his 1996 conviction for first degree murder [Doc. 24]. Respondent has filed an Answer [Doc. 30] to the habeas corpus petition which conforms with Rule 5 but also contains an argument that the petition must be dismissed based upon procedural default and the deferential review standards set forth in § 2254(d) and

Williams v. Taylor,

529 U.S. 362, 405 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). The Court construes the Answer as a Motion for Summary Judgment, to which Sutton filed a response to [Doc. 86], and Respondent filed a reply to Sutton’s response [Doc. 90]. Thus, the case is ripe for review.

After carefully considering the arguments of counsel and the applicable law, the Court will GRANT IN PART Respondent’s motion for summary judgment [Doc. 30]. Specifically, the Court will RESERVE RULING on the motion as to Claim II in its entirety (the issues pertaining to Dr. Harlan) and will permit those claims to proceed to an evidentiary hearing. In addition, the Court will RESERVE RULING on Petitioner’s cumulative error claim pending the resolution of the Dr. Harlan issues. In all other respects, the motion for summary judgment [Doc. 30] will be GRANTED.

1. PROCEDURAL BACKGROUND

On September 1, 1996, Petitioner Sutton and his co-defendant and uncle, James Dellinger, were convicted by a jury in Blount County, Tennessee of the 1992 first-degree murder of Tommy Griffin [Addendum No. 18, p. 5530]. After finding one aggravating circumstance — that Sutton was previously convicted of two felonies whose statutory elements involved the use of violence to the

person

— the jury determined death was the appropriate punishment for the premeditated murder [Addendum No. 18, p. 5512].

Petitioner’s conviction and sentence were affirmed on direct appeal.

State v. Dellinger & Sutton

(hereinafter

“State v.

Sutton”), No. # 1997-00196-CCA-R3-DD, 2001 WL 220186 (Tenn.Crim.App. Mar. 7, 2001) [Addendum No. 22],

State v. Dellinger & Sutton

(hereinafter

“State v.

Sutton”), 79 S.W.3d 458 (Tenn.2002),

cert. denied,

537 U.S. 1090 , 123 S.Ct. 695 , 154 L.Ed.2d 635 (2002).

On direct appeal to the Tennessee Criminal Court of Appeals, Petitioner Sutton raised twenty-three issues — thirteen trial issues and ten sentencing issues.

State v. Sutton,

2001 WL 220186 , at *10-43.

Petitioner filed his original petition for post-conviction relief on March 3, 2003, in the Criminal Court of Blount County, Tennessee. Petitioner alleged twenty-three instances of ineffective assistance of counsel [Addendum No. 22], Petitioner filed amended petitions on June 2, 2003, and March 29, 2004 [Addendum No. 34, pp. 6631-45 and 6660-61], After an evidentiary hearing on May 25 and 26, 2004, the trial court denied relief [Addendum No. 34, pp. 6611-22],

On September 21, 2004, Petitioner filed a notice of appeal. Petitioner appealed to

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the Tennessee Court of Criminal Appeals raising ten claims. The Court of Criminal Appeals affirmed the denial of post-conviction relief.

Sutton v. State,

No. E200402305-CCA-R3-PD, 2006 WL 1472542 (Tenn.Crim.App. May 30, 2006). Petitioner’s application for permission to appeal was denied by the Tennessee Supreme Court on October 2, 2006 [Addendum No. 40, p. 7385],

Petitioner initiated the instant habeas proceedings on or about October 5, 2006, and filed his initial habeas petition on May 11, 2007 [Doc. 14], and an amended habeas petition on July 6, 2007 [Doc. 24], Respondent has filed an Answer [Doc. 30], which the Court construes as a motion for summary judgment, to which Petitioner has objected [Doc. 86].

During the course of this proceeding, Petitioner has filed numerous motions. A motion to appoint counsel to investigate and prepare and file a habeas petition was filed on Petitioner’s behalf and was granted [Doc. 2], Petitioner’s first and second motions for discovery [Docs. 15; 40] were granted in part and denied in part [Doc. 41]. Petitioner’s third motion for discovery [Doc. 54] was granted [Doc. 61], as was his motion to expand the record [Doc. 82],

II. FACTUAL BACKGROUND

A. Trial Proof

1. Evidence Presented by State

a. Crime

According to the evidence presented at Sutton’s Blount County trial by the State of Tennessee (“State”), on Friday, February 21, 1992, Jamie Carr was working at Howie’s Hideaway Lounge (“Howie’s”) from 10:00 a.m. until 5:00 p.m. During the last two hours of her shift, she served beer to Sutton, Dellinger, and Griffin who had arrived at Howie’s in a dark blue Firebird, Camaro, or Trans Am [Addendum No. 12, Vol. 1, pp. 2040-65].

Ms. Carr left when her shift ended and was replaced by Terri Newman. Ms. Newman served the men two or three drinks, and at about 7:00 p.m. the three men left the bar [Addendum No. 12, Vol. 1, pp. 2066-74].

At approximately 7:00 p.m., Cynthia Walker and her husband, who were driving on Alcoa Highway, observed a dark-colored Camaro parked on the side of the road with the passenger side door open and only one head light on [Addendum No. 12, Vol. 1, pp. 2079-99]. Ms. Walker saw a male outside the vehicle and some type of pulling and pushing activity going on inside the vehicle as though an altercation was taking place between the person outside and whoever was inside the car. Mr. Walker called the Blount County police station to report the fight [Addendum No. 12, Vol. 1, pp. 2083-88].

Also around 7:00 p.m., Sharon Davis and her family were driving on Alcoa Highway when she saw a lone shirtless man stumbling along the side of the road. They returned later and the man was no longer in that area. However, a short way beyond, past Hunt Road, Ms. Davis observed two men outside an older dark-colored Camaro who appeared to be looking for something [Addendum No. 12, Vol. 1, pp. 2106-12].

At 7:11 p.m., Blount County 911 dispatcher, Sandra Leone Hicks, received a call about a fight between people in a black or dark-colored Camaro [Addendum No. 12, Vol. 1, pp. 2132-33]. Within minutes, two City of Alcoa police officers separately responded. The first officer to arrive on the scene determined that the shirtless man was Griffin. According to the first officer, Griffin was nervously looking

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around as though he was waiting for someone to return, while explaining that some friends, who were not really his friends, had pulled him out of the car, but he just could not tell the officer what happened [Addendum No. 12, Vol. II, p. 2172]. According to the second officer, Griffin would give no information, had no identification, was upset, had an artificial leg, and appeared to have been in a fight because “his back was skinned up and his neck — had some abrasions ... like he had been fighting ... [h]is bottom lip was quivering like he was scared ... he smelled [strongly] of alcohol [and] had been drinking pretty heavily ....” [Addendum No. 12, Vol. 2, pp. 2153-54],

Although Griffin smelled of alcohol, the first officer did not think he was intoxicated. Nevertheless, the first officer arrested Griffin because “[s]omething ha[d] taken place that [was] not right,” and the officer did not have anywhere else to take him. Therefore, Griffin was charged with public intoxication and transported to the Blount County Jail, arriving at 7:35 p.m. [Addendum No. 12, Vol. 1, pp. 2132-42; Addendum No. 12, Vol. 2, pp. 2164-92].

Subsequently, Dellinger and Sutton came to the jail between 8:30 p.m. and 9:00 p.m. and asked to post bail for Griffin, but they were told to come back between 10:30 p.m. and 11:00 p.m. [Addendum No. 12, Vol. 3, pp. 2401-07].

About 9:00 p.m., Griffin’s and Dellinger’s neighbor, Alvin Lee Henry, was watching television when his dog began barking. Mr. Henry looked out his window and saw someone entering the passenger side of Dellinger’s truck, which then proceeded up the driveway to Dellinger’s trailer. Mr. Henry glanced back toward the road and saw that Griffin’s trailer was on fire. His wife called 911 [Addendum No. 12, Vol. 2, pp. 2224-28].

About 9:00 p.m., Jennifer Branam, Griffin’s seventeen-year old niece, was awakened by her sister and advised that Griffin’s trailer was on fire. Jennifer went to Dellinger’s trailer looking for her uncle, but Dellinger’s wife said Griffin was not there, and neither were Dellinger or Sutton. Immediately afterwards, Jennifer saw Dellinger and Sutton breathlessly walking down the hall wearing jackets and pants wet up to the knees, though it was not raining, snowing, or sleeting. She asked them if her uncle was in his trailer, and Sutton responded that he was in Blount County with someone else. Del-linger declined Jennifer’s request to go down to her uncle’s trailer explaining “they couldn’t go down there because they was [sic] in enough trouble as it is.” [Addendum No. 12, Vol. 2, pp. 2276-83].

Jennifer returned home and observed the two men leaving Dellinger’s house. She observed Dellinger remove a sheet-wrapped object, two and a half to three feet in length, and place it in the trunk of his wife’s car while Sutton waited in the car. She saw them drive off in the car [Addendum No. 12, Vol. 2, pp. 2285-89; 2230-31].

Herman Lewis, who was in the vicinity, also saw someone whom he believed to be Dellinger leave his trailer carrying an object, which he placed in the backseat of his car. Two people then got in the car and just sat there until Mr. Lewis left [Addendum No. 12, Vol. 3, pp. 2336-41],

At approximately 11:25 p.m., Dellinger and Sutton returned to the jail and were seen by two law enforcement officers. One of the officers saw either Dellinger or

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Sutton carrying a blue flannel-type shirt and heard one of them tell Griffin (who was shirtless when he was arrested), “we’ve go [sic] to get you back to Sevier County or something to that effect.” [Addendum No. 12, Vol. 3, p. 2435].

At 11:55 p.m., Jason McDonald, who lived about 500 yards from the Blue Hole on the Little River,

was writing in his journal when he heard two or three gunshots coming from the bottom of the hill [Addendum No. 12, Vol. 3, pp. 2442-50]. His mother also heard the shots and discussed them with her son, who noted them in his journal [Addendum No. 12, Vol. 4, pp. 2473-90].

The next day, Saturday, February 22, 1992, between 12:00 p.m. and 1:00 p.m., Connie Branam, Griffin’s sister, who was concerned about Griffin’s unexplained absence, prepared to go to Blount County to find him [Addendum No. 12, Vol. 3, pp. 2382-90], Around 2:00 p.m., Ms. Branam arrived at Jerry Sullivan’s grocery store carrying a picture of her brother. Sullivan agreed to let Ms. Branam leave her car in his parking lot. Later, he observed her talking to two men in a white Dodge truck [Addendum No. 12, Vol. 4, pp. 2491-96],

On that date, Ms. Carr was again working the day shift at Howie’s when Dellinger and Sutton entered the bar with a woman who was crying. The woman introduced herself as Connie Branam and said she was there looking for her brother. As they discussed the previous day’s events, Ms. Carr described the third person with Dellinger and Sutton as having “a real bad limp,” whom Ms. Branam identified as her brother. During that conversation, Dellinger interrupted Ms. Carr several times asking if she remembered them and then asking if she was sure she remembered them. She acknowledged that she was sure she remembered them. Then Dellinger explained “we thought he would come back here because we got him out of jail yesterday and came in here and had a drink” [Addendum No. 12, Vol. 4, p. 2501]. Dellinger told Ms. Carr that he, Sutton, and Griffin returned to Howie’s after they bailed Griffin out of jail and asked her if she knew with whom Griffin left the bar. Ms. Carr responded that, when she left work the day before, they were still at Howie’s. Ms. Carr stated Dellinger told her the last time they had seen Griffin, he “was up the road with a woman, a short [,] dark-haired woman and she was ugly” and he asked her if they had come back to Howie’s [Addendum No. 12, Vol. 4, p. 2501]. Ms. Carr informed him she had not seen them [Addendum No. 12, Vol. 4, pp. 2497-2501].

Ms. Carr served Dellinger, Sutton, and Ms. Branam several beers, and the trio remained at Howie’s when Ms. Carr left around 5:00 p.m. Ms. Carr was concerned with Ms. Branam’s level of intoxication, but Dellinger informed her that his companion was not driving [Addendum No. 12, Vol. 4, pp. 2491-2512], Ms. Newman replaced Ms. Carr at the bar and continued to serve them beer. Ms. Branam asked her with whom Griffin had left the day before, and Ms. Newman “got a little confused because he had left with the two gentlemen that she was sitting with.” [Addendum No. 12, Vol. 4, pp. 2516-17], Dellinger insisted they had come in after they picked Griffin up from jail, but according to Ms. Newman, in fact, they had

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not returned after they left at 7:00 p.m. While Ms. Branam and Dellinger were dancing, Sutton persistently, but unsuccessfully, tried to persuade Ms. Newman to go with them to find Ms. Branam’s brother. After convincing Sutton she would not go, he asked her if she was married. When Ms. Newman told him “yes,” he said, ‘Your husband is going to be surprised whenever you’re missing one morning, when he wakes up and you’re missing.” [Addendum No. 12, Vol. 4, pp. 2516-19, 2534],

The three individuals left the bar at 7:00 p.m., with Ms. Branam walking between Sutton and Dellinger. Ms. Newman did not actually see them get in a vehicle but knew that a white truck similar to Dellinger’s was in the parking lot. Frightened by Sutton’s comment, Ms. Newman called her husband and asked him to come to Howie’s and follow her home when she finished her shift at midnight [Addendum No. 12, Vol. 4, pp. 2532-36],

About 8:00 p.m., James R. Gordon and his wife heard a high-pitched whistle coming from the woods. They could not identify the noise but saw a fire through the trees. Friends suggested it probably was just a campfire. About a week later, Mr. Gordon and his foster-son drove a dune buggy over a large area of the woods looking for the source of the flames. He saw no evidence of a fire until he stumbled upon a burned automobile with a body inside (later identified as Branam). He concluded that this was the location of the fire he had seen on Saturday and called the police [Addendum No. 12 Vol. 4, pp. 2567-76; 2582-83].

On Monday, February 24, 1992, at approximately 3:00 p.m., a fisherman and his children discovered a man lying face down with the back of his head covered in blood at the Blue Hole. The fisherman called 911 [Addendum No. 12, Vol. 4, pp. 2536-43] and returned to the scene with law enforcement to show them the location of the body, which was later identified as Griffin,

b. Investigation

On February 24, 1992, Gary Alan Hamilton, a crime scene technician and latent fingerprint examiner with the Blount County Sheriffs Department, photographed the scene where the body of Griffin was found at the Blue Hole. Mr. Hamilton assisted the lead investigator, Detective Widener, and the lead technician, Larry Muncy, in taking measurements at the crime scene and sketching the crime scene. Mr. Hamilton observed the victim’s body lying face-down on the ground angled downward toward the river. Two spent shotgun shells and two empty Budweiser cans were strewn nearby [Addendum No. 12, Vol. 4, pp. 2547-54],

On February 29,1992, Dr. William Bass, the State forensic anthropologist,

traveled to the Foothills Parkway in Sevier County, where he saw an extensively-burned vehicle with a body lying on the front seat. Dr. Bass examined the burn pattern in the car and the degree of destruction of the body and concluded that an accelerant had been poured in the car. From her dental records, Dr. Bass positively identified the body as that of Connie Branam [Addendum No. 12, Vol. 5, pp. 2659-62]. Dr. Bass’s assistant found a rifle cartridge in the front floorboard of the car [Addendum No. 12, Vol. 5, pp. 2693-2704],

Later that same day, the State arson investigator, Mr. Gary Clabo, concluded someone placed an accelerant in the vehicle and ignited it, thereby setting the vehi

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cle on fire [Addendum No. 12, Vol. 5, pp. 2705-27]. Similarly, Mr. Clabo concluded Griffin’s mobile home fire was also an incendiary fire in which an accelerant was used. Although the lab reports did not reveal an accelerant, Mr. Clabo explained that “[a] lot of time, we will have an accelerated fire and there will be no accelerants left due to evaporation and/or consumption of the product.” [Addendum No. 12, Vols. 5 & 6, pp. 2728-68],

Dr. Eric Patrick Ellington, a pathologist, conducted the autopsy on the remains of Griffin. Although he was unable to give a time of death, he determined the cause of death was massive trauma or injury to the brain stem caused by a gunshot [Addendum No. 12, Vol. 6, pp. 2881-2901],

Detective James Widener of the Blount County Sheriffs department, along with several other officers, executed a search warrant at Dellinger’s residence, recovering ballistic evidence that linked Dellinger to the shell casings that had been recovered at the scene where Griffin was found and the burned vehicle in which Ms. Branam was found [Addendum No. 12, Vol. 7, pp. 2915-29; 2973-98, 3020, 3031-39; Addendum No. 12, Vol. 9, p. 3261].

2. Testimony Presented on Behalf of Sutton

Ms. Carolyn Weaver, Sutton’s girlfriend at the time of the murders, gave a detailed accounting of Sutton’s whereabouts during the weekend of the murders. She testified that, on Friday, February 21, 1992, Sutton picked her up at approximately 7:00 p.m. and that the only time she was not with Sutton on that evening was from 10:00 p.m. until midnight. She further testified that they were apart most of Saturday, February 22, 1992, until that evening when they watched movies at Dellinger’s trailer [Addendum No. 12, Vol. 10, pp. 3490-3501; Vol. 11, pp. 3510-11; 3530; 3604-10], Ms. Weaver also presented evidence as to Sutton’s close friendship with Griffin [Addendum No. 12, Vol. 11, pp. 3504-09; 3511-13],

Mr. Jack Sutton, who had described himself as “somewhat” of a relative of Sutton who had visited Sutton in the past, also testified at trial [Addendum No. 12, Vol. 13, p. 3845]. He stated that he had spoken with Mr. Bill Cogdill, whom Jack Sutton described as untrustworthy and a liar, before Ms. Branam’s body was found. According to Jack Sutton, Mr. Cogdill said that “Connie would either be found in water or burned in a car.” [Addendum No. 12, Vol. 13, pp. 3845-47; 3849-50].

3. Testimony Presented on Behalf of Both Defendants

On February 21, 1992, at approximately 9:17 p.m., Mr. Tim Nichols, a volunteer firefighter, responded to the fire at Griffin’s trailer. The trailer was “all burnt,” but he searched through the rubble to make sure the victim was not present since Griffin’s sister had voiced concern that he may have been in the trailer [Addendum No. 12, Vol. 11, p. 3567]. An arson investigator was not called because Ms. Branam had told him the wiring in the trailer was faulty and at the time, Mr. Nichols did not suspect arson [Addendum No. 12, Vol. 11, pp. 3564-71].

At 5:59 p.m. on February 24, 1992, two Emergency Medical Technicians (“EMTs”) responded to the call when Griffin’s body was found. The EMTs testified that when they arrived the body was in rigor mortis and cold and stiff, but they had detected no significant odor of decomposition [Addendum No. 12, Vol. 12, pp. 3781-94].

Defendants also presented the testimony of Martha Blair, who testified that a few days before she learned of Griffin’s death on the news, her ex-husband (“Mr. Blair”) came in late, threw his clothes in the trash, and told her that he was throwing them away because they were muddy, which was something he had never done before.

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Then, the next morning, he took the trash bag and put it in his car, again something he had never done before [Addendum No. 12, Vol. 13, pp. 3806-23]. After Ms. Blair heard about the death of the victim on the news, the police came to her residence and searched Mr. Blair’s vehicle. Although Mr. Blair always carried a 12-gauge shotgun in the back seat of his car, the last time Ms. Blair saw the shotgun was two or three days before the police came to her residence.

Id.

Defendants also relied on the testimony of Dr. Larry Elmo Wolfe. Dr. Wolfe was the medical examiner and coroner in Union County. At the time of the trial, he had been in the Union County position for about three years since his appointment in 1989.

Dr. Wolfe, a licensed medical doctor, though not board certified in any field of medicine, testified that the time of Griffin’s death was 24 to 36 hours before the body was discovered which would have put his time of death between 3:00 a.m. and 3:00 p.m. Sunday, February 23, 1992. On cross-examination, however, he conceded that “[i]t’s maybe within the realm of conceivability” that Griffin died on Friday when the shots were heard [Addendum No. 12, Vol. 13, pp. 3853-55; 3914-15; 3923-25; 3941],

4. Rebuttal Evidence Presented by State

The State presented Dr. Charles Warren Harlan, a board-certified forensic pathologist, who had performed approximately 15,000 forensic autopsies. Considering the rigor mortis, the tissues on the microscopic slides, and the fact that the victim was seen alive around 11:30 p.m. on Friday, February 21, 1992, Dr. Harlan estimated Griffin’s time of death as between 11:30 p.m. on Friday, February 21 and 8:00 a.m. on Saturday, February 22 [Addendum No. 12, Vol. 14, pp. 4018-20].

5. Verdict

After hearing all the evidence and considering all the exhibits, the jury returned a verdict finding Sutton guilty of first degree murder as to Tommy Griffin [Addendum No. 18, p. 5530].

B. Sentencing Proof

During the penalty phase, the State introduced two prior convictions as aggravating factors against Sutton — the February 24, 1993, judgment of conviction for the first-degree murder of Ms. Branam in Sevier County Case 5033, and a 1983 aggravated assault conviction from Georgia.

Several family members and friends presented “good character” evidence about Sutton, testifying as to his kindness, generosity, reliability, dependability, and work ethic. In addition, evidence of Sutton’s good jail conduct was introduced,

i.e.,

he only had one discipline report for failure to report as scheduled to his job site.

The majority of Sutton’s mitigating evidence was presented by Dr. Eric Engum, a clinical psychologist specializing in clinical neuropsychology, who had evaluated Sutton. Dr. Engum spent approximately seventeen hours with Sutton conducting clinical interviews and performing psychological and neuropsychological assessments to determine Sutton’s functioning, personality, and intellectual cognitive status.

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Dr. Engum administered Sutton two IQ tests. Sutton scored 77 on the first test and 83 on the second test, both of which suggested Sutton was in the borderline range and functioned in the bottom 15 percent in terms of intellectual functioning. In Dr. Engum’s opinion,

What it really indicates is that this is a young man with limited intellectual ability; limited social judgment and knowledge; very limited abstract reasoning; very limited in the way of his vocabulary skills, the way in which he expresses and articulates himself; and very limited in that — what I call that just font of general knowledge that people need in order to navigate through life.

[Addendum No. 16, Vol. III, p. 5057]. On cross-examination, however, Dr. Engum acknowledged that Sutton was not within the range of even being mildly retarded and that a person with Sutton’s IQ has the capacity to appreciate the wrongfulness of his conduct [Addendum No. 16, Vol. III, p. 5067],

In addition, Dr. Engum presented evidence about Sutton’s family history. According to that testimony, Sutton’s parents divorced when he was young. His father was a chronic alcoholic, and Sutton followed in his father’s footsteps by abusing alcohol beginning at the age of twelve. According to Dr. Engum, Sutton was subjected to “a lot of mind games, a lot of head games” by his parents trying to bribe him to choose with whom to live [Addendum No. 16, Vol. Ill, pp. 5057-58]. Dr. Engum explained that there was quite a bit of physical and mental abuse and that Sutton was one of the least favored of all the children in the family. Sutton’s academic performance was very poor and “by eighth grade he had basically failed and had dropped out” [Addendum No. 16, Vol. Ill, pp. 5059-61].

Jimmy Ray Sutton, Sutton’s older brother, explained the circumstances surrounding his brother’s prior Georgia conviction for aggravated assault. Jimmy explained that Sutton was present at the scene when Jimmy attempted to shoot into a car, but instead, the bullet glanced off the car, shot into a mobile home, and struck a female occupant in the leg [Addendum No. 16, Vol. Ill, pp. 5080-82],

After finding one aggravating circumstance — that Sulton was previously convicted of two felonies whose statutory elements involved the use of violence by the person — the jury determined that death was the appropriate punishment for the previously found premeditated murder by Sutton [Addendum No. 18, p. 5512],

C. Post-Conviction Proof

Filing a

pro se

petition for post-conviction relief on March 3, 2003, Sutton initiated state court post-conviction proceedings. Sutton’s state post-conviction hearing was held on May 25-26, 2004. His first witness was one of his two his trial attorneys, Mr. John Goergen. Mr. Goergen was licensed to practice law in 1992 and was appointed to represent Sutton in 1994 or 1995 [Addendum 35, p. 6746].

At the time Mr. Goergen was appointed to represent Sutton, he had never handled a felony case and had only handled one misdemeanor criminal case (telephone harassment) which was disposed of with a plea. Mr. Goergen attended a capital defense training seminar in Nashville to help him prepare and try Sutton’s case. However, even though Mr. Goergen viewed his

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job as one of assisting Francis Duncan Gibson, III, lead counsel on the case, he filed a motion to withdraw from representing Sutton after the funds for a jury expert were withdrawn because he did not feel qualified to handle jury selection alone [Addendum No. 35, pp. 6752-58; 6802], but this motion was overruled by the trial court [Addendum No. 9, pp. 1588-89].

Mr. Goergen met with Mr. Gibson and Sutton three or four times before the first trial setting.

Although Mr. Goergen did not investigate Sutton’s background, the attorneys had almost daily contact for about two years on Sutton’s case, and Mr. Goergen recalled some discussion about Sutton’s truancy, drinking at an early age, and Sutton’s abuse of alcohol. The attorneys were aware that there would be “two trials,” and Mr. Goergen’s function was to prepare for the guilt/innocence phase while Mr. Gibson took charge of the penalty phase [Addendum No. 35, pp. 6759-60].

Mr. Goergen testified that, although Sutton’s and Dellinger’s attorneys worked together on a defense, Mr. Gibson told Dellinger’s defense attorneys that “once we get into the trial, we’ll all be on our own ... if I have to cut your guy’s throat, I’ll do it.” [Addendum No. 35, p. 6769].

Mr. Goergen acknowledged that the defense teams in this case had an open-file policy with one another and shared an investigator. Although Mr. Gibson tided to have Sutton’s case severed from Dellingei’’s, the motion was denied and he did not appeal the denial of the severance. The attorneys were aware that there was no physical evidence against Sutton, and they were unable to locate Bill Cogdill to determine whether he was involved [Addendum No. 35, pp. 6769-75].

Although Dr. Wolfe was not board certified, Mr. Goergen testified that they believed that his experience as medical examiner of one of the counties in Tennessee for several years was sufficient experience for their purposes [Addendum No. 35, pp. 6817-22],

Mr. Gibson, Sutton’s lead trial attorney, testified he was licensed to practice law in 1967 and entered private practice in 1975. Although Mr. Gibson had seventeen years of experience at the time he was appointed to represent Sutton and had handled many criminal cases, including several homicide cases, this was his first death penalty case [Addendum No. 35, pp. 6989-90].

According to Mr. Gibson, he discussed sentencing with Sutton and his brother, and Dr. Engum was used as a psychologist and mitigation expert for the sentencing proceeding. Both Mr. Gibson and Dr. En-gum spoke with family members and other witnesses several times, and even had group meetings on occasions with the witnesses. Although Dr. Engum was working separately, they remained in contact, and Mr. Gibson received Dr. Engum’s input on whether to use certain witnesses from a psychological standpoint. In addi

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tion, the investigator utilized by Sutton’s defense team interviewed potential mitigation witnesses. Mr. Gibson testified they interviewed “forty or fifty” people in preparation for trial [Addendum No. 35, p. 6998]. Mr. Gibson said he was unable to locate Sutton’s wife and child, but he tried to have as many family members as possible attend the trial [Addendum No. 35, pp. 6999-7000],

According to Mr. Gibson, the investigation revealed that Sutton was an alcoholic, came from a broken family, depended heavily upon relatives, was socially withdrawn, was a follower, had a low IQ, did not graduate from high school, and had some discipline problems while in school. In addition, the investigation revealed that Sutton was working, was making money, was achieving a minimum level of independence, and was easily persuaded to do things [Addendum No. 35, pp. 6989-7002],

Before Sutton’s and Dellinger’s defense attorneys began working as a team, they contacted Mr. Lance Bracy of the Board of Professional Responsibility to determine if there would be a conflict if the two teams shared certain information. To Mr. Gibson’s knowledge, no ethical conflict ever arose. The relationship between the two sets of attorneys was described by Mr. Gibson as follows:

Before [they worked as a team], we contacted Mr. Lance Bracy of the Board of Professional Responsibility because there were a lot of issues that affected both people. And we were wanting to have a meeting, kind of like — I think at that time the “Dream Team” was the thing. The Simpson trial may have been going on. And we wanted to meet together to kind of assign things. Because there were issues that affected both, there were issues that affected one and issues that affected the other. So, we would periodically meet and assign tasks that, you know, research tasks, witness tasks, things of that nature, to get together and meet together and decide how best to use it to benefit both or — and, you know .... But if there was an issue that directly involved Gary that I didn’t think the other side should know, I dealt with it outside of those meetings. And there were some of those.

[It was necessary to contact Lance Bracy] [b]ecause of two teams, two Defendants meeting together, their teams sharing information. We wanted to make sure there was no conflict as long as we were doing that. And our idea was the joint issues, because we filed for severance and didn’t get it. So, we wanted to meet together to kind of reduce the responsibility. Like it was silly for me to be working on the same issue another lawyer was, when we could use that time — better to work on issues that would benefit both.

... [I]f we wanted something dealt with that did not — that we didn’t think Mr. Dellinger’s team would need to know, we never brought it up at these meetings and Mr. Goergen and I would deal with it outside. And I’m sure they did the same. There were people that we talked to that we didn’t divulge to the other side that might have had some effect ... I know we checked out several lawyers with several theories from the Sevier County team that we never let the other side know about.

[Addendum No. 35, pp. 7002-04].

Prior to trial, Mr. Gibson filed an ex parte motion requesting a ballistics expert, an arson expert, psychological expert, and an investigator. The Sutton and Dellinger defense teams agreed to use one investigator for both defendants, and Mr. Gibson thought they discussed this fact with Mr.

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Bracy. To his knowledge, no conflict ever arose in relation to the investigator. Mr. Gibson believed that he probably covered the potential conflicts with Sutton and his family. Mr. Gibson spoke alone with the Sevier County attorneys about the Sevier County case; that case was not investigated as a team [Addendum No. 35, pp. 7005-07].

As to the denial of Sutton’s motion for a severance, Mr. Gibson testified that he considered filing an interlocutory appeal on the denial, but decided not to do so because:

My personal opinion of interlocutory appeals is they are rarely successful. And these gentlemen were wanting to get it over with, as I recall. And an interlocutory appeal on a severance is basically a judge’s discretion, which is, you know— and I felt like that it was a good issue for an appeal, that he didn’t grant a severance. Because there was some evidence that we went to that [sic] affected Dellinger and didn’t affect Sutton — you know, could have, that we dealt with pretrial. So, I felt it was more appropriate to bring it up on direct appeal, particularly having our own separate jury

[Addendum No. 35, p. 7008]. However, on direct appeal, the trial court’s denial of severance and two separate juries was affirmed.

State v. Sutton,

79 S.W.3d 458, 468 (Tenn.2002).

When asked to assume that a complaint was made by Sutton that his trial attorneys failed to obtain deposition testimony of unavailable witnesses, Joyce Tipton, Bill Cogdill, and Janice Reed, Mr. Gibson responded:

Well, Bill Cogdill testified. So, I didn’t see any need to get a deposition of him. We knew what he was going to say. And we brought him down to testify. As I recall, [Joyce] Tipton was a lady that — in the record, noticed that there was some reports that she may have had some mental problems we were attempting to use her. And she had about five minutes worth of testimony from a prior trial about some weird statements that were attributed to Bill Cogdill. And we honestly didn’t know why thefy] got into the evidence anyway, because they were clearly hearsay. But in any event, notwithstanding that, it was a trial decision. We decided it wasn’t worth putting her on and trying to get that in, when the State could then bring in the psychologist from Lakeshore to say she had been having ongoing mental problems, trying to make it look like she was, you know, not capable of being a good witness, shall I say ... I don’t specifically recall [Janice Reed], I’m sure we went over it. If it was given to us, we went over that and made a decision whether or not to use them.

[Addendum No. 35, pp. 7017-18].

According to Mr. Gibson, he selected Dr. Wolfe because he was a friend and Mr. Gibson had used Dr. Wolfe in the past when Mr. Gibson needed a medical opinion. When asked if he had any concerns that Dr. Wolfe was not board certified, Mr. Gibson explained:

Well, he was appointed as the coroner of Union County, Tennessee, and I didn’t have any concerns about it. Because he was a good witness, he was a conscientious man. I think he was — at that time, he was, I thought would come across — he was a country doctor who gave up a very lucrative practice to go into a clinic in the poor folks area, and he was translating the Dead Sea Scrolls,

*658

and I felt like this would — you know, his personality would overcome that. I knew he wasn’t Board certified, but he’s a doctor and he was certified as a coroner' — or listed as a coroner in Union County for several years.

[Addendum No. 35, pp. 7010-11].

Sutton’s lawyers also used Dr. Ellington, the State’s witness, to obtain information the lawyers thought valuable to their case theories, and, as Mr. Gibson further explained, contacted other experts to assist them:

Well, as I recall, I used the Tennessee Criminal Defense Lawyer’s e-mail list, so any questions that come up on that, I may have gotten some ideas from other fellow attorneys, as most of us do in a case like this. I know we consulted with several leading lawyers — Herb Moncier, Tom Dillard, Bob Ritchie. Jerry Cunningham actually testified for us in the preliminary hearing for getting us a jury selection expert. So, we kind of picked the brains of those persons. We also talked to Dr. Ellington, who was not on our list; Dr. Blake, who we chose not to use — and effectively prevented him from being used by the State. Because one of our objections was he had already been interviewed by us, and Judge Thomas wouldn’t let him testify for the State. I also — perhaps, maybe the investigator may have talked to some of them. But, now ... I pretty much knew who I wanted to use because of past experience, like most lawyers. I was comfortable with the team I had.... We were investigating the shotgun shells — I mean, the blast that was heard by the witness up in the area where they found the body. They had heard shots the night before, and I think we attempted, through the University, to talk to people to see how far sound would carry and what weather conditions would have been, just for some information. I think we also made inquiry, written inquiry, of — well, what I call a bug expert. When a body is located and it’s been there for a certain period of time, what type of insects and all should be around the body, just for our cross-examination purposes and assistance in developing a lead — or a theory that we were going to have concerning the rigor mortis theory ... I’ve forgotten his name. He was out of LLSU, I think it was. And we called him down there at LSU — the expert, we talked to at LSU. And the sound laboratory was over at the University of Tennessee. And also we talked to a music studio, you know, where they record records.

[Addendum No. 35, pp. 7020-21].

Mr. Gibson’s strategy during sentencing was to portray Sutton in the most positive light he could by letting the jury know how much good he had done for other people and how he had behaved in jail, all in an effort to convince the jury that Sutton’s life should be spared. Although Dr. En-gum touched on some of Sutton’s harsh upbringing, Mr. Gibson did not want to use that aspect as an excuse for the crime. According to Mr. Gibson, the defense also said they tried to portray that only one person shot the victim. Specifically, they attempted to show Sutton was friends with the victim and would not have shot him, thus insinuating it was Dellinger who actually shot Griffin and that Sutton was just following Dellinger [Addendum No. 35, pp. 7043-47].

Dr. Pamela Mary Auble, a psychologist with a specialty in neuropsychology and forensic psychology, testified that Sutton’s defense team did not present a comprehensive social history during the sentencing phase of the trial, which she believed to be absolutely necessary when presenting mitigating evidence in a death penalty case. According to Dr. Auble, although Dr. Engum mentioned there was abuse in

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Sutton’s background, there was no explanation or detail concerning Sutton’s background provided to the jury. Moreover, according to Dr. Auble, there is little in Dr. Engum’s testimony or notes that reflects any social history gathered from Sutton though the notes do reflect a small amount of information gathered from a short interview with the family as a group [Addendum No. 35, pp. 6831-32],

Dr. Auble believed that Sutton’s alcoholism and the fact that Dellinger provided Sutton with alcohol at a young age were relevant mitigation issues that should have been explored [Addendum No. 35, pp. 6823-34]. Dr. Auble explained that this evidence was relevant mitigating evidence because:

Mr. Dellinger was much older than Mr. Sutton, like fifteen years older than he was. And Mr. Sutton grew up in a family where his parents were not there for him, basically. He didn’t live with his mother. His mother was afraid of intervening too much in the father’s family, for fear she would not see her son anymore. His father was alcoholic and was a very hard worker and was not really there much.

The person that Mr. Sutton had the most contact with during his childhood was his stepmother, who was very emotionally unstable and physically abusive. And there’s just numerous accounts of her lashing out and striking Mr. Sutton, even biting Mr. Sutton, for little or no provocation. So that Mr. Sutton was growing up in a family where he really didn’t have a parent, except for his stepmother who was abusive. He would have been flattered by the attentions of Mr. Dellinger, who was older, kind of a parental figure.

He would have also seen Mr. Dellinger as a potential protector from his stepmother. Apparently, he stayed with Mr. Dellinger pretty frequently while he was a child — or when he was a young adolescent. So, this would also have influenced him in starting to drink so young. And being provided with alcohol by Mr. Dellinger, he would be prone to take it and to use it.

... I think that he was under the domination of Mr. Dellinger since he was a child; both, as I said, as sort of an escape or as a parental figure. And then later, I think he grew to fear Mr. Dellinger.

[Addendum No. 35, pp. 6835-36].

Dr. Auble interviewed Sutton; conducted psychological and neuropsychological testing on Sutton; reviewed records from Middle Tennessee Mental Health Institute, Dr. Engum, and schools Sutton attended; and examined psychiatric history records from Sutton’s stepmother. In addition, Dr. Auble reviewed the testimony offered at the sentencing hearing and reviewed summaries of interviews with various family members. Based on her investigation and testing, Dr. Auble concluded there was relevant mitigation evidence not presented on behalf of Sutton [Addendum No. 35, pp. 6831-32],

Dr. Auble explained that two defense teams working so closely together would have created a problem because, for example, the juvenile charges from Georgia involved Sutton, Sutton’s older brother, and Dellinger. That incident, according to Dr. Auble, could have been used to illustrate Dellinger’s propensity toward violence and aggression and could have explained why Sutton was afraid of Dellinger.

Dr. Au

*660

ble found Sutton to be of limited intelligence. She noted that he has consistently been in the borderline range of functioning on the Wexler tests, as demonstrated by evaluations performed by the Tennessee Mental Health Institute, Dr. Engum, and herself. Sutton’s IQ has been in the 70’s, which is the lower end of intellectual ability. Dr. Auble testified that Sutton’s weaknesses are mainly in the area of verbal knowledge and reasoning, with the lowest score being in verbal comprehension [Addendum No. 35, pp. 6844-45].

Dr. Auble discussed studies that indicate presenting positive information about a defendant as mitigating evidence, which is what Sutton’s defense introduced during his sentencing hearing, is fairly ineffective mitigating evidence and carries very little weight in jury decision-making in capital cases. Therefore, she concluded within a reasonable degree of psychological certainty that a defense strategy focused only on positive-type information “is unlikely to carry significant weight with the jury in their decision-making process” in a sentencing hearing [Addendum No. 35, p. 6846]. However, she acknowledged that innocence and mental retardation, two factors that are not applicable to Sutton, carry the most weight during sentencing. She also testified that brain injury carries weight and negative childhood carries some weight, though not a great deal, but does have some impact on juries depending on how it is developed. To carry some weight, however, Dr. Auble insisted the defense must present an expert to testify about the negative childhood experiences, along with lay witnesses who testify about the same subject. Dr. Auble concluded that Sutton’s defense team failed to prepare a thorough and proper investigation of his social background [Addendum No. 35, pp. 6846-48].

On cross-examination, Dr. Auble explained that her opinion concerning a lack of social background investigation was based on the information provided to her, which did not include defense attorneys’ files nor a conversation with defense counsel. She admitted that she lacked any knowledge as to the kind of investigation or social history the defense attorneys had performed or constructed. Dr. Auble also admitted that the evidence reflects that Dr. Engum interviewed Anna Morris, Sutton’s mother, who told him that both Sutton’s father and Dellinger had exposed Sutton to alcohol. Dr. Engum’s notes reflect that Sutton’s father had locked him out of his house and that Sutton had stayed in the dog house on at least one occasion; however, Dr. Auble noted that Dr. Engum obtained that information after he prepared his report and did not present that information to the jury [Addendum No. 35, pp. 6849-54],

Sutton’s family members testified at the post-conviction proceeding about Sutton’s life and his upbringing. Jimmy Sutton, Sutton’s older brother, testified that Sutton came to live with him and their father when Sutton was six or seven. Their father married Shirley Gregory, and Sutton lived with them for a year or two. Jimmy said there was a lot of hollering, screaming, and arguing in the household. Jimmy said that Shirley would beat Sutton and her children, and that Shirley would beat Sutton with clothes hangers, sticks, and belts when she got angry [Addendum No. 35, pp. 6867-68; 6871-73].

When Sutton was a pre-teenager, Del-linger started picking up Jimmy and Sutton almost every weekend, and they would drive around and drink. One night, Sutton’s father called law enforcement three times. Each time officers took Sutton out of Dellinger’s car and brought him home, but Dellinger would return to the house and get Sutton [Addendum No. 35, pp. 6874; 6880-81]. Jimmy was afraid of Del-

*661

linger because he often saw him fight. One time while they were in Georgia, Del-linger threw a knife at Jimmy and hit him in the arm. When Sutton was about 16 years old he moved to Georgia with Del-linger who left Tennessee because he had numerous outstanding warrants in Sevier County for rape, stealing, and other offenses [Addendum No. 35, pp. 6866-6900].

Diane Sutton, Sutton’s sister-in-law, also testified that she observed Sutton’s stepmother abusing Sutton. According to Diane, Shirley was unstable and would attack Sutton with her hands and fists. According to Diane, she treated her own children the same way and that is why she did not have custody of them. When Sutton’s father would go to work, he would make Sutton go to Diane and Jimmy’s house or to his grandmother’s house so that he would not be left alone with his stepmother, Shirley. Diane further testified that Dellinger had a rough reputation. She related that Dellinger shot the windshield out of Sutton’s car on one occasion, shot at his car another time, and also pulled a gun on Sutton in Georgia during the same incident in which Dellinger stabbed Jimmy [Addendum No. 35, pp. 6901-25].

Anna Moms divorced Sutton’s father when Sutton was three. She remarried and lived in North Carolina and Kentucky before moving back to Tennessee. When Sutton was six, he moved in with his father and grandmother because the grandmother said she would help with Sutton and take him back and forth to school. According to Ms. Morris, she was not concerned when her ex-husband married Shirley until Sutton started telling her what Shirley was doing to him. According to Ms. Morris, Sutton basically had to raise himself and was living in Georgia working to support himself at 15 years of age [Addendum No. 35, pp. 6925-42],

Pat Sutton is the wife of Sutton’s uncle, Jim Sutton. She lived within 500 feet of Sutton’s father’s home during Sutton’s childhood. Pat testified that Sutton’s mother had very little contact with Sutton and that Shirley was always cussing, yelling, and beating him. When Sutton was nine or ten, he lived in a camper on his father’s property because Shirley did not want him in the house. Pat also testified that she would observe bite marks on Sutton’s arms and scratches on his arms, face, and neck. Often, these observations were preceded by sessions of Shirley cussing and yelling at Sutton. This behavior occurred for three to five years. On one occasion, a Department of Human Services caseworker went to Sutton’s house, saw where Shirley had pulled out Sutton’s hair, and observed scratch marks on Sutton. However, the caseworker never returned, and no one ever followed up on the complaint [Addendum No. 35, pp. 6958-59].

Pat also observed Sutton being locked out of the house when his father and Shirley went to work. Sutton would have to drink water from the outside spigot and would have to eat at someone’s house unless he had food in the camper. She observed Sutton crying with an earache and fluid running out of his ears, but neither his father nor Shirley ever took him to the doctor. Pat and his grandmother were the only ones who took him to see the doctor. Pat described the inside of Sutton’s home as “nasty” with dishes on the bar and in the sink, clothes everywhere, and beds unmade [Addendum No. 35, p. 6960].

Although Sutton was put on the school bus or taken to school, Pat further testified, Dellinger would go around the back of the school and pick him up. As a result, Sutton rarely attended school. Pat testified that this pattern started when Sutton was eight or nine years old and when Dellinger was in his twenties. According to Pat, Sutton liked the attention because Dellinger showed him the attention his

*662

mother and father never showed him. Pat believes that if Sutton had been loved and taken care of he would not be where he is today [Addendum No. 35, pp. 6954-63].

The State called Sutton as a witness at the post-conviction proceeding with the understanding that it would not be permitted to question him about the crime for which he was convicted. Sutton admitted to drinking and being an alcoholic. While in Georgia, Sutton met his future wife when both were 15 years old. After dating for almost two years they moved to Tennessee and lived together in Sutton’s old camper. They finally married when they were both approximately 21 years of age. Sutton’s daughter was born in 1990. When Sutton returned to Tennessee, he worked for his grandfather on his farm and for his uncles in their excavating businesses doing bulldozer work. Later, he went to work at A.J. King’s Lumber Company with his father and then worked for Goodin Homes [Addendum No. 35, pp. 6970-84],

Dellinger remained in Georgia for approximately four years after Sutton moved back to Tennessee. Sutton testified he did not have any contact with Dellinger during that period of time except for two or three occasions when Dellinger tried to kill him. Sutton, however did not provide any details about Dellinger’s alleged attempts to kill him, and Sutton appeared to contradict himself when he testified:

Actually, I guess the first time actually that I had actually talked to him, probably, was when I was seventeen, when they had locked me up over the incident we had had in Georgia, they had actually put him in the jail cell with me. And the guys actually was — I had been there for like seven or eight months, something like that. And they had — the guys there that I was telling, you know, that he had had me arrested, we had been setting and talking about it, you know. And there was some guys there — actually about six guys there that was charged with murder. And, you know, they was sitting there talking about it and they wanted to jump on him when he come in. You know, they had got knives and stuff and was talking about killing him there in the jail cell. And, you know, I told them, you know, I didn’t want them to do it and stuff. I said, it’s my brother’s brother and stuff, you know, and I said you know, I really ain’t got nothing for him. But I kind of talked them out of doing anything to him, you know. And that was basically the first time we had talked in — it was probably — I guess probably seven or eight months after that, he showed up at my dad’s one day, you know, after that, after we had got out. And that was the first time I’d actually got back around him.

... Sometimes, we’d get together on the weekends and drink. And sometimes it might — you know, through the week, it just — it depended. Sometimes we’d get out and sometimes we’d stay out a week or something, drinking. But ... we’d go, like, on the weekends out maybe to bars and stuff like that, you know. And usually it was riding around, like, in the mountains, drinking and stuff like that, you know occasionally .... [That went on] [p]robably five or six years, I guess, me and him and Tommy Griffin. Basically, we was together about most every day. You know, after I’d get off from work — they was usually done together, you know, and I’d get off from work and we’d all three be out drinking, you know.

[Addendum No. 35, pp. 6985-88].

According to Sutton, he was not afraid of Dellinger when he was a child or as an adult, although he did worry over the incident in Georgia where Dellinger threw a

*663

knife at Sutton’s brother and threatened to shoot Sutton. Sutton claimed, without elaborating, that there were other occasions when he and Dellinger had problems [Addendum No. 35, p. 6988].

III. STANDARDS OF REVIEW

A. Habeas Claims Cognizable Under 28 U.S.C. § 2254

A federal district court has jurisdiction to grant a writ of habeas corpus pursuant to § 2254 of Title 28 to the United States Code. Section 2254(a) limits the court’s jurisdiction to those cases in which a petitioner “in custody pursuant to the judgment of a state court” alleges “he is in custody in violation of the Constitution or laws or treaties of the United States.” The initial question in a habeas petition is, therefore, whether the petitioner raises claims cognizable under § 2254(a).

B. Review of Habeas Claims on the Merits

Section 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), limits a federal district court’s jurisdiction to review habeas claims on the merits. In particular, a court considering a habeas claim must defer to any decision by a state court concerning that claim unless the state court’s judgment (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254 (d) (1)-(2). The Supreme Court has interpreted the language of § 2254.

See Williams v. Taylor,

529 U.S. 362, 402 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000) (O’Connor, J., delivering the opinion of the Court as to Part II and concurring as to Parts I and III-V);

see also McQueen v. Scroggy,

99 F.3d 1302, 1310-11 (6th Cir.1996), ce

rt. denied,

520 U.S. 1257 , 117 S.Ct. 2422 , 138 L.Ed.2d 185 (1997);

Sims v. Livesay,

970 F.2d 1575, 1579-81 (6th Cir.1992);

Flippins v. United States,

808 F.2d 16, 17-18 (6th Cir.),

cert. denied,

481 U.S. 1056 , 107 S.Ct. 2197 , 95 L.Ed.2d 852 (1987).

In order to demonstrate deficient performance, it must be shown that counsel’s representation fell “below an objective standard of reasonableness” in light of the “prevailing professional norms.”

Id.

at 686-88, 104 S.Ct. 2052 . The Supreme Court has recently reiterated that an objective standard of reasonableness is a general standard:

*670

Bobby v. Van Hook,

— U.S. -, 130 S.Ct. 13, 16 , 175 L.Ed.2d 255 (2009) (quoting

Strickland v. Washington,

466 U.S. at 688-89 , 104 S.Ct. 2052 ) (citations omitted).

*669

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Restatements of professional standards, we have recognized, can be useful as “guides” to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.

*670

When applying these standards, the Court is cognizant of the fact that there is a strong presumption counsel’s conduct was within the wide range of reasonable professional assistance.

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . “Reviewing courts focus on whether counsel’s errors have undermined the reliability of and confidence that the trial was fair and just.”

Austin v. Bell,

126 F.3d 843, 847 (6th Cir.1997) (citing

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 ;

United States v. Cronic,

466 U.S. 648, 658 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984),

cert. denied,

523 U.S. 1088 , 118 S.Ct. 1547 , 140 L.Ed.2d 695 (1998);

McQueen,

99 F.3d at 1310-11 ). A reviewing court cannot indulge in hindsight but must instead evaluate the reasonableness of counsel’s performance within the context of the circumstances at the time of the alleged errors.

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 ;

McQueen,

99 F.3d at 1311 . Trial counsel’s tactical decisions are particularly difficult to attack.

McQueen,

99 F.3d at 1311 ;

O’Hara v. Wigginton,

24 F.3d 823, 828 (6th Cir.1994). A defendant’s challenge to such decisions must overcome a presumption that the challenged actions might be considered sound trial strategy.

McQueen,

99 F.3d at 1311 ;

O’Hara,

24 F.3d at 828 . “[R]eviewing court[s] must remember that ‘counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’”

Wong v. Money,

142 F.3d 313, 319 (6th Cir.1998) (quoting

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 ). A court must make an independent judicial evaluation of counsel’s performance and determine whether counsel acted reasonably under all the circumstances.

McQueen,

99 F.3d at 1311 ;

O’Hara,

24 F.3d at 828 ;

Ward v. United States,

995 F.2d 1317, 1321-22 (6th Cir.1993);

Sims,

970 F.2d at 1580-81 .

To establish the prejudice prong, a petitioner must show that absent his attorney’s errors, the result of his trial would have been different.

Lynott v. Story,

929 F.2d 228, 232 (6th Cir.1991). “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate] judgment.”

West v. Seabold,

73 F.3d 81, 84 (6th Cir.1996) (quoting

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 (further citation omitted)).

The Supreme Court has reiterated the standard of prejudice in

Wiggins v. Smith,

539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003):

[T]o establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A

*671

reasonable probability is a probability sufficient to undermine confidence in the outcome.” ... In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.

Id.

at 534 , 123 S.Ct. 2527 (quoting

Strickland v. Washington,

466 U.S. at 694, 104 S.Ct. 2052 ).

The question to be answered when a petitioner claims that counsel failed to present mitigating evidence “is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”

Strickland,

466 U.S. at 695 , 104 S.Ct. 2052 .

In applying these standards to such a claim, the Supreme Court has found ineffective assistance of counsel when defense attorneys “failed to act while potentially powerful mitigating evidence stared them in the face, ... or would have been apparent from documents any reasonable attorney would have obtained[.]”

Bobby v. Van Hook,

— U.S. at -, 130 S.Ct. at 19 (citing

Wiggins,

539 U.S. at 525 , 123 S.Ct. 2527 , and

Rompilla v. Beard,

545 U.S. 374, 389-393 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005)). In addition, the Supreme Court has found ineffective assistance of counsel when an attorney failed to conduct a thorough investigation of the defendant’s background, and, thereby, left undiscovered and unpresented a voluminous amount of mitigating evidence.

Williams v. Taylor,

529 U.S. 362, 396 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). In each of these cases, the Supreme Court concluded counsel performed deficiently because the jury had no hint that the mitigating evidence even existed because trial counsel presented a picture of their client which was substantially different from that which would have been painted by the unpresented mitigating evidence.

When evaluating Sutton’s ineffective assistance of counsel claim, not only must the Court follow the guidelines for evaluating claims of ineffective assistance of counsel as identified in the cases cited above, but its review of the state court’s decision that Sutton failed to establish ineffective assistance of counsel is circumscribed by § 2254(d)’s deferential review standards. Therefore, Sutton will meet his burden of establishing ineffective assistance of counsel only if he demonstrates the state court’s finding of no ineffective assistance is contrary to, or an unreasonable application of Supreme Court precedent.

See

28 U.S.C. § 2254 (d).

a. Brain Damage

Sutton contends his trial counsel “failed to investigate the mental disorder most associated with [his] long standing and well known history of alcohol and drug abuse — profound brain damage” [Doc. 24 at 16], Instead, Sutton contends the jury knew only that he could be described as “slow” [Doc. 24 at 16], In his state post-conviction proceedings, Sutton claimed counsel was deficient for failing to investigate and use evidence of his “intellectual impairments and organic brain damage”

Sutton v. State,

2006 WL 1472542 , at *12 (Tenn.Crim.App. May 30, 2006).

The Court will first address Sutton’s inclusion of the affidavit of Dr. Barry M. Crown, Ph.D., which has been submitted in this habeas case.

Respondent contends

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the affidavit is not properly before the Court because it was not presented to the state court during post-conviction proceedings. Respondent contends the affidavit should be stricken from the record and that, pursuant to

Holland v. Jackson,

542 U.S. 649, 652 , 124 S.Ct. 2736 , 159 L.Ed.2d 683 (2004), this Court’s assessment of the reasonableness of the post-conviction trial court’s decision must be made in light of the record that court had before it.

Sutton offers no response to Respondent’s arguments and did not address them in response to the motion for summary judgment, nor does he contend the state court denied him the opportunity to submit expert evidence or suggest that he was prevented from presenting such evidence in state court [Doc. 86 at 20]. Therefore, the Crown affidavit will not be considered. What will be considered in determining whether the state court’s decision involved an unreasonable application of the law to the facts are the facts actually presented to the state court and contained in its records. 28 U.S.C. § 2254 (d)(2). Considering new facts presented for the first time in this habeas proceeding would skew the determination to be made under AEDPA’s standards of review because, logically, the state court could not have applied the law to facts that were not before it. 28 U.S.C. § 2254 (d)(2);

Nichols v. Bell,

440 F.Supp.2d 730 , 799 n. 26 (E.D.Tenn.2006).

Sutton claims he was vulnerable to Del-linger’s influence because years of consumption of alcohol, beginning in pre-adolescence (alcohol which, in the greatest part, came directly from Dellinger), damaged his brain irreparably. This brain damage, Sutton contends, compounded the damage done during the perinatal-neonatal period because of poor health care and nutrition. Additionally, Sutton contends the years of abuse caused persistent biological changes in his brain which also impaired his decision-making abilities. Sutton claims the “early and persistent consumption of alcohol, the neo-natal trauma, and his abuse-filled childhood had a devastating affect [sic] on his decision-making abilities and rendered him easily led.” [Doc. 24 at 15], As such, he contends he has significant neuropsychological impairment that impacts reasoning, judgment, language-based critical thinking, and memory functions.

The state appellate court summarized the post-conviction court’s findings of fact and conclusions of law:

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[Petitioner] claimed that counsel failed to develop reasonable trial or mitigation strategies and failed to investigate and use evidence of the petitioner’s “intellectual impairments and organic brain damage.” In addition, the trial court found that counsel were assisted by Dr. Eric Engum, a psychologist obtained by counsel to evaluate the petitioner and present information on the petitioner’s psychological and intellectual capabilities as well as his social history. Lastly the trial court noted testimony by the petitioner’s expert psychologist indicating that evidence of mental illness, mental defect, or organic brain injury was persuasive with jurors with respect to their sentencing decision. The court found, however, that the “petitioner did not suffer from any brain disfunction [sic].”

Sutton v. Tennessee,

2006 WL 1472542 , at *12.

The state appellate court affirmed the trial court’s denial of relief, finding that trial counsel presented proof of Sutton’s mental deficiencies through Dr. Engum:

At sentencing, the defense presented the majority of its evidence through the testimony of Dr. Engum. Dr. Engum testified that he evaluated and conducted tests of the petitioner over the course of three days. He said the petitioner had a low IQ, was “borderline mentally retarded,” and had “limited intellectual functioning,” scoring in the bottom 15% of that category. He said the petitioner was also limited in the areas of social judgment and knowledge, abstract reasoning, and vocabulary and had undiagnosed learning disabilities. Dr. Engum concluded that the petitioner was very limited in the “general knowledge that people need in order to navigate through life.”

Id.

at *24 . The appellate court concluded that, although counsel might have chosen to place greater emphasis on his client’s limited intelligence, the record supported the trial court’s finding that much of the evidence presented at the post-conviction hearing was cumulative and merely “expanded” the evidence presented at trial.

Id.

During trial, Dr. Engum testified he conducted psychological and neuropsychological assessments on Sutton to determine his functioning, personality, and intellectual cognitive status. Dr. Engum testified that Sutton’s test results reflected he was in the borderline range of intellectual functioning, suggesting he is in the bottom 10 to 15 percent in terms of intellectual functioning. Dr. Engum testified Sutton was very limited in his ability to function in society and that there was strong evidence of a learning deficit, specifically major deficits in verbal processing, problem-solving, attention, and concentration [Addendum No. 16, pp. 5056-57; 5062-63].

During Sutton’s state post-conviction hearing, Dr. Pamela Mary Auble testified in support of Sutton’s post-conviction claims. Dr. Auble is a psychologist, with a speciality in neuropsychology, which involves evaluating the mental functioning of people as it relates to deficits or problems in their intelligence, memory, or personality [Addendum No. 35, p. 6823]. Although Dr. Auble testified that brain injury would carry weight with a jury during sentencing, she did not state that Sutton suffered from a brain injury [Addendum No. 35, p. 6847]. There was no evidence presented during Sutton’s state post-conviction proceeding demonstrating that Sutton suffered from severe brain damage. Dr. Auble’s report reflects that her test data for mental abilities was consistent with that obtained in Dr. Engum’s evaluation from 1994-1995, and, although both doctors concluded Sutton’s mental abilities were low, neither testified he suffered from brain

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damage [Addendum No. 16, Vol. 8 pp. 5053-68, Addendum No. 35, pp. 83-123]

Accordingly, after reviewing the record without considering Dr. Crown’s affidavit, the Court concludes there is no evidence that Sutton suffers from “profound brain damage,” and the jury was advised of his mental limitations by Dr. Engum. This claim will be DISMISSED since Sutton has failed to demonstrate that the state court decision was based on a unreasonable determination of the facts or that it was contrary to or an unreasonable application of Supreme Court precedent,

b. Dellinger’s Corrupting Influence and Control

Sutton contends that had his trial counsel conducted a proper investigation, counsel could have discovered that the one constant authority figure in Sutton’s life was his uncle and co-defendant, Dellinger. A proper investigation, according to Sutton, would have revealed Dellinger lured Sutton away from school and provided him with a steady supply of alcohol. Dellinger’s corrupting influence on Sutton began during his formative years and “explains any role Sutton might have had in the Griffin murder, even if that role was, as new evidence now shows, merely an attempt to conceal Dellinger’s guilt” [Doc. 24 at 11], Sutton asserts this explanation would have caused the jury to impose a sentence of less than death.

Dellinger’s role in Sutton’s upbringing will be discussed in connection with Sutton’s family history. Addressed here will be Sutton’s claim that Dellinger forced him to participate in this crime and conceal Dellinger’s guilt. Although substantial evidence exists to demonstrate Dellinger showed Sutton attention and was a major influence in his life, the evidence does not support that Dellinger was the only significant influence in Sutton’s life or that he forced Sutton to participate in the crime.

To the contrary, the evidence introduced at trial was that Sutton was very close to his older brother, Jimmy Sutton, who was like a parent to Sutton [Addendum No. 16, p. 4862]. When Sutton was approximately 13 years old, his brother and wife moved to Kansas, and Sutton called every day for two weeks, crying for his brother, which prompted their father to fly Sutton to Kansas to stay with his brother [Addendum No. 16, p. 4862]. Sutton lived with his brother and sister-in-law when he was 14 or 15 years old [Addendum No. 16, p. 4876].

Sutton’s next argument is that the ballistics evidence implicates only Dellinger and the proof shows that Dellinger did all of the talking and bought all of the beer evidencing that he was in control of the situation both nights. This proof, according to Sutton, demonstrates that Dellinger forced him to participate in the murder. However, this evidence in and of itself does not demonstrate that Dellinger forced Sutton to do anything, much less to participate in or to conceal the crime. Moreover, the two bar employees testified the three men played pool, appeared to get along, exhibited no ill feelings, and had no confrontation [Addendum No. 12, Vol. 1, pp. 2053-77]. Consequently, although Del-linger ordered and bought the beer on Friday evening, the evidence does not establish that Dellinger was in control of Sutton on that night and forced his participation in Griffin’s murder. The record further shows that it was Sutton who was attempting to persuade Ms. Newman to leave the establishment with him, Dellinger, and Ms. Branam to find Griffin. Final

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ly, according to the proof, it was Sutton who told Ms. Newman, “well, your husband is going to be surprised whenever you’re missing one morning, when he wakes up and you’re missing.” [Addendum No. 12, Vol. 4, pp. 2514-22],

Petitioner’s argument that, during the commission of this murder, he was an accomplice, a minor participant, or dominated by Dellinger is therefore simply unsupported by the record. Sutton did not submit an affidavit or adduce any other evidence supporting his allegation that Dellinger dominated, manipulated, or forced him to participate in the instant murder. As to the actual commission of the crime, the information contained in Dr. Auble’s report is that Sutton did not want to discuss what occurred except to say it was a “sad situation where two innocent people got killed.” [Addendum No. 36, Exhibit 5, p. 7105]. Moreover, the only reference to Dellinger exercising a dominating influence on Sutton is contained in Dr. Auble’s report and her testimony at Sutton’s state post-conviction proceeding. Nothing offered by Sutton points to differing levels of culpability between the two men during Griffin’s murder or suggests that, during the crime, Sutton’s actions were the result of Del-linger’s domination, force, or control. There is simply no evidence from which to conclude the claimed omissions of Sutton’s trial counsel were objectively unreasonable and amounted to a deficiency of performance.

As such, the state court’s findings that Sutton failed to demonstrate any deficiency of performance or that, but for counsel’s claimed shortcomings, the jury would have reached a different decision is not an unreasonable application of or contrary to

Strickland .

Accordingly, Sutton is not entitled to habeas relief on this claim and it will be DISMISSED.

c. Sutton’s Family History

Sutton claims that his trial counsel failed to properly investigate his family history and adequately prepare for the penalty phase of his trial. More specifically, Sutton claims his trial attorney failed to properly develop and present mitigating evidence, and that his decision to present him in a positive light, rather than obtaining and presenting his adverse background, was unreasonable. Sutton insists that his trial attorney’s shortcomings at the penalty stage deprived him of compelling mitigating evidence to present to the jury and that this alleged deficient performance on trial counsel’s part resulted in prejudice to him.

The state appellate court reviewed Sutton’s claim and concluded the record did not support Sutton’s assertion that counsel failed to investigate his background, and that as a result of this failing did not offer sufficient mitigating proof of his social and family history. According to the state court, Mr. Gibson, the sentencing phase attorney, made his decision as to what penalty phase evidence to present based on Dr. Engum’s input, as well as information counsel gleaned through personal interviews of dozens of witnesses. Recognizing that greater emphasis might have been given to certain negative aspects of Sutton’s background, the appellate court concluded that, nonetheless, the jury was made aware of his abuse and neglect, alcoholism, drug abuse, lack of education, limited intelligence, and tendency to be influenced by others:

Counsel’s efforts to convince the jury not to return a sentence of death by emphasizing the petitioner’s more positive attributes and by arguing that the petitioner’s life had some value and should be spared despite his convictions were not unreasonable or uninformed. The fact the strategy was not successful does not, alone, establish that counsel

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were ineffective in preparing or presenting his case in mitigation. “The petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings.”

Sutton v. State,

2006 WL 1472542 , at 24 (Tenn.Crim.App. May 30, 2006) (quoting

Adkins v. State,

911 S.W.2d 334, 347 (Tenn.Crim.App.1994)).

Next, the appellate court addressed prejudice observing that the Tennessee Supreme Court “has stated that the prior violent felony aggravating circumstance is ‘more qualitatively persuasive and objectively reliable than others.’”

Id.

at *24. The court found that, in Sutton’s case, the prior violent felony “was all the more persuasive and difficult to overcome ... considering the fact that one of the petitioner’s prior violent felony convictions was for the murder of the victim’s sister.”

Id.

The appellate court was “unpersuaded that being presented with more details or specific instances of the petitioner’s abuse and neglect or his relationship with Dellinger would have led the jury to reach a different sentencing decision.”

Id.

(citation omitted).

It is the state court’s finding that counsel was not ineffective which must be reviewed for reasonableness under the

Strickland

test. Sutton has the burden of overcoming “the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . In fact, trial counsel identified his sentencing strategy as a portrayal of Sutton in the most positive light possible, conveying to the jury his good deeds and exemplary behavior in jail, in an effort to convince the jury that his client’s life should be spared [Addendum No. 35, pp. 7043-44], Sutton attempts to attack that strategic decision by relying on the details of his family history presented during his post-conviction hearing. Sutton argues the omission of those details amount to deficient performance and resulted in prejudice to the extent that there is a reasonable probability that the outcome of the proceeding would have been different.

(1) Deficient Performance

According to Sutton’s post-conviction expert, Dr. Auble, there were three main areas of attorney deficiency — failure to develop and present the facts indicating the adversity in Sutton’s life (i.e., inadequate parenting and long-term physical and emotional abuse by his stepmother);

failure to develop and present evidence of Dellinger’s influence on Sutton as a youth;

and failure to offer as witnesses, family members who had observed the neglect and abuse.

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(a) Adversity in Sutton’s Life

The record contradicts most of Dr. Auble’s claims, though she is correct that there was no specific testimony about incidents of abuse by the stepmother,

no testimony about Dellinger’s influence on Sutton during his youth,

and no lay-witness testimony about Sutton’s childhood.

Nevertheless, the jury was informed of the adversity in Sutton’s life, and the impact of such adversity on Sutton’s development, choices, and reliability on others.

Specifically, Dr. Engum disclosed at the sentencing phase that Sutton was subjected to physical and mental abuse and that Sutton’s deplorable family background and alcoholic father set the stage for him to become a chronic alcoholic by the age of twelve. Dr. Engum further revealed that Sutton developed a sense of distrust of people which significantly impaired his ability to bond. Dr. Engum also explained that these early negative influences made him vulnerable to being manipulated by others and pointed to Sutton’s history of following older and more experienced people as illustrative of his vulnerability. In addition, Dr. Engum emphasized that the adversity in Sutton’s life left him feeling socially isolated, alone, and depressed, and to make the emotional pain go away, he anesthetized himself by consuming large amounts of alcohol [Addendum No. 16, Vol. 3, pp. 5057-60]. Thus, while Dr. Engum did not specify that Sutton’s stepmother

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abused him and while testimony by witnesses who observed the abuse was lacking, the penalty-phase expert did tie the adversity in Sutton’s life to his development as a person, lack of educational success, and his alcoholism.

Dr. Auble also admonished Dr. Engum for failing to explain the effects of Sutton’s youthful drinking on his development history. Although Dr. Auble presented a more detailed and coherent mitigation case in this regard, trial counsel’s presentation of the same information, albeit in a different manner, did not amount to deficient performance

[see

Addendum No. 35, pp. 6823-65]. While the Court can envision a case in which inadequate presentation of mitigation evidence may amount to deficient performance, such is not the case herein, where post-trial testimony merely adds more specific details to the mitigation evidence actually offered at trial.

In this regard, the Supreme Court’s recent decision in

Van Hook, supra,

dealt with facts similar to those present in the instant case.

See Bobby v. Van Hook,

— U.S. -, 130 S.Ct. 13 , 175 L.Ed.2d 255 (2009). In

Van Hook ,

petitioner claimed trial counsel failed to investigate and present all mitigating evidence which could have helped counsel “narrate the true story of [his] childhood experiences.”

Id.

at 19 . Counsel had investigated his client’s childhood, family history, military history, and he had also hired an expert who testified that the client suffered from a borderline personality disorder. Counsel did not interview Van Hook’s stepsister, two uncíes, and two aunts — who variously could have testified Van Hook’s mother was temporarily committed to a psychiatric hospital and that Van Hook’s father hit him and tried to kill his mother — or a psychiatrist who once treated his mother. Counsel’s decision not to seek more mitigating evidence than they had, according to the Court, fell “well within the range of professionally reasonable judgments.”

Id.

(internal quotation marks and citation omitted).

(b) Dellinger’s Influence

Dr. Auble believed that parental abuse and emotional abandonment would have made him particularly vulnerable to the influence of adults who took an interest in him and who could protect him. According to Dr. Auble, Dellinger fulfilled that role, in addition to encouraging Sutton’s addictive behaviors and criminal actions. Most importantly, it was Dr. Auble’s opinion that Sutton was afraid of Dellinger and unable to end their relationship or withdraw from Dellinger’s control.

Dr. En-gum, however, testified at the sentencing phase about Sutton’s family background of alcoholism, physical and emotional abuse, and that, because of his family life, he was easily manipulated and had a history of following older, more experienced people. In addition, Dr. Engum explained that these role models led him to abuse alcohol [Addendum No. 16, Vol. 3, pp. 5059-60]. Thus, while Dr. Engum did not identify Dellinger as the one who fulfilled that role, he did present essentially the same testimony offered by Dr. Auble.

Also to be considered is the fact that Sutton did not

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advance the defense that Dellinger forced him to participate in the crime. Nor did Sutton so testify during his collateral proceeding. Therefore, the failure to present the evidence in question does not amount to deficient performance.

Sutton argues his trial counsel performed deficiently by failing to present his family history through the testimony of lay-witnesses who observed the neglect and abuse. The state appellate court observed that although counsel could have chosen to place greater emphasis on certain negative aspects of Sutton’s background, evidence of his abuse and neglect, alcoholism, drug abuse, lack of education, limited intelligence, and tendency to be influenced by others was presented to the jury and much of the evidence presented by Sutton’s family members during the state post-conviction proceedings “was cumulative and only expanded the evidence presented at trial.”

Sutton v. State,

2006 WL 1472542 at *24.

As the

Strickland

Court observed, “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . Thus, trial counsel’s decision to humanize Sutton by emphasizing his positive qualities rather than by focusing on his abusive childhood does not render counsel’s performance deficient. Again instructive in this regard is the Supreme Court’s decision in

Van Hook, supra,

where counsel investigated, interviewed witnesses, and presented evidence, but stopped short of interviewing

all

witnesses who Van Hook believed “could have helped his counsel narrate the true story of [his] childhood experience.”

Van Hook,

130 S.Ct. at 19 . The Supreme Court found no deficient performance.

Id. Cf. Porter v. McCollum,

— U.S. -, 130 S.Ct. 447, 452-53 , — L.Ed.2d - (2009) (deficient performance found because counsel completely failed to present mitigating evidence relating to Porter’s lack of education, his mental health, his family background, and his battlefield service in the Korean War which “left him a traumatized, changed man”).

This Court concludes that counsel’s failure to present lay-witnesses to testify about Sutton’s childhood abuse, as opposed to the expert testimony which he did use, is not a deficiency of performance.

See Webb v. Mitchell,

586 F.3d 383 (6th Cir.2009) (counsel’s performance was not deficient even though habeas counsel raised some legitimate critiques of trial counsel’s performance and the habeas expert presented a more “nuanced and troubling picture” of defendant’s mental health than trial expert did, the habeas expert “merely developed] a different psychological profile based on the same facts” trial expert used). This is so because the information about which they would have testified was presented to the jury, albeit in a different and less detailed manner.

As stated earlier, this Court may only grant relief if the state court’s rejection of the ineffective-assistance claim was contrary to, or an unreasonable application of

Strickland .

Applying the AEDPA standard and the relevant Supreme Court law, there is nothing in the record to indicate Sutton’s trial counsel failed to make a reasonable investigation for purposes of uncovering relevant mitigating evidence that could have been useful in persuading the sentencing jury that Sutton’s moral culpability was not sufficient to warrant the death penalty.

The record reflects trial

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counsel was aware of the facts that Sutton faults him for failing to present. Thus, this case raises the issue of whether counsel’s failure to present

detailed

mitigating evidence, of which he was aware, during the sentencing phase of his client’s capital trial amounted to deficient performance. Based on the foregoing discussion, the Court concludes it does not. Accordingly, after a thorough review of the state court decision, the underlying reasoning, as well as Sutton’s allegations challenging that decision, this Court finds that Sutton has not demonstrated the state court decision concluding counsel’s performance was contrary to, or an unreasonable application of Supreme Court precedent.

(2) Prejudice

Even if Sutton has proven deficient performance related to the presentation of family history as mitigation evidence, he has not shown resulting prejudice. The Sixth Circuit has instructed that, to show prejudice, a petitioner must demonstrate that the new post-conviction evidence differs in a substantial way — in strength and subject matter — from the evidence actually presented at sentencing.

Hill v. Mitchell,

400 F.3d 308, 319 (6th Cir.),

cert. denied,

546 U.S. 1039 , 126 S.Ct. 744 , 163 L.Ed.2d 582 (2005). Here, the evidence that was presented at Sutton’s post-conviction proceeding was similar to the evidence presented at sentencing. Granted, the post-conviction evidence was more factually developed and stronger, but it does not differ in a sufficiently substantial way in subject matter.

In assessing prejudice, the Court reweighs the evidence in aggravation against the totality of available mitigating evidence.

Wiggins,

539 U.S. at 535 , 123 S.Ct. 2527 . Prejudice may be found when counsel fails to conduct an adequate investigation or no investigation at all into his client’s background or when counsel fails to present any evidence of a defendant’s personal background or psychological history.

See, e.g., Rompilla v. Beard,

545 U.S. 374, 390 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (failure to review a file of a prior conviction, from which the prosecution intended to quote damaging evidence and which contained a wealth of mitigation evidence about petitioner’s family and mental history that no other source had revealed);

Wiggins,

539 U.S. at 535-36 , 123 S.Ct. 2527 (failure to investigate and discover evidence of repeated physical and sexual abuse);

Williams v. Taylor,

529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000) (failure to conduct an investigation into extensive records “graphically describing Williams’ nightmarish childhood,” along with other compelling mitigating evidence);

see also Coleman v. Mitchell,

268 F.3d 417, 450-53 (6th Cir.2001) (deficient performance for failing to investigate and present evidence of defendant’s personal background, psychological history, or potential organic brain dysfunction),

cert. denied,

535 U.S. 1031 , 122 S.Ct. 1639 , 152 L.Ed.2d 647 (2002).

Upon reviewing the aggravating and mitigating evidence presented at the penalty phase of Sutton’s trial, along with the mitigating evidence presented during his post-conviction hearing, the Court concludes Sutton has failed to demonstrate that he was prejudiced by counsel’s failure to present the available facts of his family history as mitigation evidence. As the state court reasonably found, the mitigating evidence adduced at the collateral proceeding was simply a more detailed version of that which was adduced during the sentencing trial.

See Sutton v. State,

2006 WL 1472542 , at *24 (finding that much of the post-conviction evidence was cumula

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tive and only ‘expanded’ the evidence presented at trial). The prior violent felony aggravator is of the most substantial and compelling nature, and the additional facts about Sutton’s difficult childhood simply do not outweigh the facts of the subsequent murder of the victim’s sister. Thus, given the powerful aggravating factor of the murder conviction, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstance outweighed the mitigating circumstances.

See Wong v. Belmontes,

558 U.S. -, 130 S.Ct. 383 , — L.Ed.2d - (2009) (“It is hard to imagine expert testimony and

additional

facts about Belmontes’ difficult childhood outweighing the facts of McConnell’s murder. It becomes even harder to envision such a result when the evidence that Belmontes had committed another murder— “the most powerful imaginable aggravating evidence,” as Judge Levi put it[.]”).

Accordingly, Sutton is not entitled to any relief on this ineffective assistance of counsel claim, and it will be DISMISSED.

B. Dr. Harlan Claim (Claim II)

Dr. Harlan, a forensic pathologist, testified at the initial trial in rebuttal as to the victim’s time of death. Sutton claims the jury did not know that virtually all of Dr. Harlan’s testimony, “beginning with his description of his current occupation and ending with his scientifically indefensible testimony about the time of Mr. Griffin’s death, was deliberately and intentionally false.” [Doc. 24 at 21]. Sutton contends that the State failed to disclose this information and that his trial counsel was ineffective for failing to thoroughly examine Dr. Harlan’s opinions and qualifications as well as rebut his testimony when he testified at Sutton’s trial. Specifically, Sutton claims the State, in violation of

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), failed to provide evidence that Dr. Harlan had been terminated from his position as Chief Medical Examiner prior to Sutton’s trial, instead presented him as an expert witness, and permitted misleading and untruthful testimony to go uncorrected in violation of

Napue v. Illinois,

360 U.S. 264, 269 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). Sutton contends the State either failed to reveal evidence to his trial counsel, which would have impeached Dr. Harlan’s credibility, or presented Dr. Harlan’s testimony knowing it was false. Intertwined with these claims and, at least partially based upon the evidence he has obtained about Dr. Harlan, Sutton claims counsel was ineffective for failing to utilize an appropriate expert to determine the time of death and for failing to present competent expert testimony to rebut Dr. Harlan’s testimony.

As a preliminary matter, this claim consists of numerous intertwined subparts which must be resolved at the same time. Sutton did not raise the Dr. Harlan claim on direct review or in the state trial court during his post-conviction proceedings. However, he did generally raise at least some of the Dr. Harlan claim while his post-conviction appeal was pending by filing a motion to remand his post-conviction case to Blount County Criminal Court to reopen the proof [Addendum No. 41]. Counsel notified the appellate court that issues had arisen concerning Dr. Harlan when the Final Order was entered on May 4, 2005, by the State Board of Medical Examiners of Tennessee (hereinafter “Board”), permanently revoking Dr. Harlan’s license to practice medicine based upon a “ ‘pattern of continued or repeated negligence and incompetence.’ ” [Addendum No. 41, p. 2, quoting

In the Matter of Charles Harlan, M.D.,

Board of Medical Examiners, Docket No. 17.18022307A]. After the State filed a response, the appellate court denied Sutton’s motion to remand.

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Nevertheless, Respondent now agrees that “[s]ummary disposition of this fact-intensive issue is inappropriate, particularly in light of the discovery depositions of the two prosecutors in this case .(District Attorney General Mike Flynn and former Assistant District Attorney General Edward Bailey) ..., and the Court should require that petitioner demonstrate his allegations in an evidentiary proceeding.” [Doc. 90].

Accordingly, because there are genuine issues of fact pertaining to the Dr. Harlan claim, an evidentiary hearing is warranted. The record reflects that Sutton was not permitted to develop the factual basis for this claim once he became aware of it. Accordingly, the Court will RESERVE RULING on Petitioner’s Dr. Harlan claim in its entirety (Claim II) pending an evidentiary hearing on the claim. 28 U.S.C. § 2254 (e)(2).

C. Trial Counsel’s Irreconcilable Conflict of Interest (Claim III)

In this claim, Sutton complains that his trial counsel undertook a joint-defense

approach with his co-defendant’s counsel which “blinded his counsel to the obvious: that he was distinctly less culpable than Dellinger.” [Doc. 24 at 42]. Sutton also contends there was no strategic reason for aligning his defense with Del-linger’s at either the guilt or sentencing phase. Sutton argues that the physical evidence pointed solely to Dellinger, that all the evidence demonstrated Dellinger was the leader, and that his counsel’s failure to emphasize the weakness of the State’s case against him was prejudicial. Sutton argues this conflict contributed to his counsel’s lack of investigation into his relationship with Dellinger because, had Sutton presented evidence of Dellinger’s violence, it would have hurt Dellinger’s case for a life sentence. Sutton contends “[t]he state court essentially held that because the State’s evidence shows they were together counsel had no duty to show they were not together .... If counsel had represented only Mr. Sutton’s interests, the evidence would have been otherwise .... ” [Doc. 24 at 43].

Respondent counters that Sutton and Dellinger were represented by separate counsel who chose, for strategic reasons, to share responsibility for work on issues common to both defendants. Respondent also argues the state court’s rejection of this claim was not contrary to or an unreasonable application of Supreme Court precedent.

In his state post-conviction proceeding, Sutton claimed trial counsel was ineffective for undertaking a “joint defense approach,” for choosing a defense theory that sought to prove both defendants innocent, and for having an “open file approach” of sharing information with Dellinger’s counsel.

Sutton v. State,

2006 WL 1472542 , at *16. At that proceeding, one of Sutton’s trial attorneys, Mr. Gibson, testified he envisioned a “Dream Team” approach and that he worked with Dellinger’s counsel on

*683

joint issues after being denied a severance. However, issues which only involved Sutton were not discussed or shared with the other side [Addendum No. 35, Vol. 2, p. 7003]. Mr. Gibson preliminarily contacted Mr. Lance Bracy of the Board of Professional Responsibility to make sure there was no conflict of interest by working with Dellinger’s counsel on joint, non-conflicting issues. In addition to the joint-defense approach, they also shared an investigator who did not alert counsel to any conflicts [Addendum No. 36, p. 7006].

The appellate court summarized the State’s theory as follows:

At trial, the State’s theory was that the defendants shared a common purpose and actively participated in the events leading to the victim’s murder beginning with their altercation with him on Alcoa Highway and ending when both defendants were present while one of them shot him to death ....

Id.

at 17 . The state appellate court also referred to its own opinion on direct review and summarized the evidence linking both defendants with the victim shortly before the time that the victim was last seen alive:

The State’s theory of the case, which was supported by extensive proof, was that Dellinger and Sutton acted in unison with a common purpose and design to kill Griffin. Indeed, the State’s theory was that both Appellants fought with Griffin, attempted to bail Griffin out of jail, set fire to Griffin’s trailer, transferred the murder weapon from a truck to a car, successfully bailed Griffin out of jail, and they were both present while one of them fired the fatal shot. The defense theory for both Appellants was that neither one of them committed the murder. Indeed, much of the defense proof went to establishing that they were friends with Griffin and had no reason to kill him, that Griffin died long after he was last seen with Appellants, and that there were several other possible culprits in this ease. Thus, the evidence in the record created an “all or nothing” situation in which Sutton and Dellinger both actively participated and promoted the murder of Griffin or neither one of them did.

Id.

at 17 .

The state appellate court concluded

“[g]iven the amount of evidence connecting the petitioner and Dellinger with each other and with the victim a short time before the victim’s murder, we cannot agree it was unreasonable for counsel to try to establish that neither defendant was responsible for his murder rather than trying to persuade the jury that Dellinger alone was guilty and the petitioner neither shot the victim nor played any role in his death.”

Id.

at 18 . Thus, the court concluded Sutton failed to establish any deficiency on the part of trial counsel.

Id.

Under

Strickland ,

counsel’s decision to present an innocence defense is accorded a high degree of deference.

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . In

Strickland ,

the Supreme Court cautioned that “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”

Id.

at 689 , 104 S.Ct. 2052 . Thus, it is imperative when assessing counsel’s performance that “every effort be made to eliminate the distorting effects of hindsight” and that the circumstances of counsel’s challenged conduct be reconstructed to evaluate the conduct from counsel’s perspective at the time.

Id.

“Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that coun

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sel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

Id.

(citation omitted).

Sutton’s claim that counsel had a conflict of interest is actually a claim attacking trial counsel’s choice of defense theory that sought to prove Sutton innocent. Based on the State’s case, it does not appear that Sutton would have fared any better at trial using such evidence to demonstrate his lesser culpability. As Sutton correctly alleges, the record demonstrates that Del-linger acted alone in hiding the alleged murder weapon. However, the record further shows that prior to going to bail the victim from jail, Sutton waited in Ms. Del-linger’s vehicle when Dellinger removed the weapon from his truck and placed it in his wife’s car [Addendum No. 12, p. 2285-86]. And even though the evidence shows that Dellinger did most of the talking at the bar and that he purchased most of the beer for the group, there is also proof that it was Sutton who tried to persuade the evening-shift employee to go with Dellinger, Ms. Branam, and him to search for Griffin. It was also Sutton who threatened and frightened Ms. Newman by telling her “well, your husband is going to be surprised whenever you’re missing one morning, when he wakes up and you’re missing.” [Addendum No. 12, Vol. 4, pp. 2521-22; 2532-33],

Sutton is apparently contending he should have admitted his guilt but counsel should have demonstrated he was less culpable by emphasizing the evidence of Dellinger’s alleged “leadership” role while they were together during the time frame of this crime. Sutton, however, has not provided any evidence demonstrating that he was less culpable or that Dellinger was the leader in the commission of this murder. Furthermore, Sutton has not provided any proof that trial counsel’s defense theory was not a legitimate strategic choice or how emphasizing evidence which was before the jury would have changed the outcome of his case. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.”

Strickland,

466 U.S. at 693 , 104 S.Ct. 2052 (internal citations omitted).

Accordingly, Sutton has not demonstrated the state appellate court’s decision was based on an unreasonable application of

Strickland

or presented any clear and convincing evidence to overcome the presumption of correctness to be given the state court’s factual findings. 28 U.S.C. § 2254 (e)(1). The claim will therefore be DISMISSED.

D. Lack of Prior Notice of Dr. Harlan’s Testimony (Claim IV)

Sutton complains that he was deprived of due process by the State’s presentation of a surprise rebuttal witness and the trial court’s decision to allow the witness to testify. Because he was not given pretrial notice that Dr. Harlan would testify before the State presented him as a rebuttal witness, Sutton contends the admission of his testimony denied him due process. Sutton claims, without providing any explanation or analysis, that the state court’s conclusion that the trial court did not abuse its discretion in permitting Dr. Harlan’s testimony is contrary to or an unreasonable application of

In re Oliver,

333 U.S. 257, 273 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948).

As a preliminary matter, Sutton’s reliance on

In re Oliver

is misplaced as that

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case does not address the use of rebuttal witnesses. Moreover, Sutton was provided all of the due process protections identified in that case.

Sutton argues that his rights to due process and counsel were violated when the State called Dr. Harlan to testify about the time of death in rebuttal with no notice to Sutton. During trial, Sutton’s counsel objected to Dr. Harlan’s testimony arguing it was impermissible to call an expert to rebut an opinion. Sutton’s counsel argued that introducing such evidence in rebuttal amounted to introducing new proof since the State relied upon Jason McDonald,

his mother,

and Dr. Ellington, who admitted he was not qualified to determine time of death, rather than presenting a time-of-death expert during the State’s case in chief. According to Sutton’s counsel, the State chose only to offer lay testimony as to time of death in its case in chief rather than expert testimony, and it should not have been allowed to rebut Dr. Wolfe’s expert testimony offered by defendants as to time of death with Dr. Harlan’s countervailing opinion.

Respondent argues the prosecution had an expert witness prepared to testify in its case in chief, who was not presented because of a defense objection and not through any fault of the State, so Dr. Harlan was properly permitted to testify in rebuttal to Dr. Wolfe’s opinion. Although the record is not complete, it appears the State sought to introduce the expert testimony of Dr. Cleland Blake during its case-in-chief regarding time of death. An out-of-jury hearing was conducted, which was not transcribed, per the request of Dellinger’s defense attorney, Mr. Dixon [Addendum No. 12, Vol. 7, p. 3047], The trial court determined Dr. Blake would not be able to testify [Addendum No. 12, Vol. 7, p. 3047]. Prior to the introduction of Dr. Harlan’s testimony, the prosecutor explained that the State sought to present Dr. Blake, but due to the defense’s objection the testimony was not allowed. The prosecutor explained:

And I think the record is clear that was through no fault of the State, that the witness himself didn’t know about the basis of their objection or the fact that he had received any information from them at the time, on the opinion he was prepared to render.

[Addendum No. 12, Vol. 14, p. 4010].

“[E]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding.” Cooper

v. Sowders,

837 F.2d 284, 286 (6th Cir.1988). Sutton’s claim that he was deprived of due process by the presentation of an undisclosed rebuttal witness does not amount to a constitutional error because state-court evidentiary rulings do not rise to a level of due process violations unless they “offend ... some principle of justice so rooted in

*686

the traditions and conscience of our people as to be ranked as fundamental.”

Montana v. Egelhoff,

518 U.S. 37, 43 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996) (citations omitted).

Under Tennessee law, the determination of the admissibility of rebuttal evidence lies in the discretion of the trial court, and the state appellate court will not interfere with the exercise of that discretion unless there has been a clear abuse of discretion appearing on the face of the record.

State v. Kendricks,

947 S.W.2d 875, 884 (Tenn.Crim.App.1996). Rebuttal evidence is not necessarily rendered inadmissible by the fact that the rebutting party could have offered the evidence in its case-in-ehief.

State ex rel. Com’r of Dept. of Transportation v. Williams,

828 S.W.2d 397, 401 (Tenn.Ct.App.1991);

Coates v. Thompson,

666 S.W.2d 69, 76 (Tenn.Ct.App.1983).

In addition, as the state appellate court observed, “it is clear that the State did not disclose Dr. Harlan’s identity before trial because it intended to call Dr. Blake as its expert. In addition, it is well established that the State’s duty to disclose the names of its witnesses is merely directory, not mandatory.”

State v. Sutton,

2001 WL 220186 , at *25 (citing

State v. Harris,

839 S.W.2d 54, 69 (Tenn.1992)). Although a defendant is entitled to relief for nondisclosure of a rebuttal witness if he can show prejudice, bad faith, or undue advantage, Sutton’s counsel expressed no intention to offer surrebuttal nor did he ask for a continuance in order to call other witnesses when asked whether the defendants had surrebuttal. The state appellate court concluded Sutton waived any claim that he was prevented from calling further witnesses to offer surrebuttal, and thus the issue had no merit.

Id.

“There is no general constitutional right to discovery in a criminal case.”

Weatherford v. Bursey,

429 U.S. 545, 559 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977). “Rather, all the Constitution requires, per the due process clause, is that the defendant not be deprived of a fundamentally fair trial.”

Lorraine v. Coyle,

291 F.3d 416, 441 (6th Cir.2002),

cert. denied,

538 U.S. 947 , 123 S.Ct. 1621 , 155 L.Ed.2d 489 (2003). Thus, neither the Constitution nor the Tennessee Rules of Criminal Procedure compel pretrial disclosure of any rebuttal witnesses related to the defendant’s case, and therefore, “there is no constitutional violation cognizable on habeas here.”

Id.

In sum, Sutton presented expert testimony that the time of death was later than that shown through testimony presented by the State’s lay witnesses who heard a gun shot. The State attempted to present expert testimony as to the time of death, but it was prevented from doing so when defense counsel objected because counsel had provided the State’s expert with evidence, unbeknownst to the State. In addition, as pointed out by the state court, Sutton’s attorneys neither presented surrebuttal nor requested a continuance to prepare to respond to the new testimony.

State v. Sutton,

79 S.W.3d 458, 488 (Tenn.2002). Therefore, in light of the wide latitude afforded to states with regard to evidentiary matters, and relevant Supreme Court precedent, the Court concludes Sutton’s due process rights were not violated by the State’s introduction of Dr. Harlan’s testimony.

See Gray v. Netherland,

518 U.S. 152, 166-70 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996) (rejecting a habeas petitioner’s due process challenge to the State’s failure to give him sufficient notice of its intent to present testimony from a police officer and medical examiner at his sentencing and concluding that only the adoption of a new constitutional rule could establish that due process required more than a day’s notice and that a continuance, whether or not requested, was required).

*687

Sutton has therefore failed to overcome the presumption of correctness afforded the state court’s factual findings that Sutton was not denied due process with regard to this claim and has not demonstrated that the state court’s conclusion is contrary to or an unreasonable application of Supreme Court precedent. Accordingly, Sutton’s due process claim based on the non-disclosure of Dr. Harlan as a rebuttal witness will be DISMISSED.

E. Counsel Failed to Present Evidence to Challenge the Branam Homicide (Claim V)

The trial court allowed the State to prove Ms. Branam’s death as part of its case in chief in the Griffin trial to prove the identity of Griffin’s murderers [Addendum No. 8, Vol. 1, p. 1561]. The State also used Ms. Branam’s murder as an aggravating circumstance during the sentencing phase. Sutton contends that, under these circumstances, trial counsel should have investigated and presented available evidence challenging the Branam death.

Specifically, Sutton claims his counsel was deficient for failing to implicate Bill Cogdill and for failing to call Joyce Tipton or otherwise have her declared unavailable for his murder trial. Although Sutton did not call either witness to testify at his post-conviction hearing, Sutton’s lead trial counsel made a tactical decision not to call Ms. Tipton and counsel was mistaken when he testified Bill Cogdill had testified at trial. Nevertheless, Sutton has not demonstrated he was prejudiced by the fact Mr. Cogdill did not testify at trial [Addendum No. 35, p. 7017].

The state appellate court affirmed the denial of relief on this claim and explained:

We believe the record reflects that counsel’s decision not to pursue Cogdill was not uninformed. At the evidentiary hearing, Mr. Gibson testified that he attended the Branam murder trial in Sevier County and reviewed the transcript to determine which witnesses to call at trial. He stated that he personally interviewed Cogdill, whom he characterized as a “mountain man” type, and that he found Cogdill hard to understand and to be someone who would “just about agree with anything you tell him.” Mr. Gibson concluded Cogdill would not be a favorable witness for the defense, but he hoped he could cross-examine him as a state’s witness instead. He testified that he was aware that Joyce Tipton had testified in the Sevier County trial and attributed “some weird statements” to Cogdill, to the effect that Branam’s body would be found “burned up somewhere,” which may have been made before Branam’s body was found. He said that the defense initially sought to have Tipton testify at the Blount County trial, but he recalled that he did not pursue her after she made efforts to avoid testifying because of her mental problems.

The record also reflects that when trial counsel did make some attempt to establish Cogdill as a possible suspect in Branam’s murder, he was unsuccessful. On questioning regarding Branam’s murder, Jack Sutton testified that Cog-dill told him that “Connie would either be found in water or burned in a car.” However, Sutton could not recall whether Cogdill made this statement before or after Sutton had learned that Branam’s body had been found. On cross-examination, Sutton testified that he did not believe Cogdill’s statement because he knew Cogdill to be a bragger [sic] or a liar and not one to be believed. In our view, such testimony supported counsel’s decision not to call Cogdill as a defense witness.

The petitioner strenuously asserts that potential witnesses such as Cogdill, Tipton, and Reed could have established

*688

that someone other than the petitioner may have killed Branam and thereby lessened the impact of this prior conviction at the petitioner’s sentencing for the victim’s murder. However, the record does not include any evidence suggesting Cogdill or anyone else as a viable, alternate suspect in Branam’s murder, and the petitioner did not present any witnesses having potentially exculpatory testimony at the post-conviction hearing. A petitioner should have such witnesses testify at the evidentiary hearing.

See Black v. State,

794 S.W.2d 752, 757 (Tenn.Crim.App.1990). “Typically, that is the only method of establishing prejudice” because absent testimony from a witness at the evidentiary hearing, “this court could only speculate as to what prejudice may have resulted by trial counsel’s failure to subpoena ... a witness” at trial.

James Leath v. State,

No. E2004-02708-CCA-R3-PC, Knox County, slip op. at 7 (Tenn.Crim.App. Dec. 28, 2005).

Sutton v. State,

2006 WL 1472542 , at *18-19.

The Court has reviewed the record which supports the state appellate court’s assessment of this claim. In addition, as the state court notes, Sutton did not present any of these witnesses at his state post-conviction hearing to testify about what evidence they would have offered had they been called to testify in Sutton’s trial.

Id.

at 19 . Thus, even if the Court were to assume trial counsel was deficient for failing to present these witnesses, Sutton has failed to demonstrate he suffered any prejudice as a result of counsel’s alleged deficient performance.

Sutton relies on Cogdill’s testimony during Ms. Branam’s trial to support this claim. However, a review of Cogdill’s testimony does not demonstrate that Sutton was prejudiced by counsel’s failure to present evidence from Cogdill as his testimony does not exonerate Sutton of Ms. Branam’s murder. Cogdill testified that a woman asked him what kind of shape they would find Ms. Branam in, to which he replied, “Well, her might be in the water, her might be buried, her might be charred or might be burned one,” and he denied saying that Ms. Branam “was shot like Tommy, with a. 12 gauge shotgun” to either Joyce Tipton or Jack Sutton [Doc. 24-10 at 4-5, 8-9 (Attachment J) ].

Although Joyce Tipton testified at Ms. Branam’s trial that, prior to the discovery of Ms. Branam’s body, Cogdill made statements to her and Jack Sutton that Ms. Branam would be found shot and burned, Sutton’s counsel made the strategic decision, after she failed to comply with a trial subpoena, not to present her as a witness. Counsel decided not to present her testimony because her statements were hearsay and because the State could then call a psychologist who would testify that Tipton had ongoing mental problems to suggest that she was not a credible witness [Addendum No. 36, p. 7017]. Additionally, this evidence was presented to the jury in Ms. Branam’s murder trial and, apparently, the jury in that trial concluded the evidence deserved little or no weight.

Sutton’s counsel did present at trial Jack Sutton, who testified he could not remember whether Cogdill made the statement that Ms. Branam would either be found in water or burned in a car, before or after her body was actually found [Addendum No. 12, Yol. 13, pp. 3845-49]. This testimony and that offered at Ms. Branam’s murder trial presents no more than a convoluted conversation which neither exonerates Sutton nor renders his trial unfair or the result unreliable.

Sutton has not presented any clear and convincing evidence to overcome the presumption of correctness to be given the state court’s findings, nor has he demon

*689

strated that the decision made by the state appellate court was contrary to or an unreasonable application of Supreme Court precedent. Accordingly, this claim will be DISMISSED.

F. Denial of Severance Motion (Claim VI)

Sutton challenges the trial court’s decision requiring him to be jointly tried with Dellinger. The basis for his challenge is that key pieces of evidence were admitted at the joint trial which allegedly were only relevant to Dellinger. It is his position that the denial of his motion to sever was constitutional error in that it deprived him of a fair trial.

The evidence to which Sutton refers were the shells found near Griffin’s body, which matched shells found on Dellinger’s property and in or near his trash can, ballistic evidence allegedly linking Dellinger’s rifle seized from his trailer to evidence found near Ms. Branam’s body, and testimonial evidence that a white truck (implying it was Dellinger’s) was seen in the general area where Ms. Branam’s remains were eventually found.

Sutton claims there was no evidence linking the ballistics or the white truck to him.

Sutton raised the ballistic issue on direct review. The appellate court, summarizing the lower court proceedings, observed that, although Sutton and Dellinger filed a pretrial motion requesting a severance or, in the alternative, separate juries, at the motion hearing, the defendants abandoned their motion to sever, and, instead, asked the court for separate juries.

State v. Sutton,

79 S.W.3d at 467 . The trial court overruled the motion, ordering that any evidence that might be inadmissible against one of the defendants would not be allowed into evidence [Addendum No. 3, pp. 1051-53].

The appellate court concluded that Sutton was not denied a fair trial, that he had failed to cite any authority that would require separate juries in a case such as his, and that he had failed to identify a single instance in which he was prejudiced by the introduction of evidence admissible solely against Dellinger.

State v. Sutton,

2001 WL 220186 , at *11. When the issue was raised in the Tennessee Supreme Court, that court specifically found that the evidence of the rifle and shells discovered at Dellinger’s trailer were properly admitted against Sutton, and that severance was not required, since the evidence admitted at trial would have been admissible against each defendant at a separate trial.

State v. Sutton,

79 S.W.3d 458, 468 (Tenn.2002).

The decision to grant or deny a severance is governed by Rule 14 of the Tennessee Rules of Criminal Procedure, and the decision is within the sound discretion of the trial court.

State v. Carruthers,

35 S.W.3d 516, 552-53 (Tenn.2000). In denying Sutton’s motion for severance (or separate juries), the Tennessee courts applied state law. The Court must accept as binding the state court’s interpretation of the state rules and law on severance of crimi

*690

nal trials.

Estelle v. McGuire,

502 U.S. 62, 67-68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991) (re-emphasizing “that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”).

Nevertheless, the failure to grant a severance, if it rises to the level of a Fourteenth Amendment due process violation, is a constitutional error which warrants habeas relief.

Davis v. Coyle,

475 F.3d 761, 777 (6th Cir.2007). To obtain habeas relief on a claim involving state law, the burden is on Sutton to demonstrate the state court’s denial of his motion to sever resulted in prejudice so great that he was denied his right to a fair trial.

Id.

In other words, a state trial court’s alleged abuse of discretion, without more, is not a constitutional violation and does not entitle Sutton to habeas relief.

Stanford v. Parker,

266 F.3d 442, 459 (6th Cir.2001). Disparity in the amount of evidence presented against a co-defendant does not justify severance in the absence of a showing of prejudice.

United States v. Hogan,

763 F.2d 697, 705 (5th Cir.1985). Joint trials of co-defendants are generally favored.

Id.

“A petitioner seeking habeas relief on the basis of a trial court’s failure to sever his trial from his co-defendant’s bears a very heavy burden.”

Contrary to Sutton’s allegations, the pieces of evidence he claims were only relevant to Dellinger were actually relevant to the commission of the crime of which they were both accused and ultimately convicted. The contested evidence established, or at least strongly implied, that the murders were committed by means of weapons which had been shot and arguably possessed by Dellinger or by someone who was practice-shooting in his yard [Addendum No. 12, Vol. 7, pp. 2915-56; 2973-98, 3020, 3031-39; Addendum No. 12, Vol. 9, pp. 3261; Addendum No. 12, Vol. 11, p. 3417-3418]. Since the evidence revealed Dellinger and Sutton were together during the pertinent times and since the ballistic evidence was connected to the murders, the evidence was properly admitted against those persons standing trial for those murders. The evidence was introduced to establish the murders against both defendants, and severance was not warranted merely because the defendants may have played different roles in the murders. Thus, Sutton has failed to show he suffered the requisite quantum of prejudice since the challenged evidence was intertwined with the murder and since it was admissible against both Sutton and Dellinger in trying to establish their guilt. Sutton, therefore, was not deprived of any constitutional right by the denial of a severance.

This determination is not affected by Sutton’s argument that the ballistic evidence would not have been introduced at his trial if he had been granted a severance. This is not a case where ballistic evidence from a crime Sutton was not accused of committing was admitted. It is also not a case where Dellinger and Sutton presented antagonistic defenses, naming each other as the shooter. Rather, circumstantial evidence connected Dellinger and Sutton to the crime, and the ballistic evidence was a piece of the circumstantial evidence. There was also proof which established that Dellinger and Sutton were the last individuals with each victim when that victim was last seen alive. Thus, even if Sutton had received a severance, the ballistic evidence is relevant evidence that could have been introduced at his trial.

Consequently, under the circumstances, the Court does not find that Sutton carried his burden of establishing, by clear and convincing evidence, that the state court was erroneous in this connection or that “no ... evidence that was improper as to one of the defendants” was admitted.

*691

State v. Sutton,

79 S.W.3d at 468 (Term.2002). Thus, he has not demonstrated that the denial of his motion for severance (or separate juries) resulted in prejudice so great as to deny him his constitutional right to a fair trial.

United States v. Lane,

474 U.S. 438, 446, n. 8 , 106 S.Ct. 725 , 88 L.Ed.2d 814 (1986) (finding improper joinder of defendants does not, in itself, violate the Constitution because the demonstration of prejudice must be so great as to deny the Fifth Amendment right to fair trial in order to rise to level of constitutional violation).

Accordingly, since Sutton has failed to demonstrate that the state court’s resolution of this claim was contrary to or an unreasonable application of Supreme Court precedent, no habeas relief is warranted, and this claim will be DISMISSED.

G. Admission of Evidence of Ms. Branam’s Murder, Fight on Alcoa Highway, and Trailer Arson in Sevier County (Claim VII)

Although the critical question the jury was to resolve was whether he was guilty of the first degree murder of Griffin, Sutton contends that the trial court admitted volumes of proof about the death of Ms. Branam, a fight on Alcoa Highway, and a trailer arson in Sevier County. Citing to

Donnelly v. DeChristoforo,

416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974), Sutton argues that admission of extensive evidence of these other alleged bad acts denied him his right to a fair trial and due process, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Respondent maintains this claim is procedurally defaulted because, when arguing that Ms. Branam’s murder evidence was inadmissible before the state trial court, Sutton relied upon the Tennessee Rules of Evidence and Tennessee state cases and made no constitutional argument [Addendum No. 8, pp. 1525-61]. Respondent contends that, although Sutton attempted on direct appeal to recast this claim as a constitutional violation, the state appellate court properly determined that such a change of argument is prohibited under Tennessee law.

See State v. Adkisson,

899 S.W.2d 626, 634-635 (Tenn.Crim.App.1994) (holding that an objecting defendant is bound by the ground raised in an objection and cannot abandon it to raise a new ground in a motion for new trial or on appeal).

In his state appellate brief, Sutton claims he was denied a fair trial and due process, citing Amendments Five, Six, Eight, and Fourteen of the United States Constitution [Addendum No. 18, pp. 5378-81]. The state appellate courts did not address the claim on constitutional grounds. Nevertheless, even assuming, for the sake of discussion, that the constitutional claim is properly before the Court, Sutton is not entitled to any relief on his claim. Specifically, because Sutton cannot demonstrate that introduction of the challenged evidence denied him his right to a fair trial or due process, habeas relief is not warranted.

As to the altercation on Alcoa Highway and the burning of Griffin’s trailer, the trial court ruled the evidence was relevant to establishing the sequence of events on the night of Griffin’s murder. Additionally, the trial court concluded the probative value of this evidence was not outweighed by the danger of any prejudicial value [Addendum No. 8, pp. 1453-55]. The appellate court agreed, concluding, “[t]he evidence that showed that [Sutton and Del-linger] were involved in an altercation with Griffin and that they set fire to Griffin’s trailer on the night that he was killed was relevant to establishing [their] intent and motive for killing Griffin.”

State v. Sutton,

*692

2001 WL 220186 , at *21. The appellate court found this evidence was properly-admitted because it was relevant to show Sutton’s and Dellinger’s hostility toward Griffin, as well as “malice, intent, and a settled purpose to harm the victim.”

Id.

Further, the appellate court found “the evidence that tied [Sutton and Dellinger] to the other crimes against Griffin that were committed just hours before Griffin was killed was also relevant to establishing the identity of Griffin’s killer, ... and that the probative value of this evidence was not outweighed by danger of unfair prejudice.”

Id.

As to Ms. Branam’s murder, the trial court admitted this evidence because it was relevant to establish the identity of Griffin’s killer [Addendum No. 8, pp. 1560-72], On direct appeal, the appellate court addressed this claim as follows:

We conclude that the trial court did not abuse its discretion when it ruled that this evidence was admissible. The evidence regarding the Branam murder showed that when [Sutton and Dellinger] went to Howie’s Hideaway with Branam the day after Griffin was killed, they acted suspiciously by repeatedly questioning the barmaids about whether they remembered seeing them with Griffin on the previous day and by attempting to fabricate a story about drinking at the bar with Griffin after he had been released from jail. In addition, the evidence showed that when Newman told [Sutton and Dellinger] that she remembered them from the day before, Sutton attempted to convince Newman to come with them. When Newman refused, Sutton threatened her. This evidence suggests that [Sutton and Dellinger] had the intent to silence any witness who could connect them with Griffin’s murder. Thus, the evidence of Branam’s murder was highly relevant to establishing the identity of Griffin’s killers because it tended to show that [Sutton and Dellinger] had killed Branam in order to conceal the fact that they had murdered Griffin. In addition, we conclude that the highly probative value of this evidence was not outweighed by the danger of unfair prejudice. Under these circumstances, we cannot say that the trial court abused its discretion when it admitted this evidence. This issue has no merit.

State v. Sutton,

2001 WL 220186 , at *22.

The state appellate court determined that the trial court’s rulings did not violate Tennessee’s evidentiary rules, citing specifically to Rule 404(b) of the Tennessee Rules of Evidence, which permits the admission of “evidence of other crimes, wrongs, or acts” for reasons other than to demonstrate “the character of a person in order to show action in conformity with the character trait.”

Id.

“[F]ederal habeas corpus relief does not lie for errors of state law,”

Estelle v. McGuire,

502 U.S. 62, 67 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991), such as evidentiary rulings, unless the rulings “rendered the trial so fundamentally unfair” that a denial of constitutional rights results.

Webster v. Rees,

729 F.2d 1078, 1079-80 (6th Cir.1984) (citing

Logan v. Marshall,

680 F.2d 1121, 1123 (6th Cir.1982)). The admission of evidence violates due process “[o]nly if there are no permissible inferences the jury may draw from the evidenee[.]”

Jammal v. Van de Kamp,

926 F.2d 918, 920 (9th Cir.1991). When an evidentiary ruling is so egregious that it results in a denial of fundamental fairness, it may violate due process, and thus warrant habeas relief.

Coleman v. Mitchell,

244 F.3d 533, 542 (6th Cir.2001) (“A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate petitioner’s due process rights.”);

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