Petition for Writ of Certiorari — Edward Thomas Kendrick, III, Petitioner v. Mike Parris, Warden

APPENDIX

ia

APPENDIX

TABLE OF CONTENTS

Kendrick v. Parris, United States Court of Appeals for

the Sixth Circuit, Case No. 19-6226, Opinion (Issued

March 2, 2021)...........................................................1a

Kendrick v. Parris, United States Court of Appeals for

the Sixth Circuit, Case No. 19-6226, Judgment

(Issued March 2, 2021)............................................36a

Kendricks v. Parris, United States Court of Appeals

for the Sixth Circuit, Case No. 19-6226, Order

Regarding Certificate of Appealability (Issued March

31, 2020) ..................................................................37a

Kendricks v. Phillips, United States District Court,

Eastern District of Tennessee, Case No. 1:16-CV00350-JRG-SKL, Memorandum Opinion (Issued

Sept. 30, 2019) .........................................................47a

Kendricks v. Phillips, United States District Court,

Eastern District of Tennessee, Case No. 1:16-CV00350-JRG-SKL, Order of Judgment (Issued Sept. 30,

2019) ......................................................................141a

Kendrick v. State, Tennessee Supreme Court, Case

No. E2011-02367-SC-R11-PC, Opinion (Issued Jan.

16, 2015) ............................................................... 142a

iia

Kendrick v. State, Tennessee Court of Criminal

Appeals, Case No. E2011-02367-CCA-R3-PC, Opinion

(Issued June 27, 2013) ..........................................207a

Kendrick v. State, Criminal Court for Hamilton

County, Tennessee, Case No. 220622, Order (Issued

Oct. 13, 2011).........................................................248a

Kendrick v. State, Criminal Court for Hamilton

County, Tennessee, Case No. 220622, Memorandum

Opinion (Issued Oct. 13, 2011) .............................250a

1a

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0052p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EDWARD THOMAS

KENDRICK, III,

Petitioner-Appellant,

v.

MIKE PARRIS, Warden,

Respondent-Appellee.

No. 19-6226

Appeal from the United States District Court

for the Eastern District of Tennessee of

Chattanooga.

No. 1:16-cv-00350—J. Ronnie Greer, District Judge.

Argued: January 26, 2021

Decided and Filed: March 2, 2021

Before: GUY, LARSEN, and MURPHY, Circuit

Judges.

_________________

COUNSEL

ARGUED:

Amanda

Rauh-Bieri,

MILLER,

CANFIELD, PADDOCK, AND STONE, PLC, Grand

Rapids, Michigan, for Appellant. John H. Bledsoe,

OFFICE OF THE TENNESSEE ATTORNEY

GENERAL, Nashville, Tennessee, for Appellee. ON

BRIEF: Amanda Rauh-Bieri, Paul D. Hudson,

2a

MILLER, CANFIELD, PADDOCK, AND STONE,

PLC, Grand Rapids, Michigan, for Appellant. John H.

Bledsoe,

OFFICE

OF

THE

TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellee. Joshua Counts Cumby, ADAMS AND

REESE LLP, Nashville, Tennessee, for Amici Curiae.

_________________

OPINION

_________________

LARSEN, Circuit Judge. One evening in 1994,

Edward Kendrick III fatally shot his wife outside a

Chattanooga gas station. At trial, he insisted that his

rifle had malfunctioned and fired [*2] without

Kendrick pulling the trigger. But the jury didn’t buy

his account. Instead, it convicted Kendrick of firstdegree murder.

In his petition for state postconviction relief,

Kendrick raised seventy-seven claims alleging either

ineffective assistance of counsel (IAC) or prosecutorial

misconduct. He succeeded in the Court of Criminal

Appeals on two of his IAC claims, but the Tennessee

Supreme Court reversed as to both. In doing so, it

held that counsel’s decision not to adduce the

testimony of a firearms expert was not

constitutionally deficient performance. Neither was

counsel’s failure to introduce favorable hearsay

statements under the excited utterance exception.

Kendrick then sought federal habeas review. The

district court denied his forty-eight-claim petition. We

granted a certificate of appealability (COA) on the two

IAC claims that the Tennessee Court of Criminal

Appeals had initially found meritorious. Because the

3a

Tennessee Supreme Court did not unreasonably

apply Supreme Court precedent in denying Kendrick

relief, we now AFFIRM.

I.

Kendrick was holding his Remington Model 7400

hunting rifle at the time it fired a single bullet at

point-blank range into his wife’s chest. That much has

never been disputed. Kendrick’s intent, on the other

hand, always has been. The State contended this was

a cold-blooded execution. Kendrick insisted it was a

freak accident.

A.

In the early months of 1994, Kendrick and his wife

Lisa were in the process of pursuing what Kendrick

described as an “amicable” divorce based on

irreconcilable differences. They were still living

together, along with their three-year-old son and fouryear-old daughter. Lisa was working at a gas station

in Chattanooga, Tennessee.

Lisa was on duty on the evening of March 6, 1994,

and had been talking with her friend, Lennell

Shepheard Jr., for over an hour. Just before 10:00

p.m., she received a page from her husband and

returned his call. A little while later, Kendrick pulled

into the parking lot with their two children sitting in

the backseat of his car. Kendrick entered the gas

station and told Lisa, [*3] “when she got a chance, to

step outside, that he wanted to talk to her.” Kendrick

walked out first, and Lisa followed after she finished

ringing up a customer. From where Shepheard was

standing inside the station, “it looked like . . . they

4a

were arguing” outside, but Shepheard couldn’t hear

anything or see clearly what was going on.

“After that [Shepheard] heard a boom.” He did not

know what it was at first, but upon opening the door,

he saw Lisa lying on the ground with Kendrick

“standing over her.” The sound had been a gunshot,

which two other witnesses heard as well. Charles

Mowrer, who lived across the street, testified that he

ran outside following the “extremely loud shot” and

saw “a lady laying [sic] on the ground with a man

looking over her.” Timothy Benton, who was just

pulling out of the gas station, “heard an explosion”

too. Benton looked back and saw Kendrick holding a

gun “pointed straight up in the air.” “The right hand

was on the pistol grip area around the trigger and the

left hand was up near the stock.”

Shepheard testified that Kendrick then stood over

Lisa’s body, while repeating “I told you so, I told you

so,” about six times. During trial, Kendrick denied

making these statements. And Kendrick’s counsel

pointed out that the records from Shepheard’s initial

interview with police did not mention Kendrick

saying “I told you so” at all. Nevertheless, it is

undisputed that Kendrick did not “render any

assistance” to Lisa or “call out for help” after shooting

her. He made eye contact with Shepheard, fumbled

for the passenger door “at least three times,” and then

“ran around the car, jumped in and left.” During his

flight, Kendrick threw the gun out of his vehicle onto

the side of the road.

Meanwhile, Timothy Benton had turned his car

around and had pulled back into the gas station to

5a

help. But when he saw Lisa lying on the ground and

Shepheard about to call 911, he gave chase to

Kendrick instead—”to make sure he didn’t get away.”

Within minutes, Benton caught up with Kendrick and

“followed him into the Chattanooga Airport.”

At the airport, now about five minutes after the

shooting, Kendrick dialed 911 himself. He

immediately stated: “I want to turn myself in. . . . My

wife, I just shot my wife.” Kendrick then revealed to

the operator that he was at the airport and would wait

with his kids for the police to arrive. After Kendrick

was placed into a police vehicle and advised of his

rights, he said “I [*4] hope this is only a dream.” He

made no suggestion to the officers that the shooting

had been an accident.

An officer then spoke with Kendrick’s four-yearold daughter, Endia, who “was very upset, was crying,

[and] seemed to be very scared.” At trial, a second

officer also claimed that Endia was “hysterical” and

“stated that she had told daddy not to shoot mommy

but he did and she fell.” Endia, for her part, testified

that she “saw [Kendrick] shoot” her mother and that

Lisa “was standing with her hands up” at the time.

The positioning of Lisa’s hands was supported by

forensic evidence of stipple injuries on her forearms.

Yet on cross-examination, Endia admitted that she

“remember[ed] telling [Kendrick’s counsel] that [she]

didn’t see [her] daddy shoot [her] mommy.” And she

agreed that Kendrick got the gun out of the front seat

of the car “because [her] mommy wanted him to put

the gun in the back of the car.” Counsel also

insinuated that Lisa’s parents—with whom Endia

6a

was living at the time of trial—were attempting to

manipulate Endia’s story.

Later that evening, Officer Steve Miller of the

Chattanooga Police Department retrieved Kendrick’s

gun, a Remington Model 7400, from the side of the

road. He placed the rifle in his car to take back to the

station. But around 1:45 a.m., as Miller “was

gathering the evidence” out of the trunk of his car, he

pointed the gun downward and “the weapon

discharged,” firing a bullet into his left foot. According

to police incident reports, Miller told other officers

that the gun had fired without Miller having touched

the trigger; but Miller claimed not to remember the

“exact position of [his] hand” when asked on the

stand.

Kendrick’s counsel challenged this lack-ofmemory testimony with a vigorous crossexamination. Miller admitted that he had been a

police officer for twenty-two years, that he had never

accidentally discharged a firearm, and that it is

“drilled into you at the police academy don’t ever put

your hand on the trigger unless you’re going to shoot

the gun.” He also confirmed that he would “[n]ever”

otherwise “knowingly” place his finger on the trigger

of a loaded gun. And Miller conceded that he

“presumed [the gun] was loaded” at the time. Counsel

next pointed out that when Miller reenacted the

incident for the jury, he hadn’t “put [his] finger on the

trigger.” Miller insisted that he could not “say for sure

in th[e] courtroom how [his] hand was that night,” but

counsel wouldn’t let Miller off the hook so easily.

Eventually, counsel’s [*5] questioning caused Miller

7a

to admit that his reenactment for the jury—finger

“not on the trigger”—was “to the best of [his]

recollection how it happened[.]”

The State then called a firearms expert, Kelly Fite.

Fite testified that he conducted a “drop test” on

Kendrick’s rifle and “abuse[d]” it to see if that affected

the force needed to pull the trigger. It did not. He also

“checked the rifle for what’s called a slam fire” and

“attempt[ed] to accidentally discharge this weapon

with the safety,” but “[t]he only way [he could] get this

rifle to fire was by pulling the trigger.” Fite thus

declared that in his expert opinion, “[t]he only way

that you can fire [Kendrick’s] rifle without breaking it

is by pulling the trigger.”

After cross-examining Fite and attempting to cast

doubt on the validity of his conclusion, Kendrick’s

counsel recalled Miller to the stand. Counsel showed

Miller the police incident reports from the night he

was shot, in which Miller purportedly told other

officers that the gun had gone off without his finger

on the trigger. Miller, however, could not recall

making those statements. Counsel next tried to

impeach Miller with the reports, but the trial court

sustained the State’s objection. So, counsel called to

the stand Officer Glen Sims, one of the authors of the

incident reports. He sought to impeach Miller that

way, but the trial court again sustained the State’s

objection.

The defense called the rest of its witnesses, and

then Kendrick took the stand in his own defense. He

testified that he “loved [his] wife and [he] would have

never taken [their] children to [his] wife and done

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anything like that.” He also maintained that they

were not arguing outside the gas station and that he

only carried a loaded rifle in the car for protection, as

he and Lisa often cleaned houses in an unsafe part of

town. According to Kendrick, Lisa had instructed him

to “go ahead and put [the gun] in the trunk of the car.”

So he took it out of the front seat. When he reached

into his pocket to retrieve his keys and moved the rifle

to his right hand, “the gun went off” without him

“pull[ing] the trigger.” Lisa died almost instantly.

Kendrick testified that he “just wanted to get the kids

away” and that is why he “just got in the car and left.”

Because he was “scared,” he threw the weapon out the

window before calling 911 at the airport.

The jury was unconvinced by Kendrick’s account.

It found him guilty of first-degree murder, and

Kendrick was sentenced to life in prison. The trial

court denied Kendrick’s motion [*6] for a new trial,

and on direct review, the Tennessee Court of Criminal

Appeals affirmed his conviction. See State v.

Kendricks, 947 S.W.2d 875, 878 (Tenn. Crim. App.

1996). The Tennessee Supreme Court declined to hear

Kendrick’s case. See State v. Kendricks, 1997 Tenn.

LEXIS 248, at *1 (May 5, 1997) (order).

B.

Kendrick then petitioned for state postconviction

relief. The postconviction trial court initially

dismissed Kendrick’s petition without a hearing,

finding that the issues he raised had either been

waived or previously determined. Kendricks v. State,

13 S.W.3d 401, 404 (Tenn. Crim. App. 1999). But the

Tennessee Court of Criminal Appeals reversed in part

9a

and remanded the case for further proceedings. See

id. at 405.

On remand, more than a dozen witnesses testified

over the course of ten days of evidentiary hearings.

Several of those witnesses are relevant to the two

issues before us.

First, now-Sergeant Miller was asked again

whether he recalled if his “fingers were anywhere

near the trigger” when the rifle discharged and

injured his foot. He responded, “No sir, I can’t say

with a hundred percent accuracy. They shouldn’t

have been.” Miller then stated that he was put on pain

medication shortly after the incident and didn’t

remember whether he had made any statements to

fellow officers regarding the positioning of his fingers.

Three other police officers also testified regarding

Miller’s statements on the night of the shooting—

Michael Holbrook, Glen Sims, and James Gann.

Holbrook, who had prepared the initial report about

Miller’s injury after visiting him in the hospital,

testified that Miller told him “his finger was not near

the trigger” when the rifle fired. Sims next testified

that he did not recall the circumstances surrounding

the supplemental incident report he generated later

that night. But he confirmed that the report stated

that Miller told Officer Gann that the rifle “just went

off.” Gann, for his part, testified that he was the first

officer to render assistance to Miller. He confirmed

that after the accident, Miller “was in a lot of pain,

bleeding and starting to go into shock.” Yet when

Gann was shown Sims’s report, it did not “refresh

10a

[his] memory as to what [he] stated in regards to the

incident[.]” [*7]

In addition to these four officers, Kendrick called

Henry Jackson Belk Jr., a firearms expert from

southern Idaho. Belk was the only expert called or

identified during the postconviction hearings. He

testified that Kendrick’s Model 7400 rifle had “a

common trigger mechanism” that “[g]enerally

speaking,” was contained within “all pumps and

automatics manufactured after 1948 by Remington.”

According to Belk, Remington firearms with that

particular design have “a history of firing under

outside influences other than a manual pull of the

trigger.” This is because the buildup of debris in the

trigger mechanism “can cause an insecure

engagement between the hammer and the sear itself.

So even with a gun on safe . . . it can still fire . . .

[w]ithout pulling the trigger.”

Belk stated that he “first identified the problem

with the Remington Common Fire Control in 1970.”

And “[o]ver the years,” he had been “consulted on

probably two dozen cases” and had “given testimony

in cases where the gun was subject to impact.” The

first case in which he examined the “Common Fire

Control” as an expert was in 1994—a case he

identified as “Keebler in Little Rock, Arkansas.” That

case was about a different firearm, a Remington 700,

but Belk “did testify in the late nineties, probably ‘97

or ‘98, about a [Remington Model] 7400.” Belk then

surmised that “in ‘94, . . . if someone had done some

research, they would have potentially been able to

find [him.]”

11a

Belk also “had occasion to look at” Kendrick’s rifle

prior to the hearing. He was unable to get the gun to

fire without pulling the trigger. But Belk had an

alternative theory as to what happened. He found

that the rifle was dirty on the inside, “common to a

gun that has not been cleaned.” And while Belk did

not find any debris in the trigger mechanism that

could cause it to misfire, he explained that “transit

debris” could have been “dislodged through mainly

the recoil or even the operation of the gun.” Even any

“testing itself”—such as Fite’s drop test—would tend

to “destroy[] any evidence that was there.” Belk

therefore concluded that in his expert opinion,

Kendrick’s rifle “is capable of firing without a pull of

the trigger, whether the safety is on or off.” Belk’s

opinion thus contradicted Fite’s conclusion at trial.

Finally, Kendrick called the public defender who

had represented him during his November 1994 trial.

Counsel testified that he did not personally interview

Miller, but instead “relied on [his] investigator[]” to do

so and “reviewed [Miller’s] statements” to his

colleague. [*8] When he heard that Miller “said

specifically that he was not holding the gun anywhere

near the trigger housing and it discharged,” counsel

believed that “ought to prove our case.” “And then

beyond that, [counsel] was aware of [Miller’s]

previous statements that he didn’t touch the trigger

and the gun went off accidentally.”

Counsel further asserted that he “thought Mr.

Miller would testify consistently with what [counsel]

knew to be his statements” before trial. He elaborated

that having known Miller “in the past,” he didn’t

12a

think that Miller was “a dishonest person.” So counsel

“didn’t think there would be any issue as to whether

or not [Miller’s] initial statements when he shot

himself would come in.” Because “there was not any

doubt in [counsel’s] mind” that Miller “was going to

stick to his prior statements,” he built his defense

around that “gem.” At one point, Kendrick asked if

going into trial, counsel had a “backup plan” of

“having other officers who made reports come in to

testify[.]” Counsel responded that he did not “recall

backup plans or specifically anything beyond that,”

explaining that he “presumed [he] would be able to

get Mr. Miller’s testimony that he was no[t] holding

the trigger and the gun discharged.” In counsel’s view,

he “could use that very effectively” to elicit an

acquittal.

When Miller unexpectedly reversed course at trial,

counsel felt “sandbagged by him.” In fact, counsel

expressed that he “was mad at [Miller],” because he

“didn’t think [Miller] was being fair” and he “thought

[Miller] wasn’t telling the truth” on the stand.

Counsel confirmed that later in the trial, he

“recalled Mr. Miller with the purpose of trying to

impeach him with prior inconsistent statements”

contained in the incident reports. He acknowledged,

however, that he didn’t invoke the excited utterance

exception to the hearsay rule as a basis for admission.

Counsel then opined: “Well, in hindsight, I think it

could . . . well have been used as an excited utterance.”

But after Miller’s unexpected shift in story and “[i]n

the heat of the trial, [counsel] didn’t see that” at the

time.

13a

As to counsel’s strategy for rebutting the State’s

expert, he testified that he “reviewed Mr. Fite’s

report” and the defense also “talked to [Fite] before

the trial.” From counsel’s experience, he knew that

Fite’s “position is his position and he’s not very easily

swayed from that position.” But even after reviewing

the report, counsel believed that Miller’s fortuitous

shooting would [*9] “trump[] anything Kelly Fite

[could] say.” He “thought that Mr. Miller shooting

himself in the foot accidentally, without his hands

near the trigger, was enough for a reasonable doubt

as to anything.” So counsel believed it was “a

plausible and reasonable trial strategy” to have

Kendrick testify “that the gun went off accidentally”

and then to “buttress[]” that testimony with “the fact

that it went off accidentally again and shot Mr.

Miller.” Counsel admitted that he did not seek an

expert and could not recall whether he spoke with a

local gunsmith he would often consult informally. And

he agreed that “[i]n hindsight, especially with the

knowledge now that there have been so many

problems with the Remington trigger mechanism,” it

“would have been beneficial” to have an expert testify

on Kendrick’s behalf. But “at the time,” counsel didn’t

recognize the potential significance of an expert; for

despite his “fundamental knowledge of firearms,” he

“was not aware” of any “discussion in the industry

about the trigger mechanism on the Remington being

potentially able to malfunction.” And, as counsel

pointed out, “you couldn’t Google Remington trigger

mechanisms back then.”

14a

Following these hearings, the state trial court

denied postconviction relief on each of Kendrick’s

claims. But the Court of Criminal Appeals reversed as

to two of them. Specifically, it held that counsel was

constitutionally deficient in his “failure to adduce

expert proof about the Common Fire Control and his

failure to adduce Sgt. Miller’s excited utterances.”

Kendrick v. State, No. E2011-02367-CCA-R3-PC,

2013 WL 3306655, at *18 (Tenn. Crim. App. June 27,

2013). The court vacated Kendrick’s conviction and

declined to address the remaining issues. See id.

But the Tennessee Supreme Court reversed again.

See Kendrick v. State, 454 S.W.3d 450, 481 (Tenn.

2015). In a lengthy opinion, the state’s highest court

unanimously concluded that neither of Kendrick’s

IAC claims had merit. First, it reasoned that “[t]his

was not a case that hinged on expert testimony.” Id.

at 477. Kendrick’s counsel “had a reasonable basis to

believe Sergeant Miller would testify that he had not

touched the trigger, and that this testimony would be

‘enough for a reasonable doubt as to anything.’” Id.

Moreover, “it remain[ed] entirely uncertain that Mr.

Kendrick’s trial counsel could have located and hired

a firearm expert in 1994 who could have testified

concerning the potential defects of the Remington

Model 7400’s trigger mechanism.” Id. at 476. As such,

the court rejected Kendrick’s claim that it was

ineffective [*10] assistance for his counsel not to find

and call a firearms expert. Id. at 477. Second, the

Tennessee Supreme Court concluded that “trial

counsel did almost everything at his disposal to prove

that Sergeant Miller had not pulled the trigger, with

15a

the exception that he did not offer the statements as

[excited utterances].” Id. at 480. The court thus

disagreed that counsel had exhibited constitutionally

deficient performance simply by “not attempting to

use the excited utterance exception.” Id. at 477, 481.

In the alternative, the court held that Kendrick failed

to show prejudice resulting from this second alleged

error. Id. at 481.

Having rejected both IAC claims, the Tennessee

Supreme Court remanded for further proceedings. Id.

The U.S. Supreme Court declined to hear Kendrick’s

case. See Kendrick v. Tennessee, 577 U.S. 930 (2015).

And finally, the Tennessee Court of Criminal Appeals

rejected Kendrick’s pretermitted claims. See Kendrick

v. State, No. E2011-02367-CCA-R3-PC, 2015 WL

6755004, at *39 (Tenn. Crim. App. Nov. 5, 2015).

C.

Out of options in state court, Kendrick filed a

timely habeas petition in the Eastern District of

Tennessee, alleging four dozen claims of

constitutional error. The district court determined

that the majority of Kendrick’s claims were

procedurally defaulted. See Kendricks v. Phillips, No.

1:16-CV-00350-JRG-SKL, 2019 WL 4757813, at *10–

17 (E.D. Tenn. Sept. 30, 2019). It then denied the

remaining eighteen claims on the merits. See id. at

*18–34. We granted a COA for two of Kendrick’s

claims regarding: (1) counsel’s failure to call a

rebuttal weapons expert; and (2) counsel’s failure to

admit Miller’s statements to other officers under the

excited utterance exception to the hearsay rule.

16a

One last note before we turn to the merits. Shortly

before this court issued a COA, Kendrick was released

on parole. But since Kendrick “was incarcerated at

the time his petition was filed and is presently subject

to parole supervision, the ‘in-custody’ requirement for

relief in habeas remains satisfied and the issues

presented by this appeal have not been mooted.”

Goodell v. Williams, 643 F.3d 490, 495 n.1 (6th Cir.

2011); see Maleng v. Cook, 490 U.S. 488, 491 (1989)

(per curiam); Abela v. Martin, 380 F.3d 915, 921 (6th

Cir. 2004). [*11]

II.

Because the Tennessee Supreme Court denied

Kendrick’s claims on the merits, he faces a

“formidable barrier to federal habeas relief.” Burt v.

Titlow, 571 U.S. 12, 19 (2013). Under the

Antiterrorism and Effective Death Penalty Act

(AEDPA), we may not grant his habeas petition

unless the state court’s ruling “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). The phrase “‘[c]learly established Federal

law’ . . . includes only ‘the holdings, as opposed to the

dicta, of [the Supreme] Court’s decisions.’” White v.

Woodall, 572 U.S. 415, 419 (2014) (quoting Howes v.

Fields, 565 U.S. 499, 505 (2012)). “And an

‘unreasonable application of’ those holdings must be

‘objectively unreasonable,’ not merely wrong; even

‘clear error’ will not suffice.” Id. (quoting Lockyer v.

Andrade, 538 U.S. 63, 75–76 (2003)). This is a “highly

deferential standard for evaluating state-court

17a

rulings, which demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster,

563 U.S. 170, 181 (2011) (quoting Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

Tack on to that the “exacting Strickland

standard,” which governs the pair of IAC claims

before us. Ambrose v. Booker, 801 F.3d 567, 579 (6th

Cir. 2015); see Strickland v. Washington, 466 U.S. 668

(1984). “Under Strickland, we first determine

whether counsel’s representation ‘fell below an

objective standard of reasonableness.’ Then we ask

whether ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Padilla v.

Kentucky, 559 U.S. 356, 366 (2010) (internal citation

omitted) (quoting Strickland, 466 U.S. at 688, 694).

This too is a “most deferential” standard, “[e]ven

under de novo review.” Harrington v. Richter, 562

U.S. 86, 105 (2011). Strickland commands us to

“indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance.” 466 U.S. at 689. And it cautions that we

must make “every effort” to “eliminate the distorting

effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id.

The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687.

[*12] Add it all up and we are left to apply a

“doubly deferential” standard of review. Knowles v.

18a

Mirzayance, 556 U.S. 111, 123 (2009). Indeed, because

of the “general” nature of the Strickland inquiry and

the broad range of factual circumstances that might

give rise to IAC claims, we must afford a state court

considerable “latitude to reasonably determine that a

defendant has not satisfied that standard.” Id.; accord

Harrington, 562 U.S. at 105 (“[T]he range of

reasonable applications is substantial.”). Kendrick

cannot prevail unless he can show that the Tennessee

Supreme Court’s application of Strickland “was so

lacking in justification that there was an error well

understood and comprehended in existing law beyond

any possibility for fairminded disagreement.”

Harrington, 562 U.S. at 103. That’s a “high bar” to

relief, which “is intentionally difficult to meet.” Woods

v. Donald, 575 U.S. 312, 316 (2015) (internal

quotation marks and citation omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Harrington, 562 U.S. at 102.

III.

Kendrick’s appeal raises two IAC claims. First, he

argues that counsel rendered ineffective assistance by

failing to introduce Miller’s hearsay statements—that

the rifle discharged on its own—as excited utterances.

Second, he contends that counsel was ineffective due

to his failure to find and present a firearms expert to

counter the State’s own. Although we have our doubts

about the viability of these two claims, our role as a

federal habeas court under AEDPA is not to review

them anew. And whether or not the Tennessee

Supreme Court’s unanimous rejection of these claims

19a

“was correct, it was clearly not unreasonable.” Renico

v. Lett, 559 U.S. 766, 779 (2010); see Shinn v. Kayer,

141 S. Ct. 517, 523 (2020) (per curiam). We hold that

at the very least, the Tennessee Supreme Court’s

opinion was not “so erroneous that ‘there is no

possibility fairminded jurists could disagree that the

state court’s decision conflicts with [the U.S.

Supreme] Court’s precedents.’” Nevada v. Jackson,

569 U.S. 505, 508–09 (2013) (per curiam) (quoting

Harrington, 562 U.S. at 102). Hence, AEDPA

forecloses us from granting Kendrick’s petition. [*13]

A.

We first address Kendrick’s claim that his counsel

was constitutionally deficient in failing to admit

Miller’s statements that he did not pull the trigger

when he shot himself in the foot. Even assuming that

the hearsay statements could have been introduced as

excited utterances, see Tenn. R. Evid. 803(2),1 “we

cannot say that the state court’s application of

Strickland’s attorney-performance standard was

objectively unreasonable,” Bell v. Cone, 535 U.S. 685,

702 (2002). “The Sixth Amendment guarantees

reasonable competence, not perfect advocacy judged

with the benefit of hindsight.” Yarborough v. Gentry,

540 U.S. 1, 8 (2003). And Kendrick’s “[r]eliance on ‘the

harsh light of hindsight’” to second-guess his counsel’s

competence in the crucible of trial “is precisely what

1 During postconviction review, the Criminal Court for Hamilton

County and the Court of Criminal Appeals disagreed as to

whether Miller’s statements qualified as excited utterances. The

Tennessee Supreme Court assumed without deciding that the

statements would have qualified as excited utterances under

Tennessee law. See Kendrick, 454 S.W.3d at 480.

20a

Strickland and AEDPA seek to prevent.” Harrington,

562 U.S. at 107 (quoting Bell, 535 U.S. at 702).

Indeed, it is clear that “trial counsel took great

pains to inform the jury that the weapon apparently

misfired for Sergeant Miller.” Kendrick v. State, 454

S.W.3d 450, 481 (Tenn. 2015). First, even Kendrick

concedes that his counsel put on a thorough and

“skilled

cross-examination”

challenging

the

credibility of Miller’s unexpected lack of memory.

Counsel elicited testimony from Miller that he had

served as a police officer for twenty-two years and

that he had never accidentally discharged a firearm

in the past. He also got Miller to admit that it was

“drilled into you at the police academy don’t ever put

your hand on the trigger unless you’re going to shoot

the gun.” And, he prompted Miller to confess that he

would never “knowingly” put his finger “on the trigger

of a loaded gun.” On recross, counsel likewise led

Miller into testifying that he “presumed [the gun] was

loaded” and “treated the gun that way” in picking it

up. He next pointed out that when Miller reenacted

the events before the jury, he held the gun with his

“finger off the trigger.” Finally, counsel closed his

interrogation by boxing the waffling Miller into

admitting that his reenactment—with his finger off

the trigger—was “to the best of [his] recollection how

it happened[.]” Through his effective questioning,

then, counsel “elicited [*14] answers strongly

suggesting that Sergeant Miller would not have

picked up the rifle with his finger on the trigger.” Id.

at 480.

21a

And counsel didn’t stop there. At the end of the

prosecution’s case-in-chief, counsel recalled Miller to

the stand and attempted to refresh Miller’s memory

with the incident reports containing his hearsay

statements. Miller, however, remained firm in his

purported lack of memory.

So counsel tried a third route. He called one of the

detectives who had produced one of the incident

reports, seeking to introduce the report that way as

impeachment evidence. See Tenn. R. Evid. 613(b). The

trial court sustained the State’s objection. But on

direct review, the Tennessee Court of Criminal

Appeals “found that the trial court erred by

preventing Mr. Kendrick’s trial counsel from

impeaching Sergeant Miller based on his prior

inconsistent statements.” Kendrick, 454 S.W.3d at

480 n.19. That means that “counsel pursued a proper

basis for the admission of the reports and failed only

because of the trial court’s error.” Id. (emphasis

added). That alone provides at least a “reasonable

argument that counsel satisfied Strickland’s

deferential standard.” Harrington, 562 U.S. at 105.

After all, “it is difficult to establish ineffective

assistance when counsel’s overall performance

indicates active and capable advocacy.” Id. at 111.

And the appellate court only declined to reverse

because, in its view, counsel’s “thorough crossexamination of Officer Miller” rendered the trial

court’s error “harmless.” Kendricks, 947 S.W.2d at

882.

In short, to prove that his counsel’s zealous

“[r]epresentation [was] constitutionally ineffective,”

22a

Kendrick has to show that “it ‘so undermined the

proper functioning of the adversarial process’ that

[he] was denied a fair trial.” Harrington, 562 U.S. at

110 (quoting Strickland, 466 U.S. at 686). Yet

“counsel did almost everything at his disposal to prove

that Sergeant Miller had not pulled the trigger, with

the exception that he did not offer the statements as

[excited utterances].” Kendrick, 454 S.W.3d at 480.

So, Kendrick cannot show that the Tennessee

Supreme Court “applied Strickland to the facts of his

case in an objectively unreasonable manner.” Bell,

535 U.S. at 699. AEDPA therefore bars relief. [*15]

In response, Kendrick does not dispute that after

Miller’s unexpected testimony, his “counsel labored to

convince the jury that Sergeant Miller’s finger was

not on the trigger of the rifle when it fired into his

foot.” Kendrick, 454 S.W.3d at 480. Nor does he

contend that, despite these repeated attempts,

counsel’s failure to identify the excited utterance

exception “during the heat of the trial” was

constitutionally deficient by itself. Id. Rather, he

protests that his counsel personally should have

“spoken with Inspector Miller to verify his testimony

and to gauge his confidence in what had happened.”

Doing so, Kendrick surmises, “would have prompted

counsel to form a backup plan—and anticipate a

forgetful witness.”

We are unpersuaded that Supreme Court

precedent clearly establishes such a specific

investigatory obligation in this case. To be sure,

“counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes

23a

particular investigations unnecessary.” Strickland,

466 U.S. at 691. But the Sixth Amendment does not

require an attorney to interview a witness personally

when he reasonably believes that doing so is

unnecessary. See id.; cf. LaGrand v. Stewart, 133 F.3d

1253, 1274 (9th Cir. 1998); Lewis v. Mazurkiewicz,

915 F.2d 106, 113–14 (3d Cir. 1990); Beans v. Black,

757 F.2d 933, 936 (8th Cir. 1985). Instead, “a

particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s

judgments.” Strickland, 466 U.S. at 691.

Applying these principles, Kendrick is wrong that

counsel’s failure to interview Miller personally “can

only be attributed to a professional error of

constitutional magnitude.” Yarborough, 540 U.S. at 9.

This is readily apparent once we “reconstruct the

circumstances of counsel’s challenged conduct” and

“evaluate the conduct from counsel’s perspective at

the time.” Strickland, 466 U.S. at 689. For one,

counsel did not simply neglect to investigate Miller,

as Kendrick suggests. To the contrary, counsel “relied

on [his] investigator[]” in the public defender’s office

to do so and then “reviewed [Miller’s] statements” to

his colleague. At the same time, “counsel reasonably

believed that an investigation of what Miller’s

testimony would be was unnecessary,” because

“Miller had made statements to other officers to that

effect.” Kendricks v. Parris, No. 19-6226, slip op. at *7

(6th Cir. Mar. 31, 2020) (Readler, J.) (denying a COA

on a similar IAC claim). Put those together and here’s

what counsel saw: [*16] Miller’s statements to the

24a

investigator aligned with those Miller had made to

other officers the night of the incident, and having

known Miller “in the past,” counsel didn’t have any

reason to believe he was “a dishonest person.” In these

circumstances, counsel did what was arguably

“reasonable at the time” and “balance[d] limited

resources” in electing not to interview Miller

personally. Harrington, 562 U.S. at 107; see Jackson

v. Warden, Chillicothe Corr. Inst., 622 F. App’x 457,

464 (6th Cir. 2015). That Miller later changed his

story on the stand does not mean that counsel was

constitutionally deficient.

Thus, in concluding that “counsel had a reasonable

basis to believe Sergeant Miller would testify that he

had not touched the trigger,” Kendrick, 454 S.W.3d at

477, the state court’s decision was not objectively

unreasonable. Fairminded jurists could agree that

Kendrick had not shown his attorney was deficient

under Strickland.2 Accordingly, the district court did

not err in denying Kendrick’s first IAC claim.

B.

We now turn to Kendrick’s expert-witness claim.

Kendrick is right that “[c]riminal cases will arise

where the only reasonable and available defense

strategy requires consultation with experts or

introduction of expert evidence.” Hinton v. Alabama,

For this reason, we need not address the state court’s

alternative conclusion that the alleged deficiency was not

prejudicial under Strickland. See Shinn, 141 S. Ct. at 524 (“[I]f

a fairminded jurist could agree with either [the] deficiency or

prejudice holding, the reasonableness of the other is ‘beside the

point.’” (quoting Wetzel v. Lambert, 565 U.S. 520, 524 (2012) (per

curiam))).

2

25a

571 U.S. 263, 273 (2014) (per curiam) (quoting

Harrington, 562 U.S. at 106). “But Strickland does

not enact Newton’s third law for the presentation of

evidence, requiring for every prosecution expert an

equal and opposite expert from the defense.”

Harrington, 562 U.S. at 111. In this case, it was “well

within the bounds of a reasonable judicial

determination for the state court to conclude that

defense counsel could follow a strategy that did not

require the use of experts.” Id. at 106–07.

1.

First, a fairminded jurist could agree with the

Tennessee Supreme Court that counsel’s pre-trial

strategy for rebutting the State’s firearms expert was

reasonable. “Miller’s injury was not speculative,”

Kendrick, 454 S.W.3d at 477, whereas any expert

could only conjecture [*17] whether Kendrick’s gun

might have spontaneously discharged in the past. So

“[t]he best evidence that Mr. Kendrick’s Model 7400

was capable of misfiring” would have been “the

undisputed fact that Sergeant Miller was shot in the

foot by the very same rifle.” Id. Counsel therefore

strategically built his case around the Miller

mishap—an “available” approach which did not

“require[]” expert assistance. Hinton, 571 U.S. at 273

(quoting Harrington, 562 U.S. at 106).

This was not an uninformed decision. Counsel

“reviewed Mr. Fite’s report” and the defense also

“talked to him before the trial.” Even so, counsel

believed that Miller’s expected testimony would

“trump[] anything Kelly Fite [could] say.” As counsel

explained, “Miller shooting himself in the foot

26a

accidentally, without his hands near the trigger, was

enough for a reasonable doubt as to anything.” And,

as described above, counsel reasonably believed that

Miller would “stick to his prior statements” at trial.

“In hindsight, Sergeant Miller’s testimony deviated

from what trial counsel expected. But at the time

defense counsel was forming his trial strategy, it was

reasonable to anticipate that he could ‘use [Sergeant

Miller’s testimony] very effectively’ to elicit an

acquittal.” Kendrick, 454 S.W.3d at 477 (alteration in

original) (quoting counsel’s testimony). It is thus

difficult for us to conclude that counsel’s strategy was

“outside the wide range of professionally competent

assistance.” Strickland, 466 U.S. at 690. At a

minimum, “[n]o precedent of [the Supreme] Court

clearly forecloses that view.” Woods v. Etherton, 136

S. Ct. 1149, 1152 (2016) (per curiam).

Second, even if counsel should have sought out an

expert, a fairminded jurist could agree that it was

“entirely uncertain” whether counsel would have

found one in 1994 with a reasonable investigation.

Kendrick, 454 S.W.3d at 476. Henry Belk is the only

expert Kendrick has identified who might have been

available to testify about the Remington trigger

mechanism. Yet Belk offered his first testimony about

the mechanism on a different Remington model at

some unidentified point in 1994—the same year as

Kendrick’s trial. Belk did not testify about the

Remington Model 7400 until several years later. And

as counsel observed, “you couldn’t Google Remington

trigger mechanisms back then.” Even if Belk’s 1994

testimony preceded Kendrick’s trial, Kendrick failed

27a

to present any evidence that counsel should have

known that Belk might have been an available

witness. To the contrary, despite counsel’s

“fundamental [*18] knowledge of firearms,” he

“wasn’t aware” of any “discussion in the industry

about the trigger mechanism on the Remington being

potentially able to malfunction.”3 “It was at least

arguable that a reasonable attorney could decide to

forgo inquiry” into a firearms expert in these

circumstances. Harrington, 562 U.S. at 106.

2.

Kendrick offers four counterarguments, none of

which persuade us. First, he maintains that, as in

Hinton v. Alabama, the “only reasonable and

available defense strategy” was to employ a defense

expert. 571 U.S. at 273 (citation omitted). But as we

have already explained, that is simply not true. It was

arguably reasonable for counsel to build his case

around

Miller’s

testimony

instead.

Miller’s

Kendrick cites two civil cases that would have revealed

allegations of defective Remington firearms before 1994. See

Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988);

Chapa v. Garcia, 848 S.W.2d 667 (Tx. 1992). But neither case

involved Belk or the Remington Model 7400. Neither mentioned

experts that testified regarding a defective trigger mechanism.

And neither involved circumstances of accidental discharge like

those alleged here. The incident in Lewy occurred when the

plaintiff “placed the safety on the fire position.” 836 F.2d at 1105.

And in Chapa, the “rifle discharged during loading.” 848 S.W.2d

at 667. Those cases therefore do not present clear and convincing

evidence that counsel would have reasonably found Belk, or

another expert, in 1994. While these cases do show that

problems regarding other Remington firearms were not

unknown at the time, counsel did attempt to cross-examine Fite

about this.

3

28a

unexpected change in his story “shows merely that

the defense strategy did not work out as well as

counsel had hoped, not that counsel was

incompetent.” Harrington, 562 U.S. at 109.

Moreover, the Tennessee Supreme Court

reasonably found Hinton distinguishable. In that

case, the defendant was charged with a pair of

murders committed during the course of two

robberies. 571 U.S. at 265. In order to convict Hinton

of these murders, Alabama sought to link him to a

third robbery “through eyewitness testimony and

forensic evidence about the bullets” recovered from

the scene. Id. The State’s strategy was “then to

persuade the jury that, in light of the similarity of the

three crimes and forensic analysis of the bullets and

the Hinton revolver, Hinton must also have

committed the two murders.” Id. Yet without any

other evidence, “[t]he State’s case turned on whether

its expert witnesses could convince the jury that the

six recovered bullets had indeed been fired from the

Hinton revolver.” Id. [*19]

Hinton’s attorney filed a motion to hire an expert,

and the trial court afforded him $1,000, which both

the judge and Hinton’s attorney believed was the

statutory maximum. Id. at 266. The attorney later

testified that the only expert he could hire for that

amount “did not have the expertise he thought he

needed and that he did not consider [the expert]’s

testimony to be effective.” Id. at 268 (citation

omitted). Nevertheless, counsel “felt he was ‘stuck’”

with this inadequate expert who was later “badly

discredited” at trial. Id. at 269, 273.

29a

But that view was fundamentally mistaken. It

turned out that $1,000 “was not the statutory

maximum at the time of Hinton’s trial,” as the

relevant Alabama statute had been amended to

provide the defense with “‘any expenses reasonably

incurred’” in obtaining an expert. Id. at 267 (quoting

Ala. Code § 15-12-21(d) (1984)). Thus, the Court held

that counsel was deficient in his “failure to request

additional funding in order to replace an expert he

knew to be inadequate because he mistakenly

believed that he had received all he could get under

Alabama law.” Id. at 274. Hinton was careful to

explain, however, that “[t]he only inadequate

assistance of counsel . . . was the inexcusable mistake

of law—the unreasonable failure to understand the

resources that state law made available to him—that

caused counsel to employ an expert that he himself

deemed inadequate.” Id. at 275.

Here, by contrast, Kendrick has not identified any

legal error that his counsel made in failing to obtain

an expert. Nor has he shown that it was objectively

unreasonable for Kendrick’s counsel to put together

his defense without one. See Swaby v. New York, 613

F. App’x 48, 50 (2d Cir. 2015) (“[T]he failure to seek

an expert does not satisfy the performance prong of

Strickland where counsel chooses a strategy that does

not require an expert.”). Nor does Hinton clearly

establish that an attorney must hire an expert when,

as here, he reasonably expects to be able to rebut the

prosecution’s expert effectively with a lay witness’s

testimony. Cf. Hinton, 571 U.S. at 273 (noting that

“effectively rebutting [the State’s] case required a

30a

competent expert on the defense side” (emphasis

added)). Though we need not decide whether we

would reach the same result de novo, we are satisfied

that there is “ample room for reasonable

disagreement” as to the need to hire an expert in this

case. Shinn, 141 S. Ct. at 520. A fairminded jurist

could agree with the Tennessee Supreme Court that

“counsel made a reasonable tactical decision to

construct his ‘accidental firing’ defense around

Sergeant Miller’s mishap with Mr. Kendrick’s [*20]

rifle.” Kendrick, 454 S.W.3d at 477; see also

Harrington, 562 U.S. at 106 (“It can be assumed that

in some cases counsel would be deemed ineffective for

failing to consult or rely on experts, but even that

formulation is sufficiently general that state courts

would have wide latitude in applying it.”).

Kendrick next maintains that counsel had no

reasonable strategy to counter Fite’s testimony. But

again, that’s not true. “In many instances crossexamination will be sufficient to expose defects in an

expert’s presentation.” Harrington, 562 U.S. at 111.

And in this case, counsel both cross-examined Fite

and sought to introduce Miller’s statements in order

to undermine Fite’s opinion testimony. In crossexamining the State’s expert, counsel first attempted

to discredit Fite by characterizing him as someone

who erroneously believed he never made mistakes.

Then, he labored to have Fite concede that “there

have been situations” where Fite had previously

testified that a gun could not possibly discharge

accidentally, but that, in fact, “guns of the same make

and model” as those he described “did fire without

31a

pulling the trigger.” Immediately after poking these

small holes in Fite’s testimony, counsel recalled

Miller to the stand and presented him with the

incident reports in an effort to show the jury that this

particular gun had in fact misfired for Miller. That

would have been a damaging blow to Fite’s adamant

testimony—that “[t]he only way you could fire this

rifle [was] by pulling the trigger or breaking the gun.”

Hence, counsel devised a reasonable approach to

counteract Fite’s testimony and to introduce proof

suggesting that Kendrick’s rifle could—and did—

discharge on its own. Once we eliminate the distorting

effects of hindsight, Kendrick cannot “overcome the

presumption that, under the circumstances,” his

counsel’s tactics “‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689 (quoting Michel

v. Louisiana, 350 U.S. 91, 101 (1955)).

Kendrick also insists that the Tennessee Supreme

Court erred in its factual determination that counsel

could not “have located and hired a firearm expert in

1994” with a reasonably diligent investigation.

Kendrick, 454 S.W.3d at 476. At the outset, we

reiterate that “[a]n attorney can avoid” investigations

“that appear ‘distractive from more important

duties.’” Harrington, 562 U.S. at 107 (quoting Bobby

v. Van Hook, 558 U.S. 4, 11 (2009) (per curiam)). And

in light of Miller’s anticipated testimony, it was

reasonable for the state court to conclude [*21] that

counsel did not need to seek expert assistance at all.

See id. at 106 (“Strickland . . . permits counsel to

‘make a reasonable decision that makes particular

investigations unnecessary.’” (citation omitted)).

32a

But even if we believed that counsel was required

to seek an expert, that would not justify our setting

aside the Tennessee Supreme Court’s decision. Under

AEDPA, “a determination of a factual issue made by

a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). “And we apply the

same deference ‘even to state-court factual findings

made on appeal.’” Johnson v. Genovese, 924 F.3d 929,

938 (6th Cir. 2019) (quoting Franklin v. Bradshaw,

695 F.3d 439, 447 (6th Cir. 2012)); see Burt, 571 U.S.

at 22.

Kendrick has not met this demanding standard.

To be sure, the record “does suggest that [counsel]

could well have made a more thorough investigation

than he did.” Burger v. Kemp, 483 U.S. 776, 794

(1987). But the Sixth Amendment “does not force

defense lawyers to scour the globe on the off chance

something will turn up.” Rompilla v. Beard, 545 U.S.

374, 383 (2005). We cannot say by clear and

convincing evidence that, in 1994, counsel would have

reasonably found Belk—a southern Idaho resident

who first testified in the same year as Kendrick’s trial

about a different Remington model in one civil case in

Little Rock, Arkansas. In fact, even if counsel could

have reasonably tracked down Belk’s out-of-state

testimony in 1994, and even if counsel could have

discovered that the two Remington models had the

same trigger mechanism, nothing in the record

clearly states that Belk had testified or even filed a

publicly available expert report, about any type of

33a

firearm, before Kendrick’s trial. See Cullen, 563 U.S.

at 181 (holding that a habeas court’s review “is

limited to the record that was before the state court

that adjudicated the claim on the merits”). Nor is

there anything else in the record to suggest why

Kendrick’s counsel should have reasonably found this

lone expert that Kendrick claims was so readily

available.4 [*22]

Finally, Kendrick turns to two of our prior cases

addressing, under AEDPA, an attorney’s failure to

retain an arson expert. See Stermer v. Warren, 959

4 Though we need not decide, we are also skeptical that Kendrick

can show by clear and convincing evidence that he would have

been permitted to hire an expert in 1994. Cf. Kendrick, 454

S.W.3d at 476. At the time, the state legislature had authorized

funding for expert witnesses only in capital cases. See Tenn.

Code Ann. § 40-14-207(b). And the most recent opinions of the

Tennessee Supreme Court had held that “an indigent defendant

does not have a right under the federal or state constitution, to

the services of [an expert], at state expense.” Graham v. State,

547 S.W.2d 531, 536 (Tenn. 1977); accord State v. Williams, 657

S.W.2d 405, 411 (Tenn. 1983). However, after these decisions,

the U.S. Supreme Court held that an indigent defendant is

constitutionally entitled to a psychiatric examination when his

sanity at the time of the offense is seriously in question—at least

in a capital case. See Ake v. Oklahoma, 470 U.S. 68, 70, 86–87

(1985); id. at 87 (Burger, C.J., concurring) (“Nothing in the

Court’s opinion reaches noncapital cases.”). In the wake of Ake,

multiple panels from the Tennessee Court of Criminal Appeals

produced conflicting dicta as to whether Ake extended to

noncapital cases like Kendrick’s. Compare State v. Harris, 866

S.W.2d 583, 585 (Tenn. Crim. App. 1992), and State v. Chapman,

724 S.W.2d 378, 380 (Tenn. Crim. App. 1986), with State v.

Edwards, 868 S.W.2d 682, 697–98 (Tenn. Crim. App. 1993). The

law was thus unsettled at the time, and this is all the more

reason to believe that counsel acted reasonably in building his

case without expert assistance.

34a

F.3d 704 (6th Cir. 2020); Richey v. Bradshaw, 498

F.3d 344 (6th Cir. 2007). In Stermer, however, a

divided panel granted habeas relief on other grounds

and expressly declined to decide the merits of the IAC

claim based on counsel’s failure to retain an arson

expert. See 959 F.3d at 738. So our discussion of

counsel’s duties with respect to rebutting expert

testimony was dicta. See Wright v. Spaulding, 939

F.3d 695, 701 (6th Cir. 2019). In Richey, counsel

affirmatively recognized the need for an expert and

retained one, but counsel then unreasonably failed to

consult the expert to help with the defense. 498 F.3d

at 362. In this case, by contrast, a fairminded jurist

could conclude that counsel had reasonably decided

that no expert was necessary given Miller’s

anticipated testimony. Moreover, Richey predates the

Supreme Court’s guidance in Harrington, which held

that a federal court misapplied AEDPA by finding

that an IAC claim had merit under de novo review and

then “declar[ing], without further explanation,” that

the state court’s contrary ruling was unreasonable.

562 U.S. at 101–02. Richey engaged in that type of

now-outdated review and barely referenced AEDPA’s

deferential standards when granting relief. See 498

F.3d at 361–64. “AEDPA demands more.” Harrington,

562 U.S. at 102.

In sum, “the Sixth Amendment does not guarantee

the right to perfect counsel; it promises only the right

to effective assistance.” Burt, 571 U.S. at 24. And that,

Kendrick at least arguably received. “Recognizing the

duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong,” we

35a

conclude that the Tennessee Supreme Court’s

decision was “reasonable and supported by the

record.” Id. at 19, 24. As a result, Kendrick’s second

claim fails as well. [*23]

***

We AFFIRM the district court’s denial of

Kendrick’s habeas petition.

36a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 19-6226

EDWARD THOMAS KENDRICK, III,

Petitioner - Appellant,

v.

FILED

Mar 02, 2021

DEBORAH S. HUNT, Clerk

MIKE

PARRIS,

Warden,

Respondent - Appellee.

Before: GUY, LARSEN, and MURPHY, Circuit

Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Tennessee of

Chattanooga.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN

CONSIDERATION

THEREOF,

it

is

ORDERED that the district court’s denial of Edward

Thomas Kendrick’s petition for a writ of habeas

corpus is AFFIRMED.

ENTERED BY ORDER OF THE COURT

/s Deborah S. Hunt

Deborah S. Hunt, Clerk

37a

No. 19-6226

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Mar 31, 2020

DEBORAH S. HUNT, Clerk

EDWARD THOMAS

)

KENDRICKS,

)

Petitioner-Appellant, )

)

v.

)

)

SHAWN PHILLIPS,

)

Respondent-Appellee. )

ORDER

Before: READLER, Circuit Judge.

Edward Thomas Kendricks III (often referred to

as “Edward Thomas Kendrick III” in court

proceedings), a Tennessee state prisoner, appeals pro

se a district court judgment denying his petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. §

2254. The court construes the notice of appeal as an

application for a certificate of appealability. See Fed.

R. App. P. 22(b)(2).

In 1994, a jury convicted Kendricks of the firstdegree murder of his wife. He was sentenced to life

imprisonment. The incident occurred on March 6,

1994. Kendricks drove to his wife’s workplace with

38a

their two children in their car seats and a rifle in the

front passenger seat. He asked her to come outside,

where she spoke briefly with the children. Kendricks

took the rifle out of the front seat, walked to the back

of the car, and shot his wife in the chest. He then

drove to the airport, where he was apprehended,

throwing the rifle out of the car along the way.

The conviction was upheld on direct appeal in the

state courts. State v. Kendricks, 947 S.W.2d 875

(Tenn. Crim. App. 1996). Kendricks then filed for

post-conviction relief. The trial court denied the

motion after holding an evidentiary hearing

including testimony from a firearms expert that the

type of firing mechanism used in the murder weapon

was defective, although he could not cause the

murder weapon to fire without pulling the trigger.

The appellate court concluded that two claims of

ineffective assistance of counsel were meritorious.

Kendrick v. State, [*2] No. E2011-02367-CCA-R3-PC,

2013 WL 3306655 (Tenn. Crim. App. June 27, 2013).

On appeal, the Tennessee Supreme Court reversed

that decision and remanded the matter for

consideration of the remaining claims. Kendrick v.

State, 454 S.W.3d 450, 455 (Tenn. 2015). The

appellate court found the remaining claims meritless.

Kendrick v. State, No. E2011-02367-CCA-R3-PC,

2015 WL 6755004 (Tenn. Crim. App. Nov. 5, 2015).

In this petition for federal habeas corpus relief,

Kendricks enumerated forty-eight issues: numerous

claims of ineffective assistance of trial counsel,

several claims of ineffective assistance of appellate

counsel, several claims of prosecutorial misconduct, a

39a

claim of new evidence of innocence, a claim that postconviction proceedings in Tennessee do not provide

equal protection for African Americans, and a claim

that the Antiterrorism and Effective Death Penalty

Act is unconstitutional. The State filed a response,

and Kendricks filed a reply.

The district court determined that the majority of

the claims were procedurally defaulted when they

were not raised by counsel in the appeal of the postconviction

proceeding,

although

Kendricks

attempted to raise them in pro se filings. The court

therefore addressed only the claims that had been

raised by appointed counsel in the post-conviction

appeal. The district court also reviewed de novo one

claim that was raised but not addressed in the state

court. Finding no merit to the claims, the district

court denied the petition.

To receive a certificate of appealability, a

petitioner must make a substantial showing of the

denial of a constitutional right. See 28 U.S.C. §

2253(c)(1). On claims that are denied on procedural

grounds, a petitioner must show that jurists of reason

would find it debatable whether the petition stated a

valid claim of the denial of a constitutional right and

whether the district court was correct in its

procedural ruling. Slack v. McDaniel, 529 U.S. 473,

484 (2000). On claims that were denied on the merits,

the petitioner may meet the standard by showing

that reasonable jurists would find the district court’s

assessment of the claims debatable or wrong. Id.

Reasonable jurists would not find it debatable

whether the district court was correct in finding most

40a

of the claims procedurally defaulted. These include

many of the claims of ineffective assistance of trial

and appellate counsel and prosecutorial misconduct.

They were not raised by [*3] counsel in the postconviction appeal, and, although Kendricks

attempted to raise them in pro se filings and counsel

attempted to incorporate the claims by reference in a

reply brief, defendants in Tennessee are barred from

representing themselves while being represented by

counsel. See Williams v. State, 44 S.W.3d 464, 469

(Tenn. 2001). Also, counsel could not raise new

arguments in a reply brief under Tennessee law.

Caruthers v. State, 814 S.W.2d 64, 69 (Tenn. Crim.

App. 1991).

Procedurally defaulted claims will not be heard on

their merits unless the petitioner shows cause and

prejudice to excuse the procedural default, or that a

miscarriage of justice would occur if the claims were

not examined because of the existence of new

evidence of actual innocence. See House v. Bell, 547

U.S. 518, 536-37 (2006). Although Kendricks

attempts to establish cause for his default by blaming

ineffective assistance of appellate post-conviction

counsel, the Supreme Court has recognized

ineffective assistance on initial post-conviction

proceedings only as cause to excuse procedural

default, not appeals from those proceedings. See

Martinez v. Ryan, 566 U.S. 1, 16 (2012). Moreover,

Kendricks would be hard-pressed to establish

ineffective assistance of post-conviction counsel on

appeal, where his counsel initially succeeded in

having the sentence vacated. Finally, Kendricks

41a

claims to have new evidence of his actual innocence

to allow his procedurally defaulted claims to be

addressed, but his evidence of problems with the

firing mechanism in the murder weapon was

cumulative to evidence presented at trial and

rejected by the jury.

The district court examined the rest of the claims,

all asserting ineffective assistance of counsel, on the

merits. To prevail on these claims, Kendricks had to

show that his counsel’s performance was deficient

and that the result of the trial was prejudiced.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

The first non-procedurally defaulted claim argued

that trial counsel was ineffective in failing to hire a

weapons expert. The defense presented at trial was

that the gun accidentally discharged. Counsel

planned to rely on the fact that the police officer who

found the murder weapon along the side of the road

where Kendricks had thrown it––Officer Miller––

accidentally shot himself in the foot when removing

it from the trunk of his vehicle at the police station.

Miller had told other police officers investigating the

incident that he had not touched the [*4] trigger. The

prosecutor put on an expert who testified that the

gun would not fire without pulling the trigger. The

Tennessee Court of Criminal Appeals granted postconviction relief on this claim, but the Tennessee

Supreme Court reversed. The district court found

that it was not unreasonable for the Tennessee

Supreme Court to conclude that the failure to hire an

expert was not ineffective assistance. However, it did

not find the appellate court’s decision unreasonable

42a

either. Because it appears that reasonable jurists

could find this claim debatable, a certificate of

appealability will be granted on this claim.

The second claim is in the same posture.

Kendricks argued that counsel was ineffective in

failing to have Officer Miller’s statements to his

fellow officers admitted under the excited utterance

exception to the hearsay rule after Miller claimed at

trial not to remember whether he touched the trigger.

The Tennessee appellate court granted postconviction relief on this claim before being reversed

by the Tennessee Supreme Court. The district court

concluded that the Tennessee Supreme Court was

not unreasonable in finding that counsel’s

performance was not deficient because he challenged

Miller’s trial testimony through cross-examination.

Again, the district court did not find the appellate

court’s opposite conclusion unreasonable. It appears

that reasonable jurists would find this claim

debatable, and a certificate of appealability will be

granted on this claim.

Kendricks next argued that trial counsel was

ineffective in opening the door to admission of his

prior convictions, including returned checks,

marijuana possession, and driving under the

influence, and failing to seek a limiting instruction on

this evidence. Reasonable jurists would not find

debatable the district court’s conclusion that the

state court’s decision that the admission of these

prior crimes could not have prejudiced the result of

the trial, given the minor nature of the convictions

and the other evidence of guilt.

43a

Kendricks argued that counsel was ineffective in

challenging the admission of testimony from an

airport security officer. Kendricks drove to the

airport after the shooting, and his daughter told the

officer, while she was being removed from her car

seat, that she had told daddy not to shoot mommy but

he did and she fell. Kendricks argued that, because

the prosecutor called this [*5] surprise witness,

counsel should have insisted on specific performance

of the plea agreement Kendricks rejected before trial.

The state court found that no such remedy was

required by state law. The district court’s conclusion

that the state court’s decision was not contrary to

clearly established Supreme Court precedent is not

debatable by reasonable jurists, where Kendricks

points to no Supreme Court holding to this effect, and

there is none.

Kendricks also challenged counsel’s performance

with regard to an eyewitness. Counsel was surprised

at trial by his testimony that Kendricks stood over

his wife’s body saying “I told you so” several times.

The state court found that counsel effectively crossexamined the witness, pointing out that the witness

had not given this evidence in his earlier statements,

attempted to impeach his testimony, and argued in

closing that the testimony was fabricated, and

therefore did not perform ineffectively. Reasonable

jurists would not find debatable the district court’s

conclusion that this finding by the state court was not

contrary to clearly established federal law.

Kendricks also argued that the prosecutor, after

securing his agreement to waive a preliminary

44a

hearing in exchange for open-file discovery, violated

this agreement by introducing the surprise testimony

of the above two witnesses and that of Officer Miller,

and that counsel was ineffective in failing to object.

The state court found that Kendricks was not entitled

to the witness statements under Tennessee law.

Reasonable jurists would not debate whether the

district court was correct in finding that counsel’s

failure to object to the non-receipt of statements to

which Kendricks was not legally entitled was not

ineffective assistance.

Kendricks also alleged ineffective assistance of

counsel in failing to object to a police officer’s

testimony concerning statements Kendricks made

after his arrest at the airport. He argued that the

officer’s testimony amounted to the use of his silence

against him because the prosecutor argued that

Kendricks did not tell the officer that the shooting

was an accident. The state court found that

Kendricks had agreed to speak to the officer after

receiving warnings. Reasonable jurists would not

debate the district court’s finding that no claim of the

denial of the right to remain silent was stated in this

case. See Berghuis v. Thompkins, 560 U.S. 370, 38586 (2010). [*6]

Kendricks alleged that counsel was ineffective in

calling the attorney who was representing him in

divorce proceedings. The state court found that the

attorney gave generally favorable testimony and that

Kendricks had agreed with the decision to call him.

The attorney testified that the divorce was amicable,

that Kendricks was going to receive custody of the

45a

children, most of the marital property, and child

support, and that Kendricks was a truthful person,

but also that Kendricks believed his wife had been

unfaithful, which Kendricks argues supplied a

motive for the crime. Reasonable jurists would not

debate the district court’s rejection of this claim on

the ground that the benefit of the testimony

outweighed any inference as to motive which would

have been available without the testimony.

Similarly, Kendricks argued that counsel was

ineffective in failing to call his cousin to testify that

he had seen Kendricks and the victim together

earlier in the day and that they were not arguing, and

that he had found food simmering on the stove after

the crime, which Kendricks argues would show a lack

of premeditation. However, the state court found that

Kendricks did not ask counsel to call this witness,

and that his testimony would have merely been

cumulative of the attorney’s testimony that the

divorce was amicable. Reasonable jurists would not

debate the district court’s conclusion that failing to

call this witness was not deficient and did not

prejudice the result of the trial, where Kendricks did

not show that he made counsel aware of the cousin’s

non-cumulative evidence.

Kendricks also faulted counsel for failing to call

another police officer who saw Kendricks at the

airport after his arrest to testify that Kendricks was

distraught. The state court found that there was no

evidence that counsel was aware of this possible

witness and that his testimony would have only been

cumulative of other testimony. Reasonable jurists

46a

would not debate the district court’s conclusion that

the state court decision was not contrary to clearly

established Supreme Court law.

Finally, the district court examined de novo a

claim that counsel was deficient in promising the jury

during the opening argument that Officer Miller

would testify that he did not touch the trigger when

he shot himself in the foot, without investigating

what Miller planned to testify. [*7] Because Miller

had made statements to other officers to that effect,

the district court concluded that counsel reasonably

believed that an investigation of what Miller’s

testimony would be was unnecessary. See English v.

Romanowski, 602 F.3d 714, 728 (6th Cir. 2010).

Reasonable jurists would not debate the district

court’s assessment of this claim.

Accordingly, a certificate of appealability is

GRANTED as to the two claims of ineffective

assistance of counsel regarding the failure to call a

weapons expert and the failure to seek to admit

Officer Miller’s statements to other officers under the

excited utterance exception to the hearsay rule,

because reasonable jurists could debate the

resolution of these claims. A certificate of

appealability is DENIED on the remaining claims. A

briefing schedule shall issue.

ENTERED BY ORDER OF THE COURT

/s Deborah S. Hunt

Deborah S. Hunt, Clerk

47a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

EDWARD THOMAS

)

KENDRICKS,

)

Petitioner,

)

[Filed 09/30/19]

)

v.

)

No. 1:16-CV-00350

)

-JRG-SKL

SHAWN PHILLIPS,

)

Respondent.

)

MEMORANDUM OPINION

Before the court is a pro se prisoner’s petition for

a writ of habeas corpus filed pursuant to 28 U.S.C. §

2254 [Doc. 1]. Respondent has filed a response in

opposition [Doc. 15], as well as the state court record

[Doc. 14]. Petitioner filed a reply [Doc. 30]. After

reviewing all of the relevant filings, the Court has

determined that Petitioner is not entitled to relief

under §2254 and no evidentiary hearing is warranted.

See Rules Governing § 2254 Cases, Rule 8(a) and

Schirro v. Landrigan, 550 U.S. 465, 474 (2007). For

the reasons set forth below, the §2254 Petition is

DENIED and this matter will be DISMISSED.

I. PROCEDURAL HISTORY

In 1994, a Hamilton County jury convicted

Petitioner of first-degree murder for shooting and

killing his wife [Doc. 14 Attachment 1 at 24].

Petitioner appealed on several grounds including that

the evidence was insufficient to support the finding of

guilt by the jury, that the trial court erred in allowing

48a

and disallowing various pieces of evidence, and that

the State had violated Brady v. Maryland by failing

to disclose exculpatory information [Doc. 14

Attachment 9]. The Tennessee Court of Criminal

Appeals (“TCCA”) affirmed his conviction [Doc. 14

Attachment 11]. Petitioner then applied for

permission to appeal to the Tennessee Supreme

Court, but his application was denied [Doc. 14

Attachments 12, 15]. [*2]

Next, Petitioner filed a motion for post-conviction

relief alleging various grounds of ineffective

assistance of counsel and various instances of

prosecutorial misconduct [Doc. 14 Attachment 15 at 3

– 12]. His petition was summarily dismissed [Doc. 14

Attachment 16 at 63 – 64]. Thereafter, Petitioner

amended his petition for post-conviction relief which

was dismissed as untimely filed [Doc. 14 Attachment

16 at 65 – 81; 84]. Petitioner immediately appealed

and the TCCA reversed in part and remanded for

further proceedings on Petitioner’s ineffective

assistance of counsel claims, with specific instructions

for the post-conviction court to allow Petitioner to

amend his petition [Doc.14 Attachment 20].

Petitioner filed an amended petition in 2000, and

over the next several years filed various amendments,

with and without the assistance of counsel [Doc. 14

Attachments 21 at 5 – 114; 21 at 115 – 131; 21, at 140

– 141; 22 at 127 – 23 at 87; 23 at 88 – 123; 28 at 71 –

106; 28 at 107 – 29 at 51]. In 2011, after hearings

1 For the sake of brevity this includes only Petitioner’s amended

petitions and not his vast Memoranda of Law, spanning

49a

spanning various days in February and March, the

post-conviction court dismissed the petition [Doc. 14

Attachment 29 at 6 – 72]. Petitioner then appealed to

the TCCA again, which resulted in the TCCA

reversing the judgment of the post-conviction court,

vacating Petitioner’s conviction, and remanding for

further proceedings, based on two of Petitioner’s

ineffective assistance of counsel claims: (1) failure to

adduce expert proof about a defective trigger

mechanism design in Petitioner’s rifle, and (2) failure

to use the excited utterance exception to hearsay to

admit the prior statements of an officer in the case

[Doc. 14 Attachment 48].

The State appealed to the Tennessee Supreme

Court (“TSC”), which found no ineffective assistance

of counsel on either claim, reversed the TCCA’s

judgment, and remanded the case to the TCCA to

address Petitioner’s pretermitted claims [Doc. 14

Attachments 49, 60]. Petitioner [*3] then moved for a

rehearing in the TSC which was denied [Doc.14

Attachments 61, 62]. He also filed a writ of certiorari

with the United States Supreme Court which was also

denied [Doc. 14 Attachments 63, 64]. Later, the TCCA

evaluated Petitioner’s remaining claims as directed

by the TSC and affirmed the judgment denying

petitioner post-conviction relief [Doc. 14 Attachment

72]. Petitioner filed an application for permission to

appeal with the TSC, which was denied [Doc. 14

Attachments 73, 75]. Finally, in 2016 Petitioner filed

for a writ of habeas corpus with this Court [Doc.1].

hundreds of pages, which accompanied them and are separately

labeled in the record.

50a

II. BACKGROUND

A. Trial

On Direct Appeal, the TCCA summarized the facts

of this case as follows:

On March 6, 1994, at approximately 10:00

p.m., the defendant drove to the gas station at

which Lisa Kendrick, his wife and the victim,

worked. With him in the car were their four-yearold daughter and three-year-old son. These

children were sitting in car seats in the back seat

of the station wagon the defendant was driving.

Also in the car, on the front passenger floorboard,

was the defendant’s loaded 30.06 hunting rifle.

The defendant pulled into the station, parked,

and went into the market portion of the station

where his wife worked as a cashier. He asked her

to come outside, which she did. She and the

defendant went to the car where she spoke briefly

to the children. The defendant retrieved the rifle

from the front passenger floorboard and carried

it to the back of the car. At that point, the weapon

fired once, the bullet striking the victim in her

chest and killing her almost instantly.

After the victim fell to the parking lot, the

defendant briefly bent over her body, put the gun

back in the car, and drove toward the airport a

short distance away. On the way, he threw the

rifle out of the car. Once he arrived at the airport,

he called 911 and reported that he had shot his

wife. Before the defendant left the gas station, he

took no action to assist the victim in any way.

[*4]

51a

Timothy Shurd Benton, a customer, was in

the market when the defendant entered. He

testified that the defendant had asked the

cashier “to step outside, he had something to

show her.” Benton left the market, got in his car

and started to leave the parking lot. He testified

that, as he had begun to leave, he heard an

“explosion.” He looked over his shoulder out the

window of his car and saw the defendant holding

a rifle “pointed straight up in the air.” He also

saw the victim lying on her back on the parking

lot. After deciding that another person in the

market was aware of the situation and would call

for help, Benton followed the defendant to the

airport, where he contacted an airport police

officer.

Lennell Shepheard was also in the market at

the time the defendant entered. He testified that

he had seen the defendant and his wife leave the

store, that the defendant had not appeared angry

or hostile, and that the victim had shown no signs

of fear when she went outside at the defendant’s

request. Shepheard remained in the store until

he heard the rifle shot. At that point, he opened

the market door and looked outside to see what

had happened. He testified that he had seen the

defendant shut the back passenger door and then

lean over the victim’s body and state, “I told you

so” approximately six times.

Endia Kendrick, the defendant’s four-year-old

daughter, testified on direct examination that

she had seen her father shoot her mother and

52a

that her mother had had her arms up at the time.

However, on cross-examination, Endia admitted

that she hadn’t actually seen the shooting.

Dr. Frank King, the Hamilton County

Medical Examiner, testified that the victim had

died of a single gunshot wound to the chest that

entered her body in the left chest at forty-nine

inches above the heel and exited her body at the

left back at forty-nine and one-half inches above

the heel.

The defendant testified that he had been

moving the rifle from the front of the car to the

back at the request of the victim and that it had

discharged accidentally. He testified that he had

been shifting it from one hand to the other when

it went off. He testified that he had not pulled the

trigger. He steadfastly denied that he had

intended to shoot the victim, and claimed that he

had been carrying the rifle in the car because he

sometimes cleaned apartments near an area

where he felt a gun was necessary for personal

protection. He also denied making any

statements as he bent over the victim, and

testified that he had taken no action to assist her

because he knew she was dead. The defendant

also testified that he and the victim had agreed

on an [*5] irreconcilable differences divorce, that

an attempted reconciliation had recently failed,

and that he suspected that she had had or was

having an affair. He denied that he was upset or

angry at his wife about the status of their

relationshiat [sic]

53a

In support of his contention that the rifle fired

accidentally, the defendant relied on the

testimony of Officer Steve W. Miller. Officer

Miller testified that he had shot himself in the

foot with the rifle when he was removing it from

the trunk of his car after recovering it from where

the defendant had thrown it. Officer Miller

testified that he had shot himself accidentally.

He further testified that he could not recall

whether or not his finger had been on the trigger

of the gun when it fired.

[The state’s expert witness,] Kelly Fite, a

firearms examiner, testified that he had

examined and tested the rifle and that, in his

opinion, “[t]he only way that you can fire this rifle

without breaking it is by pulling the trigger.”

After the defense closed its proof, the State

called Martha Kay Maston as a “rebuttal”

witness. Maston testified that she had been

working as a public safety officer for the

Chattanooga Metropolitan Airport Police on the

night of the shooting. On finding the defendant

at the airport, she saw the two children in the

back seat of the car. She testified that she had

gotten the children out and that they were both

“very upset and hysterical.” She further testified

that “when I got [the little girl] out of the car, she

just put her arms around me and she stated that

she had told daddy not to shoot mommy but he

did and she fell.” Maston testified that the

defendant’s daughter had not made any other

54a

statements and that his son had not said

anything.

State v. Kendricks, 947 S.W.2d 875, 878 – 79 (Tenn.

Crim. App. 1996).

B. Post – Conviction

As stated above, the post-conviction trial court

conducted hearings over several days in February

and March of 2011. In its second opinion addressing

the dismissal of Petitioner’s post-conviction petition,

the TCCA summarized the evidence adduced at these

hearings as follows:

Henry Jackson Belk, Jr., a gunsmith, testified

that, earlier that morning in the clerk’s office, he

examined the gun, a Remington Model 7400

30.06 autoloading rifle, that shot and killed the

victim. He stated that he was familiar with the

trigger mechanism inside the rifle, describing it

as “a common trigger mechanism that is [*6]

contained within a wide variety of firearms,

shotguns, rim fires and center fire rifles.” He

added, “Generally speaking, all pumps and

automatics manufactured after 1948 by

Remington contain this trigger mechanism.”

Belk testified that the trigger mechanism is

referred to as the “Remington Common Fire

Control” (“the Common Fire Control”).

Belk stated that the Common Fire Control

was first used in the automatic shotgun in 1948,

then in the pump shotgun in 1950, and then in

the automatic rifle in 1951. The Common Fire

Control is currently used in 23 million firearms.

Because the Common Fire Control is used in

55a

different firearms, any “issue” with the trigger

mechanism would not be limited to one specific

type of firearm. According to Belk, the Common

Fire Control is a “defective mechanism.”

As to the rifle in this case, Belk stated that it

had “the normal dirt, dried oil and residue

common to a gun that has not been cleaned.”

After removing the trigger mechanism while he

was on the witness stand, Belk examined the rifle

and stated that “the action spring is sticky.” He

explained that the “action spring . . . supplie[d]

the energy for the bolt to return back forward.”

Because the action spring was “sticky,” the bolt

was “not going forward as freely as it should.”

Belk explained that the action spring’s condition

was consistent with a firearm that had not been

cleaned.

Turning his attention to the trigger

mechanism, Belk testified about how it could

malfunction:

The general description here is this is a

swing hammer mechanism; in other words, it

fires by a hammer going forward and hitting

a firing pin that’s contained in the bolt inside

the housing. The sear is the part that retains

the hammer. The sear is what holds the

hammer back, does not fire. On this particular

mechanism, on all these Remington

mechanisms, that sear is an independent

part, is right here. That is an independent

part, not on the end of the trigger like a

Browning design is.

56a

For that reason, and the fact that the safety

only blocks the trigger, it does not block the

action of the sear or the hammer, it only

blocks the trigger, any debris that is captured

between the sear and the slot that it is housed

in, which is the housing, any debris that is

caught between the bottom or the tail of [*7]

the sear and the stock surface inside the

housing, any debris that gathers there, any

debris that gathers between the trigger yoke

and the rear pivot pin and the trigger pusher

arm and the bottom of the sear, any debris in

any of those places, alone or in concert, can

cause an insecure engagement between the

hammer and the sear itself.

So even with a gun on safe, which it is now,

it can still fire, which it just did. Without

pulling the trigger, on safe.

Responding to questions by the court, Belk

clarified: “I can pull the trigger and make it fire,

just like that (indicating), or I can put it on safe

without the trigger being pulled and fire it just

by manipulation of the sear.”

Belk continued:

The notch in the hammer determines how

much debris it takes to make it fail. The

notch in the hammer is about 18,000 of an

inch deep, about the thickness of a

matchbook cover. . . . [A]nything that

totals that amount of distance can make a

gun fail. . . . .

57a

Any of those other locations, it takes about

18,000ths in order to interfere with the secure

engagement of the hammer and the sear.

Belk clarified that there were five locations in the

trigger mechanism that made the mechanism

“weak” and that could collect the requisite

amount of debris to cause a misfire. Moreover, of

the five “weak spots,” “the clearance between the

sear and the housing itself is usually about

4,000ths, so it would take less debris captured

between those places to retard the proper motion

of the sear and would also cause it to fail. So it

wouldn’t necessarily take as much as 18,000ths.”

Belk also testified that “[t]he Remington

Common Fire Control has a history of firing

under outside influences other than a manual

pull of the trigger. Vibration is one way that can

happen. Impact. Even in one case the simple act

of grabbing the gun by [the forward part of the

stock] caused it to fire.” Belk reiterated that the

Common Fire Control “fires without the control

of the trigger. It can fire out of the control of the

shooter. It can discharge without any hand being

on the stock.” [*8]

Belk stated that, if debris caused the gun to

fire unintentionally, the debris could be

dislodged during the discharge. He added,

On this semi-automatic, each time the gun

is fired, the hammer goes forward, and then

under great pressure and speed, the hammer

is forced back again into position. So there’s a

lot of cycling going on.

58a

There’s also the disconnector here, there’s a

lot of movement in the mechanism itself

during firing and during manipulation after

firing. And that movement, many times,

dislodges the debris that actually was the

causation.

Belk acknowledged that debris also can be

dislodged through a gun being dropped or

“banged around.” He acknowledged that a drop

test “many times[] destroys any evidence that

was there.” He explained that the standardized

tests of dropping a firearm “on a hundred

durometer rubber pad from a certain distance in

certain orientations . . . does nothing whatsoever

to analyze the mechanism and how it can fail. So

the . . . drop test in itself can be destructive [by

dislodging debris] without actually showing

anything.” He added, “[T]his particular

mechanism has what is called a recapture angle.

So, impact, as in dropping it on the floor, will

actually recapture the sear engagement rather

than dislodge it. So the . . . drop test on this

particular gun is pretty much useless.”

Belk opined that the rifle which shot and

killed the victim “is capable of firing without a

pull of the trigger, whether the safety is on or off.”

Belk testified that he was first hired to work

on a case involving the Common Fire Control in

1994, and he agreed that, “if someone had done

some research, they would have potentially been

able to find [him].” He also testified that

problems with Remington firearms could be

59a

reported to the manufacturer, which maintained

“some” records of complaints. According to Belk,

people were complaining prior to his initial

involvement. He testified that he “first identified

the problem with the Remington Common Fire

Control in 1970.” When a “co-shooter” on a skeetrange complained of trigger problems, Belk

disassembled the trigger mechanism and “found

a section of lead shot debris stuck in the sear

notch of the hammer.” He added, “That was the

first identification that [he] had of a bad

mechanism, that it could fire without a trigger

being [*9] pulled.” Since then, he had consulted

with “many, many attorneys.” One case involved

a Remington 7400 that fired while it was being

cleaned with an air hose. The safety on that gun

had been engaged. Another gun fired while being

wiped with a rag. Another gun fired when the

butt-end of the stock was placed on the floor.

On cross-examination, Belk admitted that,

while the trigger assembly was in the Petitioner’s

rifle, the rifle had not misfired during Belk’s

handling of it. He also admitted that he could not

opine about the cleanliness of the gun in March

1994. He stated that he testified in a case

involving a Remington 7400 in 1997 or 1998.

On redirect examination, Belk testified that

he was familiar with a case in which a Remington

shotgun containing the Common Fire Control

fired while it was in a locked case and with the

safety engaged. The gun was strapped to the

handlebars of an ATV that had been left idling.

60a

The vibrations caused the gun to fire. Belk stated

that he had been consulted on “probably two

dozen” cases involving the Common Fire Control

in which the gun discharged and injured

someone.

On re-cross examination, Belk maintained

that he had previously been able to induce a

misfire by “artificially introducing” debris in

“any” of the previously identified “weak spots.”

He clarified that he induced these misfires in

“cutaway” guns.

Sergeant Steve Miller of the Chattanooga

Police Department (“CPD”) testified that, on the

night the victim was killed, he was assigned to

the case as a crime scene investigator. He

testified that the firearm was not located at the

scene of the shooting. When a “[c]all came across

the police radio that a gun had been located down

Airport Road,” Sgt. Miller went to locate the

firearm. He located the rifle on the side of Airport

Road and noted that there was no clip in it. He

photographed the rifle and collected it for

evidence, placing it in the trunk of his patrol car.

Sgt. Miller transported the rifle back to the police

service center on Amnicola Highway.

Sgt. Miller agreed that he was handling the

rifle carefully in order to preserve fingerprints.

He also acknowledged that he testified at trial

that he had a jacket in his left hand and that he

“grabbed” the rifle from the trunk of his patrol

car with his right hand and “pointed it in a

downward motion” towards the pavement. When

61a

Sgt. Miller pointed it in the downward motion,

the rifle discharged, injuring his left foot. Sgt.

Miller testified that he “can’t say with a hundred

percent accuracy” whether his fingers were [*10]

anywhere near the trigger but stated that “[t]hey

shouldn’t have been.”

Sgt. Miller acknowledged his signature on the

bottom of a report prepared by Michael Taylor on

March 7, 1994 (“the Taylor report”). The Taylor

report, admitted into evidence, reflected that

James Gann was the first officer to respond to

Sgt. Miller’s injury, and Sgt. Miller’s recollection

at the post-conviction hearing was consistent:

that Officer James Gann came out of the service

building to see what had happened after Sgt.

Miller

shot

himself.

Sgt.

Miller also

acknowledged that the Taylor report indicated

that he told the “initial officer that he had both

hands on the rifle and did not have his finger

near the trigger.” Sgt. Miller testified that he

suffered “a massive foot injury” that was

“extremely painful.” Sgt. Miller agreed that the

wound also was stressful.

On cross-examination, Sgt. Miller agreed that

he was called by the State as a witness at the

Petitioner’s trial. He agreed that defense counsel

questioned him at the trial and asked questions

about where his fingers were with respect to the

trigger when he shot himself. He also

remembered that defense counsel’s crossexamination was “tough.”

62a

On redirect examination, Sgt. Miller testified

that defense counsel did not interview him prior

to the trial.

Glenn Sims, retired from the CPD,

acknowledged that he prepared a police report in

connection with Sgt. Miller’s incident, but he did

not recall speaking with Sgt. Miller. He

acknowledged that, according to his report, Sgt.

Miller “was taking the firearm . . . that he had

collected into evidence, out of the truck of the

vehicle [and] it discharged[.]” The report further

reflected that “the rifle swung down, [Sgt. Miller]

wasn’t sure if it hit his foot or the ground, but it

went off, hitting Miller in the left inside foot.”

Sims agreed that the report reflected that the

rifle “just went off.”

James A. Gann testified that he was employed

by the CPD in 1994 and that he was one of the

officers who investigated Sgt. Miller’s incident.

He stated that he was in the office when he heard

“a loud recoil of a gun.” Gann went outside to

investigate and saw that Sgt. Miller was shot in

the foot. Gann radioed for an ambulance and

alerted the appropriate people who “had to be

advised on a shooting.” Gann stated that Sgt.

Miller was “in a lot of pain, bleeding, and starting

to go into shock.” Gann could not recall whether

he spoke to Sgt. Miller about what had happened,

explaining that he “was more concerned with his

foot, he was [*11] bleeding.” Referring to a police

report that Sgt. Glenn Sims had prepared, Gann

acknowledged that Sgt. Miller had told Gann

63a

that, while Sgt. Miller was taking the rifle out of

the trunk, the gun “just went off.” Gann also

testified that he was not contacted by anyone

from the public defender’s office before the

Petitioner’s trial.

Officer Michael Holbrook of the CPD testified

that he was dispatched to Erlanger Hospital to

respond to an accident involving Sgt. Miller.

Officer Holbrook spoke to Sgt. Miller at the

hospital and prepared a report regarding their

conversation. Officer Holbrook testified that Sgt.

Miller told him that “as he was taking the rifle

out of the trunk of his patrol car, the rifle went

off and shot him in the foot.” Sgt. Miller also told

Officer Holbrook that his hands were not on the

rifle’s trigger. Officer Holbrook’s report was

consistent with his testimony and contained the

following narrative: “As he was lifting out the

rifle, the weapon went off and struck him in the

left foot. [Sgt.] Miller states that he picked it up

with both hands and his finger was not near the

trigger.” Officer Holbrook’s report, dated March

7, 1994, was admitted as an exhibit.

The Petitioner’s trial lawyer (“Trial Counsel”)

testified that he worked for the public defender’s

office in 1994 and represented the Petitioner at

trial. He stated that two investigators assisted

him in investigating the case. Trial Counsel

agreed that the Petitioner’s appointed counsel in

general sessions waived the preliminary hearing

in exchange for “an open file policy.”

64a

Trial Counsel testified that, from the

beginning, the Petitioner maintained that the

rifle accidentally discharged. He also testified

that Sgt. Miller had made statements indicating

that “he was not holding the gun anywhere near

the trigger housing and it discharged, shooting

him in the foot.” Trial Counsel stated that he

never looked for an expert witness to support the

Petitioner’s accidental discharge claim. He

testified that the public defender’s office

informally consulted with a gunsmith who was a

former Red Bank police officer, but he did not

remember whether he spoke to him about this

case. Trial Counsel also agreed that he performed

no research regarding the trigger mechanism in

the Remington 7400 rifle. He added, “[a]s a

matter of fact, when I heard on NPR, a year or so

ago, that the Remington trigger mechanism was

faulty and [there had] been several apparent

accidental deaths as a result of it, you’re the first

person I contacted, because I thought, I

remembered it was a Remington and I thought it

was something very important.” Trial Counsel

generally recalled that the State’s expert, Kelly

Fite, performed a “drop test” on the rifle. He

agreed that Fite’s report did not indicate that

Fite inspected the trigger mechanism.

[*12] Asked whether it would have been

beneficial for an expert to testify on the

Petitioner’s behalf about the trigger mechanism,

Trial Counsel answered, “In hindsight, especially

with the knowledge now that there have been so

65a

many problems with the Remington trigger

mechanism, yeah.” Asked about his knowledge of

any discussions in the industry regarding the

trigger mechanism misfiring, Trial Counsel

responded:

I wasn’t aware of any. And I will point out,

at the time, I was the only public defender in

Division II, and in that period of time in little

over four years, I probably tried, literally, 40

first degree murder cases, settled another 40

to 50, and I will concede I didn’t put nearly as

much time in on his case or any other cases

that I tried as I do now in my private practice,

because I’ve got a lot more time. My average

caseload every Thursday for settlement day

was between 20 and 30 defendants. My

average month included at least 2 if not 3

trials. So I wasn’t aware of the issue with the

trigger pull.

Trial counsel also added that, although he

had “a fundamental knowledge of firearms, [he]

was not aware of it and . . . [he] didn’t know it

and [he] didn’t get an expert.” He also explained,

I thought [Sgt.] Miller would testify

consistently with what I knew to be his

statements, and I thought that would come in

and I thought that when that did come in, I

could use that very effectively to say, okay, if

[the Petitioner] can’t accidentally have that

gun [go] off, neither can [Sgt.] Miller, so,

therefore, you got to presume that [Sgt.]

Miller shot himself in the foot on purpose.

66a

That was my whole line of reasoning in this

case.

Trial Counsel testified that he “was not

prepared for [Sgt.] Miller to say he couldn’t

remember, because there was not any doubt in

[Trial Counsel’s] mind, at least, when [they]

started trying this case, that he was going to stick

to his prior statements.” Accordingly, Trial

Counsel had no “backup plan” to call other

officers to testify about what Sgt. Miller had told

them after he shot himself. Trial counsel felt

“sandbagged” by Sgt. Miller’s trial [*13]

testimony. He recalled the trial court refusing to

allow him to introduce one of the reports

generated about Sgt. Miller’s injury in which Sgt.

Miller reported that his hands had not been near

the rifle’s trigger when it misfired. He did not

request to make an offer of proof. He also did not

attempt to introduce Sgt. Miller’s statements as

excited utterances, explaining, “[i]n the heat of

the trial, I didn’t see that.”

Trial Counsel agreed that both Lennell

Shepheard and Sgt. Miller’s testimony at trial

differed from their statements that the State

provided the defense during discovery. Trial

Counsel stated that the first time he heard

Shepheard claim the Petitioner stated “I told you

so” was during Shepheard’s testimony. Trial

Counsel agreed that he was never provided

notice by the State prior to these two witnesses

testifying that the substance of their pretrial

statements had changed materially. Trial

67a

counsel also stated that, although he was not the

Petitioner’s counsel at the preliminary hearing

stage, he would expect “in exchange for the

waiver of a preliminary hearing, especially in a

first degree murder case, that there would be

some extra benefit to come to the defendant

through the discovery process.” He added, “if

[Sgt.] Miller was going to change his story, we

should have been made aware of that, if Mr.

Shepheard was going to add to his story, we

should have been made aware of that.”

On cross-examination, Trial Counsel stated

that he began practicing law in Tennessee in

April 1978 and had been in continuous practice

since that time. At the time of the Petitioner’s

trial, Trial Counsel had been practicing law for

sixteen years, primarily in criminal defense.

Trial Counsel also stated that he was employed

at the public defender’s office at the time of the

Petitioner’s trial and had worked in that capacity

for approximately five years. Trial Counsel had

tried at least sixty to seventy cases by 1994,

including murder cases, less-serious cases, and

death penalty cases. He stated that he tried in

excess of forty murder cases prior to this case.

Trial Counsel testified that he was assigned this

case at arraignment.

Before meeting with the Petitioner, Trial

Counsel stated that the Petitioner completed an

“intake sheet” wherein he wrote out his “side of

the story.” Trial Counsel testified that the

Petitioner was on bond when he was assigned to

68a

the Petitioner’s case and that he [*14] remained

on bond throughout his representation of him.

The offense occurred in March 1994, and the

Petitioner’s trial was in November 1994. Trial

Counsel agreed that this was a “little quick.”

Trial Counsel could not recall whether the

Petitioner had desired that the case proceed to

trial quickly.

Trial Counsel acknowledged that he and the

Petitioner discussed the strategy in the case. He

stated, again, that the Petitioner maintained

from the beginning that the rifle accidentally

discharged and that there was “no real

animosity” between him and the victim. Trial

Counsel also stated that, in his preparation for

the trial, he reviewed documents provided to the

defense by the State. Trial Counsel testified that

he typically would meet at the district attorney’s

office to review documents the State provided

him in a case. He could not recall particularly

whether he had a meeting in the district

attorney’s office in this case but stated that was

his “standard operating procedure.” He added,

“I’m sure we met on it several times, not just one

time.” Trial Counsel stated that he was

“confident” that the standard discovery motions

were filed in this case although he could not

specifically recall filing them. He stated that he

filed the “standard motions” with every

appointment he received. Pursuant to those

discovery motions, Trial Counsel stated that he

received documents from the State in this case

69a

and that he reviewed them to prepare for the

trial. He also stated that the documents included

the names of witnesses, and he agreed that the

documents also included witness statements “in

theory.”

Trial Counsel recalled discussing the

Petitioner’s testimony with him prior to trial. He

was “pretty confident” that he and the Petitioner

“went through sit-downs where [Trial Counsel]

cross-examined” the Petitioner. He added that,

for every trial in which the defendant was going

to testify, he would “sit down and grill them” so

that they could anticipate what crossexamination would be like.

Trial Counsel did not recall specifically

“familiarizing [him]self with the schematic of the

[rifle]” prior to the trial, but stated that he was

“relatively familiar with guns.” Although Trial

Counsel could not recall specifically looking at

the rifle before the trial, he stated, “I’m sure I did.

. . . I’m sure I looked at it in your office too.” Trial

Counsel also could not recall specifically his

cross-[*15]examination of Sgt. Miller. However,

he stated, “I try to be vigorous [in crossexamination] especially when I think somebody’s

not telling the truth, and I thought that he wasn’t

telling the truth.” He also recalled calling Sgt.

Miller to testify during the defense’s proof. He

acknowledged that he recalled Sgt. Miller with

the purpose of trying to impeach him with prior

inconsistent statements.

70a

Richard Mabee testified that, as of the time of

the post-conviction hearing, he had been an

assistant public defender for approximately

nineteen years. He represented the Petitioner at

the Petitioner’s preliminary hearing. Mabee

testified regarding the “one-time sheet” for the

Petitioner’s case, which was admitted as an

exhibit at the hearing. According to Mabee, a

one-time sheet lists basic information about the

defendant, identifies the judge and the charges,

and the disposition of the case at the general

sessions level. According to Mabee, the

disposition on the Petitioner’s one-time sheet

provided, “waived to grand jury, $50,000 bond.

DA agreed to show everything.” Mabee testified

that this latter notation indicated that he had

talked to the district attorney assigned to the

case, and the district attorney had said, “[I]f

you’ll waive preliminary hearing, we’ll show you

everything in our file.” Mabee stated that he then

would have presented this information to the

Petitioner and that it would have been up to the

Petitioner to decide whether to waive the

preliminary hearing.

On cross-examination, Mabee agreed that the

notations on the Petitioner’s one-time sheet

appeared to be his handwriting. Mabee explained

that, when public defenders get appointed in

general sessions, they “open up a one-time sheet”

which means that the public defender

represented that defendant one time at the

preliminary hearing. Mabee also clarified that

71a

the judge previously would have signed the order

of appointment at the bottom of the one-time

sheet prior to the public defender’s notations

regarding the disposition of the case.

On re-direct examination, Mabee stated that

he made the notation, “[W]e’ll show you

everything in our file,” because “that’s exactly the

words the [district attorney] said to [him].”

Mabee added that, after his representation of

someone, he would take the one-time sheet back

to the public defender’s office where it was placed

in a “big drawer of one-time sheets.” He stated,

“[A]fter someone [was] [*16] appointed in a

higher court, they may or may not get that onetime sheet.”

The Petitioner testified that the first time

Trial Counsel met with him was at the county

jail. During this initial meeting, the Petitioner

completed an “intake sheet” and told Trial

Counsel that the rifle had “accidentally

discharged.” Trial Counsel informed the

Petitioner that Sgt. Miller had shot himself with

the Petitioner’s rifle and told the Petitioner that

Sgt. Miller’s incident supported the Petitioner’s

account of what had occurred.

The Petitioner recalled only two meetings

with Trial Counsel after he was released on bond:

one meeting occurred on or around June 1, 1994,

and the second meeting occurred two or three

months before trial. The Petitioner agreed that

they discussed “trial strategy” during these

meetings and their defense that the rifle

72a

accidentally discharged. During one of their

meetings, Trial Counsel asked the Petitioner

what had happened on the day of the incident,

and the Petitioner informed him what he did that

day. The Petitioner denied that Trial Counsel

ever told him “that any evidence in this case

would be damning to [him],” including the fact

that he threw the rifle out of his car window. He

also did not recall that Trial Counsel “went

through a cross-examination of [him].”

The Petitioner stated that he got the rifle at

least ten years before the killing and that he had

shot it numerous times. The Petitioner testified

that, although he wiped down the outside of the

rifle, he never did “any maintenance in regards

to the inside” of it because he did not know he

was supposed to. He agreed that he testified at

trial that he had never had a problem with the

rifle accidentally discharging during the time he

owned it.

The State asked the Petitioner whether it was

Trial Counsel’s “idea to use accidental discharge

as the theory of the case[.]” The Petitioner

responded, “I mean he’s the lawyer, I mean he

makes the ultimate decision, so I guess I have to

say so, yes, based upon . . . his investigation and

everything, yeah, I’d say it was.” [*17]

Kendrick2 v. State, No. E2011-02367-CCA-R3-PC,

2013 Tenn. Crim. App. LEXIS 539, at *7 – 31 (Tenn.

2 In his habeas petition, Petitioner lists his name as Edward

Thomas Kendricks, III, but in many pleadings lists his last name

73a

Crim. App. 2013). Due to the extraordinary length of

the record in this case, many of the facts relevant to

Petitioner’s claims are not discussed here and will

instead be addressed in the analysis below.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), codified in 28 U.S.C. §2254,

a district court may not grant habeas corpus relief for

a claim that a state court adjudicated on the merits

unless the state court’s adjudication of the claim:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly

established

Federal

law,

as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the state

court proceeding.

28 U.S.C. § 2254(d)(1) and (2). This standard is

intentionally difficult to meet. Woods v. Donald, 135

S. Ct. 1372, 1376 (2015) (quotation marks omitted).

Under the unreasonable application clause, the

proper inquiry is whether the state court’s decision

was “objectively unreasonable,” and not simply

erroneous or incorrect. Williams v. Taylor, 529 U.S.

362, 409 – 11 (2000). The AEDPA likewise requires

heightened respect for state factual findings. Herbert

v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Where

as Kendrick. The state courts vary in which name is they adopt,

this Court will use Kendricks.

74a

the record supports the state court’s findings of fact,

those findings are entitled to a presumption of

correctness which may be rebutted only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). [*18]

IV. ANALYSIS

A. Exhaustion and Procedural Default

In his §2254 petition, Petitioner raises forty-eight

claims for relief that he classifies in five broad

categories: (1) ineffective assistance of counsel, (2)

ineffective assistance of new trial and appellate

counsel, (3) prosecution suppression of evidence, (4)

new evidence, and (5) a singular claim that the

AEDPA is an unconstitutional extension of

Congressional power. Respondent argues that many

of the claims set forth in Petitioner’s federal habeas

corpus petition have been procedurally defaulted and

may not now be addressed on the merits. Petitioner

first suggests that his claims have not been

procedurally defaulted, and second offers multiple

alternative grounds for which to excuse any

procedural default. This Court finds that Petitioner’s

claims raised only in his pro se briefs were abandoned

on appeal and have been procedurally barred. As

there is no valid cause for the court to address these

claims, the Court will only address the eighteen

claims, spanning eleven issues, Petitioner now raises

which were properly included in the appellate briefs

filed by counsel.

Before a federal court may grant habeas relief to

a state prisoner, the prisoner must first exhaust the

remedies available in state courts. 28 U.S.C. §

2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842

75a

(1999). Exhaustion requires a petitioner to “fairly

present” federal claims to state courts to ensure

states have a “full and fair opportunity to rule on the

petitioner’s claims.” Manning v. Alexander, 912 F.2d

878, 881 (6th Cir. 1990); see O’Sullivan, 526 U.S. at

842. Generally, to fulfill the exhaustion requirement,

each claim must have been presented to all levels of

the state appellate system, including the state’s

highest court. Duncan v. Henry, 513 U.S. 364, 365-66

(1995); Wagner v. Smith, 581 F.3d 410, 414 (6th Cir.

2009). The Tennessee Supreme Court has

established, however, that when the Tennessee Court

of Criminal Appeals has denied [*19] relief on a

claim, it is exhausted regardless of appeal to the

Tennessee Supreme Court. Tenn. S. Ct. Rule 39

(Supp. 2001). Nevertheless, if there are no further

state court remedies available to the petitioner, lack

of exhaustion will not foreclose merits review. Rust v.

Zent, 17 F.3d 155, 160 (6th Cir. 1994).

When a claim was never presented to the highest

available state court and is now barred from such

presentation by a state procedural rule, the claim

may be considered “exhausted, but procedurally

barred from habeas review.” Wallace v. Sexton, 570

Fed. Appx. 443, 449 (6th Cir. 2014). Procedural

default may also occur when a state court is

prevented from “reaching the merits of the

petitioner’s claim” because petitioner failed to comply

with an applicable state procedural rule, which is

regularly enforced and is an “adequate and

independent” state ground, and Petitioner “cannot

show cause and prejudice to excuse his failure to

76a

comply.” Id. at 449 (citing Maupin v. Smith, 785 F.2d

135, 138 (6th Cir. 1986)); Seymour v. Walker, 224

F.3d 542, 549-550 (6th Cir. 2000) (citing Wainwright

v. Sykes, 433 U.S. 72, 80, 84 87 (1977)). In

determining whether a state procedural rule was

applied to bar a claim, a reviewing court looks to the

last reasoned state-court decision disposing of the

claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803;

Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).

On Petitioner’s direct appeal, he raised twelve

issues, three pertaining to the sufficiency of the

evidence, eight questions of trial court error, and one

question of prosecution suppression regarding the

testimony of Martha Maston as a surprise witness

[Doc. 14 Attachment 9]. Later, on his first appeal of

the dismissal of his state petition for post-conviction

relief, Petitioner raised six issues of trial court error,

all relating to the summary dismissal of his postconviction petition [Doc. 14 Attachment 17]. On his

second appeal, in an opening brief appealing the

denial of post-conviction relief, Petitioner’s counsel

raised two issues – (1) that the post-conviction trial

court [*20] had used the wrong standard in

evaluating Petitioner’s claims, and (2) that the

cumulative effect of trial counsel’s deficient

performance was sufficiently prejudicial to warrant

relief [Doc. 14 Attachment 45].3 After what appears

to be a significant amount of tension between counsel

3 This claim encompassed both a legal and factual analysis of

several of the claims of ineffective assistance of trial counsel and

appellate counsel Petitioner litigated in the post-conviction trial

court below and raises now in his federal habeas corpus petition.

77a

and Petitioner regarding counsel’s filing of the brief

prior to Petitioner’s approval and Petitioner’s concern

that counsel had waived many of his issues by

omission, counsel attempted to withdraw from

representation and asked the TCCA to issue a new

briefing schedule, both of which were denied [Doc. 1

Attachments 1, 4]. At this time, counsel attempted to

incorporate Petitioner’s previously raised claims by

reference in the reply brief [Doc. 14 Attachment 47].

In its opinion, the TCCA briefly outlined Petitioner’s

issues but did not expressly state which it would be

considering; instead, it granted Petitioner relief on

two sub-issues included within the claim of

ineffective assistance of trial counsel – counsel’s

failure to adduce proof regarding a defective trigger

mechanism design related to the propensity of

Petitioner’s rifle for accidental discharge, and

counsel’s failure to introduce the testimony of Officer

Steve Miller’s pretrial statements as excited

utterances – and noted that it was pretermitting

others [Doc.14 Attachment 48].

The State appealed to the TSC, claiming error by

the TCCA regarding both of the findings that

Petitioner was entitled to post-conviction relief [Doc.

14 Attachment 52]. In a pro-se response, Petitioner

attempted to include most, if not all, of the claims he

had previously litigated in the post-conviction trial

court, including those not addressed or outlined by

the TCCA [Doc. 14 Attachments 56, 57]. Counsel filed

a supplemental brief responding only to the two

issues set out by the State in their opening brief [Doc.

14 Attachment 58]. The TSC addressed only the two

78a

issues identified by the State and reversed on both

grounds, remanding the case to the TCCA to [*21]

address Petitioner’s remaining claims [Doc. 14

Attachment 60]. Petitioner filed a motion for

supplemental briefing before his pretermitted claims

were considered, which the TCCA denied [Doc. 14

Attachments 65, 70]. In its opinion on remand, the

TCCA clarified the pretermitted issues as: (1)

ineffective assistance of trial counsel for waiving

Petitioner’s attorney-client privilege with his divorce

attorney, (2) ineffective assistance of trial counsel for

failing to call the Petitioner’s cousin as a witness, (3)

ineffective assistance of trial counsel for “opening the

door” to Petitioner’s prior convictions, (4) ineffective

assistance of trial counsel for failing to adequately

challenge Lennell Shepheard’s testimony, (5)

ineffective assistance of trial counsel for failing to call

Officer Lapointe to testify to Petitioner’s state of

mind after the crime, (6) ineffective assistance of trial

and appellate counsel for failure to object to Detective

Rawlston’s use of Petitioner’s volunteered testimony

after arrest, (7) ineffective assistance of trial counsel

for failure to seek curative measures for the surprise

testimony of Martha Maston, and (8) whether the

cumulative impact of counsels’ errors entitle him to

relief. The TCCA stated that all other claims had

been abandoned on appeal [Doc. 14 Attachment 72 at

5].4

4 “While it is true that the Petitioner raised an additional forty-

one issues of ineffective assistance of trial counsel, twenty-two

claims of ineffective assistance of appellate counsel on direct

appeal, and twelve claims of prosecutorial misconduct, many of

79a

Due to Tennessee’s one-year statute of limitations

and one petition rule, state remedies are foreclosed to

Petitioner and lack of exhaustion will not prevent

federal habeas review of his claims. Rust, 17 F.3d at

160; see Tenn. Code Ann. § 40-30-102. However, while

Petitioner posits that all of his current claims have

been fairly presented to either the TCCA or the TSC,

presumably relying first on the incorporation by

reference in his reply brief presented to the TCCA on

his second-appeal of the dismissal of his postconviction relief, and second on his “unchallenged”

pro se [*22] response brief to the TSC [Doc. 2 at 8], a

majority of the claims he now raises were

procedurally defaulted and will not be reviewed on

their merits.5 The state courts were prevented from

reaching the merits of Petitioner’s claims because

they found that his claims were abandoned on appeal

[Doc. 14 Attachment 72 at 5]. Petitioner appears to

argue that this finding is the result of the

misapplication or arbitrary application of procedural

law [Doc. 2 at 11]. However, although the state court

these claims have been abandoned on appeal. Accordingly, we

will focus only on those issues raised by the Petitioner in his

appellate brief. See Tenn. R. App. P. 13(b) (‘Review generally will

extend only to those issues presented for review.’)” Kendrick,

2015 Tenn. Crim. App. LEXIS 887, at *10 – 11.

5 In the event that Petitioner also intends to allege that the

presentation of his claims in his Application for Permission to

Appeal or Motion to Rehear satisfy exhaustion requirements, we

note that raising a claim “for the first and only time in a

procedural context in which its merits will not be considered

unless there are special and important reasons therefor, [does

not] constitute fair presentation.” Olson, 604 Fed. Appx. 387, 402

(6th Cir. 2015) (quoting Castille v. Peoples, 489 U.S. 346, 351

(1989)).

80a

offered no explanation for its finding of

abandonment, this Court finds that it had adequate

and independent, regularly enforced, state grounds

to find that Petitioner’s claims had not been fairly

presented. See Wallace, 570 Fed. Appx. at 449 (6th

Cir. 2014) (citing Maupin, 785 F.2d at 138 (6th Cir.

1986)).

Specifically, Petitioner’s claims were not fairly

presented to an appropriate state court because a

Tennessee procedural rule barred consideration of

his pro se briefs.6 “In Tennessee, a petitioner

represented by either retained or appointed counsel

may not file pro se briefs.” Wallace, 570 Fed. Appx. at

451 (citing State v. Burkhart, 451 S.W.2d 365, 371

(Tenn. 1976)); Williams v. State, 44 S.W.3d 464, 469

(Tenn. 2001) (barring defendants from “representing

themselves while simultaneously being represented

by counsel”)). This rule is an adequate and

independent state ground, regularly enforced,

sufficient to foreclose state review of Petitioner’s

claims and procedurally default said claims before a

federal court. See Wallace, 570 Fed. Appx. at 451.

Further, in Wallace, the petitioner argued that his

claims were fairly presented because counsel [*23]

attached his claims as an appendix to his own brief,

6 As in Wallace, “the state post-conviction appellate court did not

explicitly state that it declined to consider [Petitioner]’s

supplemental pro se brief. However, it responded in detail to

claims raised by [] counsel, […] without even mentioning

[Petitioner’s] supplemental brief or any of the claims raised

therein. We can infer only that the court applied the Tennessee

procedural rule barring consideration of pro se filings made by

represented petitioners.” 570 Fed. Appx. 443, 452 (6th Cir. 2014).

81a

yet the Court still found that Tennessee was within

its discretion to decline to address such claims. Id. at

452.

Here, counsel did not attach Petitioner’s claims

but rather tried to incorporate them by reference in

her reply brief. Not only would the state court have

been prevented from addressing the pro se brief in

conjunction with counsel’s brief, but this also

improperly expanded counsel’s reply brief. In

Tennessee, “[a] reply brief is limited in scope to a

rebuttal of the argument advanced in the appellee’s

brief.” Caruthers v. State, 814 S.W.2d 64, 69 (Tenn.

Crim. App. 1991). Counsel could not add new

arguments in her reply brief, by reference or

otherwise, because to do so “would be fundamentally

unfair as the appellee may not respond to a reply

brief.” Caruthers, 814 S.W.2d at 69; see also Flinn v.

Sexton, 2018 U.S. Dist. Lexis 36927 (E.D. Tn. 2018).

Petitioner has not demonstrated, and this Court

cannot find, that the state courts arbitrarily enforced

these rules to find that Petitioner did not fairly

present his claims.

Like the reply brief discussed above, Petitioner’s

response brief on appeal to the TSC involved issues

of Petitioner’s brief being filed alongside a brief filed

by counsel, although admittedly Petitioner’s brief

was filed first and counsel’s as a supplement. Again,

the TSC did not address Petitioner’s additional

claims, but did consider the arguments made in

counsel’s brief, leading us to infer that Tennessee was

enforcing its own procedural rule regarding pro se

82a

filings from represented petitioners. Kendrick v.

State, 454 S.W.3d 450, 475 – 76 (Tenn. 2015).

Moreover, even if Tennessee courts had looked to

Petitioner’s brief, Petitioner did not properly raise

each of his previously litigated claims in his response.

Petitioner correctly points to case law that asserts

that appellees may include issues in response briefs

not included by the appellant, as long as such is done

in conjunction with the Tennessee Rules of Appellate

Procedure. See Mobley v. State, 397 S.W.3d 70, 103 –

104 (Tenn. 2013); Hodge v. Craig, 382 S.W.3d 325,

[*24] 334 (Tenn. 2012). However, in Hodge, which

Petitioner points to, the TSC clarified that TN. R.

App. P. 27(b) limits such new issues to those in which

the appellee is “seeking relief from the judgment” of

the Court of Appeals. Hodge, 382 S.W.3d at 336

(Tenn. 2012). Petitioner cannot be claiming to seek

relief from the judgment of the TCCA on his

additional claims when no such judgment was made.

See Id. Again, Petitioner has not demonstrated, and

this Court cannot find, that the state court arbitrarily

enforced these rules to find that Petitioner did not

fairly present these claims.

Because Petitioner did not comply with various

regularly-enforced state procedural rules, which are

adequate and independent grounds, the claims he

presented only in his pro se briefs are procedurally

defaulted and may not now be addressed on the

merits absent Petitioner’s demonstration of cause

and prejudice sufficient to excuse such default.

B. Cause and Prejudice

83a

Petitioner next contends that any procedural

default is excused for cause; specifically, he alleges as

cause: (1) the ineffective assistance of post-conviction

counsel; (2) state court action or inaction, including

the arbitrary application of procedural law; (3) the

respondent’s continued failure to disclose exculpatory

information; and (4) that equitable principles, as well

as the due process clause of the 14th Amendment

and/or 6th Amendment demand that this Court can

and should hear critical constitutional claims [Doc. 2

at 3 – 11]. None of these are sufficient cause to excuse

Petitioner’s procedural default, and his defaulted

claims will not be reviewed on their merits.

The Courts have carved out a narrow set of

circumstances in which procedural default may be

excused and defaulted claims may be evaluated on

their merits. Procedurally barred claims may be

considered on their “merits only if the petitioner

establishes (1) cause for his failure to [*25] comply

with the state procedural rule and actual prejudice

from the alleged violation of federal law or (2)

demonstrates that his is ‘an extraordinary case,

where a constitutional violation has probably

resulted in the conviction of one who is actually

innocent.’” Wallace, 570 Fed. Appx. at 452 (quoting

Murray v. Carrier, 477 U.S. 478, 496 (1986)”; see

House v. Bell, 547 U.S. 518, 536 (2006). To show

sufficient “cause,” Petitioner must point to “some

objective factor external to the defense” that

prevented him from raising the issue in his first

appeal. Murray, 477 U.S. at 488. Where petitioner

fails to show cause, the court need not consider

84a

whether he has established prejudice. See Engle v.

Isaac, 456 U.S. 107, 134 n.43 (1982); Leroy v.

Marshall, 757 F.2d 94, 100 (6th Cir. 1985).

In order to warrant review under the “actual

innocence” prong, which is reserved for fundamental

miscarriages of justice, a habeas petitioner must

demonstrate that a constitutional error resulted in

the conviction of one who is “actually innocent.”

Dretke v. Haley, 541 U.S. 386, 388 (2004). A habeas

petitioner asserting a claim of actual innocence must

establish that in light of new, reliable evidence –

either eyewitness accounts, physical evidence, or

exculpatory scientific evidence – that it is more likely

than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt. House,

547 U.S. 518, 536 (2006) (citing Schlup v. Delo , 513

U.S. 298, 327 (1995)).

1. Ineffective Assistance of Counsel as Cause

Petitioner alleges the ineffectiveness of postconviction counsel as a ground on which to excuse the

procedural default of his ineffective assistance of trial

counsel and ineffective assistance of counsel on

motion for new trial and appellate counsel claims.

Ordinarily, there is “no constitutional right to an

attorney in state post-conviction proceedings,” so

ineffective assistance in post-conviction proceedings

does not qualify as “cause” [*26] to excuse procedural

default of constitutional claims. Coleman v.

Thompson, 501 U.S. 722, 725, 755 (1991). However,

the Supreme Court has carved out an exception to

this rule for claims of ineffective assistance of counsel

when those claims may be raised for the first time in

85a

post-conviction proceedings or “where a state

procedural framework… makes it highly unlikely…

that a defendant [had] a meaningful opportunity to

raise a claim of ineffective assistance of trial counsel

on direct appeal.” Trevino v. Thaler, 133 S. Ct. 1911,

1921 (2013) (citing Martinez v. Ryan, 132 S. Ct. 1309,

1320 (2012)). This exception applies in Tennessee.

See Sutton v. Carpenter, 745 F.3d 787, 795 – 96 (6th

Cir. 2014).

However, claims of ineffectiveness of postconviction appellate counsel cannot constitute cause

to excuse procedural default because it is not an

initial-review collateral proceeding. Martinez, 132 S.

Ct. at 1320.

Although Martinez and Trevino expanded the

class of cases in which a petitioner can establish

cause to excuse the procedural default of

ineffective-assistance claims, the Supreme Court

cautioned that the rule ‘does not extend to

attorney errors in any proceeding beyond the

first occasion the State allows a prisoner to raise

a claim of ineffective assistance at trial.’

Wallace, 570 Fed. Appx. at 453 (quoting Martinez,

132 S. Ct. at 1320). The Sixth Circuit has only applied

the Martinez exception to claims of ineffective

assistance of counsel, and declined to apply it to

suppressed evidence, prosecutorial misconduct, trial

error, ineffective assistance of appellate counsel, and

86a

cumulative error. See Abdur-Rahman v. Carpenter,

805 F.3d 710, 714, 716 (6th Cir. 2015).7

Petitioner’s procedural default relates to his

abandonment on appeal of the claims he now raises,

which were previously raised at the post-conviction

trial court level. The ineffective [*27] assistance of

counsel at the post-conviction trial level cannot

logically constitute cause for this procedural default.

The Martinez exception applies to ineffective

assistance of counsel claims which were not able to

be pursued on direct appeal, and due to the

ineffective assistance of counsel, were not properly

raised at the initial-review collateral proceeding.

Martinez, 132 S.Ct. at 1309; see also Wallace, 570

Fed. Appx. at 453. Here, Petitioner’s claims were in

fact raised at the initial-review post-conviction

proceeding and the ineffective assistance of postconviction counsel on appeal cannot excuse default.

Petitioner expressly notes in his reply that he did not

raise “the application of Martinez to post-conviction

appellate counsel” [Doc. 30 at22 ¶ 3].8 Regardless of

Petitioner’s intent, Wallace makes it clear that the

Martinez exception does not apply to post-conviction

7 The Supreme Court likewise reiterated in Davila v. Davis, 137

S.Ct. 2058, 2062 (2017) that the Martinez exception does not

extend beyond claims of ineffective assistance of trial counsel,

and specifically declined to apply it to ineffective assistance of

appellate counsel.

8 Petitioner does argue other claims regarding the performance

and decision-making of his post-conviction appellate counsel, but

rather than framing them as ineffective assistance of counsel

claims raises that her actions were such that equity demands

this Court to address Petitioner’s procedurally defaulted claims.

87a

appellate counsel. Wallace, 570 Fed. Appx. at 453.

Petitioner has not established cause for which to

excuse his procedural default under this theory.

2. State Court Inaction or Arbitrary

Application of Law

Petitioner asserts inaction of the state courts as

cause to excuse procedural default, stating “the

Supreme Court has long found state action and/or

inaction of the state courts as being cause to excuse

[procedural default]” [Doc. 2 at 7]. Petitioner does not

elaborate on this except to cite to a myriad of cases,

many of which are not jurisdictionally appropriate,

and most of which relate to the prosecution’s

suppression of exculpatory evidence [Doc. 2 at 7 – 8].

Petitioner does not alert the Court to any facts

demonstrating how in this instance the state court

would be responsible for any such withholding.

Petitioner later alleges the following of the state

court’s behavior:

The Tennessee Courts further, through

essentially a sham post-conviction process, failed

to apply, simply fabricated, arbitrarily applied

and/or simply ignored facts, interpretations and

application of state and federal evidentiary,

procedural and governing law, i.e. law of the case

doctrine, conflict of interest relative postconviction

appellate

attorneys,

pro

se

representation and/or waiver and previous [*28]

determination, proper standards of review,

concessions and objections on proof, cumulative

error review, and/or de novo review etc., as well

as that relative other positions set forth therein,

88a

in order to deny claims and/or otherwise

procedurally entrap the Petitioner.

[Doc. 2 at 11]. This is a lengthy and weighty set of

accusations against the state courts, yet Petitioner

offers essentially no facts under which to evaluate

these claims. The only actions, or inactions,

Petitioner seemingly points to on behalf of the state

courts are the court’s denial of post-conviction

appellate counsel’s Motion to Withdraw as Counsel

and denials of additional briefing.

As stated above, after significant disagreement

between post-conviction appellate counsel and

Petitioner on how to proceed, counsel attempted to

withdraw from her representation of Petitioner,

which the State did not oppose [Doc. 1 Attachments

1, 3, and 5]. Although criminal defendants do have a

right to self-representation under 28 U.S.C. § 1654,

courts have broad authority over who practices before

them and are not required to permit hybrid

representation, representation both pro se and by

counsel. United States v. Mosely, 810 F.2d 93, 98 (6th

Cir. 1987). “When counsel has ‘performed in a highly

competent and professional manner’ and the

defendant has been ‘given ample time to consult with

his counsel over strategy,’ it is not an abuse of a

court’s discretion to prohibit hybrid representation.”

Miller v. United States, 561 Fed. Appx. 485, 488 – 89

(6th Cir. 2014) (quoting Mosely, 810 F.2d at 98). In its

order denying the motion to withdraw, the TCCA

found that counsel had substantially invested in her

appellate brief and in preparing for oral argument

[Doc. 1 Attachment 4]. Because counsel had already

89a

filed briefs and prepared for this case and would in

the future be responsible for oral argument, the court

was not required to allow Petitioner “hybrid

representation” and Petitioner cannot demonstrate

cause for his procedural default. See Id. Moreover,

even if the TCCA’s action could constitute cause, it

would be exceedingly difficult for Petitioner to prove

prejudice for the TCCA’s prohibition of [*29]

counsel’s withdrawal, when counsel was in fact

successful in having Petitioner’s sentence vacated by

the same court. Kendrick, 2013 Tenn. Crim. App.

Lexis 539.

Regarding Petitioner’s allegations that the

TCCA’s denial of additional briefing or a new briefing

schedule constituted cause for his procedural default,

again, the court holds broad discretion over whether

to allow additional briefing. It is apparent that

Petitioner was seeking to include his procedurally

defaulted claims in his new brief and in some sense,

the denial of additional briefing kept him from doing

so. However, to demonstrate cause in this regard by

clear and convincing evidence, Petitioner must show

an external factor which “prevented him from raising

the issue in his first appeal.” Murray, 477 U.S. at 488.

It was the decision of defense counsel, attributable to

Petitioner, to winnow his claims and she did so on

Petitioner’s third trip through the TCCA. The court

was not required to permit additional briefing, in an

already long and procedurally complex case, to

counteract the defense’s decision and this will not

constitute cause to excuse Petitioner’s procedural

default.

90a

3. Respondent’s Failure to Disclose

Exculpatory Information

Petitioner also relies on the “continued failure of

the Respondent to disclose… exculpatory evidence”

as cause to excuse his procedural default [Doc. 2 at

10]. Presumably, Petitioner relies on this ground to

excuse his procedural default of his “prosecution

suppression” claims.

Prosecution suppression can serve as a ground to

excuse procedural default when the ongoing

suppression sufficiently frustrates a petitioner’s

ability to bring the claim and the cumulative effect of

the suppressed evidence was reasonably likely to

have produced a different result. See Kyles v. Whitley,

514 U.S. 419 (1995). However, as clarified above,

Petitioner’s claims are procedurally defaulted

because he failed to raise them on appeal; he was,

however, able to raise these claims at the trial court

level. While prosecution suppression may provide

cause in some [*30] cases, it does not logically follow

that a Petitioner who did successfully raise his claims

at the trial court level was impeded by the

prosecution from raising his claims on appeal.

Further, Petitioner has not established the factual

basis for his claim that the prosecution did suppress

substantial cumulative evidence by clear and

convincing evidence. Petitioner has not established

cause to excuse his procedural default.

4. Equitable Principles

Lastly, Petitioner argues that equitable

principles, as well as Due Process, requires this Court

to hear critical constitutional claims [Doc. 2 at 4].

91a

Under this theme, and given the leniency granted to

pro se petitioners, Petitioner appears to raise two

issues for which to find cause: (1) that he was

extraordinarily prevented from raising his claims

due to the actions of post-conviction appellate

counsel, and (2) that he is actually innocent [Doc. 2

at 4 – 6, 9 – 10].9

Petitioner notes that he does not raise the actions

of post-conviction appellate counsel as ineffective

assistance of counsel10, rather he attempts to frame

her actions as subjecting him to a “particular

injustice” which warrants court intervention [Id.].

Specifically, Petitioner argues that post-conviction

appellate counsel had a conflict of interest due to

representation of another client in a time-consuming

case, such that she effectively abandoned of

Petitioner and ceased to be his agent, and that she,

along with Respondent and the state court, actively

misled Petitioner regarding the raising of his claims

[Id.].11 These claims are seemingly related to

counsel’s decision to winnow Petitioner’s claims on

appeal and the court’s resulting decision to treat

9 To the extent that he is instead attempting to state that this

Court should circumvent the recognized rules established by the

Supreme Court regarding habeas petitions in order to hear his

claims, such an action is beyond the purview of this Court.

10 As set forth above, this claim would not provide cause to excuse

his procedural default. Wallace, 570 Fed. Appx. at 453.

11 Although Petitioner claims he was actively misled, the record

and Petitioner’s own actions belie this allegation. Petitioner’s

intent to have counsel removed based on her waiver of his claims

and continued requests for additional briefing demonstrate that

he was likely well aware that his claims had been abandoned on

appeal.

92a

them as abandoned. [*31] While Petitioner does

point to Maples v. Thomas, which holds that

procedural default may be excused when counsel has

actually abandoned petitioner, Petitioner has not

demonstrated by clear and convincing evidence that

counsel actually or effectively abandoned him where

she filed a timely, thorough 83-page brief on his

behalf and is not alleged to have missed court

appearances or been otherwise unprepared. See

Maples v. Thomas, 565 U.S. 266 (2012). This Court

declines to hold that counsel’s professional judgment

that her client would be better served by winnowing

his claims constitutes abandonment in this context.

See Jones v. Barnes, 463 U.S. 745 (1983).

Second, Petitioner cites to McQuiggin v. Perkins,

133 S. Ct. 1924 (2013), which recognizes “actual

innocence as a gateway through which a petitioner

may pass whether the impediment is a procedural

bar or expiration of a limitations period” [Doc. 2 at6].

This Court assumes that by doing so Petitioner is

suggesting that his new evidence claims should be

admitted under the “fundamental miscarriage of

justice” exception to procedural default. Dretke, 541

U.S. at 388. Petitioner raises two claims of new

evidence: (1) new scientific evidence of actual

innocence regarding evidence of the common fire

control mechanism’s ability to accidentally discharge,

and (2) evidence that the Petitioner was denied his

14th Amendment Right to Due Process because the

post-conviction process discriminates against “Afro

American” petitioners [Doc. 1].

93a

A habeas petitioner asserting a claim of actual

innocence must establish that “in light of new

[credible] evidence, no juror, acting reasonably,

would have voted to find him guilty beyond a

reasonable doubt.” Schlup, 513 U.S. at 329. The

Court must determine whether Petitioner has shown

actual innocence, by clear and convincing evidence,

such that his conviction represents a “fundamental

miscarriage of justice.” See Sawyer v. Whitley, 505

U.S. 333, 339 (1992). Here, the Court is concerned

with “factual innocence, not mere legal insufficiency.”

Bousley v. United States, 523 U.S. 614, 623 (1998).

[*32] Petitioner first alleges that the evidence

adduced at post-conviction hearings by Mr. Belk is

new scientific evidence of his actual evidence [Doc. 1].

While Petitioner did raise new evidence, which was

not raised at trial, and there are no issues alleged

regarding the reliability of this evidence, Petitioner

cannot show that no reasonable juror would have

found him guilty beyond a reasonable doubt if

provided with Mr. Belk’s testimony. See House, 547

U.S. at 536. Mr. Belk’s testimony that the common

fire control mechanism was defective in design did

not definitively establish that Petitioner’s gun

discharged without a trigger pull; he merely

suggested that it was possible. Even given this

information, the jury would have had to believe the

testimony of Petitioner that accidental discharge is

factually what happened, and discredit the

contradicting proof presented by Agent Fite and even

the testimony of Mr. Belk that he was not able to

induce Petitioner’s rifle to fire without a trigger pull.

94a

Both credibility determinations and determinations

of value are questions for the jury and this Court will

not now speculate that no reasonable juror could

have found the State’s evidence more credible than

the testimony of Mr. Belk. See United States v.

Griffin, 382 F.2d 823, 829 (6th Cir. 1967).

With regards to Petitioner’s second new-evidence

claim, the Court finds that even if Petitioner’s

information regarding systematic discrimination in

the post-conviction process was determined to be

“new evidence” and presented to be reliable, this

would not be evidence of Petitioner’s factual

innocence. In other words, Petitioner could not show

that because some habeas petitioners face

discrimination within the justice system, that no

reasonable juror could have found him guilty beyond

a reasonable doubt.

Petitioner has failed to establish cause to excuse

procedural default on this ground or any other and

his procedurally defaulted claims will not now be

considered on their merits. Accordingly, only

Petitioner’s non-defaulted claims will be discussed in

turn. [*33]

C. Merits Analysis

If a claim is exhausted before the state courts, and

not procedurally defaulted, the federal court may

then evaluate the merits. Under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), codified

in 28 U.S.C. §2254, et. seq., a district court may not

grant habeas corpus relief for a claim that a state

court adjudicated on the merits unless the state

court’s adjudication of the claim:

95a

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly

established

Federal

law,

as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the state

court proceeding.

28 U.S.C. § 2254(d)(1) and (2). This standard is

“intentionally difficult to meet.” Woods, 135 S. Ct. at

1376 (quotation marks omitted).

“A state court’s decision is ‘contrary to’ clearly

established law ‘if the state court arrives at a

conclusion opposite to that reached by the Court on a

question of law or if the state court decides a case

differently than the Court has on a set of materially

indistinguishable facts.” Wallace, 570 Fed. Appx. at

450 (quoting Williams, 529 U.S. at 413). Under the

“unreasonable application clause,” the proper inquiry

is whether the state court’s decision was “objectively

unreasonable,” and not simply erroneous or incorrect.

Williams, 529 U.S. at 409 – 11. As to a claim that the

state court’s decision was based on an unreasonable

determination of the facts, the AEDPA requires

heightened respect for state factual findings. Herbert

v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Where

the record supports the state court’s findings of fact,

those findings are presumed to be correct unless

rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). [*34]

96a

All of Petitioner’s remaining claims are based on

the ineffective assistance of trial or appellate counsel.

The Sixth Amendment entitles criminal defendants

to the “reasonably effective assistance” of counsel.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

To establish that counsel’s assistance was

constitutionally ineffective, a defendant must prove

(1) that counsel’s performance was sufficiently

deficient that he was no longer “functioning as the

‘counsel’ guaranteed under the Sixth Amendment[,]”

and (2) that his “deficient performance prejudiced the

defense… so as to deprive the defendant of a fair

trial” and undermined the reliability of trial results.

Id. To prove deficiency, the defendant must show

“that counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. To prove

prejudice, the defendant must show that he has been

prejudiced by his counsel’s deficiencies by showing

“there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

The Supreme Court has clarified that when a

federal court reviews a state court’s application of

Strickland, which sets its own high bar for claims,

“establishing that a state court’s application was

unreasonable under §2254(d) is all the more

difficult.” Harrington v. Richter, 562 U.S. 86, 105

(2011) (quoting Padilla v. Kentucky, 559 U.S. 356,

371 (2010)). “In those circumstances, the question

before the habeas court is ‘whether there is any

reasonable argument that counsel satisfied

Strickland’s deferential standard.’” Id.; see Jackson v.

97a

Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating

the “Supreme Court has recently again underlined

the difficulty of prevailing on a Strickland claim in

the context of habeas and AEDPA . . . .”).

1. Weapons Expert Testimony

Petitioner alleges that his trial counsel was

ineffective for failing to adduce expert testimony

relating to a defective firing mechanism design,

present in Petitioner’s rifle, that could [*35] have

caused the gun to discharge accidentally [Doc. 3 at 6

– 25]. Respondent contends that trial counsel was not

ineffective because he did plan and employ tactics to

introduce evidence on this point and to controvert the

evidence offered by the State [Doc. 15 at20 – 23]. The

Court finds that trial counsel was not ineffective in

this respect.

The central theory of the defense was that the

Petitioner’s rifle malfunctioned and fired without

Petitioner pulling the trigger. The State presented a

firearms expert, Agent Fite, who stated that after

testing Petitioner’s rifle he concluded that the gun

could not possibly fire without the trigger being

pulled or the gun being broken [Doc. 14 Attachment

60 at13]. Trial counsel attempted to counter this

testimony by first, discrediting Agent Fite as

someone who believed himself infallible and second,

by attempting to cross-examine Agent Fite on issues

present with the Remington Model 742, a precursor

to Petitioner’s rifle, although the trial court

prohibited this line of questioning. Kendrick, 454

S.W.3d at 475 – 476.

98a

At post-conviction, trial counsel conceded that he

did not interview the State’s firearms expert prior to

trial and did not recall conducting any legal or factual

investigation into the gun’s propensity to fire without

the trigger being pulled and did not look for an expert

on this matter. Id. at 476. Instead, counsel planned

to rely on the expected testimony of Officer Steve

Miller to contradict the proof presented by the State.

Id. at 477. Officer Miller testified that he retrieved

the rifle from where Petitioner had thrown it and,

when later removing the gun from the trunk of his

police vehicle, shot himself in the foot. Id. Before

trial, Officer Miller made definitive statements that

his finger was not on the trigger, but at trial testified

that he could not recall where his finger had been,

although he did physically demonstrate how he

believed himself to be holding the gun, notably

without his finger on the trigger, and stated that

officers are thoroughly trained to not touch triggers

of weapons they are not intending to shoot. Id. [*36]

At the post-conviction hearings, Petitioner presented

the testimony of Henry Belk, Jr., a firearms expert

who testified that the common fire control

mechanism, a trigger mechanism in the Remington

7400 model weapon in question, had malfunctioned

in several cases and caused guns to fire without the

trigger being pulled. Id. at 464. Mr. Belk testified

that he first became aware of the problem in 1970,

but did not first serve as an expert on this issue until

1994, and had since provided expert testimony in

several courts regarding this defect, both in

Remington 7400 models and other models containing

the defective mechanism. Id. He also testified that he

99a

had been unable to cause Petitioner’s rifle to

malfunction. Id. Still, the post-conviction trial court

noted that his testimony would have lent credence to

Petitioner’s case at trial. Id. at 476.

On Petitioner’s second appeal of the denial of his

post-conviction petition, the TCCA reversed the postconviction trial court’s holding on this issue.

Kendrick, 2013 Tenn. Crim. App. LEXIS 539. The

TCCA found that trial counsel’s performance fell

“below an objective standard of reasonableness when

trial counsel failed to adduce expert testimony about

the rifle’s defective trigger mechanism, which was

known to cause accidental shootings, to rebut the

State’s expert testimony that the rifle could only be

fired by pulling the trigger[.]” Kendrick, 454 S.W.3d

at 476 (citing Kendrick, 2013 Tenn. Crim. App.

LEXIS 539). The TCCA found this issue prejudicial,

particularly because they found that it was

reasonably likely that the jury would have convicted

Petitioner of a lesser degree of homicide, which

satisfied the test for prejudice. Kendrick, 2013 Tenn.

Crim. App. LEXIS 539 at *51.

The TSC, however, later reversed the TCCA’s

holding, finding that counsel’s decision to “construct

his ‘accidental firing’ defense” around anticipated

testimony from Officer Miller claiming that the

specific gun in question did actually accidentally

discharge was reasonable. Kendrick, 454 S.W.3d at

477. The TSC went through a lengthy analysis of both

Harrington and [*37] Hinton, each of which apply the

Strickland test for ineffective assistance of counsel.

Kendrick v. State, 454 S.W.3d at 468 – 475 (analyzing

100a

Harrington, 562 U.S. 86; Hinton v. Alabama, 571

U.S. 263 (2014); Strickland 466 U.S. 668). The court

notes that Harrington held that defense counsel was

not deficient for failing to hire expert testimony, even

though such testimony may have been useful, when

counsel had a reasonable strategic reason for doing

so and took other measures to counteract the State’s

evidence. Id. Notably here, the court points out that

in Harrington, counsel’s defense strategy not

working as well as planned does not prove counsel

incompetent. Id.

The court then discussed Hinton which found that

in some cases, the defense strategy relies on expert

evidence and hiring one will be necessary. Id.

However, the court notes that even in Hinton, counsel

was held deficient for failing to appropriately

research his ability to hire an expert, not for failing

to hire an expert. Id. The TSC found that “[d]espite

Sergeant Miller’s memory lapse, defense counsel’s

performance on this issue indicated ‘active and

capable advocacy,’” under Harrington v. Richter,

because at the time counsel was forming his trial

strategy it was reasonable to rely on this testimony,

which was “not speculative[] and… did not involve

other weapons” to refute Agent Fite and cast

reasonable doubt on Petitioner’s guilt. Id. at 477. The

TSC further stated that while it was likely best

practice for trial counsel to seek out expert proof,

failing to do so was not objectively unreasonable

when the defense did not hinge on expert proof. Id.

Additionally, the TSC pointed out that although Mr.

Belk’s testimony may have been helpful, it is doubtful

101a

that in 1994 counsel would have been given

permission to hire an expert,12 that it remained

unclear whether Mr. Belk could have been found at

the time of Petitioner’s trial, and [*38] lastly that

even if Mr. Belk had been called, his testimony would

not have been as useful when he had not yet testified

about the three instances of the 7400 model rifle

misfiring. Id. at 476. The Court cannot find that the

TSC unreasonably applied federal law on this claim.

The TSC reasonably applied Harrington and Hinton

to find that counsel was not constitutionally

deficient, because he had a reasonable strategy to

introduce proof regarding Petitioner’s rifle’s capacity

for accidental discharge and did attempt to

undermine the expert proof presented by the State.

Petitioner has also not demonstrated by clear and

convincing evidence that Mr. Belk’s testimony could

have been found at the time of his trial. Because the

case here did not rely solely on expert testimony

where the State presented much additional evidence,

including eyewitness testimony, counsel was not

ineffective for failing to hire an expert. While Mr.

Belk’s testimony would certainly have been useful at

trial, this Court does not find that it was

unreasonable for the TSC to conclude counsel was not

deficient for failing to raise it. Petitioner is therefore

not entitled to §2254 relief on this claim.

12 Tennessee did not recognize until 1995 “that indigent non-

capital criminal defendants had a constitutional right to expert

psychiatric assistance,” and even then it was limited to

psychiatric experts. Kendrick v. State, 454 S.W.3d 450, 476

(Tenn. 2015) (citing State v. Barnett, 909 S.W.2d at 430 n.7).

102a

2. Excited Utterances Exception for Officer

Miller’s Testimony

Petitioner claims that trial counsel was ineffective

for failing to utilize the Tennessee Rule of Evidence

regarding excited utterance hearsay exceptions to

introduce the prior statements of Officer Steve Miller

[Doc. 3 at 25 – 40].13 Respondent contends that even

if Officer Miller’s statements were excited utterances,

it does not necessarily follow that counsel was

ineffective for failing to introduce them under this

theory [Doc. 15, at 23]. Because counsel was thorough

in his attempts to introduce Officer Miller’s prior

statements and impeach the witness, counsel’s

representation at trial was not deficient. [*39] When

attempting to remove Petitioner’s rifle from the

trunk of his vehicle, Officer Steve Miller shot himself

in the foot. Kendrick, 2013 Tenn. Crim. App. LEXIS

539, at *16. After the accident, Officer Miller made

statements to Officers Holbrook, Sims, and Gann

that he knew his finger was not near the trigger when

the gun discharged. Id. at *16 – 20. However, at trial,

Officer Miller testified that he could not recall where

his finger was. Id. at *39 – 40. On cross-examination,

trial counsel attempted to elicit from Officer Miller

that his finger was not on the trigger. Kendrick, 454

S.W.3d at 460 – 461. While Officer Miller never used

those words, and his answers did seem less than

cooperative, trial counsel had him demonstrate how

Petitioner also claims that this is in violation of the Sixth

Amendment right to present a defense and a violation of the

confrontation clause, however, those claims are amongst those

procedurally defaulted, and will not be considered.

13

103a

he recalled picking up the gun, where Officer Miller

demonstrated that his finger was not near the

trigger. Id. Counsel also led Officer Miller to concede

that he knew the weapon was likely loaded, and had

been trained for many years to not pick up any gun

with his finger near the trigger, much less a loaded

one. Id. Trial counsel also attempted to introduce

Officer Miller’s prior statements under the “prior

inconsistent statements” rule, although the trial

court did not allow him to do so. Kendrick, 2013 Tenn.

Crim. App. LEXIS 539, at *9 – 12.

Petitioner contends that because Officer Miller’s

statements were made while “under the stresses-pain

of the event … [and] bear their own indicia of

reliability,” they could have been introduced under

the excited utterances exception to hearsay and “been

used as truth of the matter asserted” [Doc. 3 at 26].

He claims that failure to include this information was

prejudicial because the statement that Officer

Miller’s hands were nowhere near the trigger was

crucial for the defense [Doc. 3 at 27]. Because the

theory of defense was accident, Petitioner contends

that the gun had discharged without Petitioner’s

finger on the trigger and without any intent or action

on his part, and the only evidence outside of

Petitioner’s word that could have controverted the

proof of the State’s expert were the words of Officer

Miller [Doc. 3 at 27]. [*40] Both the TCCA and TSC

addressed this claim. On his second appeal of the

dismissal of his post-conviction petition, the TCCA

found that trial counsel’s performance fell below an

objective standard of reasonableness when he failed

104a

to seek the admission of Officer Miller’s statements

under the excited utterance hearsay exception.

Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *50.

They found that this error was prejudicial as it was

reasonably likely that given this statement, the jury

would have convicted Petitioner of a lesser degree of

homicide. Kendrick, 2013 Tenn. Crim. App. LEXIS

539, at *50. Accordingly, the TCCA used this as the

second ground on which to reverse the holding of the

post-conviction trial court and vacate Petitioner’s

sentence. Id.

However, the TSC reversed, concluding that

although the statements may have been admissible

under excited utterance doctrine, Petitioner could not

establish that trial counsel was deficient for failing to

admit them under this rule because counsel took

several alternative measures to demonstrate that

Officer Miller had not pulled the trigger. Kendrick,

454 S.W.3d, 480 – 81. The court noted that, in this

context, the question was not whether the statements

were admissible, but rather whether counsel was

objectively unreasonable under Strickland, given the

presumption that counsel was adequate. Id. at 480

(citing Strickland, 466 U.S. at 688 and Mobley, 397

S.W.3d at 80 – 81). The court found that while in

some circumstances the “lack of familiarity with

court rules m

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