Alley v. Bell

ORDER OF DISMISSAL ORDER DENYING CERTIFICATE OF AP-PEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER VACATING STAY OF EXECUTION

DONALD, District Judge.

TABLE OF CONTENTS

A. INTRODUCTION .601

B. STATE COURT PROCEDURAL HISTORY.602

C. PETITIONER’S FEDERAL HABEAS CLAIMS.607

D. ANALYSIS OF THE MERITS.612

I.Claims Not Cognizable In Federal Habeas.612

II.Analysis Of Procedurally Defaulted Claims.612

A. Legal Standard for Procedural Default.612

B. Specific Procedurally Defaulted Claims.614

1. Judicial Bias.614

2. Procedurally Defaulted Claims of Withholding of Evidence.618

3. Improper Jury Instructions .620

4. Caldwell Error .622

5. Unconstitutionality of Death Penalty Statute.628

6. Electrocution Violates the Eighth Amendment.630

7. Prosecutorial Misconduct During Voir Dire.630

8. Denial of the Right to Sit at Counsel Table.631

9. Denial of the Right to Not be Viewed in Jail Garb.632

10. Unconstitutional Victim-Impact Evidence or Argument.632

11. Ineffective Assistance of Counsel.632

III.Analysis of Claims Considered on the Merits .633

A. Legal Standard for Merits Review.

B. Specific Claims for Substantive Review.

1. Judicial Bias.

2. Evidentiary Rulings Deprived Petitioner of a Defense

3. Unconstitutional Aggravating Circumstance.

4. Unconstitutional Jury Instruction on Reasonable Doubt

5. Unconstitutional Jury Instruction on Malice.

6. Unconstitutional Use of Victim-Impact Evidence.

7. Unconstitutional Exclusion of Jurors Jarred and Todd .

*597

8. Prosecutorial Misconduct During Cross-Examination ... U5

9. Prosecutor’s Improper Use of Victim-Impact Evidence . ID

10. Insufficient Evidence of Deliberation. ÍO

11. Insufficient Evidence of Premeditation. ÍO

12. Improper Instructions on Deliberation and Premeditation ID

13. Burden-Shifting Instructions on Mitigation. lo

14. Prosecutor’s Misconduct During Voir Dire. lo

15. Ineffective Assistance of Counsel. U5

C. Legal Standard for Sixth Amendment Claims.659

D. Analysis of Specific Claims . CO

1. Inadequate Preparation. CO

2. Failures to Make Objections to Victim-Impact Evidence W CO

3. Failure to Object to Prosecution Arguments and Jury Instructions . CO co

Failure to Seek Trial Judge s Recusal for Bias. ^ CO co

Inadequate Cross-Examination of Expert Witnesses Ü1 CO co

Inadequate Presentation of Mitigating Evidence ... 05 CO co

Inadequate Closing Argument. CO CO

Failure to Raise Insufficient Evidence. CO CO CO

Failure to Challenge Constitutionality of Tennessee Death Penalty Statute . CD CO

Failure to File a Petition for Rehearing on Direct Appeal O ko CO

E. APPEAL ISSUES .666

I. Certificate of Appealability.666

II. In Forma Pauperis Appeal.667

III.Vacation of Stay of Execution.667

TABLE OF AUTHORITIES

FEDERAL CASES

Adams v. Jago, 703 F.2d 978, 981 (6th Cir.1983).125

Adams v. Texas, 448 U.S. 38, 45 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980)."... .103

Amos v. Scott, 61 F.3d 333, 340-41 (5th Cir.1995).53-55, 59

Anderson v. Harless, 459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982).25

Austin v. Bell, 126 F.3d 843, 847 (6th Cir.1997) .94-96

Barefoot v. Estelle, 463 U.S. 880, 893 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983).141

Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).54

Berger v. United States, 255 U.S. 22, 31 , 41 S.Ct. 230 , 65 L.Ed. 481 (1921). 73, 74

Blanton v. Elo, 186 F.3d 712 (6th Cir.1999). 69, 81

Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987).101

Boyde v. California, 494 U.S. 370, 376 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990).124

Boysiewick v. Schriro, 179 F.3d 616 , 621 (8th Cir.1999) .76

Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). 38, 39

Brecht v. Abrahamson, 507 U.S. 619, 637 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) . 102, 111, 112

Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1991).93

Caldwell v. Mississippi, 472 U.S. 320, 328-29 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985). 45

Caldwell v. State, 1994 WL 716266 (Tenn.Crim.App. Dec.28,1994) 51

Campbell v. State, 1993 WL 122057 (Tenn.Crim.App. Apr.21,1993) 51

*598

Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.1998).69

Carpenter v. Mohr, 163 F.3d 938, 944-45 (6th Cir.1998). 48, 60, 74

Cartwright v. Maynard, 822 F.2d 1477,1485 (10th Cir.1987). 86, 88

Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).111-113

Coe v. Bell, 161 F.3d 320, 330 (6th Cir.1998). 48, 50, 56, 96, 99

Coleman v. Thompson, 501 U.S. 722, 752 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) .23, 25, 26, 37, 53, 59, ' 61, 65, 67,103, 138

Crane v. Kentucky, 476 U.S. 683, 690 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986).80

Crane v. Sparkman, No. 97-5321, 1998 WL 598725 at * 6 (6th Cir. Aug.27,1998) .76-

Dorman v. Wainwright, 798 F.2d 1358, 1363 (11th Cir.1986).64

Dugger v. Adams, 489 U.S. 401 , 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989).52

Duncan v. Henry, 513 U.S. 364, 366 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995).25

Espinosa v. Florida, 505 U.S. 1079 , 112 S.Ct. 2926 , 120 L.Ed.2d 854 (1992) 92

Estelle v.’ McGuire, 502 U.S. 62, 72-73 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991).99

Estelle v. Williams, 425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976).66

Ford v. Georgia, 498 U.S. 411, 424 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991).49

Geders v. United States, 425 U.S. 80 , 96 S.Ct. 1330 , 47 L.Ed.2d 592 (1976).66

Glenn v. Tate, 71 F.3d 1204,1210 (6th Cir.1995).126

Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980).86

Granberry v. Greer, 481 U.S. 129, 133-34 , 107 S.Ct. 1671 , 95 L.Ed.2d 119 (1987) .24

Gray v. Netherland, 518 U.S. 152, 162-63 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996) . 24, 25, 29, 59

Hall v. Iowa, 705 F.2d 283, 287 (8th Cir.1983).22

Hannah v. Conley, 49 F.3d 1193,1194-95 (6th Cir.1995). 28, 49

Herbert v. Billy, 160 F.3d 1131,1135 (6th Cir.1998) .71

Houston v. Dutton, 50 F.3d 381 (6th Cir.1995).86

In Re Murchison, 349 U.S. 133, 134 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955). 31, 72

In Re Winship, 397 U.S. 358, 363-64 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970).95

Isabel v. United States, 980 F.2d 60, 64 (1st Cir.1992) .125

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).114

Johnson v. State, 1991 WL 111130 (Tenn.Crim.App. June 26,1991).51

Johnson v. State, 1994 WL 90483 (Tenn.Crim.App. Mar.23,1994) .51

Jones v. Toombs, 125 F.3d 945, 947 (6th Cir.1997).

48,60,

74

Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir.1997).142

Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.1986) .22

Knapp v. Kinsey, 232 F.2d 458, 461-62 (6th Cir.1956). 32, 36

Koteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946) .102

Lambrix v. Singletary, 520 U.S. 518, 537-38 , 117 S.Ct. 1517 , 137 L.Ed.2d 771 (1997). 91, 92

Lewis v. Alexander, 11 F.3d 1349,1352 (6th Cir.1993) .125,127

Liteky v. United States, 510 U.S. 540, 550-51, 555-56 , 114 S.Ct. 1147 , 127 L.Ed.2d 474 (1994).29, 73, 74, 75, 76, 77, 79

Lockhart v. Fretwell, 506 U.S. 364, 368 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993).126

Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997).141

*599

Lyons v. Stovall, — F.3d -■, 1999 WL 639577 at *12 (6th Cir. Aug.24,1999) . 42, 43, 92

Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir.1997).68

Maekall v. Murray, 109 F.3d 957 (4th Cir.1997).68

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 , 100 S.Ct. 1610 , 64 L.Ed.2d 182 (1980) . 31, 72, 87, 88

Martin v. Ohio, 480 U.S. 228, 234 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987).122

Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986).22

Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988). 85, 87-89, 93

McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir.1991).49

MeGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.1997).142

McQueen v. Patton, 118 F.3d 460, 464 (6th Cir.1997).63

Montana v. Egelhoff, 518 U.S. 37, 42 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996). 80, 81

Morgan v. Illinois, 504 U.S. 719 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992).107

Murray v. Carrier, 477 U.S. 478, 488 (1986) .26

Nelson v. Nagle, 995 F.2d 1549 (11th Cir.1993) .47

Nelson v. Solem, 714 F.2d 57 , 60 n. 2 (8th Cir.1983) .22

Nevers v. Killinger, 169 F.3d 352, 361 (6th Cir.1999).69-72,112

Norton v. Parke, 892 F.2d 476 ,479 n. 7 (6th Cir.1989) .76

O’Brien v. Dubois, 145 F.3d 16, 20 (1st Cir.1998).69-71

O’Guinn v. Dutton, 88 F.3d 1409,1411 (6th Cir.1996) .71

O’Guinn v. State, 1997 WL 210890 *1 (Tenn.Crim.App. Apr.29, 1997).'..62

O’Sullivan v. Boerckel, 526 U.S. 838 , 119 S.Ct. 1728, 1732-33 , 144 L.Ed.2d 1 (1999).25

Prtiz v. Stewart, 149 F.3d 923, 939 (9th Cir.1998) . 23, 76

Parker v. Rose, 728 F.2d 392, 394 (6th Cir.1984).52

Patterson v. New York, 432 U.S. 197, 206-07 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) .122

Payne v. Tennessee, 501 U.S. 808, 824, 827 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991) .101

Pendleton v. State, 510 U.S. 1084 , 114 S.Ct. 916 , 127 L.Ed.2d 205 , 1994 WL 14231 (Tenn.Crim.App. Apr. 21, 1994).51

Pennsylvania v. Finley, 481 U.S. 551, 555 , 107 S.Ct. 1990 , 95 L.Ed.2d 539 (1987) .138

Perry v. Leeke, 488 U.S. 272 , 109 S.Ct. 594 , 102 L.Ed.2d 624 (1989).66

Picard v. Connor, 404 U.S. 270, 275-76 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971).24

Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir.1987). 25,29, 59

Poland v. Stewart, 117 F.3d 1094,1103-04 (9th Cir.1997).76

Porter v. Singletary, 49 F.3d 1483 (11th Cir.1995).29

Richmond v. Lewis, 506 U.S. 40 , 113 S.Ct. 528 , 121 L.Ed.2d 411 (1992). 85,126

Rickman v. Dutton, 854 F.Supp. 1305 (M.D.Tenn.1994) .86

Robison v. Johnson, 151 F.3d 256, 267 (5th Cir.1998) .43

Rose v. Lundy, 455 U.S. 509, 519 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982).24

Ross v. Moffitt, 417 U.S. 600, 609 , 94 S.Ct. 2437 , 41 L.Ed.2d 341 (1974).138

Rust v. Zent, 17 F.3d 155,160 (6th Cir.1994) . 24, 26

Sandstrom v. Montana, 442 U.S. 510, 513 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979).98

Sawyer v. Smith, 497 U.S. 227, 234 , 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990).42

Schlup v. Delo, 513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). 26, 27

Shannon v. United States, 512 U.S. 573, 579-81 , 114 S.Ct. 2419 , 129 L.Ed.2d 459 (1994). 41, 42

Shell v. Mississippi, 498 U.S. 1 , 111 S.Ct. 313 , 112 L.Ed.2d 1 (1990).85

South Carolina v. Gathers, 490 U.S. 805 , 109 S.Ct. 2207 , 104 L.Ed.2d 876 (1989) .103

Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) 57,125-127

*600

Sullivan v. Louisiana, 508 U.S. 275 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993).93

Teague v. Lane, 489 U.S. 288, 297-99 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). 26, 42, 55, 92

Tillett v. Freeman, 868 F.2d 106,108 (3d Cir.1989).22

Turney v. Ohio, 273 U.S. 510, 520 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927). 32, 72

United States v. Grinnell Corp., 384 U.S. 563, 583 , 86 S.Ct. 1698 , 16 L.Ed.2d 778 (1966). 73, 74

Uited States v. Levine, 80 F.3d 129,135 (5th Cir.1996).43

Victor v. Nebraska, 511 U.S. 1 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994).93

Wainwright v. Sykes, 433 U.S. 72, 87-88 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).26

Wainwright v. Witt, 469 U.S. 412, 424-26 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) .103,105

Walton v. Arizona, 497 U.S. 639, 651-52 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990) .61

Westv. Johnson, 92 F.3d 1385 ,1411 n. 47 (5th Cir.1996). 30, 76

Witherspoon v. Illinois, 391 U.S. 510, 521 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968) .103

Wong v. Money, 42 F.3d 313 , 324-26 (6th Cir.1998)....!. 82, 83

Wooden v. State, 1998 WL 511133 at *7 (Tenn.Crim.App. Aug.20,1998).58

Workman v. Bell, 178 F.3d 759, 776-77 (6th Cir.1998). 96,136

Workman v. Tate, 957 F.2d 1339,1345 (6th Cir.1992).127

Wright v. State, 1994 WL 115955 (Tenn.Crim.App. Apr.7,1994).51

Yates v. Evatt, 500 U.S. 391, 401-02 , 111 S.Ct. 1884 , 114 L.Ed.2d 432 (1991). 97, 99

STATE CASES

Adkins v. State, 911 S.W.2d 334 (Tenn.Crim.App.1994).51

Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994).12

Alley v. State, 958 S.W.2d 138 (Tenn.Crim.App.1997). 12, 59, 60,122,125, 127-130,137

Buchanan v. State, 488 S.W.2d 724 (Tenn.1973).52

Burford v. State, 845 S.W.2d 204 (Tenn.1992).62

Carroll v. State, 532 S.W.2d 934, 937 (Tenn.Crim.App.1975) .52

Carter v. State, 952 S.W.2d 417, 420 (Tenn.1997).27

Cone v. State, 927 S.W.2d 579, 581-82 (Tenn.Crim.App.1995). 58, 59

Delbridge v. State, 742 S.W.2d 266, 267 (Tenn.1987).51

Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802 (Tenn.App. Aug.30,1991).50

House v. State, 911 S.W.2d 705, 713-14 (Tenn.1995). 49, 50, 58

Kinsey v. State, 545 So.2d 200, 203 (1989).138

Pryor v. State, 632 S.W.2d 570 (Tenn.Crim.App.1982).52

Roberts v. State, 335 So.2d 285 (Fla.1976).44

Sands v. State, 903 S.W.2d 297 (Tenn.1995) .62

Shell v. State, 554 So.2d 887, 903 (Miss.1989).86

State v. Alley, 776 S.W.2d 506 (Tenn.1989).3, 6, 7, 12, 80-82, 114, 124,138,139

State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978).81

State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997) .115,117

State v. Brown, 836 S.W.2d 530, 543 (1992). 115,119,120

State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn.Crim.App.1993) .115

State v. Hines, 919 S.W.2d 573, 581 (Tenn.1995).91

State v. Lee, 634 S.W.2d 645, 647 (Tenn.Crim.App.1982).52

State v. Williams, 690 S.W.2d 517, 526-27 (1985).86

State v. Wilson, 530 S.W.2d 766, 768-69 (Tenn.1975).51

Stewart v. State, 534 S.W.2d 875 (Tenn.Crim.App.1976).52

Strouth v. State, 755 S.W.2d 819, 822 (Tenn.Crim.App.1986).51

Swanson v. State, 749 S.W.2d 731, 734 (Tenn.1988).55

Wooden v. State, 898 S.W.2d 752, 754 (Tenn.Crim.App.1994).50

*601

Workman v. State, 868 SW.2d 705 (Tenn.Crim.App.1993).51

FEDERAL STATUTES

18 U.S.C. § 1361 . 74, 75

21 U.S.C. § 848 (q).2

28 U.S.C. § 144 .73

28 U.S.C. § 455 . 75

28 U.S.C. § 1913 .142

28 U.S.C. § 1915 .2

28 U.S.C. § 1917 .142

28 U.S.C. § 2251 . 2,143

28 U.S.C. § 2254 . 2, 12, 18, 22

28 U.S.C. § 2254 (a).21

28 U.S.C. § 2254 (b). 23, 24

28 U.S.C. § 2254 (d). 68,105

28 U.S.C. § 2254 (e)(1).106

28 U.S.C. § 2253 (c).140

Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, Title I, § 102, 110 Stat. 1220 (Apr. 24,1996). 2,141

F.R.A.P. 24(a).142,143

Insanity Defense Reform Act, 18 U.S.C. §§ 17 , 4241-4247 . 41

Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915 (b) .142

Rule 4, Rules Governing Section 2254 . 24

Rule 8(a), Rules Governing Section 2254 .140

STATE STATUTES

Tenn.Code Ann. § 33-7-303.40

Tenn.Code Ann. § 39-2-20 .122

Tenn.Code Ann. § 39-2-203©.85

Tenn.Code Ann. § 40-30-102.27

Tenn.Code Ann. § 40-30-102 (1990).50

Tenn.Code Ann. § 40-30-112. 27, 49

Tenn.Code Ann. § 40-30-201. 27, 62

Tenn.Code Ann. § 40-30-202(a).44

Tenn.Code Ann. § 40-30-217(a)(l). 40, 62

Tenn.Code Ann. §§ 40-30-101 to 124.27

OTHER AUTHORITIES

16 Whittier Law Review 645, 666-69 (1995) .44

68 U.S.L.W. 3008 (June 22,1999).48

81 A.L.R.4th 659 .44

Ala. Rules of App. Proc. 39.138

A.

INTRODUCTION

Petitioner, Sedley Alley, is confined as an inmate on death row at the Riverbend. Maximum Security Facility in Nashville, Tennessee. Alley filed a series of motions related to his capital murder conviction and death sentence in the United States District Court for the Middle District of Tennessee. In preparation for filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 , Alley filed a motion for stay of execution under 28 U.S.C. § 2251 , a motion under 28 U.S.C. § 1915 to proceed

in forma pauperis

in filing the habeas petition, an affidavit in support of the § 1915 motion, and an application under 21 U.S.C. § 848 (q) for appointment of counsel to prepare and file a § 2254 habeas petition.

The Middle District Court granted a stay of execution, granted leave to proceed

in forma pauperis,

and transferred the petition to this District. This Court appointed counsel for Alley, and counsel has

*602

filed a habeas petition and two subsequent amendments. The State has filed answers to the petition and both amendments and has filed the complete state court record with the Court. The Court has previously-entered a number of orders, the most significant of which for purposes of this final order are the orders holding inapplicable to this petition Chapter 154 of Title 28 of the United States Code, enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, Title I, § 102, 110 Stat. 1220 (Apr. 24, 1996), and holding applicable to this petition Chapter 153 of Title 28, as amended by the AEDPA.

B.

STATE COURT PROCEDURAL HISTORY

In March of 1987, a Shelby County, Tennessee, Criminal Court jury convicted petitioner of kidnapping, raping, and murdering United States Marine Corps Lance Corporal Suzanne Marie Collins and sentenced him to death by electrocution. The Tennessee Supreme Court affirmed the conviction and sentence.

State v. Alley,

776 S.W.2d 506 (Tenn.1989). A proper consideration of this federal habeas petition requires a detailed recitation of the procedural history in state court, beginning with the facts of the murder itself. The following recitation is taken from the Tennessee Supreme Court’s opinion.

At approximately 10:00 p.m. on 11 July 1985 [Collins] left her barracks dressed in physical training gear, a red Marine T-shirt, red Marine shorts, white socks and tennis shoes and went jogging on the Base, north of Navy Road. Her roommate indicated that the victim had been too busy that day to work out at the gym, which was closed at that time of night. Her body was found the next morning in Orgill Park, which adjoins the Naval Base, north of Navy Road.

Defendant was not in the military service but was married to a military person and they lived on the Naval Base. He was employed by a Millington heating and air conditioning company. He was almost 30 years old, had two children, born of an earlier marriage, living in Kentucky, and had a history of alcohol and substance abuse. After appropriate Miranda warnings defendant waived the presence of an attorney and gave a lengthy statement of his activities that resulted in the death of Suzanne Collins to officers of the Naval Investigating Service on the morning of 12 July 1985. The statement was tape recorded with defendant’s permission. A narrative account of the relevant events of that evening as he related them to the Naval officers follows.

About 7:00 p.m. on 11 July 1985, his wife left with two women to go to a Tupperware party. Defendant had been drinking beer before they left and by approximately 9:00 p.m. he had consumed an additional six-pack and a fifth of wine. At that time he drove his 1972 Mercury station wagon, with a Kentucky license tag to the Mini Mart ánd purchased another six-pack. He was depressed, lonely and unhappy. He had no friends “of his own” here. He missed his two children, his mother and father, all Kentucky residents. He was torn between going to Kentucky, staying where he was, or driving the car into a wall to kill himself. He drove to the north side of the Base, parked on a lot near the golf course and started running toward Navy Lake. He ran past a girl jogging and before he got to the lake he stopped, she caught up with him and they had a brief conversation. He did not know her name and had never seen her before. They turned around and jogged back to his car. He stopped there out of breath, and she continued on toward the gate at Navy Road. He started driving down the road toward that gate in spite of his apparent recognition that he was drunk and weaving from side to side on the roadway. Parenthetically, the asphalt road in that vicinity has narrow lanes, no curb, the grass covered shoulders and nearby ter

*603

rain are approximately level with the roadway. He heard a thump and realized he had struck the girl jogger. Quoting from his statement, “she rolled around and screamed a couple of times and I ran over and grabbed her and told her I was going to take her to the hospital. I helped her into the car and we started towards.... ”

On the way to the hospital defendant said that she called him names such as a drunken bastard and threatened to get him in trouble and he tried to calm her down, without success. When he reached the traffic light on Navy Road near the 7/11 store he turned left and again went to the north part of the Base in the vicinity of the lake. He described in considerable detail the subsequent events, that included hitting her a few times, holding her down on the ground, and sticking a screwdriver in the side of her head, [FN1] under circumstances apparently calculated by defendant to appear to be accidental. All of these actions were because she would not listen to his pleas not to turn him in.

FN1. The forensic pathologist testified that she did not have an injury to her head inflicted in the manner or means described by defendant, nor did she have any injuries that could have been caused by being struck by an automobile.

He insisted that he did not have sex with her at any time, nor did he even try at any time. He insisted that he was scared of the trouble she was threatening him with and was drunk and could not think clearly. After sticking the screwdriver in her head and her collapse, he decided to make it appear that she had been raped. He took off her clothes, and dragged her by the feet over near a tree. There he broke off a tree limb, inserted it in her vagina and “pushed it in.” He then ran to the car and drove away.

The State called numerous witnesses who observed some of the movements of defendant and victim that night.

A Naval officer driving north toward the lake on the Base passed two male Marines jogging north, and later saw a female Marine in red T-shirt and red shorts also jogging north. After passing the lone Marine he saw a white male near an old station wagon with wood paneling that was parked on an empty lot near the buffalo pens. The two Marines testified that as they jogged north a female Marine was jogging south and shortly thereafter they encountered a station wagon with wood grain paneling also going south that swerved over into the north lane towards them. The car continued on southward and when they were several hundred yards further north they heard a female voice screaming in distress, “Don’t touch me”, “Leave me alone.” They immediately turned around and ran south in the direction of the scream. It was too dark to see any activity very far ahead and before they reached the scene they saw the station wagon drive off toward the main gate. At that time they were about 100 yards away and were able to observe that the station wagon was off the road in the grass, near the fence, on the left or wrong side for a vehicle going south. Suspecting a kidnapping they continued on to the gate and gave a full report of what they had witnessed. They accompanied military security personnel on a tour of the residential areas of the Base looking for the station wagon, without success. However, after they returned to their barracks, they were summoned to the security offices where they identified the station wagon. Defendant had been stopped and brought in for questioning as had his wife. Their responses had allayed any suspicion that defendant had been connected with a kidnapping and they were allowed to go home. All of these events occurred before approximately 1:00 a.m.,

12

July 1985. The victim’s body was found shortly before

*604

6:00 a.m. on that date and defendant was promptly arrested by the military police.

After completing the statement, defendant voluntarily accompanied officers over the route he had taken the night before and to the location of the murder and accurately identified various things, including the tree where he had left the body and where it was found by others and from which the limb he used had been broken.

The pathologist, Dr. James Bell, testified that the cause of death was multiple injuries. He also identified several specific injuries, each of which could have been fatal. The victim had bruises and abrasions over her entire body, front and back. He testified that the injuries to the skull could have been inflicted by the rounded end of defendant’s screwdriver that was found near the scene, but not by the pointed end. He identified the tree branch that was inserted into the victim’s body. It measured 31 inches in length and had been inserted into the body more than once, to a depth of twenty inches, causing severe internal injuries and hemorrhaging. The pathologist was of the opinion that the victim was alive when the tree limb was inserted into her body. There were also bruises on the victim’s neck consistent with strangulation.

Id.

at 508-10 .

On October 25, 1985, the Shelby County Grand Jury returned indictments against petitioner on charges of First Degree Murder, Murder During the Perpetration of a Kidnapping, and Murder During the Perpetration of Rape (case number 85-05085), Aggravated Kidnapping (case number 85-05086), and Aggravated Rape (case number 85-05087). State Trial Court Record, Addendum 1 (hereinafter Addendum 1) at 2-11. On October 31, 1985, Shelby County Criminal Court Judge W. Fred Axley arraigned petitioner, found him indigent, appointed the Shelby County Public Defender to represent him, and set a report date for December 5, 1985.

Id.

at 14. On December 5 the defendant, through Edward G. Thompson and Robert Jones of the Public Defender’s Capital Defense Team moved to continue the case for motions and report until January 6, 1986, and requested an extension of time to file pretrial motions. Judge Axley granted this motion.

Id.

at 15. On December 9, 1985, the defendant filed a variety of pre-trial motions.

Id.

at Table of Contents pp. 1-2.

1

On January 6, 1986, Judge Axley granted the defendant’s motion to continue the case for motions and report until January 31, 1986.

Id.

at 15. On January 29, 1986, the defendant’s counsel appeared in open court and made an oral motion to transfer defendant to a hospital for a complete neurological examination to determine if he suffered from brain damage.

Id.

at 19. Judge Axley granted this motion.

Id.

On January 31, 1986, Judge Ax-ley ruled on most of the above pre-trial motions, continued the case for consideration of other motions until February 28,

*605

1986, and scheduled the trial for March 17, 1986.

Id.

at 80-81.

On February 28, 1986, the prosecution filed a Tenn. R.Crim. P. 12.2(a), (b) motion seeking notice of the defendant’s intent to rely on a defense of insanity.

Id.

at 96. That same day, Judge Axley ruled on some of the remaining motions, continued the case until March 5, 1986, for consideration of those motions not then decided, and set a new trial date of April 14, 1986.

Id.

at 97.

On Friday, April 4, 1986, however, the defendant filed a motion seeking a transfer to a hospital for a mental examination.

Id.

at 104; Transcript of Hearing on Transfer Motion, Addendum 2 (hereinafter Addendum 2) at 8. At the request of defense counsel, Judge Axley conducted an

in camera

examination of clinical psychologist Dr. Allen Overton Battle to determine whether to order the defendant’s hospitalization. Addendum 2. On April 2 and 3, 1986, Dr. Battle examined the defendant in the jail, at the request of his attorneys.

Id.

at 20. Dr. Battle testified at the April 4 hearing that he had concerns over whether Alley suffered from multiple personalities and that a temporary commitment at the City of Memphis Hospital was needed to ascertain whether a thirty-day psychiatric evaluation was necessary.

Id.

at 21, 64. Although the prosecution at that hearing requested that Judge Axley deny any continuance of either the trial date or the suppression motions set for that day, Judge Axley expressly found that he could not rule on a motion to suppress the defendant’s confession without resolving whether he was competent at the time he confessed, and that he could not rule on the defendant’s competence without adequate testimony from expert witnesses.

Id.

at 68-69. Judge Axley continued the motion to hospitalize the defendant until the following Monday, April 7, 1986.

Id.

at 69.

On Monday, April 7, Judge Axley entered an order directing a mental evaluation of the defendant to determine his competence to stand trial. Addendum 1 at 105. That afternoon, Judge Axley conducted a hearing on the defendant’s competency. Transcript of Hearing, Addendum 3. The prosecution presented testimony by Dr. Lynne Zager, Ph.D., a clinical psychologist and director of forensic services at the Midtown Mental Health Center.

Id.

at 2-3. Dr. Zager recommended a thirty-day psychiatric evaluation to determine whether the defendant was competent at the time he committed the murder, and Judge Axley ordered the evaluation.

Id.

at 8; Order Directing Transfer for Mental Evaluation, Addendum 1 at 106. Judge Axley continued the case until May 27, 1986, for a hearing to consider the results of the evaluation. Addendum 2 at 10. Judge Axley thereafter twice continued that hearing, first to June 23, 1986, Addendum 1 at 111, and then to September 22, 1986.

Id.

at 112. At the September 22 report date, Judge Axley set the competency hearing for October 3. Transcript of September 22 Pretrial Motions Hearing, Addendum 4 at 20. In the interim, on July 23, 1986, the mental evaluation team from the Tennessee Department of Mental Health and Mental Retardation had filed its report, indicating that the defendant was not then competent to stand trial and that the Department and its experts needed further time to assess whether the defendant was competent at the time he committed the crime. Addendum 1 at 113-16. Dr. Willis Marshall filed a report expressing his opinion that the defendant suffered from multiple personality disorder.

Id.

at 115.

On October 3 and 7, 1986 (a Friday and a Tuesday), Judge Axley presided at a competency hearing.

Id.

at 128, 129, 132; Transcript of Competency Hearing, Addenda 5 & 6. At the conclusion of that hearing, Judge Axley took the issue under advisement until October 24, 1986. While the hearing was recessed, on Monday, October 6, 1986, Judge Axley ordered the Department of Mental Health and Mental

*606

Retardation to provide the Court with a copy of a videotape of a hypnosis session of the defendant conducted by Dr. Battle and of a videotape of each of the sodium amy-tal induced sessions conducted by Dr. Marshall. Addendum 1 at 130. On October 24, 1986, Judge Axley found that the defendant was not then presently competent to stand trial and directed his commitment to the Department for an additional sixty days for further evaluation, setting the next competency hearing for January 9, 1987.

Id

at 135. Judge Axley thereafter continued that hearing twice more, until Monday, February 9, 1987. Transcript of Compentency Hearing, Addendum 7 (hereinafter Addendum 7). Consideration of the prosecution’s motion to review the tape of the hypnosis session consumed that day, and Judge Axley reset the competency hearing itself for the following day, February 10. The hearing eventually consumed all of February lO.and part of February 11. Addendum 7. At the conclusion of the hearing, Judge Axley ruled that the defendant was competent to stand trial. Id at 273-74. He then set the trial for March 2, 1986. Id at 274. At that time, defense counsel raised a possible need for a continuance beyond March 2, but the Court insisted that the case would go to trial on that date. Id at 277-79.

Despite this explicit ruling, and three weeks notice that the trial would definitely proceed, on February 27 defendant’s counsel sought a continuance of the trial. Judge Axley granted a continuance of three working days. Transcript of Hearing on Motion for Continuance. Addendum 8 at 8. On March 2, the defendants made an oral motion in open court for a further continuance. At that hearing Judge Axley specifically noted that most of the expected medical testimony at trial would duplicate, testimony at the three previous competency hearings, and denied the motion. Transcript of Hearing on Motion for Continuance, Addendum 9 at 12-13. On Wednesday, March 4, the Office of the Public Defender filed a motion to withdraw because of an inadequate chance to prepare. Transcript of

Hearing on

Motion to Withdraw, Addendum 10. Judge Axley then announced that the jury would not be selected until Monday, March 9, and that various pre-trial motions would be heard until Thursday, March 5.

Id

at 3^1. Defense counsel then expressed appreciation for not beginning jury selection until the following Monday.

Judge Axley proceeded’ to conduct motion hearings on Thursday and Friday, and began jury selection on Monday, March 9. The trial itself did not begin until Tuesday, March 10. Judge Axley sequestered the jury. Addendum 1 at 201. The trial lasted through Wednesday, March 18, 1987.

Id

at 204-09; Trial Transcript, Addendum 12 (hereinafter Addendum 12) at 1755. The jury began deliberating at 2:15 p.m., Addendum 12 at 1764, and returned a guilty verdict on all three crimes at 4:46 p.m.

Id

at 1766. Judge Axley presided at the sentencing phase of the trial, at which the prosecution presented no evidence but relied on the evidence presented at the guilt phase.

Id

at 1777. The jury retired at 8:46 p.m.

Id

at 1839. At 10:50 p.m. the jury returned with a verdict of death.

Id

at 1841-43. The defendant thereafter filed a new trial motion. On May 11, 1987, Judge Axley denied that motion and sentenced the defendant to two consecutive forty-year sentences on the rape and kidnapping convictions. Alley took an appeal directly to the Tennessee Supreme Court, which affirmed the conviction and sentence.

State v. Alley,

776 S.W.2d 506 (1989),

cert. denied,

493 U.S. 1036 , 110 S.Ct. 758 , 107 L.Ed.2d 775 (1990).

2

Alley thereafter pursued post-conviction remedies through the state court system.

See Alley v. State,

882 S.W.2d 810 (Tenn.Crim.App.1994)(vacating denial of post-conviction petition and remanding for

*607

further proceedings);

Alley v. State,

958 S.W.2d 138 (Tenn.Crim.App.1997),

perm. app. denied,

(Tenn. Sept. 29, 1997). The state courts denied all relief and Alley, through counsel, now brings this petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 .

C.

PETITIONER’S FEDERAL HABEAS CLAIMS

Petitioner brings the following claims:

I.CLAIMS OF JUDICIAL BIAS

Petitioner claims Judge Axley deprived him of due process by failing to conduct the trial fairly and impartially, as evinced by the following actions that demonstrated bias:

1. Judge Axley deprived petitioner of due process by engaging in an undisclosed ex parte conversation with two law students during the trial and expressing an opinion about the likelihood that petitioner would ever actually be put to death. Petition, ¶ 26(a)(1) at 8.

2. Judge Axley deprived petitioner of due process by engaging in an undisclosed ex parte conversation with jurors during trial while they were at a weekend picnic. Petition, ¶ 26(a)(2) at 8; First Amended Petition, ¶ 3 at 2.

3. Judge Axley deprived petitioner of due process by providing legal instructions to the jury during deliberations without the presence of petitioner or his counsel. First Amended Petition, ¶ 4 at 2.

4. Judge Axley deprived petitioner of due process by engaging in undisclosed ex parte contact with members of the victim’s family, who sent him

a) a letter, and

b) a Christmas card. Petition, ¶ 26(a)(3) at 8.

5. Judge Axley deprived petitioner of due process by engaging in ex parte contact through his wife’s sitting in the courtroom with the victim’s family during the trial. Petition, ¶ 26(a)(4) at 9.

6. Judge Axley deprived petitioner of due process by permitting members of the victim’s family to enter a hallway through which access could be had to the judge’s chambers and the jury room. Petition, ¶ 26(a)(5) at 9.

7. Judge Axley deprived petitioner of due process by pressuring mental health professionals to speed up the mental examination of petitioner. Petition, ¶ 26(a)(6) at 9.

8. Judge Axley deprived petitioner of due process by excluding videotapes of the petitioner under hypnosis based on his personal belief in petitioner’s lack of credibility. Petition, ¶ 26(a)(7) at 9.

9. Judge Axley deprived petitioner of due process by demonstrating hostility towards petitioner’s counsel and using profanity. Petition, ¶ 26(a)(8) at 9.

10. Judge Axley deprived petitioner of due process by including false statements in the Rule 12 trial report. Petition, ¶ 26(a)(9) at 9.

11. Judge Axley deprived petitioner of due process by displaying relief at imposing the death penalty. Petition, ¶ 26(b)(1) at 10.

12. Judge Axley deprived petitioner of due process by making comments during the post-conviction proceedings that ultimately resulted in his recusal. Petition, ¶ 26(b)(2) at 10.

13. Judge Axley deprived petitioner of due process by expressing dissatisfaction with the litigation of post-conviction proceedings in other capital cases. Petition, ¶ 26(b)(3) at 10.

II.

CLAIMS OF A DUE PROCESS VIOLATION BASED ON EVI-DENTIARY RULINGS THAT DEPRIVED PETITIONER OF THE RIGHT TO PRESENT A COMPLETE DEFENSE DURING THE GUILT AND PENALTY PHASES OF THE TRIAL

Petitioner claims that Judge Axley deprived him of a fair trial by ruling in

*608

admissible the videotapes of hypnosis sessions conducted by Dr. Battle and sodium amytal interrogation sessions conducted by Dr. Marshal.

1. The exclusion of the tapes undermined petitioner’s fundamental right to present a complete defense of insanity during the guilt phase of the trial. Petition, ¶ 27(a) at 11.

2. The exclusion of the tapes significantly undermined fundamental elements of petitioner’s insanity defense during the guilt phase, depriving him of a fair trial. Petition, ¶ 27(b) at 12.

3. The exclusion of the tapes eliminated the cornerstone of petitioner’s insanity defense during the guilt phase, depriving him of a fair trial. Petition, ¶ 27(c)(6) at 13.

4. Judge Axley excluded the' tapes based on his personal viewpoint of the petitioner’s credibility, thereby interfering with the jury’s role as the judge of the evidence. Petition, ¶ 27(i) at 18.

5. The exclusion of the videotapes during the penalty phase deprived petitioner of evidence of his character and mental state, both of which were admissible as a critical mitigation factor. Petition, ¶ 28(a)(1), (2) at 19-20.

III.UNCONSTITUTIONALLY VAGUE AGGRAVATING CIRCUMSTANCE

Tennessee’s murder statute permits imposition of the death penalty based on an unconstitutionally vague aggravating circumstance: that the murder is “heinous, atrocious or cruel in that it involved torture or depravity of mind.”

1. The definition of the circumstance is facially vague. Petition, ¶ 29(a) at 23.

2. The state trial court used an unconstitutionally vague jury instruction in defining the terms heinous, atrocious, and cruel. Petition, ¶ 29(b) at 23.

IV.

UNCONSTITUTIONAL JURY INSTRUCTIONS ON REASONABLE DOUBT

The trial court gave an unconstitutional jury instruction defining reasonable doubt during the guilt and penalty phases of the trial. Petition, ¶¶ 30, 30(n) at 27, 32.

V.

UNCONSTITUTIONAL JURY INSTRUCTIONS ON MALICE

The trial court gave an unconstitutional jury instruction defining malice during the guilt phase of the trial. Petition, ¶ 31 at 33-34.

VI.

UNCONSTITUTIONAL USE OF VICTIM-IMPACT EVIDENCE

The prosecution deprived petitioner of a fair trial by seeking to persuade the jury to convict and sentence him based on sympathy for the victim and her family instead of on evidence of his guilt, as demonstrated by the following evidence and arguments at trial and sentencing.

1. The trial court permitted the display of an enlarged graduation photograph of the victim during the first two days of trial. Petition, ¶ 32(a)(1) at 35.

2. The prosecutor made opening remarks regarding the victim’s character. Petition, ¶ 32(a)(2) at 35.

3. The victim’s father offered irrelevant testimony regarding her character and background. Petition, ¶ 32(a)(3) at 35.

4. The prosecutor stated during guilt phase closing arguments that the victim and her family deserved justice. Petition, ¶ 32(a)(4), (5) at 35.

5. The prosecutor stated during closing arguments that the jury should put themselves in the shoes of the victim’s family. Petition, ¶ 32(a)(6), (8) at 35-36.

6. The prosecutor stated during closing arguments that the victim’s family had been wronged and the jury should

*609

feel sympathy for them. Petition, ¶ 32(a)(7), (9), (10) at 36.

7. The prosecutor stated during the penalty phase arguments that “I feel like I know” the victim. Petition, ¶ 32(a)(ll) at 36.

VII.

IMPROPER EXCLUSION OF JURORS JARRED AND TODD

Petitioner claims that the trial court erred by excluding jurors Jarred and Todd for cause. Petition, ¶ 34 at 42.

VIII.

WITHHOLDING OF EVIDENCE

The trial court and prosecutor deprived petitioner of due process by withholding evidence of bias and mitigation.

1. Judge Axley deprived petitioner of a fair trial by withholding evidence of his bias. Petition, ¶ 35 at 43.

2. The prosecution withheld mitigating evidence by withholding Dr. Za-ger’s opinion on mitigation. Petition, ¶ 35 at 43.

IX.

UNCONSTITUTIONAL JURY INSTRUCTION ON EFFECT OF VERDICT OF NOT GUILTY BY REASON OF INSANITY

The trial court deprived petitioner of due process by instructing the jury that a not guilty by reason of insanity verdict would result in the petitioner’s automatic detention in a mental facility. Petition, ¶ 36 at 43.

X.

PROSECUTORIAL MISCONDUCT

The prosecution employed improper cross-examination and jury arguments, and presented irrelevant evidence, in violation of the Sixth, Eighth, and Fourteenth Amendments.

1. On cross-examination of petitioner’s brother during the petitioner’s proof at the penalty phase, the prosecution asked whether he knew if petitioner had ever been charged with any crimes in another state, despite a complete lack of evidence that any such charges existed. Petition, ¶¶ 37, 38 at 44.

2. The prosecution’s summation during the penalty phase denigrated mercy and tended to diminish the jury’s responsibility for the death sentence. Petition, ¶ 37 at 44.

3. The prosecutor displayed the victim’s high school graduation photograph, inviting the jury to decide the case on the basis of sympathy for her instead of the evidence of petitioner’s guilt. Petition, ¶ 38 at 44.

XI.

INSUFFICIENT EVIDENCE OF DELIBERATION

There was insufficient evidence of the essential element of deliberation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44.

XII.

INSUFFICIENT EVIDENCE OF PREMEDITATION

There was insufficient evidence of the essential element of premeditation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44.

XIII.

IMPROPER JURY INSTRUCTIONS ON DELIBERATION

The trial court deprived petitioner of a fair trial by delivering jury instructions that misstated the prosecution’s burden of proof on the essential element of deliberation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44.

XIV.

IMPROPER JURY INSTRUCTIONS ON PREMEDITATION

The trial court deprived petitioner of a fair trial by delivering jury instructions that misstated the prosecution’s burden of proof on the essential element of premeditation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44.

*610

XV.

UNCONSTITUTIONAL APPLICATION OF TENNESSEE DEATH PENALTY STATUTE

The Tennessee Death Penalty Statute is unconstitutional as applied to petitioner.

1. The statute requires jury unanimity on mitigating factors. Petition, ¶ 40 at 45.

2. The trial court failed to inform the jury of the effect of a non-unanimous verdict.

Id.

3. The jury instructions shifted the burden of proof to the petitioner to show mitigating circumstances.

Id.

4. The statute requires imposition of a death sentence in the absence of mitigating factors.

Id.

XVI.

ELECTROCUTION IS INHERENTLY CRUEL AND UNUSUAL PUNISHMENT

Petitioner claims that any electrocution automatically violates the Eighth Amendment’s ban on cruel and unusual punishment. Petition, ¶ 41 at 45.

XVII.

PROSECUTORIAL MISCONDUCT DURING VOIR DIRE

Petitioner claims that various remarks by the prosecutor during voir dire diminished the jury’s responsibility for imposing the death penalty, invited jurors to feel sympathy for the victim and her family, referred to unconstitutional aggravating factors, and referred to unconstitutional instructions regarding unanimity in finding mitigating factors. Second Amended Petition, ¶ 44.

XVIII.

DENIAL OF RIGHT TO SIT AT COUNSEL TABLE

Petitioner claims that the requirement that he sit behind counsel, rather than at the counsel table, interfered with his counsel’s ability to represent him. Second Amended Petition, ¶ 45.

XIX.

JURORS’ VIEW OF PETITIONER IN JAIL CLOTHING

Petitioner claims that the jury viewed him in jail clothing, in violation of his right to a fair trial. Second Amended Petition, ¶ 46.

XX.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner presents numerous claims that his trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment.

1. Counsel failed to prepare effectively for trial, in part due to the Judge’s failure to grant a continuance. Petition, ¶ 33(a) at 38.

2. Counsel failed to properly interview and prepare Dr. Battle for presentation of his opinions, causing his testimony to not directly support petitioner’s insanity defense. Petition, ¶ 33(b) at 38.

3. Counsel failed to object to the presentation of victim impact evidence, including the victim’s graduation photograph and questions about the victim. Petition, ¶ 33(c) at 38-39.

4. Counsel on direct appeal of the conviction failed to raise a claim that references to the victim and her family in the prosecutor’s closing arguments deprived petitioner of a fair trial. Petition, ¶ 33(c) at 38-39.

5. Counsel failed to seek recusal of the trial judge despite evidence of bias. Petition, ¶ 33(d) at 39.

6. Counsel failed by not properly cross-examining the prosecution’s expert medical witnesses so as to demonstrate that:

a) petitioner was insane;

b) mitigating evidence existed; and

c) each expert’s opinion failed to consider relevant medical evidence, including records of petitioner’s medical history. Petition, ¶ 33(e) at 39.

*611

7. Counsel failed to have Dr. Wyatt Nichols evaluate petitioner for purposes of eliciting mitigating evidence. Petition, ¶ 33(f) at 39.

8. Counsel failed to investigate and present medical evidence that petitioner’s mental health problems supported both his defense and that mitigating circumstances existed. Petition, ¶ 33(g) at 39-40.

9. Counsel failed to investigate and present medical evidence to establish that petitioner’s genetic disorders supported both his defense and the existence of mitigating circumstances. Petition, ¶ 33(h) at 40.

10. Counsel failed to investigate and present medical evidence to establish that petitioner has suffered brain damage, thus supporting both his defense and the existence of mitigating circumstances. Petition, ¶ 33(i) at 40.

11. Counsel failed to investigate and present evidence of the urethral dilation medical procedure performed on petitioner as a child, which would have supported both his defense and the existence of mitigating circumstances. Petition, ¶ 33(j) at 41.

12. Counsel failed to investigate and present during the penalty phase testimony from Dr. Lynn Zager as to the existence of mitigating circumstances. Petition, ¶ 33(k) at 41.

13. Counsel failed to present all available mitigating evidence during the penalty phase. Petition, ¶ 33(2) at 41.

14. Counsel failed to make a forceful closing argument at the close of the penalty phase. Petition, ¶ 33(2) at 41.

15. Counsel failed to object to cross-examination of the defendant’s brother regarding non-existent prior criminal charges. Petition, ¶ 33(m) at 41.

16. Counsel failed to object to the Court’s instructions on reasonable doubt during either the guilt or penalty phases of the trial. Petition, ¶ 33(n) at 41.

17. Counsel failed to object to the Court’s instructions on malice. Petition, ¶ 33(o) at 41.

18. Counsel failed to raise a defense that the State did not adduce sufficient evidence to establish the essential elements of premeditation and deliberation. Petition, ¶ 33(p) at 41.

19. Counsel failed to object to the exclusion for cause of juror Jarred. Petition, ¶ 33(q) at 41.

20. Counsel failed to raise on direct appeal the unconstitutionality of the prosecution’s closing arguments. Petition, ¶ 33(r) at 42.

21. Counsel failed to object to the prosecutor’s closing arguments that denigrated mercy and diminished the jury’s responsibility for imposing the death sentence. Petition, ¶ 33(s) at 42.

22. Counsel failed to object to the unconstitutionality of penalty phase instructions. Petition, ¶ 33(t) at 42.

23. Counsel failed to obtain all appropriate experts for the presentation of a defense at the guilt phase. Petition, ¶ 33(u) at 42.

24. Counsel failed to obtain all appropriate experts for the presentation of mitigating circumstances at the penalty phase. Petition, ¶ 33(u) at 42.

25. Counsel failed to challenge the constitutionality of the Tennessee Death Penalty Statute as applied to petitioner. Petition, ¶ 33(v) at 42.

26. Counsel failed to object to the Tennessee Supreme Court’s improper characterization of Dr. Marshall’s testimony on direct appeal. Petition, ¶ 33(w) at 42.

27. Counsel failed to raise any and all issues presented in this petition on direct appeal or in post-conviction proceedings. Petition, ¶ 33(x) at 42.

28. Counsel failed to object to the petitioner’s being dressed in jail

*612

clothes in the presence of the jury. Second Amended Petition, ¶ 46.

D.

ANALYSIS OF THE MERITS

I.

Claims Not Cognizable In Federal Habeas

Under 28 U.S.C. § 2254 (a), a district court may entertain “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court

only

on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (emphasis added). The threshold question in any federal habeas petition, therefore, is whether the petition even raises such claims.

See, e.g., Tillett v. Freeman, 868

F.2d 106, 108 (3d Cir.1989);

Martin v. Solem,

801 F.2d 324, 331 (8th Cir.1986);

Nelson v. Solem,

714 F.2d 57 , 60 n. 2 (8th Cir.1983);

Hall v. Iowa,

705 F.2d 283, 287 (8th Cir.1983). Claims 1.12 (Petition, ¶ 26(b)(2)) and 1.13 (¶ 26(b)(3)) relate only to the trial judge’s conduct related to the first post-conviction proceeding. Error committed during the state post-conviction proceedings cannot provide a basis for federal habeas relief.

[T]he writ [of habeas corpus] is not the proper means by which prisoners should challenge errors or deficiencies in state post-conviction proceedings such as [petitioner] claims here because the claims address collateral matters and not the underlying state conviction giving rise to the prisoner’s incarceration.

Kirby v. Dutton,

794 F.2d 245, 247 (6th Cir.1986). To the extent that petitioner is now attempting to contend that the judge’s comments during the post-conviction proceedings somehow support a claim of bias during the original trial, his contention is utterly frivolous and without foundation. Petitioner points to nothing in the five-thousand-plus page state court record to connect Judge Axley’s isolated comments during state post-conviction proceedings with the manner in which he conducted the original trial. Furthermore, expressions of impatience with the necessity of conducting post-conviction proceedings, after a presumptively valid state court trial and a presumptively valid conviction that has been upheld on direct appeal including a denial of certiorari by the United Supreme Court, provide no support for a contention that the trial judge’s conduct of that original criminal proceeding was not above board and completely impartial.

See Ortiz v. Stewart,

149 F.3d 923, 939 (9th Cir.1998). This contention is a frivolous attempt to create an issue where none exists, and is utterly devoid of even arguable merit as a claim for federal habeas relief. Accordingly, claims 1.12 (Petition, ¶ 26(b)(2)) and 1.13 (Petition, ¶ 26(b)(3)) are not cognizable claims for relief under § 2254(a).

Similarly, to the extent that claim XX.27 (Petition, ¶ 33(x)) should be construed as contending that petitioner’s state post-conviction counsel provided ineffective assistance, he has no claim because there is no right to effective assistance of counsel during state collateral proceedings.

Coleman v. Thompson,

501 U.S. 722, 752 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).

II.

Analysis Of Procedurally Defaulted Claims

A.

Legal Standard for Procedural Default

Twenty-eight U.S.C. § 2254(b) states, in pertinent part:

(b)(1) An application for a writ of habe-as corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

*613

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

Thus, a habeas petitioner must first exhaust available state remedies before requesting relief under § 2254.

See, e.g., Granberry v. Greer,

481 U.S. 129, 133-34 , 107 S.Ct. 1671 , 95 L.Ed.2d 119 (1987);

Rose v. Lundy,

455 U.S. 509, 519 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982); Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. A petitioner has failed to exhaust his available state remedies if he has the opportunity to raise his claim by any available state procedure.

Preiser v. Rodriguez,

411 U.S. 475, 477, 489-90 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973).

To exhaust these state remedies, the applicant must have presented the very issue on which he seeks relief from the federal courts to the courts of the state that he claims is wrongfully confining him.

Picard v. Connor,

404 U.S. 270, 275-76 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971);

Rust v. Zent,

17 F.3d 155, 160 (6th Cir.1994). “[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief.”

Gray v. Netherland,

518 U.S. 152, 162-63 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996) (citing

Picard,

404 U.S. at 271 , 92 S.Ct. 509 ).

“

‘[T]he substance of a federal habeas corpus claim must first be presented to the state courts.’ ”

Gray,

518 U.S. at 163 , 116 S.Ct. 2074 (quoting

Picard,

404 U.S. at 278 , 92 S.Ct. 509 ). A habeas petitioner does not satisfy the exhaustion requirement of 28 U.S.C. § 2254 (b) “by presenting the state courts only with the facts necessary to state a claim for relief.”

Gray,

518 U.S. at 163 , 116 S.Ct. 2074 .

Conversely, “[i]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance’ of such a claim to a state court.”

Id.

When a petitioner raises different factual issues under the same legal theory he is required to present each factual claim to the highest state court in order to exhaust his state remedies.

See O’Sullivan v. Boerckel,

526 U.S. 838 , 119 S.Ct. 1728, 1732-33 , 144 L.Ed.2d 1 (1999) (holding that exhaustion requirement mandates presentation of all claims to state court through discretionary review process).

See also Pillette v. Foltz,

824 F.2d 494, 497-98 (6th Cir.1987). He has not exhausted his state remedies if he has merely presented a particular legal theory to the courts, without presenting each factual claim.

Pillette,

824 F.2d at 497-98 . The claims must be presented to the state courts as a matter of federal law. “It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.”

Anderson v. Harless,

459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982);

Duncan v. Henry,

513 U.S. 364, 366 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995) (“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”).

Cf. Gray,

518 U.S. at 163 , 116 S.Ct. 2074 .

Moreover, the state court must address the merits of those claims.

Coleman,

501 U.S. at 734-35 , 111 S.Ct. 2546 . If the state court decides those claims on an adequate and independent state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, the petitioner is barred by this procedural default from seeking federal habeas review, unless he can show cause and prejudice for that default.

See Wainwright v. Sykes,

433 U.S. 72, 87-88 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).

When a petitioner’s claims have never been actually presented to the state courts but a state procedural rule prohibits the state court from extending further con

*614

sideration to them, the claims are deemed exhausted, but proeedurally barred.

Coleman,

501 U.S. at 752-53 , 111 S.Ct. 2546 ;

Teague v. Lane,

489 U.S. 288, 297-99 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989);

Wainwright v. Sykes,

433 U.S. at 87-88 , 97 S.Ct. 2497 ;

Rust,

17 F.3d at 160 .

A petitioner confronted with either variety of' procedural default must show cause and prejudice for the default in order to obtain federal court review of his claim.

Teague,

489 U.S. at 297-99 , 109 S.Ct. 1060 ;

Wainwright v. Sykes,

433 U.S. at 87-88 , 97 S.Ct. 2497 . Cause for a procedural default depends on some “objective factor external to the defense” that interfered with the petitioner’s efforts to comply with the procedural rule.

Coleman,

501 U.S. at 752-53 , 111 S.Ct. 2546 ;

Murray v. Carrier,

477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).

A petitioner may avoid the procedural bar, and the necessity of showing cause and prejudice, by demonstrating “that failure to consider „ the claims will result in a fundamental miscarriage of justice.”

Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 . The petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime.”

Schlup v. Delo,

513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995) (quoting

Murray,

477 U.S. at 496 , 106 S.Ct. 2639 ). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.”

Schlup,

513 U.S. at 327 , 115 S.Ct. 851 .

Tennessee’s post-conviction statute specifies types of procedural default that may bar the state court from reviewing the merits of a constitutional claim. The conduct of petitioner’s post-conviction proceedings were governed by Tennessee’s original post-conviction statute, since replaced.

See

Tenn.Code Ann. §§ 40-30-101 to 124. A three year statute-of-limitations governed the filing of petitions under that statute.

Id.

at § 40-30-102. It also enunciated a standard by which state courts were to determine whether to consider the merits of. post-conviction claims.

Id.

at 40-30-112.

3

On May 10, 1995, however, Tennessee replaced the three-year statute in Tenn. Code Ann. § 40-30-102 with the one-year statute in Tenn.Code Ann. § 40-30-201. In

Carter v. State,

952 S.W.2d 417, 420 (Tenn.1997), the Tennessee Supreme Court interpreted the statute of limitations as not reviving previously barred claims. The Sixth Circuit has previously upheld the dismissal of a Tennessee prisoner’s habeas petition as- barred by a procedural default caused by failing to file within the Tennessee statute of limitations on post-conviction relief.

Hannah v. Conley,

49 F.3d 1193, 1194-95 (6th Cir.1995) (construing first statute and stating “the language of Tenn.Code Ann. § 40-30-102 is mandatory.”). In this case, petitioner’s right to file any further state post-conviction petition is barred .by the new one-year statute of limitations.

B.

Specific Proeedurally Defaulted Claims

1.

Judicial Bias

The Court examines each of petitioner’s claims in turn for procedural default. Regarding his claims of judicial bias, petitioner has never presented claims 1.1 (¶ 26(a)(1)), 1.2 (¶ 26(a)(2)), 1.3 (First Amended Petition, ¶ 4), 1.4(b) (¶ 26(a)(3)),

*615

1.8 (¶ 26(a)(7)), 1.9 (¶ 26(a)(8)), or Ill (¶ 26(b)(1)) to the Tennessee courts.

Petitioner attempts to avoid this procedural default by the strident assertion that a habeas petitioner need not demonstrate cause because

1) many related specific allegations of bias have already been presented to the state courts,

2) “a claim of judicial bias by its very nature cannot be barred by judicial review”,

3) defendants are not required to police the judiciary,

4) Judge Axley was affirmatively obliged to recuse himself, and

5) petitioner could not reasonably have discovered the supporting facts any sooner.

Petitioner’s Reply to Respondent’s Answer at 37-39 (hereinafter Petitioner’s Reply). None of these contentions has any merit.

Insofar as petitioner contends that related allegations have previously been raised in state court, his-position is patently without merit in light of

Gray,

518 U.S. at 163 , 116 S.Ct. 2074 , and

Pillette,

824 F.2d at 497-98 . Petitioner is obliged to present each of his factual and legal claims to the state courts. His failure bars federal review absent a showing of cause and prejudice.

Petitioner’s second contention is grammatically incomprehensible. The issue here is not whether a claim is “barred by judicial review” but whether it will not be reviewed at all because of a prior procedural default. Insofar as he is attempting to argue that the cause and prejudice framework of § 2254(b) and

Wainwright v. Sykes

and its progeny can never be applicable to a claim of judicial bias, his own citation of

Porter, v. Singletary,

49 F.3d 1483 (11th Cir.1995), belies this contention.

4

The United States Court of Appeals for the Eleventh Circuit not only engaged in a cause and prejudice analysis in

Porter ,

it specifically remanded to provide an opportunity for the petitioner to demonstrate cause.

See also West v. Johnson,

92 F.3d 1385 , 1411 n. 47 (5th Cir.1996),

cert. denied,

520 U.S. 1242 , 117 S.Ct. 1847 , 137 L.Ed.2d 1050 (1997)(applying cause and prejudice analysis to judicial bias claim and holding claim proeedurally barred). Petitioner’s factual presentation here, however, does not' begin to approach the facts alleged in

Porter .

This contention is closely related to petitioner’s next two arguments—that the presumption of judicial impartiality precludes availability of evidence before federal ha-beas review and that a judge is obliged to recuse himself. Each of these contentions is sheer and disingenuous sophistry.

Virtually from the moment petitioner was convicted, through the direct appeal and throughout the state post-conviction process, petitioner has sought to shift the focus of this case from his own culpability to the conduct of the trial judge. This campaign, which borders on the unethical in its use of distorted legal arguments and slanted factual presenta

*616

tions, has attempted to divert this court’s focus from the issue at hand: the validity of the state court’s resolution of petitioner’s constitutional claims. Despite these efforts, petitioner has not developed any support for this baseless claim. The issue is not, however, whether a judge is required

vel non

to recuse himself. The issue is whether petitioner can raise a claim of judicial bias for the first time on federal habeas review, without ever bothering to develop the facts in state court. Petitioner’s contention that the allegations in this case are so serious as to excuse a procedural default do not withstand reasoned analysis.

Petitioner’s contention that a presumption of judicial impartiality prevented him from developing facts to support this claim in state court is baseless. In essence, this argument would carve out a judicial bias exception to both the exhaustion requirement and procedural default jurisprudence. Nothing in the jurisprudence of either concept, however, supports such an exception.

Petitioner’s argument that a judge has an inherent obligation to recuse himself if biased does not support his claim here, because he has not demonstrated either bias or cause for his procedural default. Thus, petitioner’s citation of

Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 , 100 S.Ct. 1610 , 64 L.Ed.2d 182 (1980);

5

In re Murchison,

349 U.S. 133, 134 , 76 S.Ct. 623 , 99 L.Ed. 942 (1955);

6

Tumey v. Ohio,

273 U.S. 510, 520 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927),

7

and

Knapp v. Kinsey,

232 F.2d 458, 461-62 (6th Cir.1956),

8

are ali completely inapposite.

Given petitioner’s view that he need not demonstrate cause and prejudice, it is not surprising that his factual presentation completely neglects the requirement of cause. More damaging to his claim, however, is his failure to provide any support for it apart from pejorative mischaracteri-zations of the record, thus dooming any argument that “prejudice” exists for his procedural default. Thus, the contention that he could not have reasonably developed the facts sooner cannot legally constitute “cause” because the “facts” he has developed do not amount to a claim of bias in any event.

Thus, the very description of the judge’s conversation with two law school students

*617

as an “ex parte” contact is duplicitous and misleading. “Ex parte” by definition is a contact with

another party,

not a private student observer.

Black’s Law Dictionary 5th Ed.

at 517. Accordingly, this allegation has never provided any support for a constitutional claim of judicial bias based on ex

parte

contact. Nor does it support a view that the judge was in fact biased and therefore should have recused himself. Accordingly, this allegation does not support a claim of prejudice.

The allegation that Judge Axley made an intemperate reference to petitioner and the improbability that he would ever actually be executed can hardly be considered evidence of bias. Notably, although petitioner’s counsel has chosen to downplay this critical fact, Judge Axley allegedly made the comment

AFTER

the jury returned its verdict of guilt, when a presumption of innocence no longer attaches. Thus, counsel’s reliance on

Porter v. Singletary

is clearly misplaced. Petitioner’s equating the express announcement of a predisposition by the judge in

Porter

with Judge Axley’s statement by describing the

Poster

analysis as “the precise situation here,” Petitioner’s Reply at 38, simply misconstrues both

Porter

and the facts in this case.

Furthermore, when one considers that at the time of Judge Axley’s comment NO ONE in the State of Tennessee had been executed since 1961, and that no execution has been carried out since petitioner’s trial, his remark reduces merely to a prescient commentary on Tennessee’s criminal justice system. There is no constitutional prohibition on a criminal court judge holding or propounding a jurisprudential view in favor of capital punishment or the enforcement of laws providing for capital punishment. This claim has no foundation whatsoever in law.-

The attempt to transmogrify Judge Axley’s casual conversations with two law students into a scheme of illicit cooperation with the prosecutor’s office because one of the students was also serving as an intern in that office is simply reprehensible. The affidavit provided by the former student, Craig Morton, who is now an attorney, merely indicates that he was invited to watch the trial, that he spoke with Judge Axley in his chambers during the trial, and that he did “not recall specifically what was discussed_” Exh. 4 to Petitioner’s Memorandum in Support of Motion for an Evidentiary Hearing. This is not evidence that Judge Axley took any action during the trial at the instigation of this

observer.

Furthermore, a law student acting as an

intern

is not the equivalent of a prosecutor or other employee with some interest in the prosecution’s obtaining a guilty verdict or a death sentence. Notably, neither student performed any work for Judge Axley during the trial. Nor is there any allegation that Mr. Morton performed any work for the prosecutor’s office on

this

case.

9

This claim does not support a claim that petitioner’s trial was unfair because of judicial bias. Accordingly, the contention that these claims can be considered despite a clear procedural default is devoid of even arguable merit.

Accordingly, petitioner’s contention that he has demonstrated judicial bias of such a degree that he need not demonstrate cause and prejudice is devoid of arguable merit.

Similarly, claim 1.4(b), that the Judge received a Christmas card from the victim’s family, is not, contrary to petitioner’s hyperbole, evidence of bias. First, judicial bias must consist of actions by the

*618

judge, not third parties. More importantly, petitioner does not even allege

when

the card was received, whether during or after the trial, or, if after, then how long after. The contention that Judge Axley was absolutely obliged to reveal if he received the Christmas card is also devoid of merit. Again, this is yet another example of counsel’s attempt to fabricate a claim where none exists. Petitioner’s claim that he should be able to raise this claim initially on federal habeas review is frivolous.

Claim 1.3 (First Amended Petition, ¶ 3), that Judge Axley gave private instructions to the jurors, is completely unsupported by any affidavit, citation to the record, or other proof of any sort. Petitioner does not allege the content of the instruction, Accordingly, the contention that this claim can be presented despite an obvious procedural default is without merit.

Claim 1.2 (¶ 26(a)(2)), that Judge Axley met with the jurors at a picnic, is another attempt to twist an innocent event into judicial misconduct. The hearsay related in the affidavit of petitioner’s counsel’s investigator does not even allege with any certainty where the contact occurred. Exh. 1 to Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for Discovery. It does clearly allege that it occurred over a weekend, and thus not during the jury’s deliberations.

Id.

The only allegation is that the judge was checking on whether the Court’s deputies had properly provided for the welfare of the sequestered jury over the weekend. There is no allegation that the judge said anything about the case, and no allegation that any juror said anything to him.

10

This contact was

not

improper and was not an action of the type to cause any reasonable person to suspect that the judge was biased against petitioner.

Finally, petitioner attempts to demonstrate cause by contending that the facts could not be discovered prior to federal habeas review. The reason the “facts” were not discovered sooner is because petitioner’s post-conviction counsel did not look. Unlike

Porter ,

in which a key fact was not uncovered until a court officer revealed a theretofore undiscoverable conversation with the judge, the alleged contact between the judge and jury could easily have been discovered by post-conviction counsel’s interviewing jurors during the state post-conviction process.

11

As already noted, judicial bias has been the petitioner’s watchword ever since he was convicted. That he should neglect to uncover everything to support this claim can hardly be the external cause for procedural default required under

Wainwright v. Sykes. See, e.g., Coleman,

501 U.S. at 752, 111 S.Ct. 2546 . More significant is that ten years of effort since the jury’s verdict have produced nothing more on this issue than the frivolous claims presented in this petition.

12

2.

Proeedurally Defaulted Claims of Withholding of Evidence

Petitioner never raised in the state courts claims VIII.l (Petition, ¶ 35) or VIII.2 (Petition, ¶35) — that the prosecu

*619

tion withheld exculpatory material consisting of evidence of Judge Axley’s bias and Dr. Zager’s opinion on mitigation. These claims are, therefore, proeedurally defaulted. Petitioner in essence relies on the same arguments rejected,

supra,

for failing to raise these claims in state court.

The Court reiterates that Alley has completely failed even to allege any acts of bias by Judge Axley that would have triggered a duty by the prosecution to disclose them to the defense. Furthermore, the letter from the victim’s father to Judge Axley, which petitioner contends should have been disclosed during trial, was disclosed during the post-conviction process. Petitioner, therefore, clearly had an opportunity to raise a claim that the prosecution’s nondisclosure of this letter constituted the withholding of exculpatory evidence as prohibited by

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).

The contention that the prosecution withheld evidence that Dr. Zager had developed an opinion on mitigation is devoid of merit. Petitioner states in his reply to the respondent’s answer that:

As to the withholding of evidence concerning Dr. Zager’s opinions about mitigation, a hearing on this matter is necessary, as Dr. Zager refused to testify at the post-conviction hearing, and has likewise refused to discuss the substance of her views with federal counsel.

Reply Brief at 126. This statement flagrantly misrepresents the 'record of the post-conviction hearing. First, Dr. Zager unquestionably testified at the post-conviction hearing.

See

Addendum 29, Vol. 7 at 99-143. At that hearing, petitioner’s post-conviction counsel attempted to elicit expert testimony concerning possible mitigating evidence that should have been used by petitioner’s original trial counsel. Dr. Zager made it clear that she had been employed to explore two issues: petitioner’s mental competency to stand trial and his mental condition at the tune of the offense.

Id.

at 123 . Counsel then inquired:

Q: But you had, despite that, formulated certain opinions about causation which were not involved in the order that you were given?

A: Hypotheses.

Q: Okay.... But the hypotheses you formulated was not a part of your evaluation, per se?

A: I would say they were.

Q: Did you in your evaluation express your belief that the events in his youth caused him to commit the act he did?

A: I can’t say exactly what caused the behavior at the time. I can’t. But, yes, I did take that into serious account, what happened to him as a youth and his medical problems from a psychological perspective. I did take that into account in terms of what his mental condition at the time the offense is said to have occurred. I took that into account and I shared that with the people— other mental health professionals and with attorneys.... Meaning both the prosecution and the defense .... I generally share information with both sides.

******

Q: Would you state for us, having reviewed Sedley Alley’s case, what factors you would consider mitigating as you understand it today involving the crime and his youth?

A: I can’t do that. I cannot do that right now. I am not prepared to do that.

Q: What would it-

A: It’s a totally different kind of thing than what I prepared to do in this case and I really can’t do that.

Q: What would it take to get you prepared to do that?

*620

A: Probably a court order and some time to do it.

* * * * * H:

Q: Let me ask you to assume for purposes of this question that the ramifications of the Department of Health and all of that have been worked out and you’ve got an order that says, Dr. Zager, look at this case with mitigation; could you do that, and then come back in here and testify as to mitigating factors?

A: Yes.

Id.

at 125-26, 126, 128-29, 130 . From this excerpt it is quite clear that Dr. Zager did not “refuse to testify.” Instead, based on her expertise, she expressed an inability to render the opinion counsel sought to elicit. Clearly, this testimony does not support any claim that any exculpatory evidence even exists, much less that the prosecution has withheld it. Accordingly, petitioner’s argument that his procedural default of this issue should be excused because the supporting evidence was not discoverable until the federal habeas proceeding completely lacks any foundation in fact, and is devoid of even arguable legal merit.

3.

Improper Jury Instructions

Petitioner has never presented to the state courts claim IX (Petition, ¶ 36), that the trial court deprived petitioner of due process by instructing the jury regarding the effect of a verdict of not guilty by reason of insanity. The trial court instructed the jury as follows:

Pursuant to Tennessee Code Annotated Section 33-7-303, the Court further instructs you that a finding of not guilty by reason of insanity at the time the defendant committed the offense shall result in automatic detention of the person so acquitted in a mental hospital or treatment center pending further proceedings.

Jury Instructions, Addendum 13 (hereinafter Addendum 13) at 1870. Petitioner contends that this instruction deprived him of due process by inviting the jury to convict him on the basis of something other than the evidence, and by encouraging them to convict rather than acquit.

Petitioner suggests that his procedural default of this claim could be cured by dismissal of this claim alone without prejudice to permit exhaustion of state court remedies. He suggests that because the claim is based on well-settled federal law but is a new rule in Tennessee, it could be raised under Tenn.Code Ann. § 40-30-217(a)(1) as a “claim based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial,

if retrospective application of that right

is required.” This contention grossly mis-characterizes federal law, and also misinterprets § 40-30-217(a)(l).

Petitioner contends that in light of

Shannon v. United States,

512 U.S. 573, 579-81 , 114 S.Ct. 2419 , 129 L.Ed.2d 459 (1994), this instruction is unconstitutional because the jury should not be concerned with the results of a verdict. Petitioner’s reliance on

Shannon

is misplaced, both because

Shannon

enunciates a rule of federal criminal practice, not a universally applicable constitutional requirement, and because petitioner completely misconstrues the holding and its significance.

Shannon

dealt with a contention that the defendant has an absolute right to the instruction — the exact opposite of the proposition advanced by petitioner in this case.

Shannon

construed the requirements of the federal Insanity Defense Reform Act, 18 U.S.C. §§ 17 , 4241-4247 (IDRA), which applies in

federal

criminal prosecutions, as not

requiring

the instruction, and then considered whether, as an exercise of supervisory power over the federal courts, to require federal courts to give such an instruction. 512 U.S. at 584-85 , 114 S.Ct. 2419 . Significantly, far from absolutely prohibiting the requested instruction, the Court merely rejected any

absolute

right of a federal defendant to demand such an instruction.

Id.

at 586 ,

*621

114 S.Ct. 2419 . While disparaging the federal defendant’s characterization of the instruction as salutary, however, the Court explicitly recognized that it might be

necessary

under some circumstances.

Id.

at 587-88 , 114 S.Ct. 2419 .

Petitioner’s method of transmogrifying Shannon’s holding into a ukase prohibiting the Tennessee instruction is difficult to unravel. Actually, far from being a well-settled rule grounded in clear federal law, this claim would require the Court to invent a whole new constitutional rule. That result would be barred, of course, by the non-retroactivity prohibition of

Teague,

489 U.S. at 310 , 109 S.Ct. 1060 .

Teague

held that “[ujnless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U.S. at 310, 109 S.Ct. 1060 . The court recognized two exceptions:

First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.

489 U.S. at 307, 109 S.Ct. 1060 (citations and quotation marks omitted). In

Sawyer v. Smith,

497 U.S. 227, 234 , 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990), the Supreme Court reaffirmed

Teague

and explained that “new rules” are those that “were not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” 497 U.S. at 234, 110 S.Ct. 2822 (citing

Teague,

489 U.S. at 301 , 109 S.Ct. 1060 ).

See also Lyons v. Stovall,

188 F.3d 327, 340 (6th Cir.1999)(applying

Teague sua sponte

and noting that “a legal ruling sought by a federal habeas petition will be deemed ‘new’ as long as the correctness of the rule is susceptible to debate among reasonable minds”).

13

The proposition proposed by petitioner is certainly not settled, even as a matter of federal court interpretation of the IDRA. In

Robison v. Johnson,

151 F.3d 256, 267 (5th Cir.1998), the death-sentenced petitioner raised a claim based on

Shannon v. United States

that Texas Code of Criminal Procedure article 46.031(e), which

prohibited

the'accused from informing the jury of the consequences of a not-guilty-by-reason-of-insanity verdict, violated due process by making it more likely that the jury would convict rather than permit him to escape responsibility, the result the prosecution argued would occur if the jury failed to convict. The Fifth Circuit rejected this claim, holding that the trial court properly instructed the jury not to consider the effect of a not guilty verdict,

curing the impression created by the prosecution’s argument that he would be released.

That is, the defendant sought to obtain a jury instruction making it clear that a not-guilty-by-insanity verdict

would

keep him hospitalized. The Court cited no federal case law recognizing that Robison’s counsel was seeking to

reverse

an established federal constitutional right.

United States v. Levine,

80 F.3d 129, 135 (5th Cir.1996), also undercuts petitioner’s argument that federal law is settled. Levine adopted an insanity defense to a federal robbery indictment, and the prosecutor argued that he would go free unless found guilty. Defense counsel sought and obtained an instruction that a not guilty by insanity verdict would result in the defendant’s commitment for treatment under federal law. If, as petitioner argues, this instruction violates the Constitution, both

Levine

and

Shannon

make no sense.

Furthermore, states other than Tennessee affirmatively require such instructions.

See, e.g., Roberts v. State,

335 So.2d 285 (Fla.1976)(adopting requirement that in

*622

struction be given in Florida).

See also

Note, “The Not Guilty By Reason of Insanity Verdict: Should Juries Be Informed Of Its Consequences?” 16 Whittier Law Review 645, 666-69 (1995)(discussing varied approach of federal appellate courts to instruction); Fleming, “Instructions in State Criminal Case in Which Defendant Pleads Insanity as to Hospital Confinement in Event of Acquittal” 81 A.L.R.4th 659 § 3 (1990)(compiling jurisdictions and cases using instruction). Accordingly, petitioner cannot prevail on his contention that this is a well-settled but new federal rule that would entitle him to reopen his Tennessee post-conviction proceeding, thus requiring dismissal of his claim without prejudice.

As the claim is not exhausted and could not provide a basis for reopening petitioner’s state court post-conviction proceeding, further presentation of this claim is barred both by Tennessee’s post-conviction statute of limitations in Tenn.Code Ann. § 40-30-202(a) and by the one-petition rule of § 40-30-202(c). Petitioner does, not even attempt to demonstrate cause and prejudice for this procedural default. Furthermore, the claim is clearly barred under

Teague .

Accordingly, this claim is without merit.

14

4.

Caldwell Error

Petitioner contends in claim X.2 (Petition, ¶ 37), that the prosecution’s closing argument violated the Eighth Amendment. In

Caldwell v. Mississippi

472 U.S. 320, 328-29 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), the prosecution violated the Eighth Amendment by arguing that the jurors should not view themselves as personally responsible for a defendant’s execution because their verdict was subject to appellate review. The Supreme Court in

Caldwell

held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Petitioner contends that certain comments during the prosecution’s rebuttal on closing argument for the sentencing hearing both denigrated mercy and diminished the jury’s responsibility for imposing the death penalty, in violation of the Eighth Amendment.

Petitioner’s brief on appeal from the denial of the post-conviction petition contended, without actually citing

Caldwell,

that a portion of the prosecution’s closing argument diminished the jury’s responsibility for imposing the death sentence. Petitioner’s Post-Conviction Brief on Appeal, Addendum 30 (hereinafter Addendum 30) at 49. The petitioner’s brief quoted the following argument, which is also set forth in the transcript of the State’s rebuttal on closing argument at the sentencing hearing, filed as Exhibit 28 to the post-conviction hearing:

If Suzanne Marie Collins chooses to forgive this man, if Suzanne Marie Collins chooses to have mercy, that is her right. That is not your right; that is not my right. That is not the right of the State of Tennessee.... So, no matter what your individual inclination may be to mercy, don’t confuse your individual rights to forgive, to grant mercy. Don’t take over Suzanne Marie Collins’ right. You are here to represent the people of the State of Tennessee, civilization and the State of Tennessee and you must act on behalf of those people.

Addendum 30 at 49.

15

The State responded by citing

Caldwell

as not prohibiting

*623

the argument. State’s PosNConviction Brief on Appeal, Addendum 31 at 70. The Tennessee Court of Criminal Appeals held that petitioner waived the claim by failing to present it on direct appeal.

Alley,

958 S.W.2d 138, 153 . The Court also, however, concluded that the first part of this argument “was not erroneous” without citing any authority.

Here, the petitioner alleges

Caldwell

error and denigration of mercy (citing

Nelson v. Nagle,

995 F.2d 1549 (11th Cir. 1993)). Petitioner supports this contention only by reference to transcript pages, without actually quoting the specific statements alleged to have either denigrated mercy or diminished the jury’s responsibility. The petitioner refers somewhat cryptically to “Sent. Tr. 161-62, 149.” Reply Brief at 131. The Court infers that both cites refer to Addendum 29, Exh. 28.

16

The difficulty with this claim is that in the state courts petitioner has never raised a “denigration of mercy” claim, never cited

Nelson,

17

and has not relied on the prosecution comments repeated in note 16 as supporting the specific

Caldwell

claim asserted here. Petitioner no longer has any remedy in state court because any further claims are barred both by the Tennessee post-conviction statute of limitations and Tennessee’s one-petition rule. Accordingly, these aspects of petitioner’s claim are barred by his procedural default.

18

*624

As the State specifically invoked petitioner’s waiver of the remaining aspects of this claim, they are also procedurally barred.

Coe v. Bell,

161 F.3d 320, 330 (6th Cir.1998)(following

Harris v. Reed,

489 U.S. 255 , 264 n. 10, 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989), and holding that an alternative holding does not require a federal court to disregard a procedural bar);

McBee v. Abramajtys,

929 F.2d 264, 267 (6th Cir.1991)(also following

Harris

and holding that “a federal court need not reach the merits of a habeas petition where the last state-court opinion clearly and expressly rested upon procedural default

as an alternative ground.

”)(emphasis in original).

Petitioner contends that no aspects of this claim can be procedurally barred because he has not personally failed to raise them in the state courts. As to any claims never raised in the Tennessee courts, this contention is patently without merit.

See, e.g., Hannah,

49 F.3d at 1194-95 (finding claims procedurally defaulted based on Tennessee post-conviction statute of limitations).

As to those claims held waived by the state courts, petitioner contends that Tennessee cannot invoke a default based on waiver because the waiver rule of Tenn. Code Ann. § 40-30-112 is not an adequate and independent state ground under

Wainwright v. Sykes.

Petitioner contends, citing

Ford v. Georgia,

498 U.S. 411, 424 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991), that the waiver rule is not “adequate” because it was not “firmly established and regularly followed.”

Petitioner contends that the waiver rule was not regularly followed or firmly established because

House v. State,

911 S.W.2d 705, 713-14 (Tenn.1995), changed the standard for evaluating waiver in Tennessee from a subjective to an objective standard. According to petitioner, prior to

House ,

Tennessee courts applied a subjective standard for waiver that required a personally knowing and voluntary decision by the prisoner to waive the claim.

House

held that the standard for waiver under § 40-30-112 is an objective one in which “a petitioner is bound by the action or inaction of his attorney.”

House,

911 S.W.2d at 714 . Petitioner supports his contention that this is a change in the law by arguing that Tennessee has not consistently applied the waiver rule. He refers to numerous cases, contending that the majority of them support his theory that Tennessee courts decide constitutional claims on substantive grounds rather than invoking waiver as a procedural bar. Petitioner’s analysis of the requirements for a state’s invocation of its procedural default is erroneous and his reliance on state cases is misplaced.

First, to establish that the State’s procedural bar is not “adequate” because it was not regularly applied, petitioner primarily relies on a series of cases decided in 1994, when the Tennessee Court of Criminal Appeals attempted unsuccessfully to reinterpret Tennessee’s waiver rules.

19

Rath

*626

er than establishing that the “regularly-followed” rule was contrary to

House ,

these citations establish conclusively that the Tennessee Supreme Court rebuffed an attempt by the intermediate appellate court to modify Tennessee’s existing rule enforcing procedural defaults. If anything, the unsuccessful attempts by the Court of Criminal Appeals reflects a consistent practice by the Tennessee trial courts to require that claims be asserted at the first opportunity, whether at trial or the first post-conviction petition.

It is clear from

House

that the Supreme Court’s decision followed and applied the existing Tennessee case law, merely providing a clarified enunciation of the objective waiver standard that Tennessee had always invoked. Far from changing the State’s application of its waiver rule,

House

merely propounded the analysis more cogently than in previous decisions. That previous explanations were less succinct or clear, however, does not support petitioner’s contention that Tennessee did not previously uphold its procedural bar.

As is clear from

Coleman v. Thompson,

the federal courts are not to “impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim.”

Coleman,

501 U.S. at 739 , 111 S.Ct. 2546 . Neither are they prohibited from adopting a more clear explanation for an existing procedural rule.

Petitioner’s attempt at a statistical analysis fails on two other grounds as well. If state courts are

required,

always to invoke procedural defaults and to avoid analyzing the merits, the alternative grounds analysis in

Harris v. Reed

is rendered nonsensical. As the Fifth Circuit noted in

Amos v. Scott,

61 F.3d 333, 340-41 (5th Cir.1995): “We decline today to impose on the [state courts] the need to pronounce some shibboleth or incant some magic words guaranteeing safe passage from a holding based on a state procedural bar to an alternative holding on the merits without infecting the opinion with ‘excuse’ and thus dooming it to inadequacy.” 61 F.3d at 341 . Since it is not a valid contention that a state court recitation of an alternative holdings voids its invocation of a procedural bar, neither is it valid to argue that the same alternative recitation causes the alternative procedural holding to be essentially invalid by reason of its “irregularity.”

We acknowledge with approval the principle that an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate; after all, “regular

*627

ly” is not synonymous with “always” and “strictly” is not synonymous with “unanimously.”

Id.

at 342 . Just as a state court is simply not obliged to analyze claims in the same semantics as the federal habeas court, neither is it prohibited from ever reaching the merits of a constitutional claim if a state procedural bar could be invoked.

Petitioner’s contention fails on another and more serious ground. The question in examining the existence of a regularly followed ground is not merely whether state courts always, or even most of the time, invoke procedural bars in the abstract. The question is: does the rule exist and do the state courts apply it consistently in similar cases?

Amos,

61 F.3d at 340-41 . In

Ford ,

the relevant “rule” was the Georgia Supreme Court’s invocation of a procedural rule requiring counsel to object during voir dire to a racially motivated peremptory jury strike, as prohibited by

Batson v. Kentucky,

476 U.S. 79, 89 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

Batson ,

however, was not decided until after the trial in that case, making any objection impossible. Not surprisingly, the Supreme Court found the state court’s invocation of a procedural bar in these circumstances to be unfair.

Here, by contrast,

Caldwell

was decided prior to petitioner’s trial, and the error could have been raised on direct appeal. Furthermore, the Tennessee rule permitting a finding of waiver of claims not raised on appeal did exist at the time of petitioner’s trial. Petitioner does not present case law to support a claim that the state courts routinely ignore the waiver rule in cases similar to his.

20

Furthermore, petitioner cites no support for the implicit and unstated premise to his syllogism: that intermediate state court decisions are relevant to a determination of regularity.

Ford

dealt with the practice of the Georgia Supreme Court. The primary case that arguably provides general support for deciding “regularity” based on statistical analysis of prior state court holdings is

Dugger,

489 U.S. at 410 n. 6, 109 S.Ct. 1211 .

Dugger

based its regularity analysis on decisions of the Florida Supreme Court. Petitioner’s statistical analysis fails because the Court of Criminal Appeals cases he cites do not demonstrate that the Tennessee Supreme Court “does not strictly or regularly apply the contemporaneous objection rule to claims identical or similar to his.”

Amos,

61 F.3d at 341 . Petitioner’s reliance on overruled or vacated intermediate state court decisions contrary to state law as applied in

House

does not support his claim.

Petitioner’s citation of

Swanson v. State,

749 S.W.2d 731, 734 (Tenn.1988), is also misleading. Petitioner cites

Swanson

for the proposition that Tennessee did not formerly invoke waiver of claims that could have been presented in an earlier post-conviction petition: “[t]he simple fact that a petitioner has had one bite at the post-conviction apple does not ipso facto preclude another bite when the petitioner can show that no knowing and understanding waiver of a ground or relief was made .... ” 748 S.W.2d at 735.

Swanson ,

however, did not actually deal with waiver as such, but with the trial court’s procedural handling of waiver. The crux of the holding concerned the impropriety of dismissal before permitting amendment by' counsel of an inartfully drafted

pro se

post-conviction petition. The Court specifically withheld judgment on whether waiver should be found after remand and appointment of counsel.

Id.

at 736 .

Swanson

simply does not support petitioner’s attack on the adequacy of Tennessee’s independent state ground for barring review of his

Caldwell

claim.

Finally, the precise attack on

House

raised here has been flatly rejected by the Sixth Circuit in

Coe,

161 F.3d at 331 (holding that

House

enunciates a state procedural rule that has been regularly followed and is, therefore, adequate).

*628

Petitioner’s argument that

House

is a retroactive change in Tennessee law is unavailing. In essence, petitioner merely disagrees with the way in which the Tennessee courts have applied Tennessee’s post-conviction procedures to bar review of the merits of most of his claims. This does not establish that the procedural bar does not exist.

Finally, as to this claim, petitioner cannot demonstrate cause for his procedural default based on ineffective assistance of counsel because counsel was simply not deficient for failing to appeal on the basis of the prosecution’s arguments.

See Strickland v. Washington,

466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). In actuality, the argument, far from limiting the jury’s responsibility for the death penalty, actually specifically called that duty to their attention. The quote already mentioned

21

did not relate to the jury’s responsibility regarding actually imposing the death penalty — it related to the source of the duty and argued that the jurors should uphold the law. To the extent that any juror might have misinterpreted that argument as diminishing his responsibility, the rebuttal’s closing statements certainly reinforced it:

They call it “jury duty”, ladies and gentlemen, for a reason. You take an oath to follow the laws of the State of Tennessee for a reason. It would be very easy to go back, to deliberate and to say a life sentence. That would be very easy. It will be very difficult to sign your name, stating that, we find an aggravating circumstance. It will be very difficult to sentence Mr. Sedley Alley to death, but, ladies and gentlemen, duty is that way. Duty is difficult.

Addendum 29 at 167. That any attorney would have regarded the earlier ambiguous comments as seriously diminishing the jury’s unique responsibility after these final words is simply without merit. Petitioner’s claims of prosecutorial misconduct during the closing argument are completely devoid of merit.

5.

Unconstitutionality of Death Penalty Statute

Petitioner claims that Tennessee’s statutory provisions for imposing the death penalty are unconstitutional as applied to him in four different ways. Claim XV (Petition, ¶ 40):

1) unconstitutional requirement of jury unanimity on the existence of mitigating factors;

2) trial court failure to inform the jury of the consequence of a non-unanimous verdict violated the Eighth Amendment by diminishing the reliability of the sentencing verdict;

3) trial court violated the Eighth Amendment by instructing the jury that the defendant had the burden of proof on the existence of mitigating factors; and

4) the statute requires a death sentence in the absence of mitigating factors.

Petitioner has never specifically presented claims XV(1), XV(2), or XV(4) to the state courts.

See

Addendum 30 at 51, 53-55. Petitioner contends that his generalized challenge to the death penalty statute on post-conviction review resulted in a finding that the claim was “previously determined.” He also argues, citing irrelevant case law from other circuits construing procedural defaults in other states, that a “previous determination” means his claims were all resolved on the merits. Neither contention is remotely meritorious.

By raising a ground for relief during a Tennessee post-conviction petition, the petitioner is provided a full and fair opportunity to present the constitutional claim.

House,

911 S.W.2d at 710-11 ;

Cone v. State,

927 S.W.2d 579, 581-82 (Tenn.Crim.App.1995);

Wooden v. State,

1998 WL 511133 at *7 (Tenn.Crim.App. Aug.20, 1998),

perm. app. denied,

(Tenn. Mar. 22,

*629

1999). The Tennessee courts hold that subsequent consideration of factual allegations supporting that ground are barred by the prior presentation of the ground.

Cone,

927 S.W.2d at 581-82 . Alley’s argument to the contrary is based on his mistakenly equating the federal habeas term of art “claim” with the Tennessee phrase “ground for relief.”

Under § 2254(b), exhaustion is required of every single factual aspect of a claim, not merely of generalized assertions of constitutional error.

Gray,

518 U.S. at 163 , 116 S.Ct. 2074 ;

Pillette,

824 F.2d at 497-98 . The state court refused to consider the merits of the factual allegations supporting any further attacks on the constitutionality of Tennessee’s death penalty statute because petitioner had already had an opportunity on direct appeal to present his contention (whether described as a “claim” or as a “ground for relief’), that the statute was unconstitutionally applied to him.

Alley,

958 S.W.2d at 155-56 .

By refusing to consider the later factual allegations on the merits, the state courts erected a procedural bar in this federal habeas proceeding to the presentation of these specific claims based on those particular factual allegations. That the state court does not use terms that parallel federal habeas analysis in describing the “claims” asserted in state post-conviction proceedings is irrelevant.

22

Petitioner argues that by declaring this ground “previously determined,” the state courts have admitted that this claim has been decided on the merits. Petitioner reasons that since he cannot be procedurally barred from raising claims decided on the merits, the state court has decided all of his

claims

of the statute’s unconstitutionality on the merits for purposes of federal habeas review.

The difficulty with petitioner’s argument is that it is clear that these specific claims were not addressed on the merits by the state courts. It is clear that the state courts interpreted the “previously determined” language as a type of procedural bar — a legal determination that certain claims resting on specific factual support should have been presented at the time the petitioner raised similar claims within a broad ground implicating the same constitutional right.

Alley,

958 S.W.2d at 155-56 . Accordingly, for federal habeas purposes, the “previously determined” category is a type of procedural default as to those claims.

23

Plaintiff also attempts to argue that the Tennessee Supreme Court’s duty to automatically review all aspects of the constitutionality of the death sentence necessarily requires that it considered this

possible

claim. This contention, however, is clearly untenable in light of Coleman’s rejection of the petitioner’s contention that “consideration of all the filed papers” necessarily resulted in a merits review of all constitutional claims. 501 U.S. at 744, 111 S.Ct. 2546 . Besides, an argument that the Court must review all conceivable claims, presented or not, directly contradicts controlling Supreme Court jurisprudence as discussed above.

*630

Finally, as to claim XV(4), petitioner could not, as a matter of law, demonstrate prejudice for this procedural default because the claim itself is foreclosed by

Walton v. Arizona,

497 U.S. 639, 651-52 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990).

6.Electrocution Violates the Eighth Amendment

Petitioner has never presented claim XVI (Petition, ¶ 41), that electrocution is inherently cruel and unusual, to the state courts. He asserts, citing Tenn.Code Ann. § 40-30-217(a)(l), and

O’Guinn v. Dutton,

88 F.3d 1409, 1411 (6th Cir.1996)(en banc),

cert. denied,

519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 681 (1997), that this is a new rule on which he could rely to reopen the state post-conviction process, thereby precluding a finding of a procedural default, since he would still have a state court remedy. This contention is specious.

O’Guinn

is distinguishable for three reasons. First, the petitioner did not reopen a previous petition but was permitted to file a successive petition under the previous state post-conviction statute.

24

Next, the State had already granted that permission and was holding the petition in abeyance pending the disposition of the parallel federal habeas petition.

See

88 F.3d at 1412 . Lastly and most importantly, to justify filing the new state post-conviction petition, the petitioner relied not on a legal argument but on previously unavailable evidence tending to demonstrate that the State had committed a

Brady

violation.

25

Here, by contrast, petitioner seeks to turn the state post-conviction statute on its head by arguing that

any

new legal claim must necessarily be unexhausted because the state court

might

grant leave to reopen. This contradicts both common sense and the plain text of the statute.

The statute provides, in pertinent part, that the new claim must be “based upon a

final

ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required.” TenmCode Ann. § 40-30-217(a)(l). Petitioner essentially argues that the procedural prerequisite of an actual ruling may be replaced by wishful thinking — the mere possibility that a court might eventually create the right he seeks to assert should support the possibility of reopening and, hence, the existence of a state remedy. This argument refutes itself, and requires no further analysis.

Insofar as petitioner’s arguments should be construed as an attempt to demonstrate cause and prejudice for this default, he cannot demonstrate the latter because the claim is frivolous as a matter of law.

McQueen v. Patton,

118 F.3d 460, 464 (6th Cir.1997)(holding that “[electrocution has never been found to be cruel and unusual punishment by any American court.”).

7.Prosecutorial Misconduct During Voir Dire

Petitioner claims that during voir dire of the jury the prosecution made statements:

1) diminishing the jury’s responsibility for imposing the death penalty, Voir Dire Transcript, Addendum 39 (hereinafter Addendum 39) at 41, 54, 65, 298;

2) revealing victim impact information that was intended to elicit sympathy for the victim,

Id.

at 40, 45, 71, 100, 408;

3) referring to the terms “heinous, atrocious, or cruel”,

Id.

at 52, 60, 62, 132, 140, 404; and

*631

4) referring to the requirement that mitigating circumstances be found unanimously, despite the unconstitutionality of the unanimity requirement,

Id.

at 38, 61-63, 135, 308, 500.

Claim XVII (Second Amended Petition, ¶ 44).

26

Petitioner has never presented the first, third, or fourth of these claims to the state courts. He has only presented one aspect of the second claim during direct appeal, when he claimed that the prosecution improperly asked juror Janie Hearn if she could give the victim’s parents a fair trial.

27

Presentation of these claims is now barred by Tennessee’s post-conviction statute of limitations. This procedural default bars federal review of this claim absent a showing of cause and prejudice. Petitioner contends, citing

Dorman v. Wainwright,

798 F.2d 1358, 1363 (11th Cir.1986), that the unavailability of the voir dire transcript constitutes “cause” excusing his procedural default. This contention is specious. Dorman defaulted his entire state appeal because of the State’s delay in preparing a transcript for him. The State’s “misfeasance in the preparation of Dorman’s trial transcript” constituted a factor external to the defense that sufficed as cause for his default. 798 F.2d at 1369-70 .

Here, by contrast, petitioner obtained a timely transcript during the direct appeal,

including portions of the voir dire proceedings

related to the exclusion of jurors Todd and Jarred. His counsel simply elected not to have the remainder of the voir dire transcribed. The

State

had nothing to do with the decision Petitioner’s representation in this habeas petition that he had had no access to these records is disingenuous and inexcusable.

The failure of petitioner’s counsel to raise these claims on direct appeal, if that failure rises to the level of ineffective assistance in violation of the Sixth Amendment, could arguably constitute cause for his procedural default. Petitioner, however, had the opportunity to raise such a claim of ineffective assistance during the state post-conviction process, and did not. His right to bring that claim is also now barred. Accordihgly, his failure to exhaust that ineffective assistance claim precludes him from showing cause for failing to raise these claims during his direct appeal.

Carpenter,

163 F.3d at 944-45 ;

Jones,

125 F.3d at 947 .

Petitioner also had the opportunity to have those portions of the trial transcribed during the state post-conviction proceedings, but chose not to. He makes no argument whatsoever that the State has ever interfered with a request for this transcript. And, of course, the failure of post-conviction counsel to raise any claims is attributable to petitioner and cannot constitute cause for this default.

Coleman,

501 U.S. at 752-53 , 111 S.Ct. 2546 .

Federal review of these claims is barred by petitioner’s procedural default.

8.

Denial of the Right to Sit at Counsel Table

Petitioner claims in claim XVIII (Second Amended Petition, ¶ 45), that he was de

*632

prived of his right to assist in his defense by being seated behind counsel, rather than at the same table with the attorneys.

28

Petitioner has never presented this claim to the state courts and his right to do so is now barred by both the one-petition rule and the Tennessee post-conviction statute of limitations. Petitioner does not even attempt to argue cause for this default.

29

This claim, accordingly, is barred by this procedural default. •

9.

Denial of the Right to Not be Viewed in Jail Gafb

Petitioner claims, citing

Estelle v. Williams,

425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976), that the jurors were allowed to view him in jail clothing, depriving him of due process. Claim XIX (Second Amended Petition, ¶ 46). Petitioner has never presented this claim to the state courts- and his right to do so is now barred by both the one-petition rule and the Tennessee post-conviction statute of limitations. Petitioner does not even attempt to argue cause for this default.

30

This claim, accordingly, is barred by this procedural default.

10.

Unconstitutional Victinu-Impact Evidence or Argument

Petitioner raised claims VI.2 (Petition, ¶ 32(a)(2)) or VI.4-7 (Petition, ¶ 32(a)(4)-(11)) during his post-conviction petition, but the Court of Criminal Appeals held them procedurally barred by finding that petitioner’s victim-impact claim was “previously determined.” Presentation of these claims is now barred by both the one-petition rule and the Tennessee post-conviction statute of limitations.

Petitioner does not attempt to present cause and prejudice for this default, but argues that the state court could not properly find default because the Tennessee Supreme Court was obliged to review the entire record for - constitutional error on direct appeal. • As previously discussed,

supra

at 628-630, Tennessee courts are invoking a species of procedural default when they úse the phrase “previously determined,” and petitioner’s arguments that the generalized duty to review the death sentence’s constitutionality cures all procedural defaults is plainly without merit.

11.Ineffective Assistance of Counsel

Petitioner has never raised claims XX. 15 (Petition, ¶ 33(m)), XX.19 (V33(q)), XX.23 (¶ 33(u)),

31

XX.27 flI33(x)), in the state courts. His right to raise these claims is now barred by both Tennessee’s one-petition rule and the post-conviction statute of limitations. Petitioner must demonstrate cause and prejudice for this default. Petitioner’s only basis for arguing

*633

cause is that his post-conviction counsel did not raise these claims and that counsel’s failure must constitute cause when claims could not have been raised sooner than the post-conviction proceeding. This contention is directly contrary to

Coleman v. Thompson,

and the only authority petitioner cites is a panel opinion of the Fourth Circuit that was reversed by the

en banc

court.

32

These claims are barred by petitioner’s procedural default.

III.

Analysis of Claims Considered on the Merits

A.

Legal Standard for Merits Review

The standard for reviewing petitioner’s constitutional claims on the merits is enunciated in 28 U.S.C. § 2254 (d). That section provides as follows.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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). This new provision directs the federal habeas court “to make the state court decision the cynosure of federal review.”

O’Brien v. Dubois,

145 F.3d 16, 20 (1st Cir.1998).

See also Nevers v. Killinger,

169 F.3d 352, 361 (6th Cir.1999) (adopting

O’Brien

interpretation of § 2254(d) in Sixth Circuit);

Blanton v. Elo,

186 F.3d 712 (6th Cir.1999)(following

O’Brien

and Nevers).

Petitioner’s numerous remaining claims were decided on the merits in his post-conviction proceeding. In those proceedings, his claims were “adjudicated ‘on the merits,’ and not disposed of on procedural grounds.”

Cardwell v. Greene,

152 F.3d 331, 339 (4th Cir.1998). This Court must decide whether the state court adjudications of those claims were either “contrary to” or an “unreasonable application” of “clearly established” federal law as determined by the United States Supreme Court. In applying § 2254(d)(1), the federal habeas court should seek to give effect to both of these clauses.

O’Brien,

145 F.3d at 20 .

A federal habeas court charged to weigh a state court decision must undertake an independent two-step analysis of that decision. First, the habeas court asks whether the Supreme Court has prescribed a rule that governs the petitioner’s claim. If so, the habeas court gauges whether the state court decision is “contrary to” the governing rule. In the absence of a governing rule, the “contrary to” clause drops from the equation and the habeas court takes the second step. At this stage, the habeas court determines whether the state court’s use of (or failure to use) existing law in deciding the petitioner’s claim involved an “unreasonable application” of Supreme Court precedent.

Id.

at 24 ;

Nevers,

169 F.3d at 359 (quoting same language). In analyzing this first clause, the federal habeas court determines whether there is any Supreme Court decision which is dispositive of the issue and then asks whether the state court is contrary to that precedent.

Id.

*634

The Sixth Circuit adopted O’Brien’s analytical framework in

Nevers ,

explaining that the First Circuit had drawn on

Teag-ue

in deciding whether a Supreme Court decision is “dispositive of the issue”:

“Drawing on Teague, we hold that an affirmative answer to the first section 2254(d)(1) inquiry — whether the Supreme Court has prescribed a rule that governs the petitioner’s claim — requires something more than a recognition that the Supreme Court has articulated a general standard that covers the claim. To obtain relief at this stage, a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.”

Nevers,

169 F.3d at 359 (quoting

O’Brien,

145 F.3d at 24-25 ) (citations omitted). As

Nevers

and

O’Brien

further explain, “ ‘[a] petitioner need not point a habeas court to a factually identical precedent.’ ”

Nevers,

169 F.3d at 359 (quoting

O’Brien,

145 F.3d at 25 ). Many Supreme Court holdings, according to

Nevers

and

O’Brien ,

“erect a framework specifically intended for application to variant factual situations.”

Id.

[T]he key inquiry, at bottom, is whether a Supreme Court rule — by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations — can fairly be said to require a particular result in a particular case.

O’Brien,

145 F.3d at 25 .

Accord, Nevers,

169 F.3d at 359 (quoting same language).

If there is no dispositive Supreme Court case, the federal habeas court analyzes whether the state court decision reflects an unreasonable application of clearly established Supreme Court jurisprudence.

O’Brien,

145 F.3d at 25 . “This reduces to a question of whether the state court’s derivation of a case-specific rule from the Court’s generally relevant jurisprudence appears objectively reasonable.”

Id.

Reasonableness, according to

O’Brien ,

is an objective test.

We think it is pellucid, however, that the “unreasonable application” clause does not empower a habeas court to grant the writ merely because it disagrees with the state court’s decision, or because, left to its own devices, it would have reached a different result. Rather, for the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.

Id.

In

Nevers ,

the Sixth Circuit adopted this standard, adding that it is essentially equivalent to the standard previously adopted in

Herbert v. Billy,

160 F.3d 1131, 1135 (6th Cir.1998)(adopting the standard of

Drinkard v. Johnson,

97 F.3d 751, 767 (5th Cir.1996)), that an unreasonable application occurs when “a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.”

Nevers

reconciled these two approaches

{O’Brien

having previously rejected

Drin-kard),

and noting that reasonable jurists could not find a state court’s application of clearly established Supreme Court precedent debatable if it is “outside the universe of plausible, credible outcomes.” 169 F.3d at 362 .

B.

Specific Claims for Substantive Review

1.

Judicial Bias

Petitioner exhausted all of the remaining claims of judicial bias during the appeal of his post-conviction petition:

33

claims 1.4(a) (Petition, ¶ 26(a)(3)), 1.5 (Petition, ¶ 26(a)(4)), 1.6 (Petition, ¶ 26(a)(5)), 1.7 (Petition, ¶ 26(a)(6)), 1.10 (Petition, ¶ 26(a)(9)). The Tennessee Court of Criminal Appeals

*635

ruled on each of these claims, holding that none of them supported a claim that petitioner’s trial was unfair so as to deprive him of due process.

As discussed,

supra

at 616, petitioner relies on

Marshall,

446 U.S. at 242 , 100 S.Ct. 1610 ;

In re Murchison,

349 U.S. at 134 , 75 S.Ct. 623 ; and

Tumey,

273 U.S. at 520 , 47 S.Ct. 437 , in arguing that Judge Axley displayed bias that deprived him of a fair trial. However, as already indicated with reference to the procedurally defaulted claims, petitioner’s reliance on these authorities is completely misplaced. In determining whether there is a dispositive Supreme Court case contrary to the Court of Criminal Appeals’ determination, these cases provide only a general background. They certainly do not provide a particular rule applicable to

this

case, however, they might be similar to other hypothetical cases.

Rather, the first step in locating controlling Supreme Court precedent is the identification of the relevant issue for decision. Here, petitioner, having no specific authority to support his claim of bias, has relied merely on generalized assertions of the right to an impartial tribunal. Examination of the

facts

he proffers to support his claim, however, reveals issues that are directly controlled by Supreme Court case law.

Thus, with regards to the letter from the victim’s family, it is clear under Supreme Court precedent that neither the receipt of this letter nor its non-disclosure amounted to bias. The seminal Supreme Court case on judicial bias is

Berger v. United States,

255 U.S. 22, 31 , 41 S.Ct. 230 , 65 L.Ed. 481 (1921), in which the Court directed the recusal of United States District Judge Kennesaw Mountain Landis from presiding over a World War I espionage prosecution based on pretrial statements evincing a clear racial and ethnic bias against Americans of German or Austrian ancestry. In determining that the defendants were entitled to recusal under the then-controlling version of the federal statute governing judicial disqualification

34

the Supreme Court first articulated the principle that “the bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case.”

Id.

In a later exposition of this fundamental principle the Court observed: “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”

United States v. Grinnell Corp.,

384 U.S. 563, 583 , 86 S.Ct. 1698 , 16 L.Ed.2d 778 (1966). Finally, in

Liteky,

510 U.S. at 555 , 114 S.Ct. 1147 , the Court delimited what the Court there described as “the extra-judicial source factor”:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.

See United States v. Grinnell Corp.,

384 U.S. at 583 , 86 S.Ct. at 1710 . In and of themselves

(i.e.,

apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an

*636

extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible, an example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in

Berger v. United States,

255 U.S. 22 , 41 S.Ct. 230 , 65 L.Ed. 481 (1921), a World War I espionage case against German-American defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans; because their ‘hearts are reeking with disloyalty.’ ”

Id.

at 28 , 41 S.Ct. 230 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, an even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration — remain immune.

Id.

at 555-56, 114 S.Ct. 1147 (emphasis added).

The federal criminal defendants in

Lit-sky

were indicted for willful destruction of property of the United States in violation of 18 U.S.C. § 1361 , based on various acts of vandalism committed while protesting at the Fort Benning Military Reservation. The defendants requested the trial judge’s recusal based on the manner in which the judge conducted a prior trial of one defendant on related and similar charges. The defendants claimed that the judge displayed bias by:

Stating at the outset of the trial that its purpose was to try a criminal case and not to provide a political forum; observing after Bourgeois’ opening statement (which described the purpose of his protest) that the statement ought to have been directed toward the anticipated evi-dentiary showing; limiting defense counsel’s crossexamination; questioning witnesses; periodically cautioning defense counsel to confine his questions to issues material to trial; similarly admonishing witnesses to keep answers responsive to actual questions directed to material issues; admonishing Bourgeois that closing argument was not a time for “making a speech” in a “political forum”; and giving Bourgeois what petitioners considered to be an excessive sentence. The final asserted ground for disqualification — and the one that counsel for petitioners described at oral argument as the most serious — was the judge’s interruption of the closing argument of one of Bourgeois’ codefendants, instructing him to cease the introduction of new facts, and to restrict himself to discussion of evidence already presented.

Id.

at 542-43, 114 S.Ct. 1147 . The Supreme Court, applying the recusal principles articulated above, affirmed the convictions:

All of these grounds are inadequate under the principles we have described above: They consist of judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, and neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.

Id.

at 556 , 114 S.Ct. 1147 . Although

Liteky

articulated these principles in interpreting one of the federal recusal statutes — 28 U.S.C. § 455 , the federal appellate courts have assumed that the principles it enunciates apply in federal habeas cases to Fourteenth Amendment claims for deprivation of a fair trial based on judicial bias.

See, e.g., Boysiewick v. Schriro,

179 F.3d 616 , 621 (8th Cir.1999);

Crane v. Sparkman,

No. 97-5321, 1998 WL 598725 at * 6 (6th Cir. Aug.27, 1998) (holding that judge’s

response

to letter from murder victim’s

*637

family after trial did not support claim that bias rendered trial unfair);

35

Ortiz,

149 F.3d at 940 ;

Poland v. Stewart,

117 F.3d 1094, 1103-04 (9th Cir.1997) (applying

Liteky

to judicial bias claim in death penalty case);

West,

92 F.3d at 1411 n. 47.

The Tennessee Court of Criminal Appeals’ decision was neither “contrary to” nor an “unreasonable application” of these principles. The mere receipt of a letter says nothing about the judge’s disposition, and the non-disclosure of it to the defense proves nothing. Furthermore, petitioner’s argument that this letter resulted in Judge Axley setting a trial date is clearly contradicted by the procedural history of the case as set forth above. The Tennessee Court of Criminal Appeals’ holding that the “trial judge did not respond to the family or make any special concessions on their behalf’ is correct, and the conclusion that petitioner was not deprived of a fair trial complies with § 2254(d)(1). Claim 1.4(a), accordingly, is without merit.

Similarly, the Tennessee Court of Criminal Appeals’ other rulings comply with § 2254(d)(1). Petitioner has never connected the proximity of the seat occupied by Judge Axley’s wife to the victim’s family with any action by Judge Axley. The state court’s determination that the jurors did not even know Judge Axley’s wife is uncontradicted by the petitioner. Claim 1.5 is without merit.

Likewise, access by family members to a hallway also leading to the judge’s chambers and jury room is not evidence of

judicial

bias at all. The state court’s holding on this claim (claim 1.6) is neither contrary to nor an unreasonable application of the

Liteky

standards.

The claim that Judge Axley tried to hurry the mental examination of petitioner (claim 1.7), is factually frivolous. The Court has reviewed the transcripts of the competency hearings. Far from revealing any bias against petitioner, the transcripts demonstrate the conclusive validity of the Court of Criminal Appeal’s decision that Judge Axley did no such thing. Indeed, Judge Axley permitted a series of mental evaluations that exceeded by many months the thirty days normally permitted by Tennessee statute for conducting competency evaluations. Not only does the record

not support

this claim of bias, it supports an inference of more than the required patience with petitioner, his counsel, and the medical professionals who were asked to examine and evaluate petitioner.

The claim that Judge Axley demonstrated bias by excluding the videotapes (claim 1.8), is clearly frivolous because it is a judicial ruling that does not “evidence the degree of favoritism or antagonism required.”

Liteky,

510 U.S. at 555 , 114 S.Ct. 1147 . As discussed,

infra

at 638-640, petitioner’s extravagant claims that the exclusion of this evidence violated due process are devoid of merit. It follows

a fortiori

that the essence of this claim is that a proper evidentiary ruling is evidence of bias. This claim is clearly without merit.

The Court of Criminal Appeals did not explicitly rule on petitioner’s claims of Judge Axley’s bias based on his use of profanity and hostility towards petitioner’s counsel (claim 1.9). Nevertheless, the general conclusion rejecting petitioner’s claims that judicial bias deprived him of a fair trial are in keeping with the controlling law already discussed.

36

At most, the peti

*638

tioner is relying on “expressions of impatience, dissatisfaction, annoyance, and even anger.”

Liteky,

510 U.S. at 555-56 , 114 S.Ct. 1147 . The petitioner has completely failed to demonstrate any constitutional violation, or any claim to relief.

Equally clearly, the claim based on the judge’s completion of the Rule 12 report is devoid of merit. The report had no affect on the outcome of the appeal, and thus could not prejudice the petitioner in any way. More significantly, the claim that the report is “false” is itself without factual foundation. In claiming that it is false, petitioner relies on Judge Axley’s assertion that no mitigating evidence was shown. The contrary view, of course, is the linchpin of petitioner’s post-conviction and habeas claims. Judge Axley, however, quite obviously completed the report based on his perspective of the evidence: namely, that the petitioner failed in his attempts to demonstrate mitigation. Whether Judge Axley’s perspective was accurate or not, however, is irrelevant to the ultimate decision by the Tennessee Supreme Court to affirm his conviction. It follows

a fortiori

that it is also irrelevant to the petitioner’s claims of constitutional error affecting his conviction and sentence. More importantly, as a claim of judicial bias it fails because it is simply yet another instance of a judicial evaluation of the evidence and law, which cannot constitute bias regardless of the accuracy of Judge Axley’s analysis.

2.

Evidentiary Rulings Deprived Petitioner of a Defense

Petitioner claims that his due process right to present a complete defense during both the guilt and penalty phases of his trial was violated by the exclusion of the videotapes of the hypnosis and sodium amytal interrogation sessions conducted by Doctors Battler and Marshall, respectively. Claim II (Petition, ¶ 27(a), (b), (c)(6), (i), and ¶ 28(a)(1), (2)).

The Tennessee Supreme Court ruled on direct review that Judge Axley properly excluded the tapes.

Alley,

776 S.W.2d at 515-16 . Petitioner contends that this is contrary to the teaching of

Crane v. Kentucky,

476 U.S. 683, 690 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986), and related cases, that a criminal defendant must be permitted to present a complete defense. In petitioner’s view, this jurisprudence prohibited the state court from excluding “vital” evidence. Petitioner argues that the tapes were “vital” because they provided the primary support for the opinions of Dr. Marshall and Dr. Battle that petitioner experienced

*639

a multiple personality (claims II.l, II.2, II.3).

Petitioner, however, has misidentified the Supreme Court precedent that provides the controlling law. “The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”

Montana v. Egelhoff,

518 U.S. 37, 42 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996). As the Court noted, “[a]ny number of familiar and unquestionably constitutional evidentiary rules authorize the exclusion of relevant evidence.... [f]or instance, Federal []Rule of Evidence 403.”

Id.

37

Tennessee adopted Federal Rule of Evidence 403 in

State v. Banks,

564 S.W.2d 947, 949 (Tenn. 1978). In petitioner’s direct appeal, the Tennessee Supreme Court held the tapes were properly excluded because the risk that they would confuse and mislead the jury outweighed their probative value.

Alley,

776 S.W.2d at 515-16 .

38

Petitioner does not argue that this decision incorrectly applied Tennessee’s evi-dentiary rules. Rather, he relies purely on a constitutional right to present evidence he considers vital to the defense. The Constitution, however, does not dictate this result. Rather, it is “perfectly clear that [in

Crane

] we were not setting forth an absolute entitlement to introduce crucial, relevant evidence.”

Egelhoff,

518 U.S. at 53 , 116 S.Ct. 2013 . Furthermore,

“Crane

does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a ‘valid’ reason.”

Id.

As

Egelhoff

makes clear, Supreme Court precedent, including the cases relied on by petitioner, merely announce the unremarkable rule that “erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.”

Id.

Petitioner, however, has not demonstrated that the videotapes were excluded as a result of an erroneous evi-dentiary ruling.

The Tennessee Supreme Court’s ruling was not an unreasonable application of the principles enunciated by

Egelhoff. See Blanton,

186 F.3d at 716 (holding that under

Egelhoff

and

Crane

“it is not error to limit relevant evidence for a valid state reason, including cumulativeness.”). The videotapes were plainly

not

the crucial link in petitioner’s insanity defense.

Just because a criminal defendant asserts an insanity defense does not convert all testimony or evidence related to psychiatric evaluations of the defendant into critical evidence.

Wong v. Money,

142 F.3d 313, 324-26 (6th Cir.1998). In

Wong,

the federal habeas petitioner claimed that the exclusion of psychiatric testimony regarding her capacity to form the mens rea to commit felonious assault and vandalism deprived her of due process by interfering with the presentation of her defense. The Sixth Circuit disagreed, finding that Ohio was not constitutionally required to recognize a defense of diminished capacity and that the proffered testimony was unrelated to her insanity defense.

Similarly, here the petitioner sought to introduce evidence that he experienced multiple personalities. However, neither of petitioner’s expert witnesses, Dr. Marshall and Dr. Battle, gave a definitive expert opinion that a specific different personality was in control at the time of the murder.

See Alley,

776 S.W.2d at 510 . Furthermore, Dr. Battle testified that even if another personality was in control, if that personality were sane, petitioner would have been able to appreciate the wrongfulness of his conduct. Addendum

*640

12 at 1201-02. Accordingly, a multiple personality diagnosis would actually not have supported the conclusion that petitioner was insane at the time of the crime. The tapes, accordingly, were irrelevant to the petitioner’s insanity defense.

Wong,

142 F.3d at 325 . It follows

a fortiori

that the evidence could not have significantly undermined a fundamental element of the accused’s defense.

Id.

Furthermore, the exclusion of this evidence did not, as would be required for a due process claim under

Crane,

“preclude Petitioner from introducing any factual evidence; i.e., ‘facts’ about the alleged crime at hand.”

Wong,

142 F.3d at 325 . The trial court specifically found, and the Tennessee Supreme Court' agreed, that the videotapes contained no information about the events of the day of the murder or petitioner’s mental state on that day.

Given the Tennessee Supreme Court holding that the proffered videotapes were inadmissible, petitioner’s fact-intensive attack on the crucial character of that evidence is simply irrelevant. In essence, the petitioner’s argument can reasonably be summarized as follows:

Faced with overwhelming and virtually incontrovertible proof of my guilt, including my confession, and lacking any credible defense, my attorneys grasped at a slender reed of a defense and attempted to piece together a viable claim of insanity. Faced with contradictory and inconclusive expert medical opinions to support this defense, my attorneys, as a matter of trial tactics and strategy, based my insanity defense on an inadmissible item of evidence. The trial court excluded the evidence during both the guilt and penalty phases of my trial, and the prosecutor successfully argued that the defense, including a variety of otherwise unsupported expert testimony, lacked any foundation. The jury rather logically rejected my defense. Since I had no valid defense based on admissible evidence, the Constitution requires that the judge allow me to introduce any evidence I wanted to, because I face the death penalty.

The Tennessee Supreme Court’s decision is not an unreasonable application of clearly established Supreme Court law, and this claim is devoid of merit.

Petitioner’s parallel contention (claim II.5), that the inadmissible videotapes should have been admitted during the sentencing hearing, is similarly devoid of merit. Contrary to petitioner’s characterization, the videotapes did not constitute mitigating evidence. Petitioner’s insistence that the tapes “are rife with mitigating evidence — evidence of [his] mental disturbance before and at the time of the offense,” Reply Brief at 70, is completely unsupported by the record. Furthermore, this entire argument is founded on the erroneous assumption that a state court cannot exclude inadmissible or irrelevant evidence from a death penalty hearing. Petitioner cites no authority that supports this proposition. The Tennessee Supreme Court’s conclusion that the tapes were inadmissible for both phases of the trial was neither contrary to nor an unreasonable application of Supreme Court case law.

3.

Unconstitutional Aggravating Circumstance

Petitioner contends in Claim III that the Tennessee death penalty statute at the time of his trial permitted imposition of the death penalty on the basis of an unconstitutionally vague aggravating circumstance: that the murder is “heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Claim III (Petition, ¶ 29). He contends that the statute is facially vague and that the judge instructed the jury in unconstitutionally vague defining terms.

The Tennessee death penalty statute in effect in July of 1985 stated as follows, in pertinent part:

(i) No death penalty shall be imposed but upon a unanimous finding, as heretofore indicated, of the existence of one or

*641

more of the statutory aggravating circumstances, which shall be limited to the following: ... (5) The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind

Tenn.Code Ann. § 39-2-203(i)(5)(1982). The trial court instructed the jury as follows regarding this aggravating circumstance:

Tennessee Code Annotated § 39-2-203® provides that no death penalty shall be imposed by a Jury but upon a unanimous finding of the existence of one or more of the statutory aggravating circumstances, which shall be limited to the following:

1) The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.

“Heinous” means extremely wicked or shockingly evil.

“Atrocious” means outrageously wicked and vile.

“Cruel” means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless.

Addendum 13 at 1887.

Petitioner argues that this circumstance created no restraint on the arbitrary and capricious infliction of the death sentence. Relying on

Richmond v. Lewis,

506 U.S. 40 , 113 S.Ct. 528 , 121 L.Ed.2d 411 (1992);

Shell v. Mississippi

498 U.S. 1 , 111 S.Ct. 313 , 112 L.Ed.2d 1 (1990);

Maynard v. Cartwright,

486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988); and

Godfrey v. Georgia,

446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980),

39

petitioner contends that the terms “ ‘heinous,’ ‘atrocious,’ and ‘cruel’ are themselves unconstitutional.” This contention mischaracterizes this jurisprudence.

40

See Cartwright v. Maynard,

822 F.2d 1477, 1485 (10th Cir.1987) (recognizing that “the Supreme Court has not held such language [(the terms ‘outrageously or wantonly vile,’ ‘heinous,’ ‘horrible,’ “brutal,” ‘depraved,’ ‘cruel,’ ‘inhuman,’ or ‘atrocious’)] to be facially unconstitutional” but has examined how the statute is applied to the particular death sentence),

aff'd,

486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988).

In

Godfrey ,

the Court held that “the circumstances of this case [ ] do not satisfy

*642

the criteria laid out by the Georgia Supreme Court itself in the [prior case law adopting a narrowing construction of the statute].” 446 U.S. at 432, 100 S.Ct. 1759 . Accordingly, the Court examined whether the state court had “applied a constitutional construction” of the facially vague aggravating circumstance, and answered no.

Id.

Thus,

Godfrey

does not stand for the proposition that these terms are “unconstitutional.” Rather, it stands for the propositions that 1) the state court must construe the statutory terms by adopting criteria that comply with the constitutional requirement that murders warranting the death penalty be distinguishable from all other murders so that the jury’s decision is not arbitrary, and 2) the facts of the murder must satisfy the criteria so enunciated. Notably,

Godfrey

observed that the murder there

did not

involve torture.

Id.

Furthermore, Georgia procedure in

Godfrey

required the jury to articulate the aggravating circumstance relied on, but the jury only articulated part of the statutory factor — that the murder was “outrageously or wantonly vile, horrible and inhuman.” The Court found that “[t]here is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.”

Id.

at 428 , 100 S.Ct. 1759 .

Maynard

applied

Godfrey

to an Oklahoma death sentence. The Oklahoma appellate court had affirmed a sentence of death based on an aggravating circumstance that the murder was “especially heinous, atrocious, or cruel.” 486 U.S. at 359 , 108 S.Ct. 1853 .

Maynard

explained that

Godfrey

had held the Georgia instruction “insufficient to cure the jury’s unchan-neled discretion because [the Georgia] court, failed to apply its previously recognized limiting construction of the aggravating circumstance.”

Id.

at 363, 108 S.Ct. 1853 . The Court also noted that

Godfrey

“plainly rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves,

and without some narrowing principle to apply to those facts,

to warrant the imposition of the death penalty.” 486 U.S. at 363 , 108 S.Ct. 1853 (emphasis added). The Court then applied those principles to the Oklahoma sentence, holding that the mere use of the terms “heinous, atrocious, or cruel” without further definition, and in the absence of any meaningful narrowing review by the appellate court, violated the Eighth Amendment. The Court specifically relied on the Tenth Circuit’s interpretation of Oklahoma case law as failing to provide an adequately narrowing construction of this aggravating circumstance.

41

In so doing, however, the Court specifically noted that it was not imposing a requirement that “torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable.”

Id.

at 365 , 108 S.Ct. 1853 .

Shell v. Mississippi

is a per curiam application of

Maynard

to a Mississippi aggravating circumstance different from the Tennessee factor. The state court’s jury instruction did not, contrary to petitioner’s characterization, define these terms in the same identical language as were used in

*643

petitioner’s case.

Shell,

accordingly, is distinguishable.

In

Richmond v. Lewis

the Court found that Arizona, which employs judge-sentencing, improperly applied the aggravating circumstance “especially heinous and cruel manner” because the factor itself is vague,

had not previously been narrowed

by an appellate court construction, the sentencing judge did not find the facts necessary to support application of the circumstance under a properly narrowing construction later adopted by the Arizona courts, and the appellate courts did not reweigh application of the aggravating circumstance so as to cure the original error.

Tennessee did not apply an unconstitutionally vague and arbitrary aggravating circumstance to this petitioner because Tennessee adopted a narrowing construction and the trial court appropriately instructed the jury under the facts of the case so as to prevent any risk that the jury imposed the death penalty arbitrarily or capriciously. Prior to petitioner’s trial, Tennessee adopted a narrowing construction of the above statute in

Williams,

690 S.W.2d at 529-30 .

42

After reference to the dictionary definitions of the terms “heinous,” “atrocious,” “cruel,” “torture,” and “depravity,” the Court held:

Our statute provides that it is the murder which must be especially heinous, atrocious, or cruel. The second clause of this statutory provision, viz., “... in that it involved torture or depravity of mind,” qualifies, limits and restricts the preceding words “especially heinous, atrocious or cruel.” This second clause means that to show that the murder was especially heinous, atrocious or cruel the State must prove that it involved the torture of the victim or depravity of the mind of the killer.

Torture means the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious. In proving that such torture occurred, the State, necessarily, also proves that the murder involved depravity of mind of the murderer, because the state of mind of one who willfully inflicts such severe physical or mental pain on the victim is depraved.

The Court went on to set aside a death sentence based on this circumstance because of lack of evidence that any pain was inflicted on the victim before death and because the mutilation of the body was not sufficiently close in time to the actual murder to support an inference that the defendant’s state of mind at the time of the acts of mutilation were those at the time of the murder.

Id.

at 530-31 .

The State further explicated this construction in

State v. Hines,

919 S.W.2d 573, 581 (Tenn.1995), a prosecution for the stabbing murder of a motel maid. The defendant “[a]bout the time of death, and shortly after the infliction of the lethal wounds to the chest ... inserted a flat object through the victim’s vaginal orifice into the vaginal pouch until the instrument penetrated the vaginal dome and passed into the abdominal cavity.” Following the holding of

Williams

that the aggravating circumstance is satisfied by torture, the Court held that

willful insertion of a sharp instrument into the vaginal cavity of a dying woman (or a woman who had just died) satisfies the requirements of

Williams

.... [T]he stab wound to the vagina was sufficient to support finding that the wounds were intentionally inflicted and that the murder involved torture under

Williams.

919 S.W.2d at 581 .

When petitioner attacked the use of this aggravating circumstance during the post-

*644

conviction proceeding, the Court of Criminal Appeals rejected it in reliance on

Hines .

What the Supreme Court has actually held in these cases is that a statute employing these terms as aggravators requires, first, a narrowing construction that permits courts and the sentencing body (in Tennessee a jury), to distinguish those murders that merit the death penalty from those that do not; and, second, appellate court review that confirms that the facts of the crime fall within the appropriately narrowed definition of those terms.

See Lambrix v. Singletary,

520 U.S. 518, 537-38 , 117 S.Ct. 1517 , 137 L.Ed.2d 771 (1997). This is precisely what happened in petitioner’s case.

The conclusion from this analysis is that petitioner now seeks to sculpt a “rule” that the aggravating circumstance as defined by the Tennessee courts’ narrowing definition and limited by the jury instruction, cannot be applied to any set of circumstances, even though the facts plainly fit within the narrowed definition. The requested result, however, would amount to a new rule barred from retroactive application on federal habeas review by the principles of

Teague,

489 U.S. at 310 , 109 S.Ct. 1060 .

See Lambrix,

520 U.S. at 538 , 117 S.Ct. 1517 : “Before

Espinosa[ v. Florida,

505 U.S. 1079 , 112 S.Ct. 2926 , 120 L.Ed.2d 854 (1992) ], we had never invalidated a death sentence where a court found the challenged aggravator to be within the appellate court’s definition of a facially vague aggravator.”

Lambrix

held that

Teague

barred retroactive application of

Espinosa,

and it also bars retroactive application of the new rule proposed here.

43

Even if petitioner’s claim does not propose a new rule, however, this claim is substantively devoid of merit. The Court of Criminal Appeals’ application of

Hines

to this aggravating circumstance and the accompanying jury instruction is neither contrary to nor an unreasonable application of clearly established federal law. The instruction did enunciate a limiting principle that required the jury to distinguish this murder from others. The definition of cruel as “designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless” when combined with the term “torture” specifically directed the jury to consider whether there were characteristics of this murder that were not invariably found in every murder. That is, the jury was not instructed in terms that “ ‘could fairly characterize almost every murder.’ ”

Maynard,

486 U.S. at 363 , 108 S.Ct. 1853 (quoting

Godfrey,

446 U.S. at 428-29 , 100 S.Ct. 1759 ). Under

Maynard,

torture is clearly one of the constitutional constructions that limit the “heinous, atrocious, or cruel” aggravating circumstance. Tennessee has clearly adopted such a construction. The above jury instructions limited the jury’s discretion and the reviewing court plainly applied the correct standard. Accordingly, the Court of Criminal Appeals’ decision is neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. This claim is devoid of merit.

4.

Unconstitutional Jury Instruction on Reasonable Doubt

Petitioner contends that the trial court provided the jury with unconstitutional instructions defining reasonable doubt in both the guilt and sentencing phases of his trial. Claim IV (Petition, ¶¶ 30, 30(n)). Petitioner relies on

Victor v. Nebraska,

511 U.S. 1 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994);

Sullivan v. Louisiana,

508 U.S. 275 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993); and

Cage v. Louisiana,

498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990).

*645

In petitioner’s case, at the conclusion of the guilt phase and before deliberations, the Court instructed the jury as follows regarding reasonable doubt:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense.

Addendum 13 at 1862. At the conclusion of the sentencing hearing and before deliberations, the Court again instructed the jury regarding reasonable doubt:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily upon the certainty of your verdict.

Reasonable

doubt does not mean a doubt that may arise from possibility. Absolute certainty is not demanded by the law but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the verdict.

Addendum 13 at 1886.

Petitioner contends that these instructions unconstitutionally lowered the standard for reasonable doubt. The Court of Criminal Appeals rejected this claim on appeal from the post-conviction petition. This decision was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court.

The constitutionality of Tennessee’s reasonable doubt instruction has been passed on by

Austin v. Bell,

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

cert. denied,

523 U.S. 1079 , 118 S.Ct. 1526 , 140 L.Ed.2d 677 (1998). Although

Austin

was applying the prior version of § 2254, rather than the “contrary to or unreasonable application” standards, its analysis is valid.

Austin

reviewed a habeas petition filed by another defendant convicted in the Shelby County Criminal Court. In that case the trial court instructed the jury as follows:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability after such investigation to let the mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense.

126 F.3d at 846 . This instruction is identical to the instruction issued in petitioner’s case. Relying on

Cage’s

holding that a jury instruction using the phrase “moral certainty” lowered the prosecution’s burden of proof, petitioner contends that this instruction also did so, in violation of the Fifth Amendment as interpreted by

In re Winship,

397 U.S. 358, 363-64 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970).

Austin ,

however, upheld the instruction, citing

Victor :

In

Victor v. Nebraska,

however, the Supreme Court held that use of the term “moral certainty” does not, of itself, render a “reasonable doubt” instruction unconstitutional. The phrase “moral certainty” is constitutionally, permissible where the rest of the instruction “lends content to the phrase,” and indicates the government’s proper burden of proof.

126 F.3d at 847 (citations omitted). In particular, the Court held that:

The reasonable doubt instruction in this case is more like the acceptable language in

Victor

than the unacceptable language in

Cage .

The language of an “inability to let the mind rest easily” lends content to the phrase “moral certainty” similar to the “abiding convic

*646

tion” language in

Victor ,

increasing, if anything, the prosecutor’s burden of proof. It also does not create a reasonable likelihood that the jury applied the instruction in a way that would lower the state’s burden of proof because it does not increase the measure of doubt beyond a “reasonable doubt.”

Id.

Since

Austin ,

the Sixth Circuit has twice upheld virtually identical instructions for both the guilt and sentencing phases in other Tennessee death penalty cases.

See Workman v. Bell,

178 F.3d 759, 776-77 (6th Cir.1998),

cert. denied,

— U.S. -, 120 S.Ct. 264 , 145 L.Ed.2d 221 , 1999 WL 624390 (Oct. 4, 1999);

44

Coe,

161 F.3d at 329 ,

cert. denied,

— U.S.-, 120 S.Ct. 110 , 145 L.Ed.2d 93 (1999).

Petitioner attempts to avoid

Austin’s

holding by relying on other language in the instructions.

The jury was also instructed that to find Sedley Alley guilty, they merely needed to reach a “satisfactory conclusion” that he was guilty: “Before a verdict of guilty is justified, the circumstances, taken together, must be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion and producing in effect a moral certainty that the defendant, and no one else, committed the offense.”

Reply Brief at 86 (quoting Addendum 13 at 1865). Petitioner’s contention is devoid of merit, however, because he has quoted this instruction completely out of context. The excerpted quote is taken from an instruction on how to evaluate circumstantial evidence, and has nothing to do with the definition of reasonable doubt. Accordingly, this claim is devoid of even arguable substantive merit. Moreover, petitioner never raised this aspect of his claim in state court, and based on the Court’s previous analysis of procedural default jurisprudence, this aspect is barred by this default.

The state court’s decision approving this instruction is not contrary to

Cage

or

Victor ,

is not an unreasonable application of clearly established Supreme Court jurisprudence derived from those case, and is without merit.

5.

Unconstitutional Jury Instruction on Malice

Petitioner contends that the jury instructions required the jury to find the essential element of malice based merely on his conscious deliberate act, without requiring them to find that the prosecution had introduced proof from which this element could be determined beyond a reasonable doubt. Claim V (Petition, ¶ 31). Petitioner relies on

Yates v. Evatt,

500 U.S. 391, 401-02 , 111 S.Ct. 1884 , 114 L.Ed.2d 432 (1991).

The jury instruction at issue read, in pertinent part:

Any person who willfully, deliberately, maliciously, and with premeditation kills another is guilty of murder in the first degree.

For you to find the defendant guilty of murder in the first degree, the state must have proven beyond a reasonable doubt;

* H* Hi Hi *

2) that the killing was malicious; that is, the defendant had the state of mind to do the alleged wrongful act without legal justification or excuse ....

Malice is an essential ingredient of this offense, and it may be either express or implied. A case of homicide cannot be murder unless at and before the killing the wicked intent, constituting malice aforethought, exists in the mind of the slayer. Malice is an intent to do an injury to another, a design

*647

formed in the mind of doing mischief to another.

Express malice is actual malice against the very party slain and exists where a person actually contemplates the injury or wrong he inflicts. Implied malice is malice not against the party slain, but malice in general

This text is long and has been trimmed here. Open the source document for the complete record.