# Lemaricus Davidson v. State of Tennessee

> Court of Criminal Appeals of Tennessee · August 19, 2021

URL: https://www.frixlaw.com/law-library/cases/4788918

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** August 19, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Norma McGee Ogle
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4788918

## How later opinions describe it (automated extraction)

- acknowledging “Eighth Amendment error when the sentencer weighs an ‘invalid’ aggravating circumstance in reaching the ultimate decision to impose a death sentence”
- discussing equitable tolling of limitations period

## Opinion text

08/19/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 26, 2020 Session

LEMARICUS DAVIDSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County
No. 111962 Walter C. Kurtz, Judge
___________________________________

No. E2019-00541-CCA-R3-PD
___________________________________

The Petitioner, Lemaricus Davidson, was convicted in the Knox County Criminal Court of
numerous offenses against the two victims, Christopher Newsom and Channon Christian,
including multiple counts of first degree felony and premeditated murder, and the jury
imposed sentences of death for each murder conviction. After this court and our supreme
court affirmed the Petitioner’s convictions and sentences, he filed post-conviction and
coram nobis petitions, seeking relief from those first degree murder convictions and death
sentences. The post-conviction court found that trial counsel were deficient for not
requesting a change of venue but that no prejudice resulted from trial counsel’s deficient
performance and denied relief. The coram nobis court also denied relief. In this
consolidated appeal, the Petitioner raises various issues, including that the post-conviction
court erred by denying his request for expert services; that the post-conviction court erred
by determining that a codefendant’s anticipated testimony at another codefendant’s
upcoming trial was not relevant to the Petitioner’s claim for post-conviction relief; that trial
counsel were ineffective because they failed to request an out-of-county jury, improperly
handled voir dire, and failed to raise certain issues on direct appeal of his convictions; and
that he is entitled to coram nobis relief because a codefendant’s new testimony may have
led to a different verdict as to the first degree premeditated murders of the victims. Based
upon our review of the oral arguments, the record, and the parties’ briefs, we conclude that
the post-conviction court erroneously determined that a codefendant’s anticipated
testimony at another codefendant’s upcoming trial was not relevant to the Petitioner’s
claim for post-conviction relief because the testimony would have invalidated one of the
four aggravating circumstances found by the jury to impose the Petitioner’s death sentence
for Mr. Newsom. However, we also conclude that the error was harmless beyond a
reasonable doubt. We agree with the post-conviction court that trial counsel were deficient
for not requesting a change of venue and that the Petitioner has failed to demonstrate he
was prejudiced by trial counsel’s deficient performance. Therefore, we affirm the denials
of post-conviction and coram nobis relief.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

John David Watkins, William Edgar Howell, III, and Christopher M. Minton, Nashville,
Tennessee, for the appellant, Lemaricus Davidson.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior
Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha
Monette Fitzgerald and Leland Price, Assistant District Attorneys General, for the appellee,
State of Tennessee.

OPINION

Factual Background

The crimes in this case occurred during the weekend of Saturday, January 6, 2007.
The Petitioner and his codefendants, George Thomas, Letalvis Cobbins, Eric Boyd, and
Vanessa Coleman, kidnapped, robbed, raped, and killed the two victims, Christopher
Newsom and Channon Christian.1 The victims were leaving a friend’s apartment Saturday
evening when the defendants carjacked them and took them to the Petitioner’s house. The
facts are summarized in our supreme court’s opinion from the Petitioner’s direct appeal of
his convictions as follows:

Mr. Davidson and his accomplices, using guns, kidnapped Chris and
Channon and stole Channon’s vehicle. They tied Chris’s and Channon’s
hands behind their backs and stole money and personal items. After raping
Chris, Mr. Davidson and his accomplices forced Chris to walk without shoes,
socks, or pants on a January night to a desolate area beside a set of train
tracks. They bound his feet with his belt. They blindfolded Chris, stuck a
sock in his mouth and secured it with a shoelace, and wrapped a hooded
sweatshirt around his head. They shot him three times and killed him. Two
of the bullets removed from Chris’s body were shot from the same gun and
shared class characteristics with the High Standard revolver Mr. Davidson
had in his possession when he was arrested. To hide the evidence of the
murder, they wrapped Chris’s body in a comforter, poured gasoline on him,
and set his body on fire. Afterwards, Mr. Davidson was seen wearing Chris’s

1
Ordinarily, it is the policy of this court to refer to victims of sexual assault by their initials.
However, given that our supreme court referred to the victims by their first and last names in its opinion on
direct appeal of the Petitioner’s convictions, we will forgo the use of their initials in this opinion.
-2-
shoes. Within an hour of the murder, Mr. Davidson tried to contact his
girlfriend by using Chris’s cell phone.

After killing Chris, Mr. Davidson and his friends returned to Mr.
Davidson’s house where they beat and repeatedly raped Channon. Abusing
her for many hours, they then tied her into a fetal position, secured a plastic
bag tightly over her head, put her in five plastic garbage bags, and stuffed her
in a garbage can to suffocate to death. While Channon was dying in the
garbage can, Mr. Davidson left to spend time with his girlfriend. He gave
Channon’s clothes and personal items to his girlfriend.

State v. Davidson, 509 S.W.3d 156, 214 (Tenn. 2016).

On January 11, 2007, officers from the Knoxville Police Department arrested the
Petitioner in a vacant house in Knoxville. Id. at 176-77. Mr. Newsom’s Nike athletic shoes
and a .22 caliber High Standard revolver were found in the house. Id. at 177. The Petitioner
waived his rights and gave a statement to the police in which he told more than five versions
of what occurred from January 6 to January 8. Id. Initially, the Petitioner claimed that he
was not at his house during that time and did not know what may have occurred there. Id.
Ultimately, though, he claimed that Cobbins and Thomas arrived at his house with Mr.
Newsom and Ms. Christian about 10:00 p.m., “saying they had carjacked some people and
they were in the vehicle.” Id. The Petitioner also claimed that Cobbins and Thomas left
with the victims for less than twenty minutes and returned only with Ms. Christian. Id.
The Petitioner denied having sex with Ms. Christian and said that his DNA would not be
found on her. Id.

The State presented the following forensic and scientific evidence at the Petitioner’s
trial: Mr. Newsom was anally penetrated one to two hours before he died and had
“significant” injuries to his anal and genital areas. Id. at 178. He was shot three times,
each time with a small-caliber bullet, and the fatal shot was fired with the muzzle of the
gun against his head. Id. Mr. Newsom was found with a bandana tied around his eyes; a
sock stuffed into his mouth; and bare, muddy feet. Id. His wrists had been tied together
behind his back with a shoelace, and his ankles had been bound together with his belt. Id.
He was wearing a shirt, t-shirt, and underwear but no other clothing. Id. Semen was in his
anus, but the high temperature of the fire destroyed the DNA in the semen. Id.

Ms. Christian suffered injuries around and to her mouth in the hours before her
death, including a torn frenulum, and the injuries were caused by an object, such as a penis,
being forced into her mouth. Id. Her anal and genital areas suffered “tremendous” damage
one to two hours before her death. Id. Some of her injuries were “so grave” that they had
to have been caused by a blunt object. Id. Ms. Christian also had bruises on the back of

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her arms, the top of her head, the front of her legs, and her upper back close to her neck.
Id. Carpet burns and scratches were on her lower back and upper buttocks. Id. She was
in a “tight fetal position” in the garbage can and had a white plastic bag over her head that
had been knotted in back to keep it in place. Id. at 178-79. She suffocated due to the plastic
bag over her head and “due to her positioning” in the garbage can, and her time of death
was estimated to have occurred between Sunday afternoon and Monday afternoon. Id. at
179. She was found wearing only a camisole and a sweater. Id.

The Petitioner’s DNA from sperm was in Ms. Christian’s vagina and anus and was
on her jeans. Id. Cobbins’s DNA was in her mouth and on her camisole, sweater, and
jeans. Id. Fabric found with Mr. Newsom’s body and fabric used to bind Ms. Christian in
the garbage bags came from curtains and fabric that had been given to the Petitioner. Id.
The Petitioner’s fingerprints and palm prints were found on three of the five plastic garbage
bags that contained Ms. Christian’s body, and a palm print on the outermost exterior
garbage bag was consistent with his having lifted the bag with weight in it. Id. His prints
also were on items belonging to both victims that were found in his house. Id. Two bullets
recovered from Mr. Newsom could have been fired from the High Standard revolver that
was in the Petitioner’s possession at the time of his arrest. Id. A revolver associated with
Cobbins was eliminated as the murder weapon. Id.

A Knox County Criminal Court Jury convicted the Petitioner of sixteen counts of
first degree felony murder; two counts of first degree premeditated murder; two counts of
especially aggravated robbery; four counts of aggravated kidnapping; nine counts of
aggravated rape of Ms. Christian; three counts of facilitation of aggravated rape as a lesser-
included offense of aggravated rape of Mr. Newsom; one count of theft of property valued
$10,000 or more but less than $60,000; and one count of theft of property valued $500 or
less.2 Id. at 180. In finding the evidence sufficient to support the first degree murder
convictions, our supreme court stated as follows:

Mr. Davidson and his friends could have released Chris and Channon
unharmed after stealing Channon’s vehicle. Mr. Davidson did not know
Chris and Channon and had no reason to kidnap, rape, and murder them.
Chris and Channon had no defensive wounds. According to Mr. Davidson,
Channon asked him if she was going to die, indicating she likely knew her
fate. Viewing the facts in the light most favorable to the State, a reasonable
jury could have easily found beyond a reasonable doubt that Mr. Davidson
acted with premeditation when he shot Chris three times and killed him and
bound Channon and stuffed her into a garbage can to die. A reasonable jury
could have easily found beyond a reasonable doubt that Mr. Davidson
2
After the jury returned its verdicts, the State dismissed two felony murder counts, and the trial
court merged various counts. See id. at 180.
-4-
committed these murders while also committing the crimes of kidnapping,
robbery, and rape.

Id. at 214.

The defendants were tried separately in Knox County, and the Petitioner was the
second to go to trial. Cobbins was tried first before Judge Richard Baumgartner in August
2009. The jury was selected in Davidson County. Although the State sought the death
penalty, Cobbins received sentences of life without the possibility of parole for the first
degree murder convictions plus one hundred years for the remaining convictions. State v.
Letalvis Darnell Cobbins, No. E2013-00476-CCA-R3-CD, 2014 WL 4536564 (Tenn.
Crim. App. at Knoxville, Sept. 12, 2014). The Petitioner was tried next before Judge
Baumgartner in October 2009 and chose a jury from Knox County. After he was convicted,
the jury imposed two death sentences for the first degree murder convictions, and he
received forty years for the remaining convictions. In support of the death penalty, the jury
found the existence of three aggravating circumstances for the murder of each victim: (1)
the murder was especially heinous, atrocious, or cruel; (2) the murder was committed for
the purpose of avoiding, interfering, or preventing a lawful arrest; and (3) the murder was
committed during the perpetration of another felony. Davidson, 509 S.W.3d at 219 (citing
Tenn. Code Ann. § 39-13-204(i)(5), (6), (7)). The jury found the existence of one
additional aggravating factor for the murder of Mr. Newsom: the defendant knowingly
mutilated the body of the victim after death. Id. (citing Tenn. Code Ann. § 39-13-
204(i)(13)). Thomas was tried before Judge Baumgartner in December 2009 and received
life without the possibility of parole for the first degree murder convictions. A new trial
was granted, and he was retried before Judge Walter C. Kurtz in 2013 and received life
sentences for the murder convictions plus twenty-five years for the remaining convictions.
State v. George Geovonni Thomas, No. E2013-01738-CCA-R3-CD, 2015 WL 513583
(Tenn. Crim. App. at Knoxville, Feb. 5, 2015). Coleman was tried twice and ultimately
received an effective thirty-five-year sentence for her involvement in the crimes. State v.
Vanessa Coleman, No. E2013-01208-CCA-R3-CD, 2014 WL 6908409 (Tenn. Crim. App.
at Knoxville, Dec. 9, 2014). Boyd was convicted on two federal charges of being an
accessory after the fact to carjacking and misprision of a carjacking related to his
involvement in these crimes. United States v. Boyd, 640 F.3d 657 (6th Cir. 2011). In
March 2018, the Knox County Grand Jury charged Boyd by presentment with various
offenses related to the deaths of the victims. He went to trial in August 2019 and ultimately
received two life sentences for the first degree murders of Mr. Newsom and Ms. Christian
plus ninety years for the remaining convictions. His case is currently on appeal before this
court.

On March 10, 2011, Judge Baumgartner resigned due to allegations of drug abuse.
At that time, motions for new trials were pending in the cases of all of the defendants except

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Boyd; Boyd had not yet been charged in state court. Senior Judge Jon Kerry Blackwood
was assigned to the cases. He determined that he could not act as thirteenth juror due to
Judge Baumgartner’s out-of-court conduct and, thus, granted the Petitioner, Cobbins, and
Thomas new trials. The State sought an application for permission to appeal the rulings
pursuant to Rule 10, Tennessee Rules of Appellate Procedure. This court initially denied
the application, but our supreme court granted the State’s request for relief. State v. Letalvis
Cobbins, Lemaricus Davidson and George Thomas, No. E2012-00448-SC-R10-DD (Tenn.
May 24, 2012) (order). Our supreme court held that “in the absence of controlling authority
otherwise, we decline to hold that a trial judge’s out-of-court misconduct, by itself,
constitutes structural error unless there is proof that the misconduct affected trial
proceedings.” Id. Therefore, the court concluded that Judge Blackwood erred in granting
new trials to the Petitioner, Cobbins, and Thomas and remanded the cases to Judge
Blackwood for further review. Id. Coleman was granted a new trial based on Judge
Baumgartner’s in-court conduct during the trial proceedings, but the State did not challenge
that ruling in the extraordinary appeal. See id.

On remand, Judge Blackwood again decided that he could not act as thirteenth juror.
Based upon actions detailed in this court’s opinion, the State again sought, and was granted,
permission to appeal Judge Blackwood’s order denying the State’s motion to recuse. See
State v. Letalvis Cobbins, Lemaricus Davidson, and George Thomas, No. E2012-02025-
CCA-10B-DD, 2012 WL 5266427 (Tenn. Crim. App. at Knoxville, Oct. 25, 2012), perm.
app. denied, (Tenn. Feb. 12, 2013). This court concluded that Judge Blackwood should
have recused himself in the three cases. Id. at *18. On remand, Judge Kurtz was
designated to proceed on the motions for new trials filed by the Petitioner, Cobbins, and
Thomas. Judge Kurtz eventually denied the Petitioner’s motion for new trial. The
Petitioner’s convictions and sentences were then affirmed on direct appeal. Davidson, 509
S.W.3d at 171.

The Petitioner timely filed a pro se post-conviction petition on December 4, 2017.
Following the appointment of counsel, the filing of several amendments to the original
petition, and an evidentiary hearing, the post-conviction court denied relief. The Petitioner
now appeals that ruling.

Meanwhile, on June 24, 2019, the Petitioner also filed a petition seeking coram
nobis relief. Therein, he argued that he was entitled to a new trial and/or sentencing hearing
because of new evidence, mainly that Thomas had agreed to testify for the State in Boyd’s
then-upcoming trial that Boyd, not the Petitioner, shot and killed Mr. Newsom and burned
his body. Thomas would further testify that the Petitioner was not present at the scene
when Mr. Newsom was killed. The Petitioner became aware of the Thomas evidence in
September 2018. Evidently, Thomas agreed to a sentence reduction in exchange for his
testimony in Boyd’s trial. The Petitioner previously sought to delay the post-conviction

-6-
evidentiary hearing based on the discovery of this new evidence, but the post-conviction
court denied that request. Following a subsequent hearing on the coram nobis petition, the
coram nobis court denied relief. The Petitioner also now appeals that ruling.

This court has consolidated the Petitioner’s appeals of the denial of post-conviction
and coram nobis relief. Tenn. R. App. P. 16(b). We will individually address the issues
raised by the Petitioner in support of his request for relief under both the post-conviction
and coram nobis statutes.

Post-Conviction

Evidentiary Hearing Testimony

Attorney David Miller Eldridge testified that he served as “first chair” counsel
during the Petitioner’s trial. He had practiced primarily criminal law in Knoxville since
1988 and previously had represented two or three defendants in capital cases. Eldridge
was board certified as a criminal trial advocate in addition to having received other
professional accolades. Along with Douglas A. Trant, whom Eldridge respected and
selected to be appointed after the State filed its notice of intent to seek the death penalty,
the defense team also utilized the services of two other attorneys and law clerks in
Eldridge’s firm at the firm’s own expense. Eldridge stated that the defense team’s case file
filled twenty to twenty-five Bankers Boxes.

Eldridge recalled that the Petitioner had moved to Knoxville about six months
before the crimes and that the other codefendants were not from Knoxville. The two
victims were from Knoxville. Eldridge said the extensive media coverage began as soon
as the crimes occurred and continued throughout the Petitioner’s trial, as well as the trials
of his codefendants. The media portrayed the crimes as “torture slayings,” and the
Petitioner was characterized as the “ringleader.” Eldridge said the media covered
“essentially, every aspect of this case”; he had not handled another case that “generated
[that] level of media coverage.” The defense team maintained a file and collected a
substantial number of local articles which had reported on the case. Eldridge did not
specifically recall, however, collecting or comparing news articles or reports from other
jurisdictions. The defense did not poll people in the local community to determine their
knowledge about the case.

Eldridge testified that posts on various media websites contained hostile comments
directed toward defense counsel and that he tried to avoid reading them. He referred to a
specific article in the Knoxville News Sentinel, which included a photograph showing
counsel and the Petitioner smiling while seated at counsel’s table in the courtroom.
Someone mailed a copy of that photograph to counsel along with a threat to them and their

-7-
families. Eldridge forwarded the mail to federal law enforcement officials. He recalled
that comments expressed opinions that the defendants did not need to face trial but, instead,
“should all be killed.” He also remembered that some people believed the case would have
received more attention in the national news if the victims had been black and the
perpetrators had been white. Eldridge recalled that a Ku Klux Klan march occurred on
Main Street before trial.

Eldridge testified that Cobbins, Coleman, and Thomas all moved for a change of
venue based, primarily, on pretrial publicity. Instead of having their trials moved out of
Knox County, those three codefendants received a change of venire. In July 2009, Trant
e-mailed Eldridge and suggested that they keep a jury of Knox County residents. Prior to
that suggestion, Eldridge had assumed they also would move for a change of venue. In
fact, he replied to Trant expressing his concern that seating a jury with people from
Knoxville who had not already heard or formed an opinion about the case would be
difficult. Eldridge thought that “there was a lot of inflammatory commentary” about this
case that was “potentially prejudicial” to the Petitioner. Eldridge deferred to Trant’s
decision, however, because Trant had more experience in trying capital cases. Eldridge
knew that if a jury could not be seated in Knox County, the case would still have to be
tried. He testified that as lead counsel, he should have overridden Trant’s decision.

Eldridge testified that counsel discussed the matter with the Petitioner. Eldridge
thought the Petitioner understood the risks and benefits of both options. Eldridge also
thought the Petitioner understood counsel’s strategy to use the extensive pretrial publicity
to their advantage in jury selection in hopes of not being able to seat a jury in Knox County.
However, counsel informed the Petitioner that they “might very well get a jury” from Knox
County. Eldridge stated that their strategy was “questionably, a risky effort”; therefore,
they might end up with jurors who had been exposed to prejudicial pretrial publicity.
Eldridge remembered Trant saying, in light of the “extraordinary” evidence against the
Petitioner and the denial of numerous motions to suppress, that “desperate times call for
desperate measures.” Eldridge acknowledged that even a jury from another jurisdiction
would have heard the same evidence and that he “did not have confidence that a jury from
another jurisdiction would react to these facts any differently.” He also thought the death
penalty “was a real possibility” even with an out-of-county jury. Ultimately, the Petitioner
voiced no objection to trying to seat a Knox County jury.

Eldridge testified about the jury questionnaires and jury selection expert the defense
team employed. That expert preferred trying to seat a jury from another jurisdiction.
Eldridge also recalled that the trial judge had been making arrangements for an out-of-
county jury prior to counsel’s announcement that they would seat a jury from Knox County.
Eldridge did not think counsel had a basis to strike for cause those jurors who ended up on
the panel. Furthermore, counsel did not exercise all of their peremptory challenges because

-8-
their expert advised them that there were less favorable jurors remaining in the pool. The
trial judge gave counsel “a great deal of leeway” and did not rush them during jury
selection. Counsel discovered that a number of potential jurors knew about the case, but
those jurors stated they could set aside any preconceived opinion and decide the case on
the facts presented. Eldridge stated that although counsel could have done a better job, he
thought they tried to address the racial undertones of the case during jury selection.

Eldridge testified that the defense moved to suppress the Petitioner’s statement to
the police, and he identified a newspaper article discussing that statement. Eldridge also
identified articles discussing the inadmissibility of the Petitioner’s prior conviction for
carjacking but the admissibility of his prior conviction for aggravated robbery as well as
articles reporting on some other unrelated charges. Eldridge agreed it was important for
the defense to limit potentially damaging evidence about the Petitioner’s criminal history
from reaching the jury.

Eldridge testified that the defense theory of the case was to attempt to blame the
Petitioner’s codefendants and to establish an alternative theory about why the victims were
at the Petitioner’s house. Counsel zealously tried to defend the Petitioner without regard
to the public’s reaction about the theories. Counsel’s actions were not dictated one way or
the other by any threats they received.

Eldridge testified that Cobbins received a sentence of life without the possibility of
parole despite the State having sought the death penalty. Eldridge watched Cobbins’s trial
as it was being broadcast live. Cobbins’s trial strategy was to place the bulk of the blame
on the Petitioner, and the public was aware of that strategy prior to the Petitioner’s trial.
Cobbins and the Petitioner shared some of the same family members, and counsel decided
not to call some of those individuals as witnesses because their sentencing hearing
testimony at Cobbins’s trial could have been harmful to the Petitioner. Eldridge did not
consider the evidence against Cobbins to be “as strong” as the evidence against the
Petitioner. Specifically, the DNA and fingerprint evidence were more damaging to the
Petitioner. Additionally, the Petitioner rented the house where most of the crimes occurred.

Eldridge testified that counsel met with the Petitioner many times and never
witnessed any signs of intellectual disability. The Petitioner appeared intelligent, and he
was polite and courteous. He asked counsel questions about his case and was able to read
the written materials counsel provided to him. Eldridge did not raise any concerns about
the amount of time Dr. Peter Brown, their mitigation expert, spent with the Petitioner prior
to trial. There was no evidence of any organic brain damage.

Eldridge testified that he did not notice any evidence of impairments by Judge
Baumgartner during the trial and that he was “shocked” to learn about the judge’s

-9-
addiction. As far as the atmosphere in the courtroom, Eldridge said he would not describe
it as a “circus.” However, the victims’ families visibly expressed their anger about the
case. Eldridge recalled that “the tension was palpable at all times. And the jury would
have had to have picked up on that.”

Attorney Douglas A. Trant served as “second chair” counsel for the Petitioner at
trial. He had maintained a criminal law practice almost exclusively for approximately
thirty years and had been certified as a “Criminal Trial Specialist” for about thirteen years.
The “division of labor” on the case was shared equally between the two attorneys. They
filed numerous pretrial motions with the intent of trying to suppress as much of the State’s
evidence as possible, and they worked together on the mitigation aspect of the case. They
traveled to Jackson and Memphis to interview the Petitioner’s foster parents and other
family members. Trant said the Petitioner’s family members were, “unfortunately,” not
cooperative. The defense team employed a mitigation specialist and a psychiatrist to assist
with mitigation.

Trant testified about the extensive and “sensational” media coverage of the case.
All of the Knoxville television stations, some of the radio stations, and the Knoxville News
Sentinel covered every aspect of the case from the pretrial hearings until the last day of the
trial. Although the media generally portrayed defense counsel as appointed attorneys “just
doing their job,” many online comments were “hateful” and “threatening.” The reactions
of the victims’ family members were covered extensively by the media. Trant recalled that
the families were “very angry, bitter [and] hurt.” He also recalled threats from the families
and having his access to the courtroom blocked at times by the families and their
supporters. The victims’ family members sat near the jury during the trial and reacted
“physically to testimony, they reacted audibly.” They also wore buttons in support of the
victims.

Trant testified that he did not let the publicity or negative attention toward him affect
his performance as a defense attorney. This case was his tenth capital case that went to
verdict and, other than one prior case where the death sentence was ultimately reversed on
appeal, the only one in which the jury imposed a death sentence. He thought he “did the
best [he] could” for the Petitioner. Trant acknowledged that the evidence against the
Petitioner was “overwhelming and very damaging.”

Trant recalled that Randy Nichols, the Knox County District Attorney General at
the time, asked if the Petitioner would be interested in pleading guilty in exchange for a
sentence of life without the possibility of parole. The Petitioner firmly declined that offer.
Trant’s understanding of why the Petitioner turned down the offer was that “he would just
as soon have death . . . that the difference between the two was not a difference with
distinction for him. And he was steadfast in that regard.” After the trial, though, the

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Petitioner was upset. Trant explained, “I went back to the dock to talk with him and he
was crying then. He said, you know, it’s one thing to anticipate it all this time, but it’s
another thing to finally get it. So I think it finally hit him hard - that he was sentenced to
die. And I think up until that time his resolve was to fight it.”

Trant testified that he proposed seating a jury from Knox County based upon his
experience in a prior capital case in Claiborne County which resulted in a hung jury.
According to Trant, Tennessee law only allowed a defendant to move for a change of
venue. Based on that understanding, he presented a trial strategy to Eldridge that the
Petitioner not move for a change of venue in hopes of not being able to seat a jury from
Knox County. Trant thought that if the jury selection process dragged on, the State might
be forced to negotiate further. He “remember[ed] telling [the Petitioner] that if the jury
believed that he did what the State said he did, we could get a jury from Mars and I thought
they would give him the death penalty.” Trant said the rapes and murders occurred at the
Petitioner’s house, the Petitioner “came from Memphis selling drugs,” and the Petitioner
“probably initiated this carjacking.” Therefore, Trant thought the Petitioner’s culpability
was greater than that of Cobbins, who received a lesser sentence with an out-of-county
jury. Furthermore, the Petitioner was going to have less mitigation support from his family
members at sentencing than Cobbins had.

Trant testified that he told the Petitioner that “if we were not able to seat a jury, that
they could not try him and they could not convict him.” Trant acknowledged that he was
unaware of any case at that time in which “a Judge had to throw up his or her hands and
say, well, I just can’t get a jury in this county and Mr. Defendant, you -- you can walk out
of here.” Although Eldridge disagreed with Trant’s strategy, the Petitioner sided with
Trant, so the defense ultimately chose to seat a jury from Knox County. However, the
defense team did not make their decision lightly. Trant understood that the trial judge was
likely to grant a request for an out-of-county jury as the judge had done in the codefendants’
cases, but Trant was “not a fan of picking a jury somewhere else and bringing them back
to the community.” He stated, “I mean, if the community is outraged, then trying the case
here in Knox County is bound to spill over to a jury, I think, no matter if they’re
sequestered.” The Petitioner was present in the courtroom when counsel announced that
they would not seek a change of venue or venire.

Trant recalled that jury selection lasted eight days. Despite their hopes of reaching
a settlement with the State, defense counsel approached jury selection with the intention of
obtaining a fair and impartial jury. Counsel secured the services of a jury selection expert
to assist with evaluating all potential jurors before and during the selection process. They
researched the jurors, including looking into the jurors’ social media accounts. The trial
court permitted individual voir dire. Trant said “it was fairly evident early on” in the
process when they realized they would be able to seat a jury in Knoxville because they

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“didn’t get the number of challenges for cause that [they] hoped [they] might.” Similarly,
Trant stated they did not need to use all of their peremptory challenges. When questioned
by the post-conviction court as to whether the defense team was satisfied with the jury,
Trant replied, “I don’t know that we were satisfied. I think we were satisfied that we had
done the best we could under the circumstances. Whether it was a fair and impartial jury,
I don’t know.” Trant thought they carefully explored the potential jurors’ exposure to
pretrial publicity. He did not recall, though, whether jurors were asked about potential
racial undertones in the case. Trant said there was nothing he would have done differently
regarding jury selection.

Trant testified that he knew Judge Baumgartner personally as a friend. However,
they had fallen out of favor with one another by the time the Petitioner’s trial started. Trant
also knew Judge Baumgartner had a reputation for using illegal drugs throughout his career
as an attorney and judge, but Trant did not see any signs that Judge Baumgartner was under
the influence of drugs during the Petitioner’s trial.

Trant testified that he met with the Petitioner “dozens” of times during trial
preparation, and he described the Petitioner as “a smart guy . . . always engaged, intelligent,
a perfect gentleman, was not afraid to ask questions.” Trant saw no signs of intellectual
impairments, and Trant entertained no doubt about the Petitioner’s understanding of the
content of their discussions or the intent of counsel’s trial strategies. Trant updated the
Petitioner regularly about defense counsel’s work on the case.

Attorney Loretta Gene Cravens testified that she was employed by Eldridge’s law
firm and that she assisted the Petitioner’s defense team. Cravens was not appointed to
represent the Petitioner and, thus, was not compensated by the State for her work on the
case. She was primarily responsible for discovery management and observing the jury
during the trial. Cravens met with the Petitioner regularly. She found him to be intelligent,
and she did not notice any signs of intellectual disability. The Petitioner interacted well
with his attorneys and asked questions about his case. Cravens said that there were many
outbursts in the audience during the trial and that the jury would have heard the outbursts.
She also recalled an instance in which a member of the prosecution fainted during
testimony about the autopsy photographs. Defense counsel moved for a mistrial, but the
trial court denied the motion. Cravens did not recall anything to indicate Judge
Baumgartner was impaired during the trial.

Cravens remembered that the media coverage characterized the Petitioner as the
“ringleader” of the crimes. The defense team monitored the media coverage before trial
and maintained a media file containing numerous articles. Although they collected stories
from other jurisdictions, they focused their efforts on the Knoxville media. Their collection
contained reports related to the cases against the Petitioners’ codefendants as well,

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including numerous articles published in the spring of 2008 during Boyd’s federal trial.
The defense was aware of several Facebook group pages related to this case, and Cravens
monitored those pages to determine if any potential juror had joined any of the groups.
One potential juror who had joined was dismissed from the jury pool. Cravens was not
involved in the decision to try the case in Knox County. She recalled that the media was
present in the courtroom during every hearing in this case and that Court TV live-streamed
Cobbins’s trial.

Cravens recalled that the Knoxville News Sentinel discontinued the public comments
to the articles about the case on the newspaper’s website because some of the comments
were threatening toward the people involved. Other media websites allowed online
comments to continue. Eldridge, his children, and Trant received threats. Although
Cravens was not singled out, she was distressed by the threats in general. However, the
threats did not affect defense counsel’s tactical decisions. As a result of the threats, the
defense team instituted security measures during its representation of the Petitioner, such
as logging threatening telephone calls, avoiding making comments to the media, and
traveling in groups to the courthouse. The courthouse also instituted some “significant”
additional security procedures to protect the defense team. Specifically, additional security
and plain-clothed law enforcement personnel were in the courtroom. The trial judge also
issued directives each morning before trial, reminding everyone to maintain proper
decorum.

Cravens testified about the racial tensions surrounding the case. The defense team
knew that in 2008, the population of Knox County was approximately 430,000 with a
composition of about 87.7 percent white people and 8.9 percent black people. Cravens
specifically remembered a rally taking place sometime around May 2007 by a white
supremacist group that was organized in direct response to the case. She also testified
about the extensive misconception of the facts of this case that were spread by the media
and throughout the community.

Cravens testified that she participated in part of the eight-day jury selection and that
defense counsel was very methodical during the process. Counsel relied heavily upon their
jury selection consultant. The consultant reviewed the extensive jury questionnaires and
rated potential jurors based upon her own research and system. Cravens attended a strategy
meeting between counsel and the jury consultant the weekend before the start of trial.
According to Cravens, most of the potential jurors had heard something about the case.
Moreover, jurors were questioned about the racial dynamics of the case.

Attorney Stephen Ross Johnson represented codefendant Thomas. Johnson testified
that the University of Tennessee played a substantial role in the Knoxville community and
that any story that related to the college certainly attracted the media’s attention. Ms.

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Christian was a student at the University. Johnson recalled that the media coverage of the
killings was “pervasive and intrusive and constant . . . in a way [he had] never seen before
in . . . Knoxville” over the previous twenty years he had lived there. Johnson described the
media coverage of this case as “atypical” and said the coverage increased when the court
hearings began in 2008 and early 2009. According to Johnson, the media “was pretty
aggressive” in its attempts to interview the victims’ family members for their reactions
after court hearings. Johnson opined that, unlike at the time of this hearing in 2019, social
media such as Facebook, Twitter, Instagram, and Snapchat were not as pervasive as in
2009. Thus, the media outlets would “drive traffic to their websites” by allowing online
comments to their articles. Johnson believed that most of the comments were posted
anonymously by local readers. The case was a constant topic of conversation in the
community during that time.

According to Johnson, racial and socioeconomic factors played a part in the trials
and were something defense counsel had to contemplate, especially during jury selection.
Johnson recalled that “a march or a rally [in 2007] by the Ku Klux Klan down Main Street”
occurred and that vigils for the victims were held at the University.

Jessica Thomson served as the paralegal supervisor and data systems manager for
the Office of the Post-Conviction Defender and assisted counsel in preparing for the
evidentiary hearing. She received a report from News Data Services (NDS), a media
monitoring corporation, that contained reports about this case on local and regional
television news broadcasts in Tennessee from January 2007 until October 2009. This
case was mentioned 3,572 times on television news broadcasts in the state during that time
period, with 3,111 reports occurring on Knoxville news stations. The NDS report also
indicated that the case was mentioned 842 times on news broadcasts in Knoxville from
January 2007 through March 2008 compared to 71 times in Nashville and 20 times in
Chattanooga. From June 2007 until September 2008, the case was mentioned 696 times
on television in Knoxville compared to 3 times in Chattanooga. On April 16, 2008, during
the time of Boyd’s trial, the case was mentioned 40 times on news broadcasts in Knoxville
and reached an estimated three million viewers. From November 2008 through August
2009, the case was mentioned 417 times on news stations in Knoxville and zero times in
Chattanooga. During Cobbins’s trial in August 2009, the case was mentioned 478 times
in Knoxville and 15 times in Chattanooga. The day Cobbins testified, there were 14
television news reports in Knoxville with an estimated 408,000 viewers while at the same
time there was one report in Chattanooga with an estimated 25,000 viewers. When the
verdict was announced in Cobbins’s trial, the news stations in Knoxville reported on the
case 98 times with an estimated three million viewers while there were 5 broadcasts in
Chattanooga with an estimated 130,000 viewers.

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The NDS report indicated that the Petitioner was referred to by the Knoxville news
media as the alleged “ringleader” 76 times. The Chattanooga news twice referred to him
as such. The Knoxville news stations also reported 53 times about testimony during the
Boyd and Cobbins trials that characterized the Petitioner as being more culpable than his
codefendants. They referenced the statements of the Petitioner’s codefendants to the police
78 times. The Chattanooga news stations did not air stories about either of those details.
The Knoxville stations aired stories about the Petitioner’s prior convictions 63 times. None
were aired in Chattanooga. During 37 broadcasts, the Knoxville stations aired stories
featuring expressions of frustration from the victims’ families about the sentence of life
without the possibility of parole imposed by the jury in the Cobbins trial and statements
suggesting the Petitioner deserved the death penalty. An estimated 12 million viewers saw
those 300 plus broadcasts from January 2007 through October 2009. Only an estimated
60,000 viewers in Chattanooga saw similar broadcasts.

Thomson also surveyed articles from the Knoxville News Sentinel and the
Chattanooga Times Free Press, which referenced this case during the same period of time
from January 2007 until October 2009. There were 322 articles in the Knoxville News
Sentinel with 100 of those appearing on the front page. There were 24 articles in the
Chattanooga Times Free Press with none appearing on the front page. Cobbins’s trial was
mentioned 28 times in the Knoxville News Sentinel, with many articles appearing on the
front page, and 4 times in the Chattanooga Times Free Press, with no articles appearing
on the front page.

Thomson identified a front-page article from the Knoxville News Sentinel that was
published on August 27, 2009, titled “Life Without Parole. Jury Rejects Death Penalty for
Letalvis Cobbins.” The article was accompanied by a picture of the father of one of the
victims with a caption reading, “He Deserves to Die.” Thomson also identified other
articles from the Knoxville News Sentinel during that time period which reported on the
Petitioner’s prior conviction for carjacking, a prayer vigil for the victims held at the
University, and the race and class differences between the defendants and the victims.
Other articles commented about the difficulty jurors had in avoiding pretrial publicity in
Boyd’s trial and how potential jurors in the Petitioner’s trial “could simply lie about a lack
of opinion on [his] guilt or innocence.” Thomson also identified an article printed during
Cobbins’s trial in which his defense attorney described the Petitioner as the “mastermind.”
Another article published before the Petitioner’s trial quoted someone as saying the
Petitioner’s jury should come from Knoxville because “[t]hose people from outside Knox
County don’t know the whole story.” Thomson also was able to view on the Knoxville
News Sentinel website the unredacted statements the defendants gave to the police, which
were posted in August 2009.

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On cross-examination, Thomson acknowledged that the estimates of viewership of
the various news broadcasts included areas surrounding Knox County. She also
acknowledged that the estimates did not necessarily include “unique viewers.” As to the
online print media, Thomson agreed that it could have been viewed by people all over the
world. Thomson stated that the media coverage declined from the date of the crimes until
the beginning of the Petitioner’s trial; however, it “ebbed and flowed” as well. According
to Thomson, the number of television news broadcasts in Knoxville on certain dates
between January 2007 and October 2009 averaged between 20 and 40. Thomson did not
search the print media to determine how many times the Petitioner was referred to as the
“ringleader.” According to census data introduced during Thomson’s testimony, Knox
County had a population of approximately 430,000 in 2008, and Hamilton County had a
population of about 308,000 in 2010.

The State did not call any witnesses during the evidentiary hearing. It only
introduced into evidence the questionnaires and the transcript of the individual voir dire
for the twelve jurors and the two alternates who sat on the trial.

At the conclusion of the parties’ proof, the post-conviction court questioned
Assistant District Attorney General Leland Price about how the jury selection process was
conducted in this case. Price stated that several weeks before trial, “several hundred”
potential jurors were summoned to appear. Some of those individuals were immediately
excused due to hardships or criminal records. Judge Baumgartner then distributed written
questionnaires to the remaining jurors to fill out. The creation of the questionnaires was a
collaborative effort between both parties and the judge. Copies of the completed
questionnaires were then given to the attorneys for both parties. The judge and both parties
agreed that some of the prospective jurors should not be invited back to participate in
individual voir dire because the responses on their questionnaires reflected unwavering
views one way or the other about the imposition of the death penalty and, possibly as well,
their opinion about the Petitioner’s guilt. Those that were invited back returned to the
courthouse about a week before trial.

The potential jurors were separated into groups for individual voir dire. Price
recounted the “sort of informal” process that occurred: During questioning, the judge, the
attorneys, and each prospective juror sat around a table. The judge first questioned each
juror about his or her exposure to pretrial publicity and views on the death penalty. The
judge also may have questioned the juror about “something that jumped out from their
questionnaire.” After the judge concluded his inquiry, the attorneys took turns questioning
each juror. The attorneys followed-up on the issues of pretrial exposure to publicity and
views on the death penalty. When all of the questioning was completed, Judge
Baumgartner made the initial decision, based on hardships or responses to questions, as to
whether a potential juror would be included in the final pool and participate in the group

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voir dire that occurred before trial. In addition, the attorneys for both sides also agreed that
some of the potential jurors should otherwise be excused from the final pool based on their
responses to questions. Neither party used their peremptory challenges during the
individual voir dire process. At that time, jurors were only challenged and/or excused for
cause. Price stated that the final pool consisted of more than fifty jurors. The individual
voir dire took eight days, and the final group voir dire occurred in one day immediately
before the beginning of trial.

Issues

For the sake of clarity, we have reorganized the order of the issues presented in the
Petitioner’s post-conviction brief.

I. Post-Conviction Court’s Management of Post-Conviction Proceeding

First, the Petitioner raises the following issue regarding the post-conviction court’s
handling of the post-conviction proceeding: “The post-conviction trial court violated
Article I, §§ 8 and 16 of the Tennessee Constitution and abused its discretion when it denied
[the Petitioner] the expert funds, documents, and time needed to investigate, prepare, and
present specified claims.” Specifically, the Petitioner argues that the post-conviction court
abused its discretion by refusing to authorize funds for the expert services of Dr. Pamela
Auble, Dr. James Merikangas, Dr. Bryan Edelman, and Mr. Justin Levinson. He also
contends that the post-conviction court denied him access to certain witnesses and records
and did not afford him a sufficient amount of time to investigate and prepare for the
evidentiary hearing. Finally, the Petitioner argues that the post-conviction court deprived
him of his “right to due process and freedom from cruel and unusual punishment when it
refused to hear claims that his death sentence is constitutionally invalid and requires
resentencing” with respect to the anticipated testimony of Thomas at Boyd’s then-
upcoming trial.

Background

In order to adequately address this issue, we will outline the procedural history of
the Petitioner’s post-conviction proceeding. We also have taken the liberty to quote
extensively from several of the post-conviction court’s orders in order to give context to
the bases for the Petitioner’s arguments.

The Petitioner filed his pro se petition on December 4, 2017. That petition was
prepared with the assistance of the Office of the Post-Conviction Defender (“OPCD”).
That office was eventually appointed as counsel of record on March 1, 2018. The order of
appointment granted counsel thirty days to file any amendments to the pro se petition, and

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the case was originally set for an evidentiary hearing on June 20, 2018. Almost
immediately after their official appointment, counsel filed a motion to reschedule the initial
deadlines imposed.

On May 10, 2018, the post-conviction court entered a new scheduling order which
granted the Petitioner sixty additional days to file an amended petition. The court noted
therein that “although the Post-Conviction Defender’s Office was not appointed to
represent Petitioner until March 1, 2018, attorneys from the Office assisted Petitioner in
drafting his pro se petition for relief. Therefore, Petitioner’s attorneys should be familiar
enough with the case to file an amended petition within the time allowed.” Soon thereafter,
on May 16, 2018, counsel moved the court to extend the filing deadline for the amended
petition. Counsel acknowledged in the motion that they had “[p]rior to and since
appointment . . . diligently requested and reviewed records.” Citing the one-year deadline
imposed by the Post-Conviction Procedure Act for final disposition of petitions in capital
cases, the post-conviction court granted the Petitioner until September 4, 2018, to file his
amended petition. See Tenn. Code Ann. § 40-30-111(d). In its order, the court summarized
the reasons offered by counsel for the requested extension: “Petitioner’s attorneys provide
a lengthy list of tasks they seek to undertake in their representation of Petitioner, including
reviewing the trial transcripts from Petitioner’s and codefendants’ trials, travel to various
cities in which Petitioner has lived, conferring with experts, and reviewing discovery.”
Noting that counsel did not request a specific deadline to file an amended petition, the court
offered the following comments in support of its ruling:

The undersigned judge, having presided over numerous death penalty
trials and post-conviction proceedings over the past three decades, is well
aware of the complex nature of death penalty cases. This Court will not
“rush” this case to a conclusion so as to violate the parties’ due process rights.
The Court will balance the interests of all involved parties and the prevailing
statutes, case law, and Supreme Court rules governing post-conviction cases
in setting a briefing and hearing schedule which is reasonable. The Court is
the ultimate arbiter of what is necessary to ensure a full and fair hearing in
this case, not the parties.

Counsel for the Petitioner appears to confuse the notice requirements
of the petition with trial preparation. In all cases, the pleadings do not limit
the attorneys’ ability to prepare for the case up to the final hearing date. This
Court certainly intends to allow the parties every opportunity to prepare for
the final hearing in this death penalty post-conviction matter.

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Counsel filed the Petitioner’s amended petition on September 4, 2018, and the State filed
its response thereto on October 4, 2018. Supplements to the amended petition also were
filed on October 18, 2018, and December 17, 2018.

In the meantime, on July 2, 2018, the post-conviction court granted the Petitioner
funding for investigative services. The Petitioner subsequently filed separate motions on
July 23, 2018, seeking funding for the services of four experts: Dr. James Lipman, a
pharmacologist, to evaluate the Petitioner’s history of substance abuse; Dr. Pamela Auble,
a neuropsychologist, to examine the Petitioner for evidence of brain dysfunction; Dr. Bryan
Edelman, a social psychologist, to create a media analysis of the pretrial publicity; and Mr.
Justin Levinson, a law professor, to review the extensive pretrial publicity for racial bias.

The court held an ex parte hearing on those motions and subsequently issued two
orders on August 2, 2018, explaining the reasons for its rulings. The court acknowledged
its obligations regarding the authorization of funding for experts in the Petitioner’s capital
post-conviction case. See Tenn. Sup. Ct. R. 13, § 5. The court granted, in part, funding
for Dr. Lipman. The court denied specific funding for Dr. Edelman and Mr. Levinson but
authorized separate funding for “a law student, paralegal, or other qualified person to aid
Petitioner’s counsel in researching, organizing, and presenting issues related to the pretrial
publicity” in the case. The Petitioner also moved the post-conviction court to fund a
ballistics expert, but the request was denied. Finding that the Petitioner failed to advance
a particularized need, the court denied funding for Dr. Auble but gave the Petitioner an
opportunity to file a renewed motion. The Petitioner filed his renewed motion on
September 4, 2018, which the court denied after finding that the Petitioner again failed to
show a particularized need for Dr. Auble’s services. Another “supplemental” motion
regarding funding for Dr. Auble also was subsequently denied.

Following a status hearing on October 3, 2018, the post-conviction court issued a
“Case Management and Scheduling Order” on October 8, 2018, and set a hearing date for
January 28, 2019. The court noted that the parties had indicated during the status hearing
that neither anticipated filing any additional motions, but the court set a deadline for any
such filings for December 17, 2018. The court also set deadlines for the parties to disclose
any experts they intended to call as witnesses.

On October 18, 2018, the Petitioner filed renewed motions seeking funding for Dr.
Edelman and the ballistic expert, both of which were denied by the court. As to Dr.
Edelman, the court reiterated its finding that Dr. Edelman “would not substantially assist
the Court in resolving the[] weighty issues” surrounding pretrial publicity and jury
selection. Also on October 18, 2018, the Petitioner filed a motion to continue the hearing
date set for January 28, 2019, which the court denied as well. The court explained:

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The Court finds the assertion that Counsel cannot be ready to provide
effective representation at a hearing to begin January 28, 2019, to be not
credible. A reading of the 159 page Amended Petition filed on September 4,
2018, and the 31 page Supplemental Petition filed on October 18, 2018,
clearly shows how conversant the two (2) very capable Counsel and their
staff from the Office of Post-Conviction Defender are with this case. Further
detailed and lengthy filings related to SCR 13, Sec. 5 proceedings further
show their thorough knowledge of the issues and facts in this case.

Administration of court cases is Judge-controlled not lawyer-
controlled. The Court has used its best judgment to strike a balance between
moving this case forward and yet be assured that the parties can fully and
fairly present their case.

There is probably not a lawyer in any significant case, criminal or
civil, who will say that he/she doesn’t need or want more time. This Court,
however, has every confidence that Petitioner’s Counsel are well capable and
will be able to competently present their client’s claims at the hearing
scheduled for January 28, 2019. The Court has considered the issues in this
case and the contention of the Petitioner as to his need to produce witnesses
and other evidence to prove his assertions. The Court is of the opinion that
the time available is well sufficient.

On December 17, 2018, the Petitioner filed a motion seeking subpoenas for the
release of medical and other historical records of some of his family members. He also
filed a motion for funding for another expert, Dr. James Merikangas, a neurologist and
psychiatrist, to evaluate the Petitioner’s mental health. In addition, the Petitioner filed a
motion to compel the production of numerous records related to Judge Baumgartner from
January 2007 to October 2009. Also on December 17, 2018, the Petitioner filed another
motion to continue the evidentiary hearing. The court held an ex parte hearing on all of
those motions on December 21, 2018. On December 31, 2018, the court denied each one
by separate order.

As to the request for subpoenas related to the information about the Petitioner’s
family members, the court held that “[t]he motion . . . does not even suggest how the sought
records might paint a bleaker (or more detailed) picture of [the Petitioner’s] childhood than
shown at trial” which “clearly showed . . . [it] to be one of violence, abuse, and neglect.”
The court found that the motion for funding for Dr. Merikangas did not sufficiently satisfy
the threshold requirements of Rule 13. Acknowledging that Judge Baumgartner’s opioid
addiction during the several trials in this case was well-documented, the post-conviction
court held that the issue as it related to Judge Baumgartner’s alleged impairment during the

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Petitioner’s trial had previously been determined and, thus, there was no need to order the
release of any records related thereto. See Letalvis Cobbins, et al., No. E2012-00448-SC-
R10-DD (order); Davidson, 509 S.W.3d at 227-29.

In a separate thirteen-page order, the post-conviction court also denied the
Petitioner’s request for a continuance. The Petitioner offered, as one reason in support of
his request, the anticipated testimony of Thomas at Boyd’s then-upcoming trial. As
discussed below, the post-conviction court erroneously concluded that information was not
relevant in the post-conviction proceeding. As to the other reasons offered, counsel
asserted that “these post-conviction proceedings have been moving far faster than nearly
all other capital post-conviction proceedings and that the issues associated with this case
are more complex than the ‘average’ capital post-conviction case” and that “extensive
investigation still needed to be undertaken, including the interview of over 100 potential
witnesses.” The court recited its duty to resolve the proceeding in a timely manner and
noted counsel’s insistence that “the time frames established by statute and court rule are
merely directory, and should be ignored.” The court stated:

Were this Court to impose a lengthy continuance, the Court would not be in
substantial compliance with the provisions of Rule 28 and section 40-30-111.

The Court acknowledges its duty to afford the Petitioner the
opportunity to present his claims in a meaningful time and manner.
However, in so doing this Court must remain mindful of the time frames
established by the General Assembly and the Tennessee Supreme Court
regardless of how other trial courts have treated such provisions in the past
or may do so in the future. This Court takes the one-year provision of section
40-30-111 seriously in scheduling matters, and that provision figures
significantly in this Court’s resolution of the current continuance motion.

The court then ruled:

The Court notes post-conviction counsel’s arguments concerning
their other grounds for a continuance largely repeated those raised in earlier
filings and at the October 2018 status conference. Those arguments and the
Court’s analysis regarding those arguments shall not be repeated here.
However, the Court notes that at the hearing on the continuance motion, Mr.
Watkins and Mr. Howell asserted that the OPCD needed more time to
interview over 100 potential witnesses and examine the discovery in this
case. Despite raising these assertions, counsel presented no evidence (in the
form of witness testimony, affidavits, or otherwise) to support these
assertions. As the Court of Criminal Appeals stated in Harris,

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It is undisputed that a continuance may be granted for the
purpose of securing the presence of identifiable witnesses if the
witnesses’ testimony is material and admissible. However, in
this case, the appellant sought a continuance in order to gather
information which, at the time of the motion, was largely
unknown and of entirely speculative value.

[Harris v. State, 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996)]. Counsel
could have filed an affidavit or stated in their continuance motion the types
of witnesses to be interviewed and the information they could have been
expected to provide. Counsel’s providing the Court with only the most
general of information regarding the potential witnesses to be interviewed
and investigation to be completed can only lead the Court to speculate as to
whether the potential witnesses and evidence the OPCD hope to uncover
would benefit the petitioner’s case, assuming such witnesses and evidence
are available at all. Just who these witnesses might be and how they might
contribute to Petitioner’s case is not clear to this Court.

Petitioner’s counsel have officially had this case since early March
2018 and unofficially since December 2017, when they wrote the 24-page
petition which initiated this case. The undersigned judge is very familiar
with this case from his significant involvement in 2012 and 2013. It seems
not credible that two competent lawyers with the resources of their office and
those provided by the Court could not be ready for the scheduled hearing
given their appointment over ten months before the hearing. Further delay
of these proceedings is not warranted, nor is such delay necessary.

....

The Court is confident that beginning the trial as scheduled in late
January will give post-conviction counsel an opportunity to present [the
Petitioner’s] substantial claims in a reasonable time and manner. Petitioner’s
attorneys have not presented this Court with information to suggest that the
hearing will be unfair to [the Petitioner] if it occurs as scheduled.
Accordingly, Petitioner’s motion for a continuance is DENIED.

In the meantime, on December 28, 2018, the Petitioner filed an application in this
court for an extraordinary appeal. See Tenn. R. App. P. 10. The Petitioner sought review
of the post-conviction court’s “denial of sufficient time and resources necessary to
effectuate due process and a full and fair hearing” on his petition. Specifically, the

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Petitioner sought interlocutory review of the post-conviction court’s scheduling orders,
orders on the Petitioner’s various requests for expert funding, and orders related to his
requests for disclosure of records related to Judge Baumgartner and the Petitioner’s family.
Finding that the post-conviction court had not “‘so far departed from the accepted and usual
course of judicial proceedings as to require immediate review,’” this court denied the
Petitioner’s application on January 17, 2019. Lemaricus Davidson v. State, No. E2018-
02294-CCA-R10-PD (Tenn. Crim. App. at Knoxville, Jan. 17, 2019) (order) (citing Tenn.
R. App. P. 10(a)).

On January 3, 2019, the Petitioner renewed his request for funding for Dr.
Merikangas. The court denied that motion on January 9, 2019. On January 7, 2019, the
Petitioner filed a motion to bifurcate the evidentiary hearing due to Dr. Lipman’s
unavailability to appear as scheduled. The court denied the request to bifurcate the hearing,
but offered the Petitioner several alternative means by which to introduce Dr. Lipman’s
testimony at the scheduled hearing. On January 9, 2019, the Petitioner filed petitions for
writs of habeas corpus ad testificandum to secure the presence of codefendants Cobbins,
Thomas, and Coleman at the evidentiary hearing as witnesses. The court denied those
requests on January 10, 2019.

Both parties filed prehearing briefs. The Petitioner filed his twenty-one-page brief
on January 18, 2019, and the State filed its brief on January 24, 2019. On the day of the
scheduled hearing, January 28, 2019, counsel filed “Petitioner’s Notice of Lack of
Readiness for Evidentiary Hearing and Denial of Adequately Prepared Counsel.” Counsel
asserted that “[t]he amount of unfinished record collection, record review, and
investigation render undersigned counsel unable to make an offer of proof of evidence that
could be presented with the benefit of additional time and resources to perform the
numerous tasks necessary to effectuate Petitioner’s rights to due process and a full and fair
hearing.” The trial court held the evidentiary hearing, as scheduled, on January 28 and 29,
2019.

A. Continuance

The Post-Conviction Procedure Act governs the filing, processing, hearing, and
disposition of petitions challenging the abridgment of any state or federal constitutional
right. Tenn. Code Ann. §§ 40-30-101, et seq. In addition to time limits imposed upon a
petitioner, the Act mandates that the post-conviction court proceed under certain deadlines.
See Tenn. Code Ann. § 40-30-102. After the petition and answer are filed, the post-
conviction must enter an order within thirty days scheduling the evidentiary hearing. Tenn.
Code Ann. § 40-30-109(a). The hearing must occur within four months of the post-
conviction court’s scheduling order. Tenn. Code Ann. § 40-30-109(a); Tenn. Sup. Ct. R.
28, § 8(B). That “deadline shall not be extended by agreement, and the deadline may be

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extended only by order of the court based upon a finding that unforeseeable circumstances
render a continuance a manifest necessity. An extension shall not exceed sixty (60) days.”
Tenn. Crim. App. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). The Act further directs
that “[t]he court shall rule within sixty (60) days of conclusion of proof.” Tenn. Code Ann.
§ 40-30-111(d). That deadline also “shall not be extended by agreement, and the deadline
may be extended only by order of the court based upon a finding that unforeseeable
circumstances render a continuance a manifest necessity. An extension shall not exceed
thirty (30) days.” Tenn. Code Ann. § 40-30-111(d). Finally, as is specifically relevant to
the Petitioner’s issue in this appeal, and as reiterated by the post-conviction court
throughout its rulings, “[f]inal disposition of a capital case must be made within one (1)
year of the filing of the petition.” Id.

A petitioner is entitled to an evidentiary hearing to prove his or her allegations of
fact by clear and convincing evidence. Tenn. Code Ann. §§ 40-30-109, -110. The United
States Supreme Court has held that the opportunity to be heard “at a meaningful time and
in a meaningful manner” is a requirement of due process accorded to litigants. Mathews
v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). Similarly, the Tennessee Supreme Court has held that the requirement of a “full
and fair hearing” is satisfied when “a petitioner is given the opportunity to present proof
and argument on the petition for post-conviction relief.” House v. State, 911 S.W.2d 705,
714 (Tenn. 1995).

The decision to grant or deny a continuance rests within the sound discretion of the
trial court, and reviewing courts will not question that decision absent a showing of abuse
of discretion. State v. Hester, 324 S.W.3d 1, 35 (2010). Our supreme court recently
emphasized that the abuse of discretion standard of review is a “less rigorous review” of a
trial court’s decision and does not permit this court to “second-guess” the trial court or
substitute its judgment for that of the trial court. State v. McCaleb, 582 S.W.3d 179, 186
(Tenn. 2019). The supreme court further explained the standard of review:

Discretionary decisions must take the applicable law and the relevant
facts into account. An abuse of discretion occurs when a court strays beyond
the applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision. A court
abuses its discretion when it causes an injustice to the party challenging the
decision by (1) applying an incorrect legal standard, (2) reaching an illogical
or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.

To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a [trial] court’s discretionary

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decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the [trial] court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the [trial] court’s decision was
within the range of acceptable alternative dispositions.

Id. (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). “Accordingly,
if the reviewing court determines that ‘reasonable minds can disagree with the propriety of
the decision,’ the decision should be affirmed.” Id. (citation omitted). Moreover, a
petitioner seeking due process relief from the denial of a continuance bears the burden of
establishing actual prejudice by demonstrating that the result of the proceeding would have
been different had the request for a continuance been granted. State v. Odom, 137 S.W.3d
572, 589 (Tenn. 2004).

The Petitioner presents a general theme that the post-conviction court’s timeline for
the post-conviction proceeding was unreasonable. He complains that he had inadequate
time to investigate and present his claims for relief. As he correctly observes, post-
conviction “counsel shall be required to review the pro se petition, file an amended petition
asserting other claims which petitioner arguably has or a written notice that no amended
petition will be filed, interview relevant witnesses, including petitioner and prior counsel,
and diligently investigate and present all reasonable claims.” Tenn. Sup. Ct. R. 28, §
6(C)(2).

As noted above, counsel assisted the Petitioner in the filing of his original pro se
petition on December 4, 2017. That form petition checked-off typical grounds for post-
conviction relief, such as ineffective assistance of counsel, and summarily highlighted
counsel’s “failure to pursue a change of venue due to extensive and highly prejudicial
pretrial coverage of the case in the media.” As recounted above, the post-conviction court
granted the Petitioner at least two extensions of time to amend his petition and then
permitted him to twice supplement that amendment. The amended petition, filed
approximately nine months after the filing of the pro se petition, was one hundred fifty-six
pages with almost fifty pages dedicated to issues surrounding pretrial publicity and jury
selection. The first supplement, filed just over a month later, was thirty pages and discussed
primarily the issues related to pretrial publicity and Thomas’s anticipated testimony at
Boyd’s then-upcoming trial. The second supplement, filed one month before the
evidentiary hearing, focused on an issue related to Judge Baumgartner. The Petitioner also
filed a twenty-one-page prehearing brief. Again, the evidentiary hearing was originally
scheduled for June 20, 2018, but was ultimately continued until January 28, 2019. As noted
above, on the day of the hearing, the Petitioner filed a notice of “lack of readiness.” The
post-conviction court did not continue the hearing again but made the following comments
in its final order regarding counsel’s notice:

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Counsel have failed on their motion to continue to bring to the Court’s
attention any specific witnesses it has failed to interview or any missing
witness that might have any information about any valid claims in this case.
Mere vagaries and speculation are insufficient to support a continuance. At
no time did Counsel cite any information from interviews with the three (3)
trial counsel, the mitigation specialist who testified at trial, the psychiatrist
who testified at trial, or the neuropsychiatrist who examined the Petitioner
prior to the 2009 trial. There is no indication that these participants in the
trial preparation in 2008-09 were hostile, refused to be interviewed, or were
unavailable for interviews.

If there were voids in trial counsel preparation in 2008-09 which
would open the door for further expert testimony it was not shown to the
Court.

....

As to the continuance, the Court would have granted a continuance if
there had been any showing to the Court that additional time was necessary
to proceed on a substantive claim. After at least 43 weeks Counsel did not
make such a showing. They could only present the Court with speculation
and an expressed need to proceed on an exploratory investigation with no
reasonable boundary and little relationship to the apparent real issues in the
case. The motion to continue was appropriately denied and the Court is
convinced that Petitioner’s Counsel were able to well present proof at the
hearing focused on the substantive issues in this case.

The extensive prehearing history of this proceeding has been outlined above. The
post-conviction court cited to the relevant authority in support of, and explained in detail
the reasons for, denying the Petitioner’s requests for continuances. Nothing in the record
demonstrates that the post-conviction court abused its discretion. The length of the
amended petition, and the supplements thereto, alone demonstrate that counsel had ample
time to prepare their case. The Petitioner makes a blanket argument in his appellate brief
that because

post-conviction counsel failed to review or collect numerous documents
(including those pertaining to his family members, his non-correctional
medical history, his co-defendants’ trial transcripts and technical records, his
housing in juvenile facilities, his trial counsel’s file, law enforcement
investigative files and collected physical evidence, and the State’s post-

- 26 -
conviction discovery) and failed to interview numerous witnesses (including
family members, friends, neighbors, teachers, law enforcement agents, and
social service providers), [the Petitioner] cannot illustrate the prejudice
caused by the post-conviction court’s denial of time and access to records.

The post-conviction court granted the Petitioner funding for investigative services
on July 2, 2018, almost seven months before the evidentiary hearing occurred. In his brief,
the Petitioner contends that the post-conviction court erred by denying his request, which
he filed on December 17, 2018, just one month before the hearing, seeking subpoenas for
the medial and historical records of his family members. As the State correctly notes, a
petitioner may subpoena witnesses to testify at the evidentiary hearing. Tenn. Sup. Ct. R.
28, § 8(C)(3). Moreover, those witnesses may be subject to subpoenas duces tecum. See
Delvin Allison v. State, No. W2017-00707-CCA-R3-PC, 2018 WL 2338219, at *5 (Tenn.
Crim. App. at Jackson, May 23, 2018). Regardless, the Petitioner does not explain why he
was unable to request any of that information in those intervening months. Counsel
obviously met with the Petitioner at least no later than December 17, 2017, and presumably
was familiar with the courts’ opinions on direct appeal. Thus, post-conviction counsel
could, or should, have learned almost immediately about the Petitioner’s family. Indeed,
in their amended petition filed on September 4, 2018, counsel alluded to the necessity for
defense counsel in a capital case to generally investigate a defendant’s background. Other
than counsel’s bare assertion that the post-conviction court denied them time to investigate
the Petitioner’s family’s background, the record does not support counsel’s claim. In their
amended petition and supplements thereto, counsel did not reference any specific evidence
about the Petitioner’s family that trial counsel was unable to reveal. Moreover, the
Petitioner did not call any of his family members as witnesses at the evidentiary hearing.
The record simply does not support his claim on appeal that the trial court abused its
discretion by denying, one month before the hearing, his motion for those subpoenas.

The Petitioner also argues on appeal that the post-conviction court erred by denying
a similar request he made, also just one month before the hearing, for the production of
records related to Judge Baumgartner. Evidence of Judge Baumgartner’s addictions is
referenced elsewhere in this opinion. As the post-conviction court properly ruled in
denying the Petitioner’s request for those records, any issue as it related to Judge
Baumgartner’s alleged impairment during the Petitioner’s trial had previously been
determined and, thus, there was no need to order the release of any records related thereto.
See Letalvis Cobbins, et al., No. E2012-00448-SC-R10-DD (order); Davidson, 509 S.W.3d
at 227-29. The court, however, afforded the Petitioner the opportunity to present

proof of any misconduct by the trial judge during trial, not previously shown,
that should have been offered by trial counsel in their motion for new trial.
This would include misstatements by the judge, failure to respond,

- 27 -
prejudicial statements, lapses of memory, slurred speech, confusion, sleeping
on the bench, and failure to properly control the courtroom.

However, neither trial attorney testified during the hearing that he noticed any such
misconduct. This court thus finds the post-conviction court did not abuse its discretion by
denying the Petitioner access to the contested records in that respect.

The fact that counsel may have chosen to assign certain grounds for post-conviction
relief higher priority than others does not equate with the denial of due process. As the
post-conviction court suggested, it was only responsible for supervising the timely
resolution of the petition, not overseeing the management of counsel’s case. More than
one year after the filing of the original petition and approximately four months after the
filing of the amended petition, the proof at the evidentiary hearing focused almost primarily
on two particular grounds for relief. Aside from his argument regarding the post-
conviction court’s management of the post-conviction proceeding, the Petitioner similarly
dedicates the crux of his appellate brief to the pretrial publicity and jury selection issues.
This court finds it highly unlikely, given the procedural history, that counsel did not have
ample time to investigate and litigate all of their alleged grounds for relief. The post-
conviction record in this appeal is large and includes extensive pre- and post-hearing filings
by the Petitioner’s attorneys. Despite its size, the record otherwise clearly demonstrates
that the Petitioner was afforded ample opportunity to present and argue his alleged claims
for relief within a meaningful time and in a meaningful manner. See Mathews, 424 U.S. at
333; House, 911 S.W.2d at 711. The Petitioner simply has failed to demonstrate to this
court how he was denied a “full and fair” hearing as required by the law. We conclude that
the post-conviction court did not abuse its discretion by denying the Petitioner’s request
for another continuance on the date of the scheduled hearing.

B. Expert Services

Tennessee Supreme Court Rule 13 governs funding for expert services for an
indigent petitioner in a capital post-conviction proceeding. Tenn. Sup. Ct. R. 13, § 5.
Pursuant to that Rule, the post-conviction court has the “discretion [to] determine [whether]
investigative or expert services or other similar services are necessary to ensure that the
constitutional rights of the defendant are properly protected. Tenn. Sup. Ct. R. 13, §
5(a)(1). A petitioner must satisfy certain “threshold requirements” in the motion seeking
the funding. Tenn. Sup. Ct. R. 13, § 5(b). If the post-conviction court is satisfied that those
requirements have been met, it must then conduct an ex parte hearing to determine if there
is a “particularized need” for the services. Tenn. Sup. Ct. R. 13, § 5(c)(1). “Particularized
need in the context of capital post-conviction proceedings is established when a petitioner
shows, by reference to the particular facts and circumstances of the petitioner’s case, that
the services are necessary to establish a ground for post-conviction relief and that the

- 28 -
petitioner will be unable to establish that ground for post-conviction relief by other
available evidence.” Tenn. Sup. Ct. R. 13, § 5(c)(3) (citing Owens v. State, 908 S.W.2d
923, 928 (Tenn. 1995)). The Rule provides that a “particularized need” cannot be
established when a motion contains only:

(A) undeveloped or conclusory assertions that such services would be
beneficial;

(B) assertions establishing only the mere hope or suspicion that favorable
evidence may be obtained;

(C) information indicating that the requested services relate to factual issues
or matters within the province and understanding of the jury; or

(D) information indicating that the requested services fall within the
capability and expertise of appointed counsel.

Tenn. Sup. Ct. R. 13, § 5(c)(4). Because Rule 13 entrusts the decision of whether to grant
funding for services to the sound discretion of the post-conviction court, this court reviews
that decision under an abuse of discretion standard. Reid ex rel. Martiniano v. State, 396
S.W.3d 478, 517 (Tenn. 2013). That standard of review is detailed above. See McCaleb,
582 S.W.3d at 186.

a. Dr. Edelman and Mr. Levinson

The Petitioner sought the assistance of Dr. Edelman and Mr. Levinson in support of
their claim against trial counsel’s decision to seat a jury in Knox County. Dr. Edelman,
who lived in California, would have primarily researched, collected, and organized pretrial
media coverage about the case, given an opinion about the effect of such coverage on the
Knox County jury pool, and given an opinion about the efficacy of trial counsel’s voir dire
of the prospective jurors on the case’s publicity. Mr. Levinson, who lived in Hawaii, would
have given an opinion about how “implicit racial bias” might have affected the trial court
proceedings and how trial counsel might have been ineffective in their voir dire of the
potential jurors.

On appeal, the Petitioner asserts that he “established his need for these experts by
supplying the post-conviction court with detailed information regarding the pretrial
publicity in this case, with the empirical science underlying the experts’ fields, and with
how their specialized knowledge – outside the purview of laypeople – materially assisted
in establishing post-conviction claims.” As he states, “[H]e devoted over ten pages of one

- 29 -
motion to the extensive and pretrial publicity in this case, the surrounding community
outrage and racist response, and his jury’s exposure to the media coverage.”

The post-conviction court explained its reasons for denying specific funding for Dr.
Edelman and Mr. Levinson as follows:

The Court disagrees with Petitioner’s assertions as to the necessity of
these proposed experts. The Court is aware that issues related to the
extensive pretrial publicity in this case, the racial overtones of the case, and
the potential for juror bias all loom large in the current post-conviction
proceedings. The Court also recognizes the Petitioner should be given the
opportunity to present these issues as this case progresses. However, the
Court does not believe these proposed experts “are necessary to establish a
ground for post-conviction relief and that the petitioner will be unable to
establish that ground for post-conviction relief by other available evidence.”
Tenn. Sup. Ct. R. 13, § 5(c)(3).

In this Court’s view, the things necessary to establish the Petitioner’s
claims related to the publicity and jury selection issues are evidence of the
publicity in this case and the relevant case law examining the issues
identified in Petitioner’s motion[s]. Regarding proof of pretrial publicity,
this Court has no doubt that locating, organizing, and presenting evidence of
the overwhelming media publicity and other Internet “noise” this case
generated before Petitioner’s trial will be a significant task. However,
Petitioner does not need an “expert” to perform this task, let alone one well
beyond the 150-mile radius established by Supreme Court Rule 13.

Regarding the relevant case law, counsel for the Petitioner have
identified in these motions several of the leading cases related to juror bias,
pretrial publicity, and presumed juror prejudice. These cases will guide the
Court in its resolution of Petitioner’s claims for relief. The Court is also
confident counsel will continue to provide the Court with relevant case law
and other authority as this case continues. Finally, the Court notes it is well-
qualified to address the Petitioner’s stated issues based solely on the evidence
Petitioner will present to the Court and the relevant case law. As stated at
the July 26 hearing, the undersigned judge has presided over eight capital
jury trials and approximately ten death penalty post-conviction cases. While
none of these prior death penalty cases featured pretrial publicity as extensive
as that generated in [the Petitioner’s] case, this judge’s experience in
conducting capital case voir dire and his familiarity with the issues identified
in Petitioner’s motions are such that the Court would not be substantially

- 30 -
assisted by expert opinion as to these matters. The parties’ presentation of
the law and the facts will be sufficient for the Court to resolve these weighty
issues. Trial judges are well capable of identifying and applying case law
that recognizes those circumstances in which extensive pretrial publicity
and/or racial animus (both direct and subtle), when overlooked during jury
selection or otherwise, may deprive a defendant of a fair trial. As such,
Petitioner’s motions for the services of Mr. Levinson and Dr. Edelman are
DENIED, as there is no particularized need for these experts’ services.

Although it denied expert funding, the court authorized funding for the Petitioner to
organize the enormous amount of media coverage about the trial which he ultimately was
able to present during the hearing. The Petitioner does not explicitly challenge the post-
conviction court’s reasoning but instead argues that the denial of funding for the services
of the two experts “prevented [him] from introducing evidence that would have moved the
needle on this close issue and established his claims.” (Emphasis added). The post-
conviction court’s ruling specifically explained how the Petitioner failed to show a
particularized need for the services of the experts as it related to the presentation of the
proof on pretrial publicity. In fact, the Petitioner was able to present an enormous amount
of just such type of evidence. The general subject matter of the purported testimony of
these two experts was not outside the “province or understanding” of the post-conviction
court or the “capability and expertise” of counsel. Rule 13, § 5(c)(4). As the post-
conviction court emphasized, these two experts “would not substantially assist the Court
in resolving the[] weighty issues” surrounding pretrial publicity and jury selection. The
Petitioner has failed to demonstrate how the trial court’s actions prejudiced the presentation
of his case in any way. The post-conviction court did not abuse its discretion by denying
funding for these two experts.

b. Drs. Auble and Merikangas

The Petitioner sought the assistance of these Drs. Auble and Merikangas in support
of their claim against trial counsel’s presentation of mitigating evidence during sentencing.
The Petitioner sought the assistance of Dr. Auble to essentially challenge the testimony of
Dr. Brown, the Petitioner’s mitigation expert. The Petitioner asserted that “Dr. Auble’s
neuropsychological opinion supported the claim that trial counsel rendered ineffective
assistance in failing to properly consult with their mental health experts and supervise [the]
mitigation presentation.” As to Dr. Merikangas, the Petitioner asserted that a
“neurologist’s testimony would support a claim of ineffective assistance of counsel by
potentially showing the prejudice from trial counsel’s oversight” for failing to seek further
neurological or psychiatric testing. (Emphasis added.) On appeal, the Petitioner argues
that the post-conviction court inappropriately denied funding for these two experts by
requiring “documents and interviews . . . proving that his trial counsel had rendered

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ineffective assistance of counsel by failing to properly communicate, prepare, and
supervise their experts and to request the services of a neurologist.”

In the post-conviction court’s August 2, 2018 order, the court offered the following
reasons for denying the Petitioner’s initial request for Dr. Auble’s services:

In his motion, Petitioner states, “The facts of [his] case require a
neuropsychologist to establish a claim of ineffective assistance of counsel in
failing to adequately present evidence of brain dysfunction during
sentencing.” Much of the Petitioner’s argument is spent assailing trial
counsel’s chosen expert:

Trial counsel did not present neuropsychological
testimony to [the Petitioner’s] jury. Unfortunately for [the
Petitioner], counsel instead presented testimony of psychiatrist
Peter Brown. Though ostensibly an expert witness for his case
in mitigation, it is more likely that the impact of Dr. Brown’s
testimony was aggravating and supportive of the State’s case
for death. Dr. Brown mentioned that [the Petitioner] was
referred for a neuropsychological evaluation but did not testify
to the details of who conducted the evaluation, the credentials
of the evaluator, or the neuropsychological tests that were
conducted. Instead, he stated, without adequate qualification
or explanation, that these tests were all within normal ranges.
It is unclear who held the opinion of “normal ranges,” Dr.
Brown or the unnamed evaluator. Considering the predictors
for neurological dysfunction in [the Petitioner’s] childhood,
this seemingly unqualified testimony casts doubt on Dr.
Brown’s opinion of neurological normalcy.

Moreover, of great concern is the testimony of Dr.
Brown, who is not a neuropsychologist or an expert in
intellectual disability or functioning, that from “psychiatric and
psychological testing,” [the Petitioner] had an average IQ and
“probably above average IQ, just low results because of
educational limitations.” Dr. Brown did not explain who
conducted what tests and under what circumstances. Worse,
he did not divulge the scientific basis behind his feeling that
[the Petitioner] had an “above average IQ” not otherwise
shown in presumably standardized, normed tests. The

- 32 -
proposition that education or academic performance drives IQ
score is, at best, not widely held.

In this post-conviction proceeding, undersigned counsel
must consult with a neuropsychologist 1) to assist in
determining if prior counsel acted reasonably and in
conformity with legal norms in providing records and requests
to their experts; 2) to evaluate any prior testing for potential
errors in administration or scoring; 3) to advise counsel on
whether the testing previously administered was adequate or
whether other tests should have been administered; 4) to
determine whether the prior testing may have shown areas of
impairment the significance of which the evaluator or Dr.
Brown missed, and 5) to conduct further testing if warranted.

Having presided over numerous death penalty trial and post-
conviction proceedings, this Court is well aware that neuropsychological
testing is often part of the mitigation case investigated and presented by a
capital defense team. However, the Court must also recognize this opinion
of the Tennessee Court of Criminal Appeals in the direct appeal of a capital
post-conviction case:

The Tennessee Supreme Court recently recognized that in most
cases, “the decision to select an expert, or which expert to
select, constitutes one of the ‘strategic’ defense decisions that
Strickland v. Washington shields from scrutiny.” Kendrick [v.
State], 454 S.W.3d [450,] 475 [(Tenn. 2015)]. “The selection
of an expert witness is a paradigmatic example of the type of
‘strategic choice[]’ that, when made ‘after thorough
investigation of [the] law and facts,’ is ‘virtually
unchallengeable.’” Hinton v. Alabama, 571 U.S. [263, 275]
(2014) (quoting Strickland, 466 U.S. at 690); see Kendrick, 454
S.W.3d at 474.

....

[Furthermore,] we note that the United States Supreme Court
has rejected a claim of ineffective assistance of counsel
consisting of “the hiring of an expert who, though qualified,
was not qualified enough.” Hinton, 571 U.S. at [274-75]. The
Court declined to “launch federal courts into examination of

- 33 -
the relative qualifications of experts hired and experts that
might have been hired.” Id.

David Lynn Jordan v. State, No. W2015-00698-CCA-R3-PD, 2016 WL
6078573, at *58, *62 (Tenn. Crim. App, Oct. 14, 2016), perm. app. denied,
(Tenn. July 19, 2017). This Court also notes that in another death penalty
post-conviction case, the Court of Criminal Appels concluded that in most
circumstances, “A defense attorney is not required to question a diagnosis
put forth by a professional expert in the field.” Christa Gail Pike v. State,
No. E2009-00016-CCA-R3-PD, 2011 WL 1544207, at *54 (Tenn. Crim.
App. Apr. 25, 2011), perm. app. denied, (Tenn. Nov. 15, 2011).

At this point, this Court has not been presented any evidence
regarding the substance of the proof Dr. Brown was presented during his
evaluations or the nature of his conclusions. For instance, the Court notes
counsel for the Petitioner challenge Dr. Brown’s finding that [the
Petitioner’s] “neuropsychological evaluation was normal,” but counsel has
not presented any specific argument explaining why or how such conclusions
could have been inaccurate. Counsel for the Petitioner also stated they have
not reviewed Dr. Brown’s report or the materials upon which he based his
conclusions, nor have they interviewed Dr. Brown. Absent such proof, the
Court has no way of knowing whether Dr. Brown, or trial counsel, could
have or should have developed different psychological or other mental
health-based mitigation evidence.

Accordingly, in light of the current state of affairs surrounding this
request, this Court must conclude the motion does not state a particularized
need for Dr. Auble’s services. Absent any evidence regarding Dr. Brown’s
work, the motion for services constitutes something that could be considered
either “undeveloped or conclusory assertions that such services would be
beneficial” or “assertions establishing only the mere hope or suspicion that
favorable evidence may be obtained.” Such assertions do not establish
particularized need, nor do they require this Court deviate from the precedent
established in Hinton, Jordan, Pike, and related cases. As such, the motion
for Dr. Auble’s services is DENIED at this time. [Footnotes omitted.]

In the order filed on September 17, 2018, denying the Petitioner’s renewed motion
for the services of Dr. Auble, the post-conviction court stated:

The Petitioner now asserts that the testimony that his
neuropsychological evaluation was normal was not only incorrect but that

- 34 -
his trial counsel, if they had complied with professional standards, should
have known it was incorrect. Petitioner’s attorneys allege his
neuropsychological evaluation was far from normal. Dr. Brown had referred
Mr. Davidson to a neuropsychologist, Malcolm Spica, Ph.D., who had done
the testing and evaluation.

At the September 12, 2018 ex parte hearing, Petitioner’s Counsel
stated that he was no longer asserting trial counsel selected unqualified
experts or the wrong experts. Counsel also conceded that Petitioner’s
Counsel have yet to interview Dr. Brown or neuropsychologist Spica. They
have also not interviewed trial counsel. Therefore the Court was not
informed what Dr. Spica may have communicated to Dr. Brown nor has the
Court been informed as to communications and inquiry by trial counsel with
Dr. Spica and/or Dr. Brown. There is no factual assertion that Mr. Davidson
failed to cooperate during his evaluations nor any assertion that trial counsel
failed to provide the experts with necessary information.

At issue is the information contained in Pamela Auble’s affidavit
attached to the motion now before the Court. She states that after evaluating
Dr. Spica’s test data there was much information indicating that Mr.
Davidson was far from “normal.”

Dr. Auble has received the test data that Dr. Spica relied upon and on
which Dr. Brown, in turn, relied upon in his trial testimony. Dr. Spica did
not testify at the trial. The Auble affidavit then states:

5. From my review of these data, the effort testing
indicated that Mr. Davidson put forth adequate effort on the
testing so it would be considered valid. Mr. Davidson had
some strengths on the testing. His overall IQ was average (50th
percentile), his memory for visual information was above
average (95th percentile), and his speed in doing simple,
repetitive tasks was average. However, he also had some
significant cognitive weaknesses. Mr. Davidson very likely
has a learning disability in reading, written language, and/or
math which would have limited his success in school, and
could have been used for mitigation. His reading was at the
12th percentile, spelling was in the 2nd percentile, and
arithmetic was in the 13th percentile. These scores are
significantly below what would be expected from someone of
average intelligence.

- 35 -
6. Second, Mr. Davidson had difficult[y] in situations
in which he had to organize or manipulate information in order
to solve problems. For instance, his copy of a complex design
was only between the 2nd and 5th percentiles. His ability to
arrange block designs to match a copy was relatively poor
given the other visual tasks on the intelligence test (16th
percentile). His ability to repeat digit strings in reverse order
was much worse than his ability to repeat them in the same
order (6 forward, only 3 backward). He was slow in alternating
between counting and reciting the alphabet (5th percentile).
When his memory was tested, he was normal at remembering
meaningful stories, but when he had to relate pairs of words
together to recall them, his memory deteriorated (50th
percentile vs. 5th percentile).

7. This difficulty putting information together in ways
that it can be effectively used likely had an impact on his ability
to manage his life effectively and could have affected his
behavior at the time of the offense. Thus, [this] is also
information that could have been used in mitigation.

8. Dr. Spica did not do basic testing of language or
speech, but given the evidence of learning disability, there
could be abnormalities in these areas. Such abnormalities
would also have a negative impact on Mr. Davidson’s
adjustment.

Given that Petitioner’s Counsel has not interviewed Dr. Brown, Dr.
Spica or trial counsel, we do not know what Dr. Brown knew or how trial
counsel communicated with experts. It remains to be seen at the hearing in
this case whether trial counsel should have known about this information and
why it was not presented.

Petitioner’s Counsel indicated that both Dr. Brown and Dr. Spica
would be called to testify at the trial in this case. Dr. Auble is simply not
needed. She would add little to what appears already apparent. The Court
assumes that Dr. Spica can testify about these results since they come from
his own testing. Thus there is no particularized need for Dr. Auble. Dr. Spica
can provide the Court with this asserted “missing” information when he
testifies. With this information in the record the Court can determine if trial

- 36 -
counsel were derelict in not knowing about these results and then failing to
present these results, and then whether the absence of this information was
prejudicial.

Based on the above reasoning, the Court sees no prejudice to the
Petitioner by denying funding for Dr. Auble. The motion is denied.

In its order filed on September 19, 2018, which denied the Petitioner’s
“supplemental” motion, the court stated:

[T]his supplemental motion states for the first time that Dr. Lipman (the
neuropharmacologist authorized in the July 31, 2018 Order . . .) says he needs
a neuropsychologist, especially Dr. Auble, to assist him. The Court went
back and read the July 20, 2018 sixteen (16) page motion in support of the
request for Dr. Lipman. It is asserted that Dr. Lipman is necessary “to
establish claims of ineffectiveness for failing to present evidence of
diminished capacity at trial, failing to provide mitigating testimony of how
[the Petitioner’s] substance abuse affected his cognition generally and during
the offense, and failing to establish credible evidence of Judge
Baumgartner’s impairment at trial.”

Nothing in this July 20, 2018 motion nor the order of the Court
granting the motion suggests that authorizing payment to Dr. Lipman means
that the Court must also approve Dr. Auble or any other neuropsychologist
nor that appointing a neuropsychologist was necessary for Dr. Lipman to
opine on the impact of alcohol or drug use on the petitioner in January 2007
(the date of the crime).

If Dr. Lipman needs information about the neuropsychological testing
related to the Petitioner’s mental status in 2007, Dr. Lipman is free to consult
with Dr. Spica. He is also the beneficiary of Dr. Auble’s detailed affidavit
attached to the Petitioner’s July 31, 2018 motion to reconsider, containing
her reading of the Dr. Spica 2009 testing. See TRE 703 and Cohen et al.,
Tennessee Law of Evidence § 7.03[4] and [5] (6th ed. 2011). Thus, access
to the 2009 neuropsychological testing is available to Dr. Lipman and there
is no particularized need shown for further testing.

Contrary to the Petitioner’s contention, the post-conviction court did not utilize an
incorrect standard in analyzing whether the Petitioner demonstrated a particularized need
for the services of Drs. Auble and Merikangas. The court’s orders specifically demonstrate

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that it followed the guidelines set forth in Rule 13. Moreover, the court’s reasoning was
reasonable in reference to the particular facts and circumstances of the Petitioner’s case.

As to the denial of funding for Dr. Auble, the post-conviction court found that the
intent of the Petitioner’s request for her services was to challenge the opinion and testimony
of trial counsel’s chosen expert. Both trial attorneys testified that they noticed nothing
abnormal about the Petitioner’s behavior. Both found him to be intelligent and capable of
understanding the content of their discussions regarding the defense of his case. Moreover,
as the post-conviction court found in its second order denying funding for Dr. Auble,
“There is no factual assertion that [the Petitioner] failed to cooperate during his evaluations
nor any assertion that trial counsel failed to provide the experts with necessary
information.” The court also noted that “[i]t remains to be seen at the hearing in this case
whether trial counsel should have known about this information and why it was not
presented.” Although the Petitioner was evaluated by a psychiatrist, who in turn referred
him to a neuropsychologist for additional testing, post-conviction counsel did not directly
question trial counsel about their decision not to seek further mental health evaluations.
See William Glenn Rogers v. State, No, M2010-01987-CCA-R3-PD, 2012 WL 3776675,
at *58 (Tenn. Crim. App. at Nashville, Aug. 30, 2012). It is evident, though, that trial
counsel relied upon the opinion of their chosen expert, and also upon their own impressions
after meeting with the Petitioner “dozens” of times, in deciding not to further investigate
the Petitioner’s mental health. The Petitioner failed to call either Dr. Brown or Dr. Spica
as witnesses at the evidentiary hearing despite informing the post-conviction court they
would during one of the hearings on the request for funding for Dr. Auble. To that end, in
concluding that the Petitioner failed to show a particularized need, the court found, “Dr.
Auble is simply not needed. She would add little to what appears apparent already.” The
mere hope or suspicion that Dr. Auble’s evaluation would reveal any favorable evidence
beyond what trial counsel already possessed does not create a particularized need for
funding for her services in the Petitioner’s post-conviction pursuit of an ineffective
assistance of counsel claim. Tenn. R. Sup. Ct. 13, § 5(c)(4)(B). As the post-conviction
court correctly observed:

While there may be some cases where the only reasonable defense
strategy involves consultation with experts or introduction of expert
testimony, there are “‘countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.’” Harrington v. Richter, 562 U.S. 86, 106-
07 (2011) (quoting Strickland, 466 U.S. at 689). Cases rarely exist in which
the “‘wide latitude counsel must have in making tactical decisions’ will be
limited to any one technique or approach.” Id. (quoting Strickland, 466 U.S.
at 689). The Tennessee Supreme Court recently recognized that in most
cases, “the decision to select an expert, or which expert to select, constitutes

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one of the ‘strategic’ defense decisions that Strickland v. Washington shields
from scrutiny.” Kendrick, 454 S.W.3d at 475. “The selection of an expert
witness is a paradigmatic example of the type of ‘strategic choic[e]’ that,
when made ‘after thorough investigation of [the] law and facts,’ is ‘virtually
unchallengeable.’” Hinton v. Alabama, 571 U.S. ---, 134 S. Ct. 1081, 1089
(2014) (quoting Strickland, 466 U.S. at 690); see Kendrick, 454 S.W.3d at
474.

David Lynn Jordan, No. W2015-00698-CCA-R3-PD, 2016 WL 6078573, at *58.
Moreover, a defense attorney “is not required to question a diagnosis put forth by a
professional expert in the field.” Christa Gail Pike, No. E2009-00016-CCA-R3-PD, 2011
WL 1544207, at *54.

Upon review, this court concludes that the post-conviction court did not abuse its
discretion by denying funding for Dr. Auble. In making its decision, the post-conviction
court clearly considered “the applicable law” and took “the relevant facts into account.”
McCaleb, 582 S.W.3d at 179. The court did not “stray[] beyond the applicable legal
standards” or “fail[] to properly consider the factors customarily used to guide” its
decision.” Id. This court will not “second-guess” the post-conviction court’s decision in
that respect.

Approximately one month before the evidentiary hearing, the Petitioner filed his
first motion seeking the services of Dr. Merikangas to determine whether the Petitioner
suffered from an organic brain injury. Noting that the motion was filed well-beyond the
July 20, 2018, deadline it had set for motions seeking funding for expert services, the post-
conviction court denied the motion because it did not satisfy Rule 13’s threshold
requirements. In its January 9, 2019, order denying the Petitioner’s renewed motion for
funding for Dr. Merikangas, the court initially noted, “At this late date Petitioner’s
attorneys wish to explore the possibility that [the Petitioner] suffers from a brain injury or
other neurocognitive d[y]sfunction. These claims are based on an asserted history of head
trauma during [the Petitioner’s] childhood.” The court recalled that trial counsel hired a
mitigation specialist and a mental health expert to explore any possible brain dysfunction.
As discussed previously, Dr. Brown testified during the sentencing hearing that the
Petitioner’s intelligence level was above-average and his neuropsychological evaluation
was normal. During Dr. Brown’s trial testimony, in which he relied, in part, on Dr. Spica’s
neuropsychological test results, he stated that there was no evidence of any mental
disorders or history of organic brain injuries that were normally associated with violent
criminal behavior. The post-conviction court offered the following additional observations
before explaining the reasons for denying funding for Dr. Merikangas:

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In addition to counsel’s arguments as to why the motion should be
granted (see below), the motion includes two affidavits. One affidavit was
completed January 3, 2019, by Post-Conviction Defender’s Office
investigator Elizabeth Redwine. In the affidavit, Ms. Redwine states that in
November and December 2018, unnamed relatives of the Petitioner informed
her: (1) Petitioner’s mother had been diagnosed with Fetal Alcohol
Syndrome; (2) As a Child, Petitioner suffered two head injuries and exhibited
poor motor skills, bed-wetting, and a weakened immune system; and (3)
Petitioner had a “history of observable dissociative episodes.”

The second affidavit was completed by Dr. Pamela Auble, a clinical
psychologist, in August 2018. Dr. Auble’s affidavit makes several claims
which appear to contradict Dr. Brown’s testimony. For instance, after stating
she reviewed the testing data as completed by Dr. Malcom Spica, the
psychologist with whom Dr. Brown conferred before trial, Dr. Auble writes,
“Dr. Spica was never asked to write a report of his findings by the trial
attorneys. . . . Dr. Peter Brown testified that there were no abnormalities on
the neuropsychological testing from Dr. Brown’s conversation with Dr.
Spica, but Dr. Spica did not testify at the trial.” [The court then quoted
further from Dr. Auble’s affidavit, which is detailed above.]

....

Counsel for the Petitioner argue [he] is entitled to Dr. Merikangas's
services for the following reasons:

It is deficient performance to delegate strategic-decision
regarding the presentation of mitigation to mental health
experts. Foust v. Houk, 655 F.3d 524, 536 (6th Cir. 2011).
Trial counsel have an on-going duty to supervise the mitigation
team, including their expert witnesses. Id.; see also Chatman
v. Walker, 297 Ga. 191, 202 (2015) (finding counsel’s
performance deficient for delegating responsibility of
mitigation investigation).

[The Petitioner] has met his burden in establishing his
particularized need for Dr. Merikangas’s services. [The
Petitioner] raises claims related to ineffective assistance of
counsel[,] specifically related to the preparation and
supervision of the mental health expert presented at trial, as
well as the failure to present mitigating evidence available to

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trial counsel. These claims pertain to trial counsel’s (1) failure
to adequately consult with experts; (2) failure to provide
experts with information critical to their evaluations; (3) failure
to work with their experts in developing mitigation evidence;
(4) failure to properly supervise their mitigation team,
including expert witnesses, and ([5]) failure to fully present a
compelling case for life during the penalty phase. See Am. Pet.
[The Petitioner] . . . also raises a claim of ineffective assistance
of counsel for failure to investigate or otherwise pursue a
diminished capacity defense. Id.

Here, post-conviction counsel has discovered
information relevant to [the Petitioner’s] neurological and
psychiatric functioning not developed or presented at trial. As
[the Petitioner’s] prior counsel deficiently failed to uncover
this mitigating evidence, they did not tender it to their expert
in anticipation of his trial testimony. As such, no neurological
testing occurred before trial. Lacking basic neurological
testing and a full record of information relevant to psychiatric
assessments, the psychiatrist at trial did not present the whole
picture of [the Petitioner’s] functioning.

[The Petitioner] needs Dr. Merikangas’ services in
order to conduct this basic neurological testing, as indicated by
information uncovered during the post-conviction
investigation.

[The Petitioner] also needs Dr. Merikangas’ services to
perform a psychiatric evaluation that incorporates all
information relevant to such an assessment. Due to prior
counsel’s ineffective investigation, an adequate psychiatric
evaluation has not been previously been performed. [The
Petitioner] cannot establish this claim without his own expert’s
testimony.

....

[T]he Court is not convinced Petitioner has established particularized need
for Dr. Merikangas’s services. In support of their assertion testing is
necessary because Drs. Brown and Spica did not perform adequate testing,
counsel for the [P]etitioner have attached two affidavits: one by an

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investigator and one completed by Dr. Auble. The affidavit completed by
the investigator states the Petitioner’s family members have informed the
investigator that the Petitioner, as a child, suffered from two brain injuries
and was also seen as “sickly” and suffering from enuresis and reduced motor
skills. Trial counsel’s mitigation specialist, Ms. Andrews, testified at the
penalty phase of [the] trial regarding one episode in which [the Petitioner]
was “knocked out” after being hit in the head during a fight which occurred
when Petitioner was an adolescent. The other episodes referenced by
Petitioner’s post-conviction investigator were not explicitly referenced
during the testimony of Ms. Andrews and the other family members who
testified on Petitioner’s behalf, but the Court is not convinced that these facts,
even if newly discovered, would create the need for the testing Petitioner
currently seeks.

Petitioner appears to base his assertions regarding the incorrectness of
the findings of Drs. Brown and Spica on the affidavit of Dr. Auble. At first
glance, the figures cited in Dr. Auble’s affidavit appear to contradict Dr.
Brown’s testimony in which he claimed the results of his (and Dr. Spica’s)
various tests on the Petitioner were within “normal” ranges. However,
Petitioner’s motion leaves many relevant questions unanswered. Dr.
Brown’s report and the test data generated by Dr. Spica were not introduced
into evidence at trial, and they also have not been submitted to this Court at
any time during these proceedings. Thus, the Court has no way of knowing
what tests were performed on Petitioner before trial and whether Petitioner’s
test results were normal (as Dr. Brown testified at trial) or below average (as
counsel for the Petitioner, aided by Dr. Auble, assert). This Court also has
no evidence before it regarding whether trial counsel were aware of the test
results at the time of trial. This Court does not know whether counsel asked
to review the test results or if Drs. Brown and Spica spoke to trial counsel at
all regarding the test results. Absent such evidence, the Court must conclude
that Petitioner has only presented the forth [sic] with the “mere hope or
suspicion” that Dr. Merikangas’s testing would reach conclusions other than
those put forth at trial: namely, that Dr. Brown evaluated Petitioner - an
evaluation which included review of past records, original testing by both
Dr. Brown and Dr. Spica, and an interview with [the Petitioner] - and Dr.
Brown found Petitioner to be of average or above-average intelligence.
Furthermore, as stated above, Dr. Brown found no proof [the Petitioner]
suffered from psychological disorder or organic brain injury. Furthermore,
the Court notes there is no information in the record suggesting Drs. Brown
and Spica, trial attorneys Doug Trant and David Eldridge, and trial mitigation
specialist Rosalind Andrews would be unwilling or unable to speak with

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post-conviction counsel and provide them with any information necessary to
advance Petitioner’s interests in the upcoming hearing - including the
information which would be necessary to address the unresolved questions
in the present motion. Thus, information which is available to [P]etitioner’s
counsel and directly pertinent to the issue asserted in this motion has not been
provided to the Court.

The post-conviction court granted the Petitioner investigative services in the
beginning of July 2018, but the Petitioner did not request the services of Dr. Merikangas
until counsel learned about information from unidentified family members just a month or
so before the evidentiary hearing. As the post-conviction court stated, some of that
information was already known to trial counsel from their pretrial trial investigation.
Again, trial counsel testified that they saw no evidence of impairment. Likewise, trial
counsel’s chosen expert testified that the Petitioner had a normal brain. Dr. Brown’s
testimony was based upon his evaluation as well as that of Dr. Spica. The mere hope that
Dr. Merikangas would reach a different conclusion does not establish a particularized need
in support of a claim of ineffective assistance of counsel in that respect. See David Lynn
Jordan, No. W2015-00698-CCA-R3-PD, 2016 WL 6078573, at *61; Christa Gail Pike,
No. E2009-00016-CCA-R3-PD, 2011 WL 1544207, at *54.

This court concludes that the post-conviction court did not abuse its discretion by
denying funding for Dr. Merikangas. Again, in making its decision, the post-conviction
court clearly considered “the applicable law” and took “the relevant facts into account.”
McCaleb, 582 S.W.3d at 179. The court did not “stray[] beyond the applicable legal
standards” or “fail[] to properly consider the factors customarily used to guide” its
decision.” Id. Again, this court cannot “second-guess” the post-conviction court’s decision
in that respect.

The post-conviction court offered insightful and reasonable explanations for its

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4788918. Public record. Not legal advice.