Petition for Writ of Certiorari — Jerome Sidney Barrett, Petitioner v. Mike Parris, Warden

Supreme Court briefNov 3, 2020

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Text

No.

IN THE SUPREME COURT OF THE UNITED STATES

JEROME SIDNEY BARRETT - PETITIONER, PROSE

FI LED

Nov - 3 2020

2£S£eoftheclerk

WARDEN MIKE PARRIS - RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

SIXTH CIRCUIT COURT OF APPEALS

No. 20-5202

Jerome S. Barrett

Tennessee Department of Correction #73179

Morgan County Correctional Complex

541 Wayne “Cotton” Morgan Drive

P. O. Box 2000

Wartburg, Tennessee 37887

No Phone

RECEIVED

NOV 10 2020

gBSSSTjSSiHBg

QUESTIONS PRESENTED FOR REVIEW

Whether a state prisoner has the right to file his own appeal Pro Se under certain

conditions after the denial of his ProSe petition for post conviction relief and perceived

abandonment through alarming and repeated failures to communicate with his client by Post

Conviction Counsel (“PCC”).

Whether Defendant’s trial lawyer was Ineffective at trial of a 34-year old “Cold

Case” for 1st degree murder which was primarily based on DNA evidence proposed by the State of

Tennessee (“TN”)’s phalanx of DNA experts when counsel was not assisted at trial by a DNA

expert to provide the adversarial component for fair trial.

Whether a Defendant state prisoner should be able to raise on post conviction

appeal a claim of IATC that sounds in the state and federal constitutions where the state appeal

courts have a “understanding” to not allow ‘Pro Se” appeals or amendments, even where a

nominal counsel of record exists.

Whether the procedural ground on which the state highest court dismissed prisoner’s

application for permission to appeal (12-14-16) is abuse of discretion or unreasonable for not

giving due consideration to cause for prisoner filing his Application Pro Se.

PROCEEDINGS IN STATE AND FEDERAL TRIAL AND APPELLATE COURTS

Post Conviction Petition No. 2007-D-3201 was filed in the Trial Court on 11-2013.

Counsel filed the Appeal; Barrett V. State of TN, M2015-01161-CCA-R3-PC on 6-24-15;

The opinion of the highest state court to review the merits appears at Appendix “A” to the petition and is

unpublished at Barrett v. State of TN, M2015-01161-SC-R11- PC) permission to appeal denied by the

Tennessee Supreme Court on 12-4-16.

The date on which the highest state court decided my original case was 7-13-12. A copy of that decision

appears at Appendix “A”. State v. Barrett. No. M2009-02636-CCA-R3-CD, 2012 WL 2870571

A timely application for permission to appeal was thereafter denied on 12-12-12, and a copy of the order

denying the application appears at Appendix “B”.

A timely petition for the Writ of Habeas Corpus was filed on 1-12-17 and denied in the U.S. District

court on 1-24-2017 and a copy of the order denying the petition appears at Appendix “C”.

A timely petition for the certificate of appeal ability to the U.S. Court of Appeals for the Sixth Circuit

was filed on 2-21-20, and denied on 7-20-2020. A copy of that decision appears at Appendix “D”.

TABLE OF CONTENTS

IN THE SUPREME COURT OF THE UNITED STATES

NO. 20-5202,

QUESTIONS PRESENTED FOR REVIEW

PROCEEDINGS IN STATE AND FEDERAL TRIAL AND APPELLATE COURTS

III

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

VIII

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

POST CONVICTION EXPERIENCE

U.S. DISTRICT COURT TREATMENT OF PET’S CLAIMS

HABEAS CORPUS PROCEEDING IN THE DISTRICT COURT:

THE 6TH CIRCUIT TREATMENT OF PETITIONER’S CLAIMS

SUMMARY OF ARGUMENT

ARGUMENT

CONCLUSION

TABLE OF CITED AUTHORITIES

Cases

(Barrett v. Genovese, U.S.D.Ct., M.D. Term. Nashville Div. No. 3:17-cv-00062)Kina v. Pfister. 834 F. 3d 808--------------------------------------------------Campbell v. United States 686 F. 3d 353 (6'h Cir.---------------------------------Grace v. Curley, 3 Tenn. App. 1------------------------------------------------2013 WL 1178266, M. D. Tenn-------------------------------------------------------2016 WL 4410649; Barrett v. State ofTN)-------------------------------- ---------Allen v. Hawley. 74 Fed. Appx. 457-----------------------------------------Allison 431 U.S. at 76-----------------------------------------------------------------State v. Tavlor. 739 S.W. 2d 227-----------------------------------------------------Apple v. Horn, 250 F.3d 203---------------------------------------------------Barefoot v. Estelle. 463 U.S. at 893-------------------------------------------------Billings v. Polk. 441 F. 3d 238------------------------ -----------------------Blovett, II and Dennis James Ozle, 904 S. W. 2d 111-........................................

Bracev v. Gramlev 117S.Ct. 1793---------------------------------------------------Bradley v. Richey, 546 U.S. 74-------------------------------------------------------Abdul Kabir v. Ouarterman. 550 U.S. 233------------------------------------------Andres v. United States. 333 U.S. 740 68 S.Ct. 880-------------------------------Ake v. Oklahoma, 470 U.S. 68------------------------------------------------Crawford v. Washington. 541 U.S. at 50---------------- --------------------------------Daubert v. Merrell Doc. Pharm. Inc.. 509 U.S. 579-------------------------------137 S.Ct. 1170

Dean v. United States. 581 U.S. ___

Flores-Orteaa, 528 U.S. at 484Garrett v. DePasquale, 443 U.S. 368

Garza v. Idaho, 139 S.Ct. 738Gentile v. State Bar ofNevada, 501 U.S. 1030---------Williams v. Tavlor. 529 U.S. at 413, 120 S.Ct. 1495.-—

Wilson v. State, 3 Heisk, 232----------------------Woolbrisht v. Crews, supra. 2018 WL 7247245, 6,h Cir

Barefoot v. Estelle. 463 U .S. 880, 893 &n. 4 (1983). —

Barrett v. State of TN, M2015—01161-CCA-R3-PC -—

Citing Harrington v. Richter, 562 U.S. 86, 105--------Holauin-Hernandez v. U.S.. 140 S.Ct. 762-------------Iowa. 487 U.S. 1012--------------------------------------------

Patton v. United States. 281 U.S. 276-------------------Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029 -—

Reagan v. State, 1986 WL 13063------------------------Rompilla v. Beard. 545 U.S. 374 ------------------------Ron v. Flores-Orteaa, 528 U.S. 470--------------House v. Bell (547 U.S. 518-----------------------Johnson v. Zerbst. 304 U.S. 458, 58 S.Ct. 1019-—.......

Martinez v. Ryan. 566 U.S. 1, 132 S.CT. 1309,---------related 6th Circuit Case, No. 13-5814-------------------Slack v. McDaniel. 529 U.S. 473--------------- ---------State v. Knowles. 470 S. W. 3d 416-----------------------Strickland v. Washington 466 U .S. 668------U.S. v. Cronic 466U.S. at 658---------------------------passim

U.S. District Court Case No. 1:12-cv-178--------------United States v. Piano 507 U.S. 725.............................

- 14

Wiggins v. Smith, 539 U.S. 510Williams v. Taylor, 529 U.S. 362

Hameen v. Delaware, 212 F. 3d 226-----------------Ludtwie v. United States. 162 F. 3d 456----------------------Muth v. Frank, 412 F. 3d 808--------------------------Campbell v. United States, 686 F. 3d 353 (6th CirWard v. Jenkins. 613 F. 3d 692----------------- ----- Wool bright v. Crews. 2018 WL 7247245-------------------Burlison v. State. 501 S. W. 2d 801----------------------------Charles Wilson v. The State. 50 Term. 232---------State v. Hall 461 S. W. 3d 469----------------------------------State v. Brown 311 S. W. 3d 422-------------------------------Baxter v. Rose. 523 S. W2d 936-------------------------------Jerome S. Barrett, No. M2009-02636------------------------Jones v. State. 1987 WL 15535 -------------------------------Loving v. State of TN, 286 S. W. 3d 275--------------2016 WL 4410649; No. M2015-01161-CCA-R3-PC;-----------

■20, 22

-18

No. M2015-0661 -CCA-R3-PC,-----------------------------------------------------------------------------------------31

Greene v. State (1962), 210 TN. 276 358 S. W. (2d) 306)-------------------------------------------------------------18

Grindstaffv. State. 297 S. W. 3d 208------------------------------------------------------------------------------------10

State of TN v. Jerome S. Barrett, No. M2009-02636-CCA-R3-CD, 2012 WL 2870571 (TCCA, July 13, 2012)

-—24,40

State of TN v. Barrett. M2010-00444-CCA-R3-CD-----------------24, 32, 39

State v. Barrett 2012 WL 2870571------------------------------------29

State v. Brown. 762 S. W. 2d@ 137----------------------------------29

State v. Rickman. 876 S. W. 2d 824-----------------------------------38

State v. Van Tran. 864 S. W. 2d 465-----------------------------------21

State v. White. 362 S. W. 3d 559--------------------------------46

Tries v. Tennessee 507 F. 2d 949 (6lh Cir----------------------------21

Walwvn v. Board ofProf. Resp. of the S.Ct ofTN. 481 S. W. 3d 151

Moultrie v. State. 542 S.W. 2d 835-----------------------------------18

Statev. Thomas. 158S.W. 3d361, app. 413--------------------------

Statutes

18, 19

§ 2254(d-----------------------------------------§2254 (d)------------------------------------------28U.S.C. § 1257(a).----------------------------28 U.S.C. § 2254 (d)(1)--------------------------28 U.S.C. § 2254(d---------------------------T.C.A. § 39-2402(4).----------------------------T.C.A.§ 39-13-202(a)(2-------------------------Tenn. Code Ann § 39-3701 ---------------------T.C.A. § 39-3701---------------------------------T.C.A. § 39-3706---------------------------------T.C.A. § 40-30-106(e).-----------------------T.C.A.§ 39-2403---------------------------------Tennessee Public Acts 1979 pg. 1065, ch. 415)

viii

31,41

Other Authorities

44 Am Jur Trials 171---------------------------75 C.J.S. Rape § 82b---------------------------AEDPA’-----------------------------------------Jordan S. Gruber, 60 A.L. R. 3d 333 § 2----Underhill’s Criminal Evidence, 5,h Ed., § 764'

Rules

Rules ofEvidence Rule 803 (5);

T.R. Crim. P. Rule 31----------T.R. Evid. Rule 403..................

TN. S.Ct. Rule 28------------TRAP Rule 11------------------Treatises

Arnold v. State ofTN. 563 S. W. 2d 792---------Barrett v. State of TN.. NO. M2015-01161 -CCA

D.A. Office v. Osborne. 557 U.S 52------------DNA Forensic Typing----------------------------Illinois v. Somerville. 410 U.S. 458-------------State v. Barnett, 909 S.W. 2d 423-------------State v. Barrett. 2012 wl 2870571 --------------State v. Scott. 33 S. W. 3d 36---------------------State v. Toomes, 191 S.W. 3d 122------------United States v. DeCoster, 487 F. 2d 1197------

Constitutional Provisions

U.S.C.A. Const. Amend. 5---------------------------------14th Amendments, U.S.C.----------------------------------6 passim

Art. 1, Section 6, TN. Const-------------------------------Article I section 8 of the Tennessee Constitution

Article I, Section 8 of the Tennessee Constitution------Eighth-------------------------------------------------------Fifth----------------------------------------------------------Sixth---------------------------------------------------------State, Art. 1, § 9------------------------------------------Strickland. 466 U.S. 668------------------------------------Tennessee Constitution Article I, § 6,14;---------------Tennessee Constitution Article I § 9----------------

— ix, 19

ix, 19, 30

—passim

Vll

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

shall be compelled in

The Fifth Amendment to the United States Constitution provides that no person

deprived

of life, liberty, or

any criminal case to be a witness against himself, *** that No person shall be

***

property, without due process of law;

The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions the accused

shall enjoy the right to a speedy andpublic trial, by an impartialjury of the State and district wherein the crime shall have been

committed, ***and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to

have compulsory processfor obtaining witnesses in hisfavor; and to have the Assistance of Counselfor his defense. ”

provides

Constitution

States

the

United

Amendment

The

Eighth

that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusualpunishments inflicted. ”

The Fourteenth Amendment to the United States Constitution provides that “*** nor shall any State deprive

any person of life liberty, orproperty without due process of law; ***

STATEMENT OF THE CASE

Post Conviction Experience

Petitioner (“Pet”) will first present his post conviction (“P.C.”) claims for relief, their treatment

by the trial (P.C.) Court, and subsequent mistreatment by the Tennessee (“TN”) appellate tier system.

More importantly, Pet will attempt to portray the merit of these claims which he has consistently

maintained, with comments and support along the way, which reflects his responses he has received

throughout his ordeal or path, as you will.

In re Petitioner’s (“Pet’s”) Appeal Brief to the Tennessee Court of Criminal Appeals (“TCCA”),

Trial Court # 2008-B-l 791; TCCA No. M2015-01161-CCA-R3-PC. petitioner filed a “Pro Se Motion

For Delayed Appeal and/or Motion To Vacate Judgment and Re-Enter The Judgment because his post

conviction court appointed counsel (“PCC”), Mr. David Harris, disappeared following the denial of his

petition for post conviction relief (“PPCR”) and him entering the matter at the first tier review. (Motion

filed May 31, 2016).

Petitioner filed a “Pro Se Motion For Delayed Appeal and/or Motion To Vacate Judgment and

Re-Enter The Judgment because his post conviction court appointed counsel (“PCCC”) Mr. David

Flams, disappeared following (Motion filed May 31, 2016).(APPENDIX #6). He stated that “the

vacuum that exist(ed) leads petitioner to believe that his right to appeal was being deliberately

sabotaged” by Mr. Harris, and that “.. .counsel apparently unilaterally terminated the defendant’s

appeal without notice and thus would have deprived his client of the opportunity to secure substitute

counsel in a timely manner or file appeal Pro Se. Attorney (Harris) seems to have abandoned him w/o a

word at the onset of the appellate process.

P.C. Evidentiary hearing was held on March 13, 2015, in the Davidson County Criminal Court

Division I trial court.. Attorney Jason Chaffin wrote Pet on August 3, 2015, that he was being replaced

by Mr. Harris.

Before Mr. Harris had been hired by the P.C. Court, Pet wrote the trial Court on July 16, 2015,

and attorney Mr. Jason Chaffin (P.C.C. at Evidentiary Hearing) for “Status of Appeal” following the

denial of his Petition for Post Conviction Relief on May 21, 2015. By August 30, 2015, Pet had

received no response from Mr. Harris, and Pet wrote him. On September 29, 2015, after Pet wrote the

TCC.A Clerk. The Clerk sent Pet a “Case History” which stated in part: “No Iramcripl/Sfmt Filed”.

Atty. Jason Chaffin filed the Notice of Appeal on June 24,2015. (APPENDIX #2) After a review ol

the Tennessee Rules of Appellate Procedure, (“T.R.A.P.”) which requires that appellant has a time

window in which to take preliminary steps towards filing an appeal in the TCCA, of filing a

“Designation of Record” and “Issues For Review” or lose the right to appeal, Pet again wrote Mr.

Harris after receiving this information, to determine the status of his Appeal, as the TCCA Court’s

Clerk clearly awared Pet that no steps had been taken as of September 29, 2015 to have the Record

from the P.C. Court prepared and sent to the Clerk for the TCCA. (APPENDIX #3)

By October 17, 2015, Pet felt compelled to file with the P.C. Court a “Pro Se Designation of the

Record and Issues For Review” [(@ APPENDIX #4] because these are mandatory filings. (TR.A.P.

Rule 24(b). (©APPENDIX #5)

Several more months passed after Pet requested to view the “draft” Appeal Brief from Mr.

Harris, so that he could make sure that some of the grounds Pet had submitted in his original and

amended Pro Se Petition for PCR would be considered for Appeal based on the Order of the court

denying Post Conviction Relief.

Therefore, in light of the history of Mr. Harris’s lack of due diligence regarding Pet’s Appeal and

communicating with him, on May 31 2016, Pet filed a Pro Se Motion For Delayed Brief on Appeal” to

the TCCA. (@APPENDIX #6)Incl tiding Each of his Twenty-one Grounds in his PCP .

This was cause when upon review of the TCCA denial of Appeal Pet noticed from their opinion

that Mr. Harris had completely eviscerated or cast aside most of the P.C. Grounds For Relief which had

caused the Evidentiary Hearing (“E.H.”) in the first place, which Pet. had entered on the required

“Statement of Issues To be Presented on Appeal" October 17, 2015. /Infra, Statement of Reasons tor

Review! (APPENDIX #4) The TCCA noted the superficial treatment of his cause on appeal: "The

original petition and amended petition contained numerous grounds for PCR, only three of which have

been maintained on appeal. ” (M2015-01161-CCA-R3-PC; 2016 WL 4410649: Barrett v. State of TN)

APPENDIX #7

In his Motion For Delayed Appeal (Appendix #6) (id.) to post conviction court, Pet stated that

“To the best of Pet's knowledge information and belief Mr. Harris had not filed an appeal following

the denial of P.C.R. (See #7,pg. 4, Id). Due to the notice by the TCCA Court Clerk that the preliminary

steps for Appeal had not been taken (“record”, “transcript”, “issues for review”) APPENDIX #4,

pursuant to the Tennessee Rules of Appellate Procedure (“TRAP”) 24(b) and 25(a), Pet complied with

those preliminary steps in his Pro Se Designation of the Record and Motion To Supplement The

Record and/or Amend Appeal. @APPENDIX #4.

The TN S.Ct. Rules 11 (g)1; 10 (e), and in “TRAP” to accommodate Pro Se appeals under

extraordinary situations such as this. Pet asked the TN. S.CT to strike Mr. Harris’ feeble and insincere

attempt at appeal, to allow Pet’s Pro Se Appeal to go forward.. 2

U.S. District court treatment of Pet’s Claims

The petition for the Writ of Habeas Corpus was filed on January 12, 2017 for being wrongfully

convicted and imprisoned in violation of the United States Constitution. (Barrett v. Genovese.

T.R.A.P. 11(g): “Appeal in Criminal Actions. Permission to appeal under this rule may be sought by the state and

defendant in criminal actions.”

2 “However before a state may terminate a claim for failure to comply with procedural requirements such as statute

of limitations, due process requires that potential litigants be provided an opportunity for the presentation of claims

at a meaningful time and in a meaningful manner. Burfordv. State 845 S.W. 2d 204. 208 (Tenn. 12-21-92),

U.S.D.Ct., M.D. Tenn. Nashville Div. No. 3:17-cv-00062). Honorable U.S. District Judge Aleta A.

Trauger maintained jurisdiction until December 17th, 2019.

Thereafter, Chief Federal District Judge Waverly Crenshaw assumed jurisdiction on the case,

denied the Petition for Writ of Habeas Corpus on January 24, 2020. “In June 2008, a Davidson County

grandjury indicted the Petitioner for first-degree murder andfelony murder. In July, 2009, (a) jury

found Petitioner guilty ofsecond-degree murder a lesser-included offense, on both counts. ” (Barrett v.

Genovese, @ *1). State of TN v. Jerome S. Barrett, No. M2009-02636-CCA-R3-CD. 2012 WL

2870571 (TCCA, July 13, 2012) (perm. App. den, TN S. CT. 12-12-12 (‘That they find the Defendant

guilty of counts one and two second degree murder. ” July 18, 2009 [Sentencing Hearing” Sept. 4

2009] pg. 210 State’s Exhibit. (Barrett v. Genovese @ *23).

Court also denied Certificate of Appeal ability on January 24, 2020.. [“Petitioner is not entitled to relief

on any of his claims. ”] An evidentiary hearing was denied on his claims and motion for discovery also denied.

In the State’s ‘Answer’ to Pet’s Federal 2254 Petition, at “A” Exhaustion of State Remedies”

their response that “many of the pet’s claims have not been fairly or adequately presented to the

highest available state court in satisfaction of Section2254 (b) ’s exhaustion requirement... ” should be

reviewed in light of the facts of this case. [Statement of the Case, Answer, pg. 3, No. 3:17-cv-00062j

The view that “Pet” filed anything through P.C.C., should be tempered by the fact that counsel

David D. Harris was inexcusably derelict in corresponding with his client, and there was no lack of due

diligence by his client in attempts to make up for the slack linkage. The State of TN would want the

reviewer to accept that “fair review” means “.. .the prisoner has exhausted available state remedies by

fairly presenting the same federal claims sought to be redressed to all levels of state-court review. ”

[Id., pgs. 37-38] yet this position is contradicted very plainly by its next admission that “TN S Ct Rule

39 eliminated the need to seek review in the TN S Ct.. in order to

be deemed to have exhausted all

available state remedies. ” (Id.) (emphasis supplied) The law is clear that if the state court does not

address the issue(s) but had the procedure available to review it or them, is not a bar to relief in the

federal courts. Accord, TRAP Rule 11 (g); 2002, Advisory Commission Comment, infra. APPENDIX

TN S Ct Rules are discretionary, but there is no “iron curtain” that prevented the state’s highest

court from accepting his Pro Se Application For Permission To Appeal.

Pet should not have been barred from habeas corpus relief on procedural default in this context,

when he has made a substantial showing of state (actor[s]) indifference, interference (inconsequential

appeals) or abuse of discretion..

The State of TN limits its Answer in the District Court to the “11 grounds for relief in his

original petition". {Id., pg. 41) However, Pet’s “Amended Petition in the Federal District Court”,

“Ground #12”, where the original Petition left off. Pet stated in the Amended Petition “If the Court

please, the specific portion of his “original” Petition to he Amended, is from...up to # 12(d). Only the

“Ground” and “Supporting Facts ” represent the Amended part, and then the (actual) Amended

Petition begins at “#/2 Federal Habeas Grounds”. Id. (APPENDIX #8. original and amendment

petitions))

In their Answer, to his Amended Petition at #1, that his claim is procedurally defaulted because

“The petitioner raised this issue for the first time in his Pro Se rule 11 application;' in that case, the

TN S. Ct Rule allows for issues to be raised for the first time on Appeal. TRAP Rule 11, supra.

Actually, it was the second time he raised issue #1. See “Amendment To Petition For PCR”, at

##4, 5 and 6. The State’s mistake here should not have been made, because it provided the court below

with these records Pet is relying on. The record of the Evidentiary Hearing should indicate that Pet

personally argued these 21 grounds at the stand in his own behalf. The point being here is that PCC had

no right to ignore theses and other grounds, when it surreptitiously filed a Appeal “Brief’ with only

three (3) grounds and no explanation, planning, or coordination with his client. PCC failed to comply

with Rule 28. TN Sup. Ct. Section 60(2). (requiring post-conviction to interview relevant witnesses,

including the petitioner and prior counsel, and diligently investigate and present all reasonable claims).

APPENDIX #9

PCC did not meet with Pet at all after the PC Evidentiary Hearing, several of the Pet’s issues

were not developed investigated or discussed with Pet and there is no Rule 28 Certification in the

record confirming that post conviction counsel had thoroughly investigated the possible constitutional

violations, had discussed them with the Petitioner and had raised all non-frivolous constitutional

grounds warranted by law. In close cases, the failure of post conviction counsel to communicate with

his client on appeal grounds he requested, constitutes ineffective assistance on post conviction appeal.

Roe v Flores-Ortega U.S. 470, 120 S.Ct. 1029 (2000) By post conviction counsel tailing to put in his

appeal brief the reasons why Pet claimed trial counsel was ineffective with respect to the State’s DNA

evidence. Pet received IAPCC on initial review.

Habeas Corpus Proceeding in the District Court:

The AEDPA empowers federal courts to grant habeas relief in cases where a state court’s

adjudication has “resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254 (d)(1); Abdul Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Rompilla v. Beard, 545 U.S. 374,

380 (2005).

(1)

In his 1-12-17 Pro Se Federal habeas petition Pet raised 21 claims for relief. The district court

declined to grant Petitioner Habeas Corpus relief or a “certificate of appeal” on 1-24-2020, (COA).

This Court has ruled that:

“A substantial showing” of the denial of a federal right does not require the pet to show

that he should prevail on the merits”. Barefoot v. Estelle, 463 U.S. at 893, n. 4. Rather,

the petitioner must demonstrate that (1) the issues are debatable among jurists of reason;

(11) a court could resolve the issues in a different manner and (iii) the questions are

“adequate to deserve encouragement to proceedfurther. ” Id. (citations omitted).

The state courts “unreasonably applied it to the facts of this case. ” Williams v. Taylor, 529 U.S.

at 413, 120 S. Ct. 1495. Pet submits that it is clear the state’s tier post conviction review treatment of this

case is not reasonable.

The 6th Circuit Treatment of Petitioner’s Claims

“Non-Cognizable” Claims By The 6th Circuit

“barren’s eighth and ninth claims alleged the ineffective assistance ofpost conviction counsel during trial court

proceedings. ” (claims 8.A, *B, and *C) and on appeal (claims 9A, (B and ©”. The court then went on to conclude

that the district court’s determination that they were “not cognisable as independent habeas claims” citing 28 USC

2254 (l);p. 5 hi

“Cognizable Claims” By The 6th Circuit

The “District Court found that five claims were cognizable and not procedurally defaulted

(1) trial court’s denial of motion to dismiss for excessive pre-indictment

delay ” (Claim 2A) (Id 5-6

(2) “improper consecutive sentence above the maximum (sic) claim 2R ”

(3) 7.4 TC for (not) retaining DNA EXPERT Ronald Acklen ” (5D.pg.6)

(4) “failing to have a competent DNA expert conduct an independent DNA

test” (Claim 5.F)

(5) “advising Barrett not to call any alibi witnesses ” (Claim 5)

District court determined that these claims of trial counsel’s unconstitutional loss of alibi

witnesses and independent DNA testing and analysis witness denied him the effective assistance of

counsel. The 6th Cir concluded that a sentence on review by TCCA “is binding on a federal court sitting

in habeas review. ” Citing. Bradley v. Richey, 546 U.S. 74, 76 (2005);(p. 7). The court interpreted

sentence within maximum range is OK under “strictproportionality” concept. (Id. pg. 7) and

“generally does not constitute ‘"cruel and unusual”’ or excessive punishment”, (pg. 7) (citations

omitled) This generality does not fit the factual background of Pet’s petition

The Appeals court then interpreted the consecutive sentence as one that is “discretionary” and

(this particular) judge can make that decision.” (pg. 7, Order. 6th Cir.)

On the “non-debatable ” conclusion of Pet’s IAC claims, the court first cited Strickland’s

objective standard of reasonableness ” (Id @ 688) but then rejected the ‘reasonableness standard it just

quoted, writing that “the question [under §2254 (d)J is not whether court’s actions were reasonable " at

all, but “The question is whether there is any reasonable argument that counsel satisfied Strickland's

deferential standard. ” Citing Harrington v. Richter, 562 U.S. 86, 105 (2011).

Pet disagrees with this conclusion regarding “Strickland’s ‘deferential

standard’”. See Williams v. Taylor, 529 U.S. 362 (2000) discussing Section

2254 {d).

“In sum, the statute directs federal courts to attend to every state-court

judgment with utmost care, but it does not require them to defer to the

opinion of every reasonable state-court judge on the content offederal

law... For purposes of today’s opinion the most important point is that an

unreasonable application offederal law is different from an incorrect

application offederal law.” Id.

“On the other hand it is significant that the word ‘’’deference’” does not

appear in the text of the statute itself. Neither the legislative history nor the

statutory text suggests any difference in the so-called ‘’’deference’”

depending on which of the two phrases is implicated. ” Id.

“III. Procedurallv Defaulted Claims” (pg. 9). the 6th Circuit listed:

the defective indictment claim

“the twelve remaining allegations of trial -court error ”

“a prosecutorial — misconduct claim (pg. 9)

“an insufficient evidence claim ”

“. ..eleven remaining allegations ofIAC

6th Circuit Court concluded that “the district court determined that Barrett did not establish cause andprejudice

to excuse the default. "The 6th Circuit Court apparently did not give enough recognition to the just cited law in

TN that a Pet need only file for appellate relief in one state appeals court (Rule 39, TRAP) because the court

appears to conclude that Pet’s 5 remaining claims are “procedurally defaulted”, even though Pet explicitly alleged

and offered proof that the one appellate rule was excuse for these claims being properly before the Federal

court due to the cause of ineffective assistance of post conviction counsel and his right to pursue relief on

appeal Pro Se.

The 6th Circuit apparently overlooked the fact that though he raised it (defective indictment) in his post

conviction petition”, he also raised this ground in the first tier Pro Se Motion For Delayed Appeal appellate

review of the TCCA.

“The purpose of the constitutional guaranty of a right to counsel is to protect an accused

from conviction resulting from his own ignorance of his legal and constitutional rights,

and the guaranty would be nullified by a determination that an accused’s ignorant failure

to claim his rights removes the protection of the constitution.” Johnson v. Zerbst, 304

U.S. 458, 58 S.Ct. 1019,1093.

“Inadequate assistance of counsel [“IA ”] at initial-review collateral proceedings may

establish cause for a prisoner’s procedural default of a claim ofIA at trial. ” Martinez v,

Ryan, 566 U.S. 1, 132 S.CT. 1309, 1315. /state collateral review is the first place a

prisoner can present a challenge to his conviction.” Martinez. @ 1315]

Pet submits that just because a procedural rule.. .is firmly established and consistently

followed...” (citations omitted)... it is above contextual review or modification .Segregation, slavery

and denial of women the right to vote were routinely and faithfully followed in the ole dirty South for

hundreds of years before 1865. As an alternative it is humbly and respectfully suggested -this suggested

review should start with the trial judge as the party who selects who gets the JOB of representing a

defendant on Post Conviction Relief attempting to prove that that trial Judge (his BOSS) was wrong...

A panel of attorneys or appeal judges or Public Defender Office may be a better protector of

prisoner’s rights to Effective Assistance of Counsel on Post Conviction, since we don’t have a right to

assistance of counsel beyond initial collateral damage. The trial court’s errors had a substantial and

injurious effect and influence on the guilty verdict-causing Petitioner actual loss of his 5th, 6th and 14th

Amendment rights to a fair trial by an impartial Jury. For those reasons the grant of the Writ should be

permitted.

In its Order the 6lh Circuit referenced the grounds wherein a state prisoner may file any additional

post conviction petition, but Pet’s filing had nothing to do with filing a secondpost conviction petition. The

context was whether these claims were procedurally defaulted for not being presented “onpost conviction

appeal”. (Id. *6).not arguing for a second post conviction petition.

In that vacuum created by the lawless, unconstitutional misconduct of PCC on initial review. Pet’s

ProSe appeals were properly before the state’s appeal courts following post conviction evidentiary hearings.

Reasonable jurists would debate the district court’s procedural rulings because these claims were raised Pro

Se on initial review following the denial of his Pro Se Post conviction Petition for Relief. (Id.) (APPENDIX

#9)

Likewise with the out-of-control prosecutorial misconduct of the State’s Assistant (now Deputy)

District Attorney Tom Thurman. The 6th Circuit observed (Id. *6) “Barrett presented several claims ofprosecutorial

misconduct in his post conviction petition... ”His Pro Se post conviction appellate briefs (APPEND IX#6) will also

reflect that Pet submitted these gross egregious instances of Mr. Thurman on appeal. His arguments, witness

tampering (putting words in their mouths, criticizing his exercise of the right to remain silent, and

constructively amending the indictment to such a degree no one is able to say with confidence what the Jury

found him guilty of. The indictment says ‘first degree murder”, but Mr. Thurman’s arguments to the jury

repeatedly and flagrantly alleged “rape”. According to the law in TN there was insufficient evidence to allege

rape and according to the U.S. Constitution that allegation was a denial of due process.

It would be a gross miscarriage of justice to allow the Court of Last Resort an invitation to continue these

violations of the Federal Constitution.

The 6h Circuit’s finding that Pet’s “fourth claim of ‘insufficient evidence”was error. The 6th Circuit Court

said Pet alleged “there was no evidence of afelony orpremeditated murder" (*6 Id) that the victim had been killed. The

court then went on to side with the district Court that “this claim was defaulted because Barrett did notpresent this

claim under the same theory in state court where he contended that the evidence did not establish his identity as the perpetrator”.

Of course he did not say anything as senseless or arrogant as “there was no evidence of a felony....”

Contrary to these findings as well, Pet’s correct claim and the theory for it, were presented in the

state court.... Note the opinion of the TCCA on direct appeal (No. M2009-02636-CCA-R3) found “On

appeal he contends that: (1) the evidence is insufficient to support the conviction” [Id., @ *1;2012 WL. 2870571] (7-13-12)

At *25 ]d- ‘The Defendant challenges the sufficiency of the convicting evidence. He states that there was no eyewitness

account of the crime... ” (emphasis supplied) Further, note the Insufficient Evidence Claim on Appeal of denial

of Post Conviction Pedtion.

2016 WT 4410649; No. M2015-01161-CCA-RJ-PC; 8-18-16.

Even Post conviction counsel’s unilateral and disputed appeal, there is no mention among the three

grounds that Counsel claimed is there a statement or assertion that “there was no evidence of afelony or

premeditated murder. ” (6'h Circuit Order; No. 20-5202, Id). Thus the Court states in error, trying to address a

ludicrous, fictitious claim which would otherwise serve as a prejudicial predetermination not to take Pet or

his claims seriously.

Another serious error by the Court of Appeals is that it misconstrues the Pet’s standing. The “eleven

IATC claims in his initialpost conviction petition” but his post conviction counsel did not raise them, so the Court

incorrectly concluded. Pet raised all eleven of these IATC claims in his initial Post Conviction Petition Pro

Se. He didn’t have an attorney when he raised them in his “initialpost conviction petition”. (Id., *7)

The Court does not correctly deduce the ground for “exhaustion”. As stated, Pet submits that he did raise

these eleven IATC grounds on initial appeal also Pro Se. Pet is actually seeking vindication of his right to file

his own post conviction appeal, and under known and believed circumstances described and undisputed, he

had a clear right to file.

The Appellate court is also mistaken that “As explained above, howeverpost-conviction counsel raised these

eleven ineffective-assistance-of-trial counsel claims in his initialpost-conviction petition but did not appeal the denial of the eleven

claims to the Tennessee Court ofAppeals. ” Id. @*7.Again, Petitioner was the one who raised these eleven IATR

claims in his initial post conviction petition not counsel. As observed by the state appellate court, the post

conviction appointed counsel told the trial (post conviction) court that petitioner had a PC Petition that was

90 pages long (untrue it was 40 pgs long) and therefore he did not amend the petition. P C Counsel Jason

Chaffin said “he didn’t file an amended one (post convicting petition) because Mr. Barrett’s was 90

pages long... ” The court accepted the amended petition, the court appointed counsel was aware of it,

discussed it with petitioner, and asked the court to “ ...allow us to amend it... ” Transcript Post

Conviction Hearing 3-13-15pg. 20, Ins 6-7, 20. See also Barrett v. State ofTN, M2015—01161-CCAR3-PCfn. 1: “Although counsel had been appointed at the time, the amended petition was filed it was

not filed by counsel and was submitted by the Petitioner. ” Id. 2016 WL 4410649.

“IAPCC” is only germane to his insistence that under the circumstances known and believed by Pet

-the vacuum of due diligence of PCC meant that his right to appeal would perish unless he filed his own

appeal Pro Se. Which he did. (APPENDIX#6 The question then is, whether a state prison inmate have the

right to file his own appeal brief under certain conditions or no conditions? Pet asks this High Court of all

the learned men’s courts, to answer affirmatively. Yes! He does.

Summary of Argument

MERITORIOUS CLAIMS

SUBSTANTIAL CLAIMS

Petitioner has made a substantial showing of the denial of a

constitutional right. Further, there are several instances where reasonable

jurists would dispute or debate whether the petition should have been resolved

in a different manner or the issues were adequate to deserve encourage ment to

proceed further “Wool bright v. Crews, 2018 WL 7247245, No. 18-5131, (7-9-2018, 6th Cir.),

citim. Slack v. McDaniel 529 U.S. 473 484 (2000) fauotins Barefoot v. Estelle, 463 U.S. 880,

893 & n. 4 (1983).

To be “substantial”, a claim must have some merit under the standard

for IAC set forth in Strickland v. Washington 466 U .S. 668 (1984). The

standard under Strickland is that petitioner must establish that a counsel’s

performance was deficient and that he suffered prejudice as a result.

Strickland, 466 U.S. at 687. see Wiggins v. Smith, 539 U.S. 510, 530-31, 123

S.Ct. 2527, (2003). (Rejecting dissenters’ contention it was required to give

“deference” to state court findings because "’the state court made no such

finding,”’ and "’therefore”’ it "’must determine de novo the unresolved factual

issue).

Pet’s claims are subject to review insofar as they are “plain”. Holsuin-Hernandez v. U.S., 140

S.Ct. 762 (2020); United States v. Plano 507 U.S.725, 732-736, 113 S.Ct. 1770 (1993).

“Appellate

courts in Tennessee have ‘the authority to ‘consider an error that has affected the substantial rights of a

party at any time, even though the error was not raised in the motion for a new trial or assigned as

error on appeal. ’” State v. Knowles, 470 S.W. 3d 416, 423 (Tenn. 2015) (quoting Tenn. R. App. P.

36[bJ). “We refer to this discretionary consideration of waived issues as ‘plain error’ review.’’

Knowles, 470 S.W. 3d at 423; see also Grindstaff v. State, 297 S.W. 3d 208, 219 n. 12. (Tenn. 2009).

“Plain error” review is also available when counsel fails to lodge a contemporaneous objection when

the issue first arises. State v. Thomas, 158 S. W. 3d 361, app. 413 (Tenn. 2005). (emphasis supplied)

“The prefatory language of § 2254(d) provides: “An application for a writ

of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with respect to any claim

that was ‘adjudicated on the merits’ in State court proceedings unless

the adjudication of the claim....” In the usual case, a denial of relief on

procedural grounds will completely bar federal review of the claim unless

the prisoner can prove cause and prejudice or a miscarriage of justice.

See Wainwright v. Sykes, Murray v. Carrier; Engle v. Isaac; House v. Bell,

(547 U.S. 518 (2006).

The AEDPA standard applies only when the claim in question ‘was

adjudicated on the merits in State court proceedings.’” 28 U.S.C. § 2254(d). When a

state court did not adjudicate a claim on the merits, the federal court applies the

general, less deferential habeas standard in 28 U.S.C. 2243. Muth v. Frank, 412 F. 3d

808, 814 (7th Cir. 2005) Here, the AEDPA standard does not apply to Pet’s claims that

were “not adjudicated on the merits in State court... which includes most of the Pro

Se claims the state appellate courts erroneously chose not to adjudicate. (“AEDPA

standard of review does not apply where "’the state court misunderstood the nature

of the claim, and therefore did not adjudicate that particular claim on the merits.”’

A state court must specifically identify a claim and must identify and review

the correct claim” in order for the state court’s action to reflect adjudication on the

merits for AEDPA purposes.” Muth, 412 F.3d @ 815,n. 5; see also Billings v. Polk, 441

F. 3d 238, 252 (4th Cir. 2006) (no adjudication on the merits where North Carolina

Supreme Court “did not consider-or at least there is no indication that it considered”

petitioner’s Sixth amendment claim); Apple v. Horn, 250 F.3d 203, 210 (3rd Cir. 2001)

(no adjudication on the merits because Pennsylvania Supreme court “recharacterized”

petitioner’s constructive denial of counsel claim as IAC claim) ; Hameen v. Delaware,

212 F. 3d 226, 248 (3rd Cir. 2000) (no adjudication on the merits where Delaware court

“did not pass on [petitioner’s] Eighth Amendment constitutional duplicative aggravating

circumstances argument, even though it had the opportunity to do so”) Accordingly,

AEDPA’s standard does not apply to the Fifth, Sixth and Eighth Amendment

predicates for Pet’s claims.

The TN S.Ct. had the opportunity to pass on Pet’s Pro Se claims but it did not do so. Pet clearly

explained the dilemma he had in trying to obtain meaningful assistance from PCC M. Harris, to no avail,

which forced him to file these claims Pro Se. In the end, the Respondent’s effort to dodge the substantial

constitutional issues permeating throughout this case should be unavailing.

ARGUMENT

_Z Unconstitutional denial of right to File Pro Se Appeals

Date of offense was 2-25-1975; judgment entered 9-4-2009; Sentence imposed 9-4, 2009. Petitioner filed a Pro Se petition for state post-conviction relief on 11 -13; years passed without a

ruling before an attorney (Jason Chaffin) was appointed. However, counsel did not “amend” the

petition. In his amended PC petitions Petitioner alleged errors of (^Unconstitutional denial of right to

File Pro Se Appeals; (2) unconstitutional constructive amendment of the indictment; prosecutorial

misconduct; (3) unconstitutional jailhouse liars (“criminal informants”) quid pro quo arrangements

with government; jailhouse ‘criminal informants’ were undisclosed agents of the government secretly

seeking to obtain information incriminating Defendant on behalf of the District Attorney’s Office;

^unconstitutional jailhouse ‘Silent’ Video narration denied fair and impartial jury verdict) (5) TC

unconstitutional loss of alibi witnesses and independent DNA testing and analysis witness; (6) pre

indictment inordinate prejudicial delay (7) unconstitutional prejudicial photo introduction at trial;;

(8)IATC failure to request and give requisite jury instructions regarding professional and criminal

informants; (9) IATC (10) trial court erred in ordering consecutive sentences. (11) failure to argue third

party defense effectively;(12) unreliable, prejudicial trial testimony regarding DNA “match”, chain of

custody.

Post conviction counsel (“PCC”) failed in this procedural due process which is a particular but

crucial duty. See U.S. v. Cronic 466U.S. at 658, 104 S.Ct. 2039. “A unilateral decision to terminate

appellate review without the appellant’s knowledge or consent is ineffective assistance of counsel. Jones

v. State. 1987 WL 15535 (TCCA, 1987), citing. Moultrie v. State. 542 S.W. 2d 835, 838 (TCCA 1976).

This is the law in the state of Tennessee and the Federal law. When ‘‘an attorney who fails to file

an appeal that a criminal defendant explicitly request has, as a matter of law, provided ineffective

assistance of counsel that entitles the defendant to relief in the form of a delayed appeal. ” Campbell v.

United States 686 F. 3d 353 (6th Cir. 2012); Ludwig v. United States, 162 F. 3d 456 458-59 (6th Cir.

1998). The context in Campbell in Ludwig emphasize “an appeal that a defendant explicitly requests...”

The TN S CT acted indifferently to these set of facts with respect to the Ineffective Assistance of

Post Conviction Counsel in initial review: “Because Jerome Sidney Barrett is represented by counsel

whofded a timely application for permission to appeal fas if that is all he had to do) Mr. Barrett’s pro

se application for permission to appeal (along with the reasons he gave for filing) is dismissed [PER

CURIAM]

This appellate court was very unreasonable, especially in light of the fact that in his Application

at #17, Pet asked “Whether this honorable court should allow him to go back to the court of criminal

appeals on a delayed appeal, if he is not permitted to raise these assignments of error in this

Application in order to raise these grounds which counsel on Appeal did not raise when he secreted the

appeal brief to the TCCA but never to his client, Your appellant, see Walwvn v. Board ofProf. Resp. of

the S.Ct ofTN. 481 S. W. 3d 151 160; State v. Hall 461 S. W. 3d 469, 474 (“delayedappeal

granted...based upon the lack of meaningful representation during original direct appeal”) Baxter v.

Rose, 523 S. W2d 936; 5th, 6th, 14th Amend. U.S.C. There is no rule cited anywhere to the Pet’s

knowledge, in the State of Tennessee Rules of Appellate procedure which prohibits a state prisoner to

not file anything if he has an nominal attorney of record. “[F]undamental fairness entitles

indigent defendants to an ‘adequate opportunity to present their claims fairly within

the adversary system.” Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093

(1985) (citation omitted).

Petitioner submits that the Tennessee Constitution and the U.S.

Constitution gives him the right to be heard by counsel and himself:

“But, by our State constitution it is provided: ‘”That in all criminal

prosecutions, the accused has a right to be heard by himself and his

and our Supreme Court has held in the case of Wilson v.

counsel.

State, 3 Heisk, 232, that the section means both in criminal cases. ” Grace

v. Curley, 3 Tenn. App. 1 (1926); See Charles Wilson v. The State, 50 Tenn.

232,234, Supreme Court of Tennessee April Term, 1871 (“Under the

Constitution of the State, Art. 1, § 9, giving to a person accused the right to

be heard by himself and his counsel....”)

“Article I section 8 of the Tennessee Constitution, provides ‘”t]hat no man

shall be taken or imprisoned, or disseized of his freehold, liberties or

privileges, or outlawed, or exiled, or in any manner destroyed or deprived

of his life, liberty or property, but by the judgment of his peers or the law of

the land.” State v. White, 362 S.W. 3d 559 (TN. 2012).

See Tennessee Code Annotated (“T.C.A.”) section 40-30-116 (Appeal after final

judgment) Tennessee Constitution Article I§ 9, TN. S.Ct. Rule 28, 6©(2); Campbell v.

United States, 686 F. 3d 353 (6th Cir. 2012); Rou v. Flores-Ortega, 528 U.S. 470 120

S.Ct. 1029 (2000); Ludwig v. United States, 162 F. 3d 456 459 (6th Cir. 1998). Loving v.

State of TN, 286 S.W. 3d 275, 285 (TN. 2009). Cf., Kina v. Pfister, 834 F. 3d 808, 815-16

{King raised claim in his Pro Se post conviction petition (citing Ward v. Jenkins, 613 F.

3d 692, 700 [7th Cir. 2010]. However, “King failed to assert claim in his post

conviction appellate brief, filed with representation, and his Pro Se petition for leave to

appeal.”)

In his “Reasons Supporting Review”, Pet relies on the rendition of the TCCA as to the grounds

filed on appeal, and also asked the TN S CT to allow him add his own grounds for this Appeal that he

had filed in the trial court in that the TCCA notes in its Judgment that. “The original and amended pet

contained numerous grounds for post conviction relief only three of which have been maintained on

avveal... ” fCCA No. M2015-01161 -CCA - R3-PC

Rejection of his Pro Se appeal in light of circumstances was unreasonable. T.C.A. § 40-30106(e). He “did all he could do to fairly present these claims to satisfy the exhaustion

requirement...reasonable jurists could debate that conclusion... ” Woolbright v. Crews, supra, 2018

WL 7247245, 6th Cir., No. 18-5131; 7-9-18. The federal Court cannot presume that because counsel did

submit three grounds for appeal, appellant was afforded all the Due Process needed, because those

meritorious grounds which the Court went on to deny habeas relief upon - which the PCC did not

present, may have been a turning point in his state appeals had those courts exercised due process and

reviewed them. Therefore the Pro Se appeal grounds that were presented by the defendant and heard in

the evidentiary hearing at post conviction but were ignored on appeal by counsel and the appellate

courts, were treated unreasonably in the federal court and the state appellate courts.

Failure to review Pro Se appeal grounds that were heard in the evidentiary hearing and submitted

Pro Se on appeal was error. See also Garza v. Idaho, 139 S.Ct. 738,744:

“And, most relevant here, prejudice is presumed ‘’’when counsel’s

constitutionally deficient performance deprives a defendant of an appeal

that he otherwise would have taken. ” citing, Flores-Ortega, 528 U.S. at

484, 120 S.C. 1029. So long as a defendant can show that ‘’’counsel’s

constitutionally deficient performance deprive[d him] of an appeal that he

otherwise would have taken”’ Courts are to ‘’’presume prejudice with no

further showing from the defendant of the merits of his underlying claims.”

Ibid. Gaza, @ 747, citing, Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029.

Pet referenced the ABA Standards Relating to the Defense Function, at section 3.8. Essentially,

his Motion For Delayed Appeal was for the “court to appoint counsel so counsel can appeal the denial

of his Petition for Post Conviction Relief (“PCR ”), or to “re-enter Judgment in order for Pet to file

appeal to the TCCA ” Pro Se. Id.

2 DNA *Evidence*

The trial PC Court erroneously denied the petitioner’s request at the original evidentiary

hearing for expert (INDEPENDENT) DNA analysis and at the trial. Pet moved the PC court pursuant to

T.C.A. 40-30-303-313 for independent DNA Analysis. Trial counsel agreed that he should have

sought independent DNA analysis, instead of relying on the prosecution’s tests reports and analysis.

Daubert v. Merrell Doc. Pharm, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795.

In 1994, “Lab Corp” tested “samples from 35 people “who had not been ruled out by the testing

at CBR, and added one more sample that CBR had been unable to develop. “Id., @ *17.

Forensic DNA Expert TBI Agent Joe Minor testified “that he tested the swabbings of the slides

prepared by Lab Corp. ” The one profile that had been previously undeveloped was determined by

Agent Minor to be “a male profile

He considered it a “strong profile ” but, “He said the male profile

from the slide did not match the Defendant’s profile. ” Id., @ *18. In cross-examination, “He reiterated

that the defendant was not the contributor ” from the five slides prepared from the two vaginal swabs

from the victim’s autopsy. ” @*18. In this test result, petitioner was completely exonerated as below.

Jennifer Luttman, an FBI DNA expert, testified that crime scene evidence was received in the

FBI lab on March 29, 2004. That no DNA a profile was obtained through earlier “RFLP (DNA) testing

and that the stains were consumed in the testing process. ” *21. RFLP testing required a large sample

from the victim’s jeans and blouse.” Id. Ms. Luttman testified that the victim’s jeans and blouse were

“reanalyzed" in 2004 after ‘biologists conducted tests ’, and “determined that semen was present on one

sample from the victim’s jeans and two samples from the victim’s blouse. ” Id @ *21.

Ms. Luttman was only able to examine nine of the thirteen loci. Prosecutors told the jury the

DNA on the victim’s blouse was a “match” to Pet’s DNA, in spite of the science requiring thirteen loci,

and when just one loci does not match, it should be declared a “non-match”3 TBI Agent Chad Johnson

“He said that comparing DNA profiles required comparison of thirteen loci from each sample and that

all thirteen loci must match in order to be considered a DNA match. ” State ofTN v. Barrett, M201000444-CCA-R3-CD, 2012 WL 2914119 @ *13

Trial Counsel was unable to seek jury instructions or objections to this mathematical

incongruence still being called a “match” to the Jury.. So when they talk about comparative matches

what they are really saying is a partial match not in keeping with the scientific protocol. For example

Ms. Luttman said that the comparison of the victim’s DNA to the minor contributor’s DNA was

“inconclusive” but “consistent” (not a “match”) with the victim’s DNA on the victim’s blouse. Id @

21. Additional research indicated a DNA profile more commonly found in Caucasian which coincides

with the eyewitness report of Ms. Maxwell, (see below State v. Barrett 2012 WL 2870571) The Center

For Blood Research laboratory (CBR) did DNA profiles of stains on the victim’s clothing which was

compared with the victim’s DNA from her hair roots. State v. Barrett. 2012 WL 2870571 @ *15. Those

lab results indicated that the victim’s DNA was not the same as the two samples from the victim. Jeans.

Id. *16. This one unidentified sample, had a DNA “profile that was developed matching someone in the

Caucasian population of one in 180,000 and that it was one in 10,800,000 for the African American

population. ” Id. @ *17.

“TBI Special Agent Chad Johnson testified as an expert in forensic science and DNA analysis

and said that in STR DNA testing thirteen loci and the sex-determining marker are analyzed.: ” Id. @

20) Trial Counsel was unable or unaware of the need for cross examination on this matter, even though

she testified that “due to the small quantity of DNA from the major contributor, she was only able to

examine nine of thirteen loci. ” Id @ 21. She said samples from the victim’s underwear were tested by

the serology unit and were negative for semen. She said the DNA testing on the jeans did not establish

that DNA was present.” @*21.

3 Dr. John Butler, if 1 loci does not match, DNA profile must be declared a “non-match”. Id., p. 386; WL 2914119,

@ *5.

No semen was found on the victim’s underwear when she was examined initially but semen was

found on the victim’s pants leg. Retired Metro Police Captain Thomas Cathey testified at the trial that

the victim’s body was found on March 30, (1975) and that “after the body was on the table he removed

the victim’s clothing except her panties... ” @*3. “Mr. Gavin identified underwear that he examinedfor

the presence of blood and semen and testified that neither was present. ” @Id *10.

At this point, DNA was (semen) not found on the victim’s blouse, then later it was, it was not

found on the underwear, but was found in the victim’s vaginal fault. Gary Harmor, a forensic serologist

with the Serological Research Institute, testified as an expert in DNA analysis. ” Id., @ *19. After

“amplifying” Def s DNA from a package he received on December 12, 2007, he wrote a report and

dated it as January 28, 2008, He said that the first DNA test report, dated Jan. 28, 2008, stated an

incorrect date for his receipt of the evidence and that the second, dated July 8, 2009,

one year and six

months later, “corrected the error”. (Id) (emphasis supplied)

At the admission of that year and a half date ‘error’ in writing the scientific report, documenting

when he amplified Pet’s DNA the dates he received the DNA evidence, Trial Counsel did not move to

have this entire report of Agent Harmor suppressed on grounds of inadmissibility for unreliability or

chain of custody This witness is testifying that he misstated the wrong date by an inexplicable period of

a 15 month discrepancy, - that instead of writing that he amplified the evidence (“blouse, pants”) on

January 28, 2008, later he changed his story and testified that he actually received them over a year and

six months later, on July 8,2009. @*19. Counsel had no DNA expert to advise him in court about the

significance if any, of this glaring inconsistency by Agent Harmor’s testimony.

These dubious DNA test reports by Mr. Harmor’s for the first time in over 20 years of DNA

tests, Petitioner’s DNA is reportedly on these tested exhibits crime scene evidence by this crucial

witness.

Mr. Harmor was not the only one who “amplified” Pet’s DNA. These are additional reasons why

an independent DNA test and analysis was necessary:

(a)

“PCR product carryover results from ‘amplified’ DNA contaminating a sample that has

not yet been amplified.. .DNA Forensic Typing, supra, p. 152; D.A. Office v. Osborne, 557 U.S 52, 129

S.Ct. 2301, [“Amplifications was never tested as cause for false positive result”] see State v. Barrett,

2012 wl 2870571, Id.., No. 2008-D-3201, 2012 2914119.

(b) Dr. Butler in his canon on DNA Forensic Typing,4 wrote:

“The inadvertent transfer of even a very small volume of a completed PCR amplification

to an unamplified DNA sample can result in the amplification of the ‘contaminating

sequence... PCR product carryover results from amplified DNA contaminating a sample

that has not yet been amplified. Because the amplified DNA is many times more

concentrated than the unamplified DNA template, it will be preferentially copied during

PCR and the unamvlified sample will be masked. ” (Id., pg. 152)[“Dr. John Butler is

said to have written the canonical test on Forensic DNA Typing”. Dist. A tty’s Office v.

Osborne, 557 U.S. 52 129 S.Ct. 2308, 2327.] (emphasis supplied)

Tennessee Bureau of Investigation (“TBI”) ‘Special Agent’ Chad Johnson testified at trial that

“ ...extracted DNA might be copied through an amplification process.... ” Barrett, 2012 WL 2914119, @

*1. (T. T. Vol. VII, pgs. 425-38) This potentially exculpatory admission went unnoticed by Defense

Counsel because he apparently did not have knowledge of the significance of this testimony.

Contrary to what the district Court found Pet, did not claim that Mr. Ronald Acklen was not

smart enough. His problem with the Dr. was that he was not in court. Had counsel been advised by an

equally educated DNA expert as State witness Mr. Harmor, Counsel could have raised the defense of

inadmissibility of Mr. Harmor’s reports due to unreliability dates, and chain of custody issues. In the

Post Conviction Court’s Order (5-21-15) denying Post Conviction Relief, the Court surmised that “Trial

counsel said that he consulted with Dr. Ronald Atkin (sic) about the DNA evidence in the case. He said

that Dr. Atkin looked at the DNA paperwork in the case and did notfind any issues. Trial Counsel said

that he did not call him as a witness because his testimony would have affirmed the State’s witnesses. ”

Id, pg. 2.

When there is a question as to the identity of the DNA contributors, or the number of

contributors, the defense attorney should request a sample of the DNA for independent testing.” Butler,

p.42. United States v. DeCoster, 487 F. 2d 1197. The DNA profile from the victim’s vagina did not

match the Defendant/Petitioner’s DNA profile. Nor was the single partial match a conclusive

identification as Defendant’s profile. Nor was independent testing performed.

positive due to repeated amplification of Pet’s DNA profile. Butler, Id., pg. 152. Independent testing

by a DNA expert is not performed by looking at pieces of paper and .determine that there is no false

positive resulting from amplification. Erroneous T.B.I.: (a) analysis (2) chain of custody (3) selective

prosecution (4) unreliable categorization of various degrees of “match (5

Yet, these are the tests results which Counsel’s DNA contact outside of trial, approved. See

State v. Scott. 33 S.W. 3d 36 (Term. 2011)

“expert assistance on issues concerning anomalous results in various DNA tests could

have made difference in preparation and presentation ofPetitioner’s case. ” see also

State v. Barnett. 909 S. W. 2d 423 (Tenn. 1995); State v. Toomes. 191 S. W. 3d 122,129

(TCCA, 2005): “Scott said it was ‘especially noteworthy that the appellant’s expertise in

criminal practice both testified that such expert assistance was ‘absolutely critical ’ to

competent representation in this area given that the procedures and protocols for DNA

testing are extremely complex. ”

“The Petitioner said that there were multiple DNA analyses performed with varying results;

thus he thought it was important to obtain an independent analysis. According to the Petitioner the

State’s expert testified inconsistently about the DNA evidence and ‘"missed a lot of words related to

DNA that prejudiced [the] jury. ” (TCCA, Barrett v. State ofTN., NO. M2015-01161-CCA-R3-PC, pg.

*4)

4 DNA Typing: Biology and Technology Behind STR Markers. Dr. John Butler

In Scott, distinguished Attorney David Raybin testified that “expert assistance... is absolutely

critical to the point where (one) cannot competently and completely defend the person because the

expert testimony is necessary. ” Supra. @ 750. Raybin added that he would not even consider

representing a client in such a case where he did not have expert assistance in the cross examination of

a witness. ” Id.

3 Prosecutorial Misconduct

The extremely inflammatory and untrue arguments by the State’s Assistant District Attorney

General Tom Thurman in September, 2009, that petitioner was guilty of rape, was aggravated perjury

in argument in the false statements to the jury that the two jail house liars also said that “he (petitioner)

raped her. He lied on his witnesses Sheldon Anter and Andrew Napper. (He told them “he raped her”.)

“a prosecutor’s argument violates due process if it ‘infects the trial with unfairness. ”’ Darden v.

Wainwright, 477 U.S. 168,181 (1986). Darden frames the question as: “Did the prosecutor’s

calculated, unprofessional and inflammatory closing argument rob the determination ofpetitioner’s

guilt of the fundamentalfairness required by the eighth amendment? ”

Counsel never objected to these accusations that the deceased had been sexually assaulted by the

Defendant. Prosecutorial misconduct by Mr. Thurman arguing to the Jury and taking unfair advantage

of Def s previously announced intent to exercise his right to remain silent by asking the jury “how his

DNA got on her clothing. One fact he couldn’t talk about was how Jerome Barrett’s semen (sic) sot on

that blouse, an undisputed fact. He didn ’t want to talk about that because there was only one way his

DNA got there. ” [Id, pg. 887 Vol 9, Trans Evid.]

Mr. Thurman knew that “semen” does not have an identity other than DNA because he didn’t

argue DNA. The DNA evidence pointed to someone else insofar as a sexual assault occurring. “It’s not

like a doctor being careless in an examination, (sic) It’s semen. But he didn’t want to talk about that

fact...because there’s no explanation. ” Id. Here the State’s Attorney made at least four references

about Pet exercising his right to remain silent and turned it into a weapon against the Defendant. Mr.

Thurman is using t he pejorative “semen” as if semen is DNA. (“How would anybody have Jerome

Barrett’s semen? It’s not like a touch from a lab person. ” [Id, p. 887] Impermissible Prosecutorial

misconduct on Def s exercise of his right to remain silent. Arnold v. State ofTN. 563 S. W. 2d 792, 794

(TCCA, 1997), citins. Illinois v. Somerville. 410 U.S. 458; 93 S.Ct. 1066.

Trial counsel was ineffective for not having a DNA expert at trial in rebuttal that cross

contamination due to a “touch form a lab person” or where a “doctor being careless in an examination”

may cause cross contamination in both these examples. Counsel was ineffective for not calling for a

mistrial and post conviction counsel was ineffective for not appealing these meritorious grounds of

Prosecutorial misconduct. The Order denying Post Conviction Relief (5-21-15) included “The

petitioner testified that trial counsel should have objected to the District Attorney’s comments about

rape during the closing argument. ” (Order, Davidson County Criminal Court Division 1, Nashville

TN.; 5-21-15)pg. 2, 6-7.

(“In addition to the science you have—uh—two people who knew Mr. Barrett who people

(sic ...making up his mind here to commit aggravated injury) that were in jail. Two people who

told you that Mr. Barrett told them that he killed her ...telling the truth about that...he raped

her...killed her. That’s direct evidence. And, those are the kind of eyewitnesses (sic) ...statements

that Mr. Barrett made. ” [T.Evid., pgs. 869-870, Vol. 9] (Atty. General Miller, Id, pgs. 870-871)

General rule excluding evidence of other crimes is based on recognition that such evidence easily

results injury improperly convicting defendant for his or her bad character or apparent propensity or

disposition to commit crimes regardless of strength of evidence regarding offense on trial. T.R. Evid.

Rule 404 (a) (b). State v. Rickman, 876 S. W. 2d 824 (TN 1994)

The claim that Pet ‘changed the theory of his complaint’ is false because all of his pleadings

from the Pro Se appeals on to the Federal Petition for the Writ of Habeas Corpus insisted that the

arguments used by State’s Atty. Tom Thurman accused Pet of a crime which was not made out in the

indictments that the trampling of his right to remain silent, etc., and his unlawful use of biased

witnesses.

Denial of a Unanimous Jury Verdict

The State must elect at the close of its proof -in- chief as to the particular offense or offenses for

which it is seeking a conviction. State v. Shelton, 851 S. W. 2d@ 137; State v. Brown. 762 S. W. 2d @

137; Burlison v. State, 501 S. W. 2d801 (TN. 1973) fn. 2. Instead, the trial Court and Defense Counsel

allowed Mr. Thurman to argue several offenses one of which was not charged in the indictment.

Violation of due process embodied in T.R. Crim. P. Rule 31, 6th, 14th Amendments, U.S.C.

The two primary purposes underlying the special rule articulated in Shelton and Brown are to

preserve a criminal defendant’s right under the state constitution to a unanimous jury verdict. Fn. 3,

Art. 1, Section 6, TN. Const.

Unconstitutional Constructive Amendment Of The Indictment; Prosecutorial Misconduct

Trial counsel performed ineffectively by failing to object to a constructive amendment

of the indictment. The charge of rape was never pled in the indictment. The grand jury did not

make this charge on its own judgment, which is a substantial right, which cannot be taken away

with or without court amendment. U.S.C.A. Const. Amend. 5, 6,14; Tennessee Constitution Article

1, § 6,14; State v. Goodson. 77S.W. 3d240; T.R.Crim. P. Rule 7(b) (2); T.C.A. §40-1713. “The

Sixth Amendment right to a jury trial, as incorporated against the States by way of the Fourteenth

Amendment, requires a unanimous verdict to convict a defendant of a serious offense. ’’ (other cites

omitted)

By authority of Article I, Section 8 of the Tennessee Constitution the Fifth, Sixth and Fourteenth

Amendments of the Federal Constitution, Count I and 2 should be dismissed. See State v. Smith, 612

S.W.2d493, 497 (Tenn. Crim. App. 1980), citing, Inman v. State, 195 Tenn. 303, 304-305, 259 S.W. 2d

532, 532 (1953) ("The test for the sufficiency of an indictment is whether it contains the elements of the

offense intended to be charged...")

The absence of evidence of “larceny” was covered up by prosecutorial misconduct through

improper argument and constructive amendment of the indictment: “Is there any question that this was

also done during the commission of a larceny, that the money was stolen from her? You have the intent

to steal, intent to murder, intent to sexually assault. So, there is no question as to whether this is first

degree murder andfirst degree felony murder. ” Asst. DA Tom Thurman. (Trans. Evid. Vol. 9, pg. 886:

Rebuttal Argument on Behalf of the State of Tenn.

“The Supreme Court held that the Sixth Amendment right to jury trial as incorporated against

the States by way of the Fourteenth Amendment requires a unanimous verdict to convict a defendant of

a serious offense...Ramos v. Louisiana, 2020 WL1906545; Patton v. United States, 281 U.S. 276, 50

S.Ct. 253, (1930); Andres v. United States. 333 U.S. 740 68 S.Ct. 880 (1948).

The District Court jumped over his factual innocence to the charge of rape when it wrote

irrelevantly in its Order of dismissal that: “the medical examiner took vaginal swabs from the victim’s

vagina... Subsequent analysis showed the presence of sperm... ” The Court notes this without adding

that the DNA analysis exonerated appellant as the depositor of the “sperm”? Just writing that

examination had been performed for DNA, without connecting the results to anyone, leaves the

impression that appellant was the depositor of the DNA. To appellant, this “Factual Background” (Pg.

4, Order) omission indicates that the Court tripped over finding half-truths rather than objective

analysis, when it leads to proof of his actual innocence.

Rape/Murder Unconstitutional Amendment of Indictment and Closing Argument

How can there be an argument (to the jury) about “rape” when the essential elements of the

offense are absent? (“Penetration is an essential element ofrape... The slightest penetration is

sufficient but it must be proved beyond a reasonable doubt. ” Greene v. State (1962), 210 TN. 276 358

S. W. (2d) 306), citins, Underhill’s Criminal Evidence, 5th Ed., § 764 (“It is likewise said in 75 C.J.S.

Rape § 82b, pg. 5767: “In a prosecution for rape, the court must properly charge as to the necessity for

penetration... ” Reasan v. State, 1986 WL 13063, TCCA 11-19-86. T.C.A. § 39-3701. Counsel did not

require it and the trial Court never instructed the jury as to the State’s argument that the Defendant

“raped” the victim.

Constructive amendment or variance happened because the government presented argument at

trial distinctly from those set forth in the indictment. Id. P. 6-7, Order, PCCourt. The immediate

response in the P.C. Court’s Order was “Mr. Napper testified that he heard the defendant say “I killed

her, I didn’t rape her.’” The Petitioner has failed to prove this allegation by clear and convincing

evidence and has failed to show how this was not an appropriate comment on relevant evidence.” Id.,

p.7 This Order is documented prosecutorial misconduct by argument without any foundation.

Pretrial Publicity -“Secret Indictment” But Media Had It Before The Defendant

The trial court had an “affirmative duty to insure that a defendant has a fair trial. ” Garrett v.

DePasauale. 443 U.S. 368, 378, 99 S.Ct. 2898, 2904, (1979).

(“To safeguard the due process rights of the accused, a trial judge has an affirmative

constitutional duty to minimize the effects of prejudicial pretrial publicity. And because

of the constitution’s pervasive concern for those due process rights, a trial judge may

surely take protective measures even when they are not strictly and inescapably

necessary.” (citation omitted)

Because city criminal court judges such as the trial judge are elected, and only certain populaces

typically vote, this may be decided on the first law of nature, but that doesn’t make it right. And the wife

of the victim was married to the Associate Editor of the Tennessean, the sole local newspaper at the time

of Pet’s trial. Each juror during voir dire said they had heard about the case. Constant drum beats of

nearly two years of “case solved” prejudiced his right o a fair jury verdict. Few, if any interests under

the Constitution are more fundament than the right to a fair trial by ‘impartial jurors, and an outcome

affected by extrajudicial statements would violate that right.” Gentile v. State Bar of Nevada, 501 U.S.

1030, 111 S.Ct. 2720 (1991)’ Pennekamn v. Florida. 328 U.S. 331, 66 S.Ct. 1029, 1043 (1946)

(Frankfurther, J., concurring.)

4 Testimonial Statements of Jailhouse Liars

Andrew Napper and Sheldon Anter were two professional liars (“criminal informants”) with

everything to gain and nothing to lose; Napper, a “paidpolice informant in drug cases”, Anter, a twice deported

illegal immigrant. State v. Barrett. 2012_WL 2870571, (7-13-12) @ *14.

Both state jailhouse liars were presented as due process and equal protection issues not “solely

as a matter of state evidence law”, as the District Court held that the claim regarding “Sheldon Anter”

(“S.A.”) “...is not cognizable in this federal habeas proceeding because Petitioner raised it on direct

appeal ‘solely ’ as a matter of state evidence law

The Court did not cite any law to justify the learned court’s odd holding on this matter. (Id., pg.

40). Trial Counsel should have at least moved to strike the pernicious biased testimony of jailhouse liar

S.A. a twice-deported illegal alien, who was undergoing DEPORTATION proceedings by our Federal

Government when Assistant (now Deputy) District Attorney Tom Thurman went down to New Orleans

and begged the Feds to allow Anter to come back to Tennessee in order to (lie) his way back into the

U.S.

It was exhibited that Mr. Thurman wrote a letter to the Federal authorities on behalf of Sheldon

Anter. His sister Ann Graves thought that Mr. Thurman had reneged on his promise to the Anter family

that if he testified at the first trial he would not be deported. So she went hysterical, exposed the quid

pro quo, to avoid her brother being deported back to Trinidad for the third time after 14 years a daughter

and the fear of “being killed if he returned’. That’s why Pet wanted her at the Evidentiary Hearing and

at trial.

Ms. Graves went to the news media (local Channels 3 and 4 April 3 4 2009) with her complaint

that the “DA lied to her and her brother, that he wouldn’t be deported if he “testified” against petitioner

in the first trial, which he did. This was her complaint made before the second trial and counsel did not

follow up on this information which was in the newspapers.

His testimony and appearance at the second trial should have been stricken, suppressed or something.

The State appellate court Pro Se application for permission to appeal was finally recognized by

the District Court (pg. 40) regarding the prevarication of Andrew Napper (“A.N.”) and prosecutorial

misconduct but the Court’s review was extremely strict against the Pro Se appellant: The District

Court went on : “Although Petitioner did raise this claim in a ‘conclusory’ fashion in his Pro Se

application for permission to appeal to the TN Sup CT in his state post-conviction proceedings.... that is

not sufficient to fairly present the claim to the state courts. ” Id., pg. 40.

Andrew Napper was a claim that petitioner stated was extremely prejudicial as well. Anter’s

testimony was fueled by personal animosity toward Defendant as well as the huge desire to parlay his

lies into an agreement to stay in the U.S. with his family of 13 years. Napper was motivated by the

scenario that he might be killed if sent back to state prison because he had been used by DEA previously

to bust up gang related drug activities. Counsel was deficient in his handling of these two biased

criminal informants.

Quid Pro Quo

Pet did describe adequate proof from the mouths and backgrounds of both jailhouse liars, the D.A.,

Ann Graves (the sister of jailhouse liar Sheldon Anter.) as well as the clear danger both faced without the

intervention of the State, the circumstances surrounding both of their suspicious introduction into the life of

the Defendant, leaves little room for doubt and much for disagreement with the decision of the District

Court, that they were hoping for, used to getting, and were promised - in exchange for their lies on the

stand - quidpro quo.

Discovery was warranted because of the truth of the matter told. The Court of Appeals conclusion

that “he has no supportfor his claim that such agreements existed”, fd., @*7 “IV. Requestsfor Discovery and an

Evidentiary Hearing”] would be generally said in the prison sub-culture and probably among many judges to

be “naive”. In Black ledge v. Allison 431 U.S. at 76, 82-83 (1997), this Court ruled that court’s consider

ordering Discovery before deciding whether an evidentiary hearing is appropriate whenever the claim on

which Discovery is sought is not so ‘palpably incredible’ [or] ‘patendy frivolous or false’ as to warrant

summary dismissal.” Accord. Bracey v. Gramley 117 S.Ct. 1793 1799 (1997).

Pet’s grounds were not “palpably incredible or patendy frivolous or false. This is what Discovery

would have made clear. He shall re-submit facts and circumstances herein through certiorari.

The two jail inmates who shared the pod with Pet, that Pet requested trial Counsel to secure as

witnesses, would have been able to testify that Anter hated the Pet because he asked him in front of the

whole pod of inmates had Pet “said anything to him about my case?” After asking him twice, Anter replied

“No”. Because he kept trying to get Pet to talk about the charges he was facing. At the time, Pet had already

served 28 consecutive years in prison been out five more years before this case was concocted and was

prison-wise to the role of so-called jailhouse informants. Napper never confronted or talked to Pet about his

case. He just hung around. These facts and or pertinent information could have been revealed to the jury

had counsel called these witnesses as requested. That was LATRC.

Sheldon Anter’s testimony at Petitioner’s Trial

Criminal informant identity included:

“(1) convicted of Worker’s Compensation Insurance Fraud on Nov. 18 2008 in Davidson County

TN Case No 2008-A-777

“(2) Theft of property from Home Depot occurring on August 2, 2006 in Davidson County TN.”

State Ex. Pg. 186

“He acknowledged that he (Anter) did not know the Defendant until he requested and was moved into the

pod on May 21, 2008, Id. @ 14 (when the local TV and newspaper werefeasting on the remains of his

right to afair jury verdict), and that the Defendant was already in the pod when he arrived. He said he

asked the Defendant what his charges were but denied asking questions about the victim. ” Id. (“He

acknowledged that the Defendant did not answer him. ”Id.) “He said the Defendant and Mr. White did not

like or trust each other. ” Id. *13 ‘He told the Sheriffs Department that he wanted to report a crime. He

said that the ‘crime’ was afight between Mr. White and the Defendant. ..’’Id *14. ‘He agreed he had no

knowledge whether his lawyer requested that the district attorney’s office write a letter on his behalf regarding

the deportation proceeding. ” Id. (‘He said he had been deportedpreviously. He agreed that he had been

releasedfromfederal custody and was home with hisfamily in Nashville but said his deportation proceeding

was stillpending...“’’Id. *.

‘Mr. Anter testified that on August 16, 2008 Mr. White was taunting the Defendant about being “a

baby killer and a rapist’’. *13. He said the Defendant responded ‘I have killed before and I have no

problem killingyou. ”He said the Defendant went inside Mr. White’s cell and stated that the Defendant

would kill Mr. White as the Defendant had killed before. He said that Mr. White pushed the Defendant

away and that the Defendant said ‘I will killyou like killed before. ” Id. He said that later the same

evening Mr. White continued to taunt the Defendant and that the Defendant continued to admit killing the

victim but denied raping her. ” *13.

Sheldon Anter testified that “the Defendant stated that the Defendant’s DNA was on the mctim but denied

raping the victim” ‘Mr. Anter recalled another occasion in the recreation room where he and Mr. White

inquired why the Defendant’s DNA was on the victim, given the Defs previous denial of any knowledge of

the victim. ” Id. (This kind ofpressured questioning was admitted to by these twojailhouse liars without

objection) (emphasis supplied) Metro Police Detective Hugh Coleman testified that ‘Mr. Anter did not know

ahead of time that the sheriff’s department was going to interview him. ” Id. @ *14. But, ‘He requested to

be moved into the pod with Def on May 21, 2008”. Id. @ *13.

Such statements were inadmissible pursuant to the Confrontation Clause for not fulfilling

the two requirements: (1) the declarant/witness must be unavailable (which it was never determined

whether Frank White was or not) and (2) the declarant/witness (Sheldon Anter) must have a prior

opportunity to cross-examine the declarant witness.” (And Pet. Never did) See State ofTN v. Maclin.

183 S.W. 3d335, 34445, citmg. Crawford v. Washington. 541 U.S. at 50, 124 S.Ct. 1354. Even though it

became apparent that Frank White would be a pivotal issue, as to Sheldon Anter’s testimony

regarding the “jail-house fight” video proffered by the Davidson County Sheriffs Department, at his

trial, with White still in jail, he was never contacted or interviewed by the Public Defender’s Office.

Andrew Napper testimony at Petitioner’s Trial

“He acknowledsed his own lensthy criminal record. which included

convictions for burglary, robbery, forsery, theft, escape, and criminal impersonation. ”

He also acknowledged that he had worked as a paid police informant in drug cases. He

had a pending probation violation case. He denied making any deals with the State

other than his transfer to another city for protection following his testimony." Id, @

*14.

“On cross-examination, Mr. Napper acknowledged writing a letter to the district attorney about an inmate

other than the Defin which he requested assistance with his case in exchangefor his testimony against the

inmate. ” Id., *15. ‘Detective Postiglione testified that he interviewed Andrew Napper ...on September 11,

2008. He said Mr. Napper did not request the interview ‘but was cooperative. He said he did not offer

assistance, nor did Mr. Napper request it.” Id. (emphasis added)

Napper denied making any deals with the State other than his transfer to another county for

protection following his quid pro quo ‘testimony’ against Pet. U.@*\S. Pet was not assigned to

any “county” facility and the case was so well publicized it wouldn’t matter where he was transferred

to if Andrew Napper were just interested in going to another jail. Why out of 1,000 jail inmates at

the CCA Correctional facility in Nashville Tennessee (“TN”) did Detective Postiglione interview

Andrew Napper? (‘He said Mr. Napper did not request the interview but was cooperative ”. Id.) He never told

Pet he was a paid police informant at any time he questioned petitioner at the jail. (‘He said a paid

police informant must be truthful. ” Id. @15) .

4 Jailhouse Silent Video

Petitioner did not strenuously and repeatedly raise the trial court errors regarding

admission of the jailhouse video in all of his petitions, which undermined his presumption of

innocence and his right against compulsory self incrimination from the mouths of three

witnesses, Assistant District Attorney General Tom Thurman, S.A. and A. N., and then, as the

District Court erroneously concludes: “...not then raise this claim to the TCCA. ” (Order, Pg. 41)

The trial (post conviction) court never denied that it did not promise to review the video

overnight.. ..The transcript of the trial, as Petitioner showed in his state Petitions for post

conviction relief proved contrary to the District Court’s finding that Mr. Thurman did describe to

the jury why he felt what was happening during the alleged altercation and why. In the jail video

scene Sheldon Anter and Tom Thurman told the Jury Pet had assaulted Frank White. (T.E., Vol.

V pg. 400,454, Video 749-775)

‘He (Anter) said that afier being ‘taunted’ by White, the Def went inside Mr. White’s cell and stated that

the Def would kill Mr. White as the Def had killed before: and that ‘Mr. White pushed the Def away. ” Id., @*

13-14. “He (Anter) said the incident was documented on the (iailhouse) video. ” (emphasis added) ‘The video

reco rding introduced during Ms. Ray’s Davidson County Sheriff Investigator “testified that she reviewed

and recorded video footage from the jail in which the Defendant was confined. The recording was

received as an exhibit” without objection. Id. @*12 “The video recording in which had no audio was

played for the jury as Mr. Anter narrated it.” Id. @ *13.

This video was inappropriate evidence -verbal commentary by Assistant District

Attorney Tom Thurman (“T.T.”) and jailhouse liar Sheldon Anter (“S.A.”) was inappropriate and

inadmissible and its introduction at trial denied pet his rights under the Confrontation Clause.

Coy v. Iowa. 487 U.S. 1012 (1988) makes this videotape inadmissible. Trial counsel did not

challenge possible editing.

In White v. Illinois, this Court observed that the confrontation clause mandates an

“unavailability analysis” when the out-of-court statement was made in a prior judicial proceeding

to satisfy the confrontation clause. Further, that the prosecution must establish that the declaring

was unavailable to testify only if the prior statement to be admitted was made during a judicial

proceeding. 502 U.S. 346 (1992).

Frank White was not offered as witness and no proffer was made that he was an

unavailable or absentee witness who had previously truthfully testified accurately about events

discussed in the videotape. Rules ofEvidence Rule 803 (5); State v. Hocevar 2000 MT157, 300

Mont. 167 7 OP. 3d 329 (2000).

The TN S Ct held that the confrontation clause bars the use of an ex parte videotape

statement... if the statement is used as “evidence in chief by the prosecution” as it was in this

prosecution. State ofTN v. Pilkey, 776 S. W. 2d 943 (TN. 1989), cert. Denied 494 U.S. 1032

(1990). No “fair and accurate portrayal” determination was made by the Nashville Sheriff

Department videographer of what was presumably an exact representation of the actual facts or

original events and occurrences alleged by both T.T. and S.A. State v. Van Tran, 864 S. W. 2d

465 (TN. 1993).

There was no way to determine except out of the mouths of these two biased state

witnesses, T.T. and S.A., whether the videotape provided an accurate depiction the facts and

failed the requirement of relevance” in T.R. Evid. Rule 403. This video did nothing but increases

the risk of undue prejudice describing Pet as an aggressor in jailhouse clothes and added

testimony of jailhouse liar Anter.

There was no precise event at issue in the case to justify the introduction of the silent

video as evidence. The Sheriffs Department videographer could not testify that either T.T. or

S.A. was giving an accurate portrayal of what was presented as proof. The trial Court said it

would take the videotape overnight and view it to determine who was the aggressor but it came

back the next day and never said a word about the videotape and failed to return with a limiting

instruction to the effect of aggressor.

Counsel let it slide. Counsel should have at least objected to the tape on grounds of

relevance and authenticity. Van Tran suyra. “Traditionally, the law has had a strong preference

for live testimony as the only means by which the trier offact could observe the demeanor of the

witness (es) and substitutes for live testimony was only rarely permitted. ” 44 Am Jur Trials 171,

Jordan S. Gruber, 60 A.L. R. 3d 333 § 2.

Pet’s identity was not in issue. Nor was the fact that he was in jail at the time he was allegedly

being “taunted” by absentee witness Frank White. The only purpose of the jailhouse silent video was

prejudice.

By law, the jailhouse silent video and the narrations of T.T. and S.A. is unethical and amounts to

subversion ofjustice.”

5Insufficient Evidence

“An autopsy showed that the victim’s cause of death was asphyxia caused by manual

strangulation.” State of TN v. Jerome S. Barrett, No. M2009-02636-CCA-R3-CD, 2012 WL 2870571

(TCCA, July 13, 2012) (perm. App. den, TN S. CT., 12-12-12. The TCCA summarized its opinion that

the evidence was sufficient as

4455

.. .proof of the statutory elements of the crime...” and that “.. .Her

injuries were so great that he thyroid cartilage and hyoid bone were broken.”

Dr. Francisco testified that “.. .a child could produce the necessary force” (to) break the hyoid

bone.” Id. @*5. At that point in time Pet was 6’2” and weighed approximately 175-1851bs, with typical

physical features of African American male he is told. Whether the TCCA’s summation is overblown in

light of the record, by the Appeal Court’s opinion to break a “thyroid cartilage”, compared to their

obvious feelings is telling, when compared to the expert’s opinion.

Later “When asked if he recalled being asked whether the victim might have been penetrated by

someone with an underdeveloped penis, he said, ‘’’That.. .kind of rings a bell.” Id. The TCCA made

references to the Pet’s 1975 conviction for rape of AJP. In that case, (B-6143 Davidson County,

Nashville, TN. 1975) the victim testified that she had “gagged several times because he tried to put the

‘whole thing’ in her mouth,” which crudely indicated that Pet is not the suspect with the

“underdeveloped penis”.

Ms. Marie Maxwell “acknowledges she told the FBI the next day that she thought the taller

person (of two and the victim) was White.” Id. State v. Barrett 2012 WL 2870571, @*6. (from 30 feet

away) The suspect was White, with an underdeveloped penis, and could have been a child. Neither

description by eyewitness or Dr. Francisco fits the Pet. Pet alleged mistaken identity as one of the

defenses TC should have raised. It was proper and fair to raise this issue of insufficient evidence in the

lower Courts’.

Ms Maxwell also “agreed that she described the taller person in Ms. Howard’s (next door)

driveway as a child but that she did not know the person’s gender. She recalled stating that the child was

White...” that she recognized the victim.” Id. @ *7. A composite sketch based on her recent

identification of the adult in the driveway next door to her home was developed. “She agreed that the

sketch depicted a white person.” D. @ *8.

Further, State’s witness Dr. Jerry Francisco also acknowledged that he didn’t observe any

vaginal injuries and that the victim’s hymen was intact, which he said “suggested that it was unlikely

there had been a sexual act performed.” He performed the victim’s autopsy. Id. @ *4. He further eroded

justification for Attorney General argument that Def raped the victim.

Det Cathey also reported that the cookie box that held the money the victim received from

cookie sales, was “unopened”. State ofTN v. Barrett, M2010-00444-CCA-R3-CD, 2012 WL 2914119 @

6 Denial of Alibi and DNA expert Witness at Trial by IATC

Trial counsel worked with defense investigator Amber Cassitt who spent “a considerable amount

of time ” attempting to local the list ofpotential alibi witness, and that Ms. Cassitt was able to locate

abut half of the individual named by the Pet but some of them didn’t remember the Pet. Two peoples

remembered the Pet and “ ’ thought that it was likely that he would have gone (to Chicago) because he

was active in (the) [Nation ofIslam] community at that time. ” Counsel refrained from calling either Nil

Shakir or Cicero X. d. @ *3. Pet filed four motions for DNA analysis in the P.C.C. and made another

request in open court at the Evidentiary Hearing. Counsel stood mute and declined to assist in securing

this witness. (See Application For Permission to Appeal; TN. S.Ct. No. M2015-0661-CCA-R3-PC,

Brief of the Pro Se Appellant. #16, pg. 15) His sole defense outside of third-party was alibi.

Pet was in Chicago, Illinois for the NOI’s annual; “Saviour’s day” celebration. He was on “post”

there at the Chicago Amphitheatre the day the victim was killed. He gave to Counsel the names of

nearly !/2 dozen members of NOI who he traveled with, in a caravan scenario, from Nashville to Chicago

2-25-75, including (1) Gunnar and Van Bond (2) Minister Ilyas Muhammad (3) Yusuf Abdullah, (4)

Cicero X, and Nail Shakur. These names were given to the Investigator and trial Counsel.

7Cruel and Unusual Sentence

The State’s Motion For Consecutive Sentencing was made August 13, 2009 on the

grounds that:

“(1) The defendant is an offender whose record of criminal activity is extensive’

“(2) The defendant is a dangerous offender whose behavior indicates little or no regard for human life

and no hesitation about committing a crime in which the risk to human life is high” Date of offense is

2-25-1975; Judgment entered July 18 2009 - 44 years count 2 - Second degree murder. (‘Seconddegree murder “(T.C.A.§ 39-13-202(a)(2)[formerly T.C.A.§ 39-2403] is not a lesser included offense

of first degree felony murder (T.C.A. § 39-2402(4). “The only lesser included offenses offirst-degree

felony murder are reckless homicide and criminally negligent homicide. ” See State v. Gilliam. 901

S. W. 2d 385[TCCA 1995]; State v. Brown 311 S. W. 3d 422 (Tenn. 5-27-10). This sentence is therefore

illegal.)

•

Consecutive sentence in this case rode right over the impermissible boundary line

of the 8 th

Amendment’s cruel and unusual prohibition. The District Court correctly concludes that there is a

“federal ‘”due process right to a fair sentencing procedure. ” (Id., pg. 23. However, The District Court

erroneously found that “Petitioner does not dispute the fact of these convictions. ” (Id., pg. 27) Untrue!

Petitioner has long disputed the fact that he was lawfully convicted of ’’unlawful carnal knowledge of

minor”, that there was insufficient evidence to convict him of murder and larceny or rape, all the way

from the state courts to the federal court, both in this matter and previously. Thus the prior disposition of

these claims as well are contrary to and an unreasonable application of federal law. See Barrett v. State

1993 WL 8605.

Appellant submitted an exhibit “APPEAL” for an indictment in 1974 for “Rape” and sentence

for “unlawful carnal knowledge of a woman forcibly and asainst her will”. (T.C.A. § 39-3701) The

conviction under another statute - T.C.A. 39-3706. The federal court case which followed [2013 WL

1178266, M. D. Tenn.J found regarding the concerned indictment B-36512: “As the Indictment in B36512 only made reference to carnal knowledge of a woman, T.C.A. § 39-3701.” (Tenn. Code Ann §

39-3701 [1955]) emphasis supplied)

Yet the Tennessee Department of Correction (TDOC)’s Sentence Information Services

unlawfully changed the conviction to “carnal knowledge ofFemale between twelve eighteen not

amounting to Rape ” (T.C.A. § 39-3706) The Western District Federal Court in Case No. 1:12-cv-l78,

and related 6th Circuit Case, No. 13-5814 found in this matter: “The Court observes that Appellant

alleged that he was indictedfor ‘’’rape ” ’ and pleaded guilty to the indictment, and specifically to

‘’’unlawful carnal knowledge of a woman forcibly and against her will. ” (U.S. District Court Case No.

1:12-cv-l 78) (Docket Entry No. 1-1, @21. At that time under Tennessee law the crime ofrape was

defined by statute as “the unlawful carnal knowledge of a woman forcibly and against her will. ” Tenn.

Code Ann. § 39-3701 (1955) (amended by Tennessee Public Acts 1979 pg. 1065, ch. 415)

The trial Court went on record stating that it based its’ decision to run sentences consecutive so

that the victim’s family in both cases, would feel satisfied in essence, that the sentences were

consecutive to the Life sentence he had already received See Barrett, 2012 WL 2870571m @ *43-44;

[Order, Barrett v. Genovese, pg. 24]. (“Defendant’s sentence ‘"neededto be long enough to keep [the

Defendant]permanently incarcerated’” and that Petitioner must serve this sentence consecutive to a

previously imposed (Life) sentence in part because to do other wise would minimize the death of the

victim and the murder victim on the previous case. ” Id. Pg. 26, fn. 4).

The trial court then justified the consecutive ordering of his sentences based on two cases that

came after the date the court had its jurisdiction in that case to order the amount of sentence he should

receive in that case, not augment that sentence by a subsequent sentence. Cruel and unusual

punishment. Gray v. State 538 S. W. 2d 391 (Tenn. 1976) and State v. Taylor. 739 S. W. 2d 227 (Tenn.

1987).

In TN, a “crime spree” where two offenses happened in the same month in the same county,

must be sentenced concurrently. Blovett, II and Dennis James Oele, 904 S. W. 2d 111 (1995). (2-2-75;

2-25-75)

Petitioner also pointed to the five years he was free and his conduct belied the justification

upheld by the district court that “Defendant was a dangerous offender with little or no regardfor human

life and who had no hesitation about committing a crime involving a high risk to human life. ” (Id. Pg.

26, Orderj Petitioner had not been accused of coming any crime since March 1975 a total of 34 years

including over five calendar years of freedom. Petitioner was over sixty (60) years of age when he was

sentenced in January 2009. Protecting the public from someone who would be over 90 years of age

when he began the sentence is grandstanding and political opportunism.

The state court, in violation of Eddinss v. Oklahoma, 455 U.S. 104 113-114, 102 S.Ct. 869

(1982) refused to consider as mitigating evidence the five years of freedom event-free petitioner spent

prior to arrest and after having served 28 consecutive years of incarceration in the TDOC as a “excellent

role model” prisoner. In Eddims. the sentencing judge and appellate court found mitigating evidence

about the defendant’s “family history” irrelevant as a matter of law. 455 U .S. at 113, 102 S.Ct. 869.

The Supreme Court held: “Just as the State may not by statute preclude the sentencer from

considering any mitigatingfactor neither may the sentencer refuse to consider as a matter of law any

relevant mitigating evidence.” Id., at 113-114, 102 S.Ct. 869. Appellant did not even get a traffic ticket.

His business (“AJ. ’s ‘One Man Army ’ Expert Lawn Service ”) required him to have contact with

hundreds of people on a regular basis. He told trial counsel he was elected to the Neighborhood AntiCrime block Club presidency by members of his neighborhood (Evergreen). He also was a “judge” on

the Shelby County Voting Registrar for the years 2005-7). Counsel also learned that appellant received

several decorations for combat tour in Viet Nam including the Purple Heart. These facts could have

gone to sway the jury to a lesser sentence.

The consecutive sentencing and the sentence of “44 years” is “ ’greater than necessary to

accomplish the goals ofsentencing.’’ ” Holsuin supra, [2], citins, Kimbroush v. United States, 552 U.S.

85, 101, 128 S.Ct. 558, (2007) “Congress has instructed sentencing courts to impose sentences that are

‘"sufficient, but not greater than necessary, to comply with’” (among other things) certain basic

objectives, including the needfor ‘"just punishment, deterrence protection of the public, and

rehabilitation^ ’ Holguin, [3], citins, Dean v. United States, 581 U.S.

, 137 S.Ct. 1170, 1175.

5 A “Life” sentence in 1975 requires a service of “30 full calendar years” before parole.

“Providedfurther, any person who shall have been convicted and sentenced to a term of imprisonment

in the state penitentiary for a period or term ofsixty-five (65) years or more or life may become eligible

for parole provided such person shall have been confined or served a term in the state penitentiary of

not less than thirty (3) full calendar years.... ” T.C.A. 40-3613:

2934, 2951 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841 (1987)

(O’Connor, J., concurring).6

Appellant’s attorney failed him during the sentencing phase as to mitigation.7 that resulted in

prejudice to defendant for not raising all available defenses. Strickland. 466 U.S. 668, 687, 104 S.Ct.

2052 (1984). Cronic v. United States. 104 S.Ct. 2039. (1984). “A trial is unfair if the accused is

denied counsel at a critical stage of the trial.” IcL “Mitigation” is a constitutional right

when an accused faces a mandatory “Life” sentence if found guilty. Other than the

death penalty, 1st degree murder carries a mandatory “life” sentence in Tennessee.

“The right to present mitigating factors is tied to a defendant’s right to present a

defense. Allen v. Hawley, 74 Fed. Appx. 457, (6th Cir; .8-7-2003), 2003 WL 21911327,

citings Chambers v. Mississippi, 410 U.S

8 Prejudicial Photos

The District Court also overlooked the fact that petitioner did present his claim of prejudicial

photographs in post conviction petition and pro se appeals and unreasonably held that petitioner did not

present the claim of prejudicial photographs to the TCCA on either direct appeal or post conviction

appeals. (Id., pg. 40) Further, holding that the photographs were useful, as in State v. Nesbitt, 978 S. W.

2d 872, 901 n. 2, “as proof that the deceased was a reasonable creature in being; that is to say a child

that was born alive ”. This proof was not at issue.

Plus the District Court using still another unreasonable excuse for the pictures of the child stating

“And Ms. Trimble used the victim’s school picture to identify her as the person named in the

indictment. ” (Id., pg. 56) is ludicrous. The mother did not need a picture to identify her own child.

Testimony was uncontroverted that the child had that blouse on around the time of her

disappearance. There was no need to show her to the jury in her gala Happy Birthday party with this

blouse on celebrating, except to evoke the sympathy and passion of the jury.

“6 defense counsel’s failure to prepare for mitigation phase until after defendant was convicted was deficient.” Jells

v. Mitchell, supra: Strickland v. Washington, at 466 U.S. at 688, 104 S.Ct. 2052; W

«7

defense counsel’s failure to prepare for mitigation phase until after defendant was convicted was deficient.” Jells

v. Mitchell, supra: Strickland v. Washington, at 466 U.S. at 688, 104 S.Ct. 2052; W

Counsel was deficient in not challenging the introduction of these prejudicial provocative pictures

to the Jury or at least objecting to the surprise introduction on the grounds of relevance and prejudice.

Their probative value was outweighed by their prejudicial effect.

9 Pre-Indictment Inordinate Prejudicial Delay

Pet was denied a fast and speedy trial and due process for failure to prosecute. As provided in

Tennessee Rules of Criminal Procedure Rule 48 and the Tennessee and United States Constitutions.,

count for not prosecuting Def should begin when NMPD Sgt. Ralph Langston testified that the NMPD

was “lookingfor a single suspect to all three crimes”, in 1975. Pet was in prison from Feb., 1975

during the period when Sgt. Langston was testifying about, where he remained for 28 years. So he was

not hard for law enforcement to find.

When he was released in 2002, the same year the “cold case” unit was started, his DNA was

obtained by the TDOC in conjunction with a new law enacted to obtain DNA of all released prisoners.

The gaps in time reflect that the police irresponsibly dropped their investigation in this case, in 1975,

1990, 1992, 2002, and 2004. NMPD Det. Brad Putnam sent evidence to the NMPD Lab for DNA

testing, on March 18,1992. {“DNA profiling is what we have presently during the time of this

investigation in 1975...”

There have not been advances in DNA since the cold case unit was established in 2002. (CODIS

- combined DNA index system)) had been established since the mid-1980s (fn., pg. 2, DNA Typing:

Biology and Technology Behind STR Markers, Dr. John T. Butler, 2001).

Yet it was seven (7) more years of memories turning stale, DNA evidence being corrupted, cross

contamination and amplification of witnesses dying or moving out of the state. There were multiple

“amplifications” by at least 3 laboratories and two government agencies (FBI,TBI) which increased the

likelihood of false positives, which could not be determined without independent testing where DNA

profiles attributed to Pet, were the result of “amplification”, (see below)

(1) TBI Special Agent Chad Johnson received the Def s sample on October 25 2007 ‘analyzed

it’ and issued his report on Nov. 7, 2007. State v. Barrett WL 2870571 @ 20; 7-12-12

(2) Gary Harmon a forensic serologist with the Serological Research Institute received Def s

referenced sample on 12-12-07. He gave the sample to Amy Lee who ‘performed testing and

gave him the extracted DNA. Mr. Harmon ‘amplified’ the extracted DNA on 12-12-07

determined the typing and wrote his report.” Id., @*19.

(3) Ms. Luttman testified that evidence from the victim’s homicide was received in March 29

2004 that the evidence was also submitted in 1975 and 1990 and 1995. Id @ *20. (She said

that the laboratory’s policy was not to re-examine previously analyzed evidence. ” Id.

(4) TBI Special Agent Forensic Scientist Joe Miner who testifiedfor the State as an expert in

DNA analysis, “amplified” Pet’s DNA profile in 2000. Id. @18.

These pre-indictment delays typify the hundreds, if not thousands of innocent “cold case” sexual

assault and homicide unsolved untested case throughout the U.S. Crime scene evidence is allowed to

languish deteriorate cross contaminate and render false positives just because the State is dilatory in

prosecution of the crimes. See Barker v. Wineo 407 U.S. 514, 92 S.Ct. 2182 (1972); Trigg v. Tennessee

507 F. 2d949 (6th Cir. 1974), cert. Den., 420 U.S. 938 95 S.Ct. 1148 (1975) rehear den. 420 U.S. 998,

95 S.Ct. 1439

Further, DNA testing had been used in Nashville, TN in 1992 and the State has not shown how

the delay of 15 years from that point in time is not their fault and actually helped them through the

realities of amplification..

CONCLUSION

The judgment of the Sixth Circuit Court of Appeals should be reversed and the case

remanded for further proceedings. The petition for a writ of certiorari should be granted.

Respectfully submitted,

Jerome S. Barrett

TDOC #73179

M.C.C.X., Unit 6/7

541 Wayne “Cotton” Morgan Drive

P. O. Box 2000

Wartburg, TN 37887

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.