Petition for Writ of Certiorari — Thomas E. Clardy, Petitioner v. Kenneth Nelsen, Warden
Supreme Court briefApr 28, 2025
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No. 24In the
Supreme Court of the United States
THOMAS E. CLARDY,
Petitioner,
v.
ZAC POUNDS, WARDEN,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Jessica M. Van Dyke
Jason Gichner
The Tennessee
Innocence Project
700 Craighead Street,
Suite 300
Nashville, TN 37204
A ngela L. Bergman
Counsel of Record
Scott D. Gallisdorfer
Bass, Berry & Sims PLC
21 Platform Way South,
Suite 3500
Nashville, TN 37203
(615) 742-6200
abergman@bassberry.com
Counsel for Petitioner
380626
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
In a case that hinges primarily on eyewitness
identification, does a criminal defense attorney
perform deficiently under Strickland v. Washington,
466 U.S. 668 (1984), when the attorney fails to
present expert testimony about the well-documented
reliability problems of eyewitness identifications, or
neglects even to request funding for such testimony
from the court?
ii
PARTIES TO THE PROCEEDINGS
The petitioner (petitioner-appellee below) is
Thomas E. Clardy. The respondent (the respondentappellant below) is Zac Pounds, warden of Riverbend
Maximum Security Institution.
RELATED PROCEEDINGS
Criminal judgment and direct appeals
Criminal Court for Davidson County, Tennessee,
Division IV:
State of Tennessee v. Thomas Edward Clardy, No.
2006-B-1065, judgment entered September 12,
2007
Court of Criminal Appeals of Tennessee:
State of Tennessee v. Thomas Edward Clardy, No.
M2007-02729-CCA-R3-CD, judgment entered
February 2, 2009
Supreme Court of Tennessee:
State of Tennessee v. Thomas Edward Clardy, No.
M2007-02729-SC-R11-CD, permission to appeal
denied June 15, 2009
Post-conviction proceedings in state court
Criminal Court for Davidson County, Tennessee,
Division IV:
iii
Thomas Edward Clardy v. State of Tennessee, No.
2006-B-1065, judgment entered May 17, 2017
Court of Criminal Appeals of Tennessee:
Thomas Edward Clardy v. State of Tennessee, No.
M2017-01193-CCA-R3-PC, judgment entered
October 17, 2018
Supreme Court of Tennessee:
Thomas Edward Clardy v. State of Tennessee, No.
M2017-01193-SC-R11-PC, permission to appeal
denied April 12, 2019
Coram nobis proceedings in state court:
Criminal Court for Davidson County, Tennessee,
Division IV:
Thomas Edward Clardy v. State of Tennessee, No.
2006-B-1065, judgment entered April 27, 2021
Court of Criminal Appeals of Tennessee:
Thomas Edward Clardy v. State of Tennessee, No.
M2021-00566-CCA-R3-ECN, judgment entered
July 12, 2022
Supreme Court of Tennessee:
Thomas Edward Clardy v. State of Tennessee, No.
M2021-00566-SC-R11-ECN, judgment entered
June 25, 2024
iv
Federal habeas proceedings below:
United States District Court for the Middle District of
Tennessee, Nashville Division:
Thomas E. Clardy v. Zac Pounds, Warden, No.
3:19-cv-01098, judgment entered July 6, 2023
United States Court of Appeals for the Sixth Circuit:
Thomas E. Clardy v. Zac Pounds, Warden, No. 235676, judgment entered January 27, 2025
v
TABLE OF CONTENTS
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDINGS ........................ ii
RELATED PROCEEDINGS ...................................... ii
TABLE OF CONTENTS ............................................ v
TABLE OF APPENDICES ...................................... vii
TABLE OF AUTHORITIES ..................................... ix
PETITION FOR A WRIT OF CERTIORARI ............ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
RELEVANT CONSTITUTIONAL PROVISION ....... 1
INTRODUCTION ...................................................... 1
STATEMENT ............................................................. 3
I.
Factual background ............................................. 3
II. State-court proceedings ....................................... 5
III. Federal habeas proceedings below .................... 10
REASONS FOR GRANTING THE PETITION ...... 12
I.
Courts are divided on the question
presented ............................................................ 12
A. The Second Circuit and the District of
Columbia Court of Appeals have held
that a criminal defense attorney
performed deficiently by failing to
pursue expert testimony on eyewitness
identification ............................................... 13
vi
B. The Sixth Circuit below, as well as
other appellate courts, have rejected
similar claims .............................................. 15
II. The decision below conflicts with this
Court’s decision in Hinton v. Alabama ............. 17
III. The question presented is important, and
this case is an excellent vehicle for
resolving it ......................................................... 19
A. Eyewitness
misidentification
is
especially dangerous and a leading
cause of wrongful convictions ..................... 19
B. Expert testimony is critical for
combatting jurors’ misconceptions
about eyewitnesses’ reliability .................... 21
C. This case is an ideal vehicle for
addressing these important issues ............. 23
IV. The Sixth Circuit’s decision is wrong ............... 24
CONCLUSION ......................................................... 28
vii
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED JANUARY 27,
2025 .................................................................... 1a
APPENDIX B — MEMORANDUM OF THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
TENNESSEE, NASHVILLE DIVISION,
FILED JUNE 30, 2023 .................................... 24a
APPENDIX C — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE,
NASHVILLE DIVISION, FILED JUNE
30, 2023 ............................................................ 50a
APPENDIX D — REPORT AND
RECOMMENDATION OF THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE,
NASHVILLE DIVISION, FILED
FEBRUARY 28, 2023 ...................................... 52a
APPENDIX E — ORDER OF THE SUPREME
COURT OF TENNESSEE AT
NASHVILLE, FILED APRIL 12, 2019 ......... 109a
APPENDIX F — OPINION OF THE
COURT OF CRIMINAL APPEALS
OF TENNESSEE AT NASHVILLE,
FILED OCTOBER 17, 2018 .......................... 110a
viii
APPENDIX G — JUDGMENT OF THE
COURT OF CRIMINAL APPEALS OF
TENNESSEE AT NASHVILLE, FILED
OCTOBER 17, 2018 ....................................... 134a
APPENDIX H — ORDER OF THE
CRIMINAL COURT FOR DAVIDSON
COUNTY, TENNESSEE, DIVISION IV,
FILED MAY 17, 2017 .................................... 136a
ix
TABLE OF AUTHORITIES
Cases
Cantu v. Collins,
967 F.2d 1006 (5th Cir. 1992)............................ 16
Clardy v. State,
691 S.W.3d 390 (Tenn. 2024) ............................ 10
Com. v. Watson,
915 N.E.2d 1052 (Mass. 2009)........................... 16
Easter v. Fleming,
132 F. App’x 706 (9th Cir. 2005) ....................... 16
Ferensic v. Birkett,
501 F.3d 469 (6th Cir. 2007) ................. 19, 21, 22
Gilbert v. California,
388 U.S. 263 (1967)............................................ 21
Harrington v. Richter,
562 U.S. 86 (2011).................................... 2, 24, 27
Hinton v. Alabama,
571 U.S. 263 (2014).................... 11, 12, 17, 18, 27
Jones v. United States,
262 A.3d 1114 (D.C. 2021) ................. 14-16, 20-22
Manson v. Brathwaite,
432 U.S. 98 (1977).............................................. 21
Moore v. Hardee,
723 F.3d 488 (4th Cir. 2013) ............................. 16
People v. Elliott,
216 N.E.3d 1101 (Ill. App. Ct. 2022) ................. 16
Perry v. New Hampshire,
565 U.S. 228 (2012)...................................... 19, 20
x
Peterson v. State,
154 So. 3d 275 (Fla. 2014) ................................. 16
State v. Copeland,
226 S.W.3d 287 (Tenn. 2007) ............................ 22
State v. King,
392 P.3d 997 (Utah Ct. App. 2017) ................... 16
State v. Wilks,
114 N.E.3d 1092 (Ohio 2018) ............................ 16
State v. Wright,
673 N.W.2d 386 (Wis. Ct. App. 2003) ............... 16
Stovall v. Denno,
388 U.S. 293 (1967)............................................ 21
Strickland v. Washington,
466 U.S. 668 (1984)..................... 10-16, 24, 25, 27
United States v. Bartlett,
567 F.3d 901 (7th Cir. 2009) ............................. 21
United States v. Brownlee,
454 F.3d 131 (3d Cir. 2006) ......................... 20, 22
United States v. Moore,
786 F.2d 1308 (5th Cir. 1986)............................ 21
United States v. Nolan,
956 F.3d 71 (2d Cir. 2020) ...................... 13-16, 22
United States v. Smithers,
212 F.3d 306 (6th Cir. 2000) ............................. 21
United States v. Wade,
388 U.S. 218 (1967)............................ 2, 20, 21, 25
xi
Watkins v. Sowders,
449 U.S. 341 (1981)...................................... 19, 20
Young v. Conway,
698 F.3d 69 (2d Cir. 2012) ................................. 20
Constitutional Provisions
U.S. Const. amend. VI ......................................... 1, 27
Statutes
28 U.S.C. § 1254(1)..................................................... 1
28 U.S.C. § 2241(a)................................................... 10
Rules
Tenn. Sup. Ct. R. 13 § 5(a)(2) .................................. 26
Tenn. Sup. Ct. R. 13 § 5(b)(2)(B) ................. 11, 12, 26
Other Authorities
Brandon L. Garrett, Convicting the Innocent:
Where Criminal Prosecutions Go Wrong
(2011).................................................................. 19
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Thomas E. Clardy respectfully
petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Sixth Circuit.
OPINIONS BELOW
The Sixth Circuit’s opinion, Pet. App. 1a, is
reported at 126 F.4th 1201. The opinion of the United
States District Court for the Middle District of
Tennessee, Pet. App. 24a, is reported at 680 F. Supp.
3d 872.
JURISDICTION
The Sixth Circuit entered judgment on January
27, 2025. Pet. App. 1a. No petition for rehearing was
filed. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
RELEVANT CONSTITUTIONAL PROVISION
The Sixth Amendment to the Constitution of the
United States provides in relevant part:
In all criminal prosecutions, the accused shall
enjoy the right … to have the Assistance of
Counsel for his defence.
INTRODUCTION
This case presents an important Sixth
Amendment question: To what extent does the
2
Constitution require a criminal defense attorney to
pursue and present expert testimony about the
reliability of eyewitness identifications in a case that
hinges mostly, or even exclusively, on that type of
evidence?
Nearly twenty years ago, petitioner Thomas
Clardy was convicted of murder and sentenced to life
in prison based almost entirely on a single eyewitness
identification—and one riddled with red flags.
Clardy’s trial counsel recognized that expert
testimony about the well-known reliability problems
with eyewitness identifications was crucial to his
defense. Yet she never took even the basic step of
requesting court funding for an expert. Instead, after
speaking to several experts who would not work for
what she assumed the state would pay, counsel
simply “decided to go ahead” to trial without one. The
district court held counsel’s actions to be ineffective
assistance and granted habeas relief to Clardy, but
the Sixth Circuit reversed.
This Court has long recognized “the dangers
inherent in eyewitness identification” and the serious
risk that jurors will give such evidence undue weight.
United States v. Wade, 388 U.S. 218, 228–29, 235
(1967). In fact, mistaken eyewitness identification is
the leading cause of wrongful convictions in the
United States. This Court also has acknowledged that
“[c]riminal cases will arise where the only reasonable
and available defense strategy requires consultation
with experts or introduction of expert evidence.”
Harrington v. Richter, 562 U.S. 86, 106 (2011). And
it is now well established that expert testimony can
3
significantly help jurors properly evaluate eyewitness
identifications.
Despite these considerations, federal and state
appellate courts are divided on when and how trial
counsel must pursue expert testimony in cases that
turn on eyewitness identification. This question has
profound implications for the integrity of our criminal
justice system and the constitutional rights of
defendants like Clardy, who has maintained his
innocence for two decades. Had an eyewitness
identification expert testified at Clardy’s trial, the
result likely would have been different.
This Court’s review is necessary to resolve the
existing split and clarify defense counsel’s obligations.
That clarification is essential to preventing more
wrongful convictions based on unreliable eyewitness
evidence.
STATEMENT
I. Factual background.
Late at night on July 29, 2005, three men pulled
up to a Madison, Tennessee auto repair shop owned
and operated by brothers Kirk and Kent Clouatre.
Pet. App. 2a. Shortly after arriving, the three men
opened fire, killing Kirk and injuring Kent. Pet. App.
1a–4a. Kirk’s wife, Melissa Clouatre, was also shot
and injured. Pet. App. 4a.
In the immediate aftermath, Kent and Melissa
could provide only limited descriptions of the
assailants. Kent, who was white, initially described
4
them only as “male” and “black.” D. Ct. ECF 10-2 at
1139. Kent soon mentioned a man he knew only as
“T,” and told police he was among the assailants. Pet.
App. 4a. At another point, however, Kent told police
he had not seen T at the scene after all. Pet. App. 7a.
Kent first described the assailants’ vehicle as an “’87
Buick [Century],” and later as a “bluish gray ’84 [or]
’86 model Buick,” or an “’84 to ’86 four-door Buick
Century or Celebrity, silver or gunmetal gray.” Pet.
App. 47a, 55a–56a.
Melissa, the other surviving victim, described the
man who shot her as five-foot-seven, one-hundredseventy pounds, with “frizzy” hair and wearing a
“white t-shirt.” Pet. App. 5a. In stark contrast to
Kent’s account, however, she described the assailants’
vehicle as a “’96 or ’97 [Mercury] Sable or [Ford]
Taurus, blue with an oval back.” Pet. App. 55a.
Nearly a month after the shooting, police showed
Kent a six-pack photo array that included petitioner
Thomas Clardy. Kent identified Clardy as the man he
supposedly knew as T, claiming he shot Kirk and
Melissa. D. Ct. ECF 10-3 at 1204-1206; Pet. App. 5a.
Though police video-recorded this identification, Kent
clarified at trial that he had picked Clardy from the
array before police began recording. D. Ct. ECF 10-2
at 1115. And indeed, the video shows Kent telling
police he had “already seen” Clardy just as the array
was being handed to him—an anomaly that was never
explained. D. Ct. ECF 10-17 at 2075. Police also
showed the photo array with Clardy’s picture to
Melissa, but she picked out someone different. D. Ct.
ECF 10-18 at 2191-2192.
5
Based on Kent’s belated identification, Clardy was
charged with the shooting. No physical evidence ever
linked him to the crime scene. No one besides Kent
could place him there. The State never identified
either of his supposed accomplices. And the State
could never say why Clardy would have wanted to kill
the Clouatres. See D. Ct. ECF 10-3 at 1332–1333.
New ballistics evidence discovered long after
Clardy’s trial now links guns used in the shooting to
two cousins with lengthy criminal histories and no
connection to Clardy, one of whom also more closely
matches descriptions Kent provided to police. Pet.
App. 117a–119a.
Clardy has steadfastly maintained his innocence
for two decades.
II. State-court proceedings.
Trial. At Clardy’s trial, Kent’s identification was
virtually the only evidence linking Clardy to the
shooting. Pet. App. 35a. Kent identified Clardy as the
driver of the assailants’ car and the man who shot
Kirk and Melissa, but acknowledged that he saw only
the “side” of the shooter’s face. Pet. App. 3a–4a, 47a.
Kent testified that he had previously seen Clardy
around the neighborhood. Pet. App. 32a. But contrary
to his earlier descriptions of the assailants’ car as a
grey or silver Buick, Kent now claimed it was a “forest
green Ford Taurus.” Pet. App. 113a. When confronted
with his earlier, contradictory descriptions, Kent
flatly denied any memory of mentioning a Buick. Pet.
App. 8a.
6
Kent’s testimony had other problems as well. For
example, he had previously told police that T—the
man he claimed was Clardy—had tattoos. Pet. App.
8a. But Clardy has never had tattoos. Pet. App. 9a,
47a. When confronted with this discrepancy at trial,
Kent again denied ever mentioning tattoos and could
not explain why police reports said he did. Pet. App.
8a.
Melissa testified that she was “facing” the man
who shot her, and that he had “looked right at [her],”
but she did not identify him as Clardy at trial. D. Ct.
ECF 10-2 at 1044–1045, 1056.
Clardy’s defense was mistaken identification. His
trial counsel, Patricia Snyder, sought to highlight
inconsistencies in the surviving victims’ accounts and
the lack of other evidence tying Clardy to the scene.
Pet. App. 7a–8a. Clardy also presented two alibi
witnesses who placed him at home on the night of the
shooting. His then-wife, Roylessha Mason, attempted
to testify that Clardy was at home with her the entire
night, though the trial court instructed the jury to
disregard this testimony because of Snyder’s failure
to file the requisite alibi notice. Pet. App. 73a–74a.
But Mason’s friend, Shakisha Thompson, confirmed
she had seen Clardy at home on two occasions that
night, when she picked up and later dropped off
Mason’s son. Thompson testified that when she saw
Clardy the second time—just minutes after the
shooting would have occurred—he appeared normal,
did not seem nervous, and was neatly dressed in a
shirt, shorts, and a pair of “grandpa slippers.” Pet.
App. 8a, 74a, 144a.
7
Despite the State’s case hinging on Kent’s
identification of Clardy, Snyder did not present any
expert testimony about eyewitness identifications.
Pet. App. 2a. Instead, Snyder sought to impeach the
identification in other ways, including through crossexamination of Kent and by highlighting problems
with the identification in closing argument. Pet. App.
7a–9a. But without an expert, Snyder had no
evidentiary basis for informing the jury about the
significant reliability problems with eyewitness
identifications.
The jury convicted Clardy on all counts, and he
received a life sentence. Pet. App. 9a, 52a–53a.
Direct Appeal. The Tennessee Court of Criminal
Appeals affirmed Clardy’s conviction. Pet. App. 9a.
The Tennessee Supreme Court denied discretionary
review. Pet. App. 9a.
State Collateral Review. In 2009, Clardy
petitioned for post-conviction relief in state court,
asserting several claims of ineffective assistance of
trial counsel. Pet. App. 113a. Among these was the
claim that Clardy was denied effective assistance
because his trial counsel failed to present expert
testimony on eyewitness identifications. Pet. App.
125a–127a. Crucially, trial counsel had not even
requested funding for such an expert from the court.
Pet. App. 125a.
At a September 2016 hearing, Clardy presented
testimony from Dr. Jeffrey Neuschatz, a forensic
psychologist and expert on human memory and
eyewitness identifications. Pet. App. 10a–11a, 83a–
8
84a. Dr. Neuschatz testified about numerous factors
known to reduce the reliability of eyewitness
identifications, all of which potentially affected Kent
Clouatre’s identification of Clardy. These factors
included: (1) the cross-racial nature of the
identification; (2) the complex and stressful nature of
the events; (3) the limited time Kent had to observe
the assailants; (4) the presence of a gun, which could
have pulled Kent’s attention away from other details;
(5) that all of the assailants were supposedly wearing
head coverings; (6) that Clardy was familiar to Kent
from
around
the
neighborhood,
potentially
implicating a psychological bias known as
“unconscious transference”; and (7) the weeks of time
that elapsed between the shooting and Kent’s
identification of Clardy. Pet. App. 10a–11a, 41a–42a,
83a–84a.
Patricia Snyder, Clardy’s trial counsel, also
testified at the post-conviction hearing. Snyder
admitted that Kent’s identification was the only
evidence the State had against Clardy and
acknowledged that she “should have gotten an expert
witness.” Pet. App. 35a. She described making certain
efforts to find an expert, but testified that she
eventually just “decided to go ahead” to trial without
one. Pet. App. 10a.
Critically, Snyder conceded that she never filed a
motion requesting court funding for an expert. Pet.
App. 10a. She explained that she “wanted to find [an
expert] first,” and described calling various experts on
a list maintained by the Tennessee Association of
Criminal Defense Lawyers. Pet. App. 10a. She also
looked for an expert out-of-state. Pet. App. 10a. But
9
Snyder testified that she could not find one whom
Clardy could afford or who would be willing to work
for what “the State of Tennessee was paying.” Pet.
App. 10a. Snyder did not identify what that amount
was, nor did she explain how she could have known
what the State would pay without ever asking for
funding in the first place. And, importantly, Snyder
admitted that she did not know “any reason why the
Court wouldn’t have approved” funding had she
simply asked. D. Ct. ECF 10-18 at 2213.
After hearing Dr. Neuschatz’s testimony, Snyder
agreed that similar expert testimony could have
changed the verdict at Clardy’s trial, and she agreed
that she “should have got a trial continuance to try to
get an expert somewhere and I didn’t.” D. Ct. ECF 1018 at 2241.
The state trial court denied Clardy’s petition for
post-conviction relief. Pet. App. 140a–141a, 147a. The
Tennessee Court of Criminal Appeals (“TCCA”)
affirmed. Pet. App. 125a–127a, 133a. In addressing
the ineffective assistance claim based on the lack of
an eyewitness identification expert, the TCCA did not
evaluate whether trial counsel’s performance was
deficient, but instead concluded that, even if it was,
Clardy could not establish prejudice. Pet. App. 125a–
127a. According to the court, that was because expert
testimony would not have “negat[ed]” Kent’s
identification. Pet. App. 126a–127a.
10
The Tennessee Supreme Court again denied
discretionary review.1 Pet. App. 109a.
III.
Federal habeas proceedings below.
In 2019, Clardy filed a federal habeas petition in
the Middle District of Tennessee, which had
jurisdiction under 28 U.S.C. § 2241(a). Pet. App. 59a.
Clardy alleged that Snyder had rendered ineffective
assistance in various ways, including by failing to
present or even request funding for expert testimony
on eyewitness identifications. See Strickland v.
Washington, 466 U.S. 668 (1984).
District Court Ruling. The district court,
adopting the magistrate judge’s report and
recommendation, conditionally granted the habeas
petition on the eyewitness-expert ground. Pet. App.
24a–49a. As to Strickland’s performance prong, the
district court concluded that Snyder’s performance
was deficient because she “recognized that [Kent]’s
eyewitness identification was effectively the only
evidence the government had against Clardy, and she
acknowledged … that she ‘apparently should have
gotten an expert witness,’” but “admitted that she
never actually requested funding from the state in
any amount.” Pet. App. 35a. The district court noted
that it could not “imagine” any legitimate strategic
reason for failing to seek funding for an expert whose
1 Clardy later separately filed in state court a petition for writ of
error coram nobis. That petition was dismissed as untimely, a
ruling the Tennessee Supreme Court eventually affirmed. See
Clardy v. State, 691 S.W.3d 390 (Tenn. 2024).
11
testimony trial counsel herself “believed to be critical
to the case.” Pet. App. 35a.
Sixth Circuit Ruling. The Sixth Circuit
reversed. Pet. App. 1a–23a. The court agreed that de
novo review applied to Strickland’s performance
prong because the TCCA had not addressed it. But the
Sixth Circuit held that Snyder’s performance was not
deficient. The court concluded that “counsel tried to
hire an eyewitness expert but was unable to do so for
reasons beyond her control.” Pet. App. 17a. The court
emphasized that Snyder had made efforts to find an
expert, including by calling “everybody on [a] list”
maintained by the Tennessee Association of Criminal
Defense Lawyers and looking for an expert out of
state. Pet. App. 10a. But because Snyder testified that
none of these experts were willing to work for the
amount she believed the court would pay, the Sixth
Circuit concluded her failure to find an expert was
“not attributable to [Snyder] and did not render her
performance deficient.” Pet. App. 18a.
The Sixth Circuit rejected Clardy’s argument that
Snyder performed deficiently by failing to file a
motion seeking expert funding. The court reasoned
that, unlike in Hinton v. Alabama, 571 U.S. 263
(2014), Clardy had not shown that counsel made a
legal mistake about the availability of funding. Pet.
App. 18a–19a. Parsing the relevant state court rule,
the Sixth Circuit determined that Snyder could not
have moved for court funding without first finding a
willing expert because Tennessee “requires a party
seeking funding for an expert witness to identify the
expert by name in the motion and specify the
proposed hourly rate.” Pet. App. 19a (citing Tenn.
12
Sup. Ct. R. 13 § 5(b)(2)(B)). The court then assumed—
without specific evidence in the record—that the
experts with whom Snyder spoke must have been
unwilling to accept Tennessee’s maximum hourly rate
for psychologists. Pet. App. 20a–21a. Yet Snyder
never specifically mentioned that rate in her
testimony, nor did the State mention it in any of the
post-conviction litigation in state court.
The Sixth Circuit went on to conclude that, having
failed to find an expert, Snyder did not perform
deficiently because she at least sought to highlight
the weaknesses in Kent Clouatre’s identification of
Clardy through cross-examination and attorney
argument. Pet. App. 22a–23a.
REASONS FOR GRANTING THE PETITION
This case readily merits the Court’s review. The
decision below conflicts with authoritative decisions
of at least two other appellate courts. It also conflicts
with this Court’s own decision in Hinton v. Alabama,
571 U.S. 263 (2014). And the Sixth Circuit’s decision
fundamentally misapplies Strickland’s performance
standard. See Strickland v. Washington, 466 U.S. 668
(1984). Finally, the question presented is plainly
important, and this case provides an ideal vehicle for
the Court to address it. The petition should be
granted.
I. Courts are
presented.
divided
on
the
question
Appellate courts are sharply divided over whether
defense counsel’s failure to adequately pursue
13
eyewitness expert testimony amounts to deficient
performance under Strickland, particularly where
the prosecution’s case hinges on eyewitness
identification. This Court should resolve the conflict.
A.
The Second Circuit and the District
of Columbia Court of Appeals have
held that a criminal defense attorney
performed deficiently by failing to
pursue
expert
testimony
on
eyewitness identification.
Contrary to the Sixth Circuit below, at least two
other appellate courts—the Second Circuit and the
District of Columbia Court of Appeals—have held
that a criminal defense attorney rendered ineffective
assistance by failing to adequately pursue testimony
from an eyewitness identification expert. And these
courts reached that conclusion despite factual
contexts that made the need for expert testimony less
acute than it was here.
Second Circuit. In United States v. Nolan, 956
F.3d 71 (2d Cir. 2020), the Second Circuit considered
a case where the prosecution’s evidence consisted
“almost entirely [of] eyewitness identifications.” Id. at
75. The identifications “bore significant indicia of
unreliability,” including many of the very same
indicia involved here: the identifications were crossracial, the perpetrators wore head coverings and
carried weapons, the witnesses were under stress, the
identifications were not made immediately after the
relevant events, and the police employed irregular
procedures. Id. at 75–76, 80–81.
14
Applying Strickland, the Second Circuit panel
held unanimously that defense counsel performed
deficiently by failing to call or consult an eyewitness
identification expert. The court explained that “the
eyewitness testimony was sufficiently unreliable in
ways not readily apparent to a lay jury.” Id. at 81. And
while acknowledging that “Strickland ordinarily does
not require defense counsel to call any particular
witness,” the court concluded that “counsel could not
render effective assistance” in those circumstances
“without input from an expert.” Id. at 82.
D.C. Court of Appeals. Similarly, in Jones v.
United States, 262 A.3d 1114 (D.C. 2021), the District
of Columbia Court of Appeals applied Strickland to
hold that defense counsel performed deficiently by
failing to call or consult an eyewitness identification
expert in a case that “hinged primarily on” eyewitness
testimony. Id. at 1128.
Much like the Second Circuit in Nolan, the D.C.
Court of Appeals explained that “many jurors have
basic misunderstandings about the way memory
works and about specific circumstantial factors that
affect the reliability of eyewitness identifications.” Id.
at 1125. Jurors, the court emphasized, are “decidedly
not as competent as the expert in considering and
weighing eyewitness evidence to draw the
appropriate and necessary conclusions.” Id. at 1128
(internal quotation marks omitted). The court
therefore concluded that the “situation” that case
presented—“in which the government’s case hinged
primarily on …. eyewitness testimony”—was one
where “professional norms” required counsel to
pursue expert assistance. Id. The court thus held that
15
counsel’s failure to do so “amount[ed] to deficient
performance under Strickland.” Id.
B.
The Sixth Circuit below, as well as
other appellate courts, have rejected
similar claims.
Sixth Circuit. By holding that Clardy’s counsel
did not perform deficiently despite neglecting even to
request court funding for an eyewitness expert, the
Sixth Circuit’s decision below conflicts with both
Nolan and Jones.
Like in both those cases, the State’s prosecution of
Clardy turned entirely on eyewitness identification.
Yet despite making at least some effort to find an
expert, Snyder, Clardy’s counsel, failed to take even
the basic step of requesting available court funding
for an expert’s assistance—even though her only
excuse for failing to find an expert was that Clardy
could not afford one. Regardless of whether the trial
court ultimately would have granted sufficient
funding, Snyder did not even bother to ask for an
expert she knew was needed. That lack of basic
diligence with respect to pursing an expert witness
that was critical to Clardy’s defense is the same kind
of error the Second Circuit and the D.C. Court of
Appeals found to constitute deficient performance in
both Nolan and Jones. Yet the Sixth Circuit here
reached the opposite conclusion.
If anything, the facts here are even more
compelling than those in Nolan and Jones. Snyder
recognized an expert’s importance—making her
failure to request funding all the more inexplicable.
16
Moreover, the eyewitness evidence against Clardy
was especially thin. Compare Nolan, where there
were four eyewitnesses who identified the defendant,
not just one. 956 F.3d at 76-79. And in Jones, there
were two eyewitnesses, one of whom was not a victim
of the crime, lending his account potentially greater
credibility. 262 A.3d at 1118-1121. That the
identification evidence against Clardy was far weaker
here made it all the more likely that expert testimony
could have helped—and all the more crucial for
Snyder to pursue it.
Other Federal and State Appellate Courts. In
addition to the Sixth Circuit, several other federal
and state appellate courts have also rejected
Strickland claims based on a failure to obtain or
adequately pursue testimony from an eyewitness
identification expert. See, e.g., Moore v. Hardee, 723
F.3d 488, 496–499 (4th Cir. 2013); Cantu v. Collins,
967 F.2d 1006, 1016 (5th Cir. 1992); Easter v.
Fleming, 132 F. App’x 706, 707–708 (9th Cir. 2005);
Peterson v. State, 154 So. 3d 275, 283–284 (Fla. 2014);
People v. Elliott, 216 N.E.3d 1101, 1109–1113 (Ill.
App. Ct. 2022); Com. v. Watson, 915 N.E.2d 1052,
1061–1062 (Mass. 2009); State v. Wilks, 114 N.E.3d
1092, 1130–1131 (Ohio 2018); State v. King, 392 P.3d
997, 1001–1004 (Utah Ct. App. 2017); State v. Wright,
673 N.W.2d 386, 396 (Wis. Ct. App. 2003).
Although the facts of these cases vary, their
holdings are likewise difficult, if not impossible, to
square with Nolan and Jones.
* * *
17
The disarray within the lower courts, coupled
with the fundamental importance of the right at
stake, supports this Court’s intervention. The Court
should take up the question presented to resolve the
conflict and ensure uniform protection of a criminal
defendant’s right to effective assistance of counsel.
II.
The decision below conflicts with this
Court’s decision in Hinton v. Alabama.
The Sixth Circuit’s decision also conflicts with this
Court’s decision in Hinton v. Alabama, 571 U.S. 263
(2014)—a separate ground for granting certiorari.
In Hinton, a criminal defense lawyer neglected to
request sufficient court funding for a critical expert
witness, who was needed to testify about “firearms
and toolmark” evidence that formed the crux of the
prosecution’s case. Id. at 266. There, the lawyer did
request at least some funding, which the trial court
granted subject to a purported statutory cap. Counsel
could not find a competent expert willing to work for
that amount, so instead retained an underqualified
expert, whom the prosecution easily discredited. In
fact, however, no statutory cap existed; the relevant
statute authorized funding for expert expenses
“reasonably” incurred. Id. at 267. So, this Court held
that counsel performed deficiently by “fail[ing] to
request additional funding.” Id. at 274.
Clardy’s lawyer’s performance was even more
deficient. While trial counsel in Hinton did not seek
enough funding, Snyder did not seek any. Plus,
Hinton’s counsel at least retained some expert—even
if that expert was insufficiently qualified. Snyder, on
18
the other hand, just “decided to go ahead with it”—
without an expert at all. Pet. App. 83a. If Hinton’s
counsel performed deficiently, it is difficult to
understand how Clardy’s counsel did not.
The Sixth Circuit acknowledged Hinton, but
determined it did not control because Hinton involved
a
“mistake
of
law”—specifically,
counsel’s
misunderstanding about how much funding was
available under the relevant state statute. Pet. App.
18a (quoting Hinton, 571 U.S. at 275). But the
principle underlying Hinton—that counsel performs
deficiently by failing to request available resources for
essential expert assistance—applies with equal force
here. Notably, it was the trial court itself in Hinton
that had first expressed the mistaken belief about the
statutory funding cap (after Hinton’s initial request),
making it at least somewhat understandable why
Hinton’s counsel would not have conducted additional
research and sought more funding. See 571 U.S. at
266. Here, by contrast, Snyder simply made
assumptions about how much funding the court would
provide, but never actually tested that assumption by
filing a request. Again, if anything, Clardy’s counsel
was more, not less, negligent than Hinton’s.
For all these reasons, the Sixth Circuit’s decision
cannot be squared with Hinton. Given Hinton’s
importance for safeguarding criminal defendants’
access to essential expert assistance, this Court’s
intervention is necessary to resolve the conflict and
preserve Hinton’s vital holding.
19
III. The question presented is important, and
this case is an excellent vehicle for
resolving it.
The question presented here is exceptionally
important, and this case provides an excellent vehicle
for the Court’s review.
A.
Eyewitness
misidentification
is
especially dangerous and a leading
cause of wrongful convictions.
As the Sixth Circuit has itself recognized,
“eyewitness misidentification accounts for more false
convictions in the United States than any other
factor.” Ferensic v. Birkett, 501 F.3d 469, 478 (6th Cir.
2007). One analysis found that eyewitness
misidentifications were involved in 76% of the first
250 cases where wrongfully convicted individuals
were later exonerated by DNA evidence. See Brandon
L. Garrett, Convicting the Innocent: Where Criminal
Prosecutions Go Wrong 48-49 (2011). Although it is
now well accepted that much eyewitness
identification evidence is plagued by “inherent
unreliability,” such evidence continues to have “a
powerful impact on juries.” Watkins v. Sowders, 449
U.S. 341, 352 (1981) (Brennan, J., dissenting); see also
Perry v. New Hampshire, 565 U.S. 228, 264 (2012)
(Sotomayor, J., dissenting) (noting that “jurors
routinely overestimate the accuracy of eyewitness
identifications” and citing “study after study”
demonstrating their dangers).
It is not difficult to understand why. While
“[c]ourts across the country now accept that certain
20
factors can greatly affect the accuracy of eyewitness
identification testimony,” these factors “remain
largely unfamiliar to the average person and often
run counter to the beliefs of jurors.” Jones, 262 A.3d
at 1125–1126. Thus, for the typical lay juror, who
likely is not well versed in the scientific literature
surrounding perception and memory, “there is almost
nothing more convincing than a live human being who
takes the stand, points a finger at the defendant,” and
identifies him as the perpetrator. Watkins, 449 U.S.
at 352 (Brennan J., dissenting).
This is precisely why this Court has long cautioned
about “the dangers inherent in eyewitness
identification,” describing such evidence as
“peculiarly riddled” with problems that “might
seriously, even crucially, derogate from a fair trial.”2
United States v. Wade, 388 U.S. 218, 228–229, 235
(1967) (describing the “formidable” number of
2 The dangers attendant to eyewitness identifications are all
the more concerning in cases like this one, where an eyewitness
has professed confidence about the identification to the jury.
Extensive research has shown that such confidence statements
have little, if any, correlation with accuracy, and yet jurors tend
to afford these statements undue weight. See Perry, 565 U.S. at
260 (2012) (Sotomayor, J., dissenting) (“[J]urors find eyewitness
evidence unusually powerful and their ability to assess
credibility is hindered by a witness’ false confidence in the
accuracy of his or her identification.”); see also, e.g., Young v.
Conway, 698 F.3d 69, 88–89 (2d Cir. 2012) (summarizing
research supporting the conclusion that “eyewitness confidence
is a poor postdictor of accuracy”); United States v. Brownlee, 454
F.3d 131, 142–144 (3d Cir. 2006) (discussing “the lack of
confidence-accuracy correlation” for eyewitness identifications).
21
“miscarriage[s]
of
justice
from
mistaken
identification”); see also Gilbert v. California, 388 U.S.
263 (1967); Stovall v. Denno, 388 U.S. 293 (1967);
Manson v. Brathwaite, 432 U.S. 98, 111–112 (1977)
(“The driving force behind” Wade, Gilbert, and Stovall
“was the Court’s concern with the problems of
eyewitness identification”).
B.
Expert testimony is critical for
combatting jurors’ misconceptions
about eyewitnesses’ reliability.
Expert testimony is a bulwark against these
dangers.
“[N]ow
universally
recognized
as
scientifically valid and of aid [to] the trier of fact,”
Ferensic, 501 F.3d at 482 (internal quotation marks
omitted), expert testimony about the inherent
limitations of eyewitness identifications “serve[s] to
explode common myths about [a witness’s] capacity
for perception,” United States v. Moore, 786 F.2d
1308, 1312 (5th Cir. 1986) (internal quotation marks
omitted). By “help[ing] jurors evaluate whether their
beliefs about the reliability of eyewitness testimony
are correct,” United States v. Bartlett, 567 F.3d 901,
906 (7th Cir. 2009), expert testimony can ensure that
jurors accurately “weigh[] eyewitness evidence to
draw the appropriate and necessary conclusions.”
Jones, 262 A.3d at 1128; see also United States v.
Smithers, 212 F.3d 306, 316 (6th Cir. 2000)
(recognizing “the expediency of expert testimony to
address the[] complex issues” associated with
eyewitness identifications “and to inform jurors fully
of the issues they must decide”).
22
Expert testimony can specifically educate jurors
about particular factors and circumstances now
known to significantly reduce the reliability of an
eyewitness identification, including those Dr.
Neuschatz eventually testified about in Clardy’s case.
See Jones, 262 A.3d at 1125–1126 (cataloguing
various factors that “[c]ourts across the country now
accept … can greatly affect the accuracy of eyewitness
identification testimony”).
Precisely because many of these factors are
“counter-intuitive,” expert testimony is often the only
effective way to persuade jurors of their significance.
Ferensic, 501 F.3d at 481–482 (concluding that “other
means of attacking eyewitness identifications”—such
as cross-examination and attorney argument—“do
not effectively substitute for expert testimony on their
inherent unreliability” (internal quotation marks
omitted)); see also, e.g., Nolan, 956 F.3d at 82
(concluding that jury instructions were “not sufficient
to cure” problems with identifications “that would not
have been apparent to a lay jury”); State v. Copeland,
226 S.W.3d 287, 300 (Tenn. 2007) (“[R]esearch also
indicates that neither cross-examination nor jury
instructions on the issue are sufficient to educate the
jury on the problems with eyewitness identification.”).
And, indeed, expert testimony is “the only method of
imparting the knowledge concerning [the lack of]
confidence-accuracy correlation to the jury.” United
States v. Brownlee, 454 F.3d 131, 144 (3d Cir. 2006)
(emphasis added).
This reality makes it essential that criminal
defendants facing prosecutions supported primarily
by eyewitness identifications have every opportunity
23
to benefit from expert testimony. Given this Court’s
recognition of the inherent problems with eyewitness
identifications, the long and extensive history of
wrongful convictions to which such identifications
have contributed, and the frequency with which
prosecutors rely on such evidence, the question
presented here demands this Court’s attention. By
clarifying the constitutional standards governing
when defense lawyers must pursue expert testimony
in eyewitness identification cases, this Court could
provide much-needed guidance to lower courts,
defense attorneys, and defendants nationwide.
C.
This case is an ideal vehicle for
addressing these important issues.
Not only is the question presented exceptionally
important, but this case presents an ideal vehicle for
resolving it.
The factual context makes this case particularly
suitable. It involves a single, cross-racial eyewitness
identification suffering from nearly all the reliability
problems documented in the scientific literature. As
the Sixth Circuit recognized, that identification was
“the primary evidence connecting Clardy to the
shooting.” Pet. App. 2a. There is no dispute that
Snyder, Clardy’s trial counsel, never requested
funding for an expert from the trial court. Yet Snyder
admitted that she recognized the importance of such
testimony, that it could have changed the result, and
that she should have sought a trial continuance to
obtain an expert, but did not. D. Ct. ECF 10-18 at
2241. An expert witness did testify at the state-court
post-conviction hearing, clarifying for this Court
24
exactly what kind of testimony could have been
presented at trial, but was not. Pet. App. 10a–11a,
83a–84a.
This case also presents the deficiency issue
cleanly—without the procedural complications that
often accompany habeas cases. Because the state
court did not address Strickland’s deficiency prong, de
novo review applies, and the Court can address that
issue unencumbered by the deferential standard that
usually applies in habeas cases. See Pet. App. 14a.
The question whether trial counsel’s failure to request
funding for an expert witness amounted to deficient
performance was also squarely presented to and
directly addressed by both the district court and the
Sixth Circuit. There accordingly are no barriers to the
Court’s review.
IV. The Sixth Circuit’s decision is wrong.
The Sixth Circuit’s decision below is incorrect and
cannot be reconciled with this Court’s ineffective
assistance jurisprudence.
This Court has recognized that “[c]riminal cases
will arise where the only reasonable and available
defense strategy requires consultation with experts or
introduction of expert evidence.” Harrington v.
Richter, 562 U.S. 86, 106 (2011). Clardy’s case
epitomizes that principle. A single, cross-racial
eyewitness identification was virtually the only
evidence linking Clardy to the crime, yet that
identification also bore nearly all the hallmarks of
diminished reliability. Given this Court’s recognition
of the danger that jurors will imbue eyewitness
25
identifications with undue weight (see Wade, 388 U.S.
at 228–229, 235), expert assistance was clearly crucial
to Clardy’s defense.
Snyder, Clardy’s trial counsel, herself recognized
the necessity of expert testimony, later admitting that
she “should have gotten an expert witness” (Pet. App.
35a) and “should have got a trial continuance to try to
get an expert somewhere” (D. Ct. ECF 10-18 at 2241).
While she made some effort to find one, she ultimately
decided that no expert would accept the fees she
expected the Tennessee Administrative Office of the
Courts would pay. D. Ct. ECF 10-18 at 2204–2205.
Critically, however, she never actually requested the
necessary funds from the court. Instead, she simply
“decided to go ahead with [trial]” without an expert.
D. Ct. ECF 10-18 at 2205. While she assumed the
court would not provide the funding she needed, she
never bothered to confirm whether her speculation
was correct.
That lack of basic diligence violated professional
norms, rendering Snyder’s choice to forgo an expert
unreasonable under Strickland. See Strickland, 466
U.S. at 690–691 (1984) (“[S]trategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.”);
see also Pet. App. 37a (“Counsel never articulated a
reason, nor can the court imagine one, for failing to
locate and seek funding for an expert whose testimony
counsel believed to be critical to the case.”)
The Sixth Circuit excused this failure by
concluding that Snyder’s inability to secure an expert
26
stemmed from “reasons beyond her control.” Pet. App.
17a. But this ignores Snyder’s fundamental lapse: her
decision not to even ask the court for funding. While
Snyder may have encountered challenges finding
experts willing to work for what she assumed the
court would pay, she never took the simple step of
actually requesting the necessary funds in the first
place. Accordingly, the lack of funding was ultimately
the result of her own negligence, not any decision the
trial court made. And while the record lacks any
evidence about what amount of funding the trial court
would have authorized if asked, that gap exists only
because of Snyder’s own failure to inquire.
The Sixth Circuit emphasized that, under the
relevant state court rule, Snyder could not have filed
a funding motion without identifying a wiling expert.
Pet. App. 19a (citing Tenn. Sup. Ct. R. 13 § 5(b)(2)(B)).
And the court speculated—without evidence in the
record—that the experts Snyder contacted must have
been unwilling to accept Tennessee’s $150 maximum
hourly rate for psychologists. Pet. App. 19a–20a.
Yet Snyder testified only that she could not find an
expert willing to accept the amount she assumed the
state would pay, with no mention of an hourly rate. D.
Ct. ECF 10-18 at 2204–2205. Moreover, the relevant
state rule did not cap the total amount payable to an
expert, instead authorizing funding for expert
assistance “in a reasonable amount to be determined
by the court.” Tenn. Sup. Ct. R. 13 § 5(a)(2). Snyder
never gave the court an opportunity to “determine[]”
any amount, despite admitting she did not know “any
reason why the Court wouldn’t have approved”
funding had she asked. D. Ct. ECF 10-18 at 2213.
27
The Sixth Circuit effectively validated Snyder’s
uninformed assumptions about funding with
speculation of its own. This troubling precedent
potentially immunizes defense attorneys from
constitutional scrutiny for failing to request necessary
resources based solely on unfounded assumptions
about resource availability. Such an approach
strikingly resembles exactly what this Court found to
be deficient performance in Hinton.
The Sixth Circuit’s reasoning also conflicts with
this Court’s precedents regarding the duty to
investigate. Strickland “calls for an inquiry into the
objective reasonableness of counsel’s performance,
not counsel’s subjective state of mind.” Harrington,
562 U.S. at 109–110. Here, the Sixth Circuit
incorrectly
focused
on
counsel’s
subjective
assumptions about what funding the court would
make available, rather than objectively evaluating
whether a reasonable attorney would at least have
attempted to request the funding.
In a case where expert testimony about eyewitness
identification was essential to challenging the only
meaningful evidence of Clardy’s guilt, the Sixth
Amendment demanded that Snyder do more than
simply guess that sufficient funding would not be
available. Snyder’s performance was plainly deficient
under Strickland.
28
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
JESSICA M. VAN DYKE
JASON GICHNER
THE TENNESSEE
INNOCENCE PROJECT
700 Craighead Street,
Suite 300
Nashville, TN 37204
ANGELA L. BERGMAN
Counsel of Record
SCOTT D. GALLISDORFER
BASS, BERRY & SIMS PLC
21 Platform Way South,
Suite 3500
Nashville, TN 37203
(615) 742-6200
abergman@bassberry.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
JANUARY 27, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OF THE
UNITED STATES DISTRICT COURT
F OR T H E M I DDL E DI S T R IC T OF
TENNESSEE, NASHVILLE DIVISION,
FILED JUNE 30, 2023 . . . . . . . . . . . . . . . . . . . . . . 24a
A PPEN DI X C — OR DER OF T H E
UNITED STATES DISTRICT COURT
F OR T H E M I DDL E DI S T R IC T OF
TENNESSEE, NASHVILLE DIVISION,
FILED JUNE 30, 2023 . . . . . . . . . . . . . . . . . . . . . . 50a
A PPENDI X D — REPORT A ND
RECOMMENDATION OF THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE,
NA SH V ILLE DI V ISION, FILED
FEBRUARY 28, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 52a
A PPEN DI X E — OR DER OF T H E
SUPREME COURT OF TENNESSEE AT
NASHVILLE, FILED APRIL 12, 2019 . . . . . . . 109a
APPENDIX F — OPINION OF THE COURT OF
CRIMINAL APPEALS OF TENNESSEE AT
NASHVILLE, FILED OCTOBER 17, 2018 . . . . 110a
ii
Table of Appendices
Page
APPENDIX G — JUDGMENT OF THE COURT
OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE, FILED OCTOBER 17, 2018 . . 134a
A PPEN DI X H — OR DER OF T H E
CRIMINA L COU RT FOR DAV IDSON
COUNTY, TENNESSEE, DIVISION IV,
FILED MAY 17, 2017 . . . . . . . . . . . . . . . . . . . . . . . 136a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT,
FILED JANUARY 27, 2025
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-5676
THOMAS E. CLARDY,
Petitioner-Appellee,
v.
ZAC POUNDS, WARDEN,
Respondent-Appellant.
Appeal from the United States District Court for
the Middle District of Tennessee at Nashville.
No. 3:19-cv-01098—Aleta Arthur Trauger, District Judge.
Argued: May 2, 2024
Decided and Filed: January 27, 2025
Before: LARSEN, READLER, and DAVIS, Circuit
Judges.
OPINION
LARSEN, Circuit Judge. In 2005, a group of men shot
brothers Kirk and Kent Clouatre, and Kirk’s wife, Melissa,
at Kent’s auto-repair shop. Kirk died; Kent and Melissa
2a
Appendix A
survived. Kent identified one of the shooters as Thomas
Clardy. Clardy was charged with murder, attempted
murder, and reckless endangerment. At trial in state
court, Kent’s identification of Clardy was the primary
evidence connecting Clardy to the shooting. Clardy’s
counsel highlighted the problems with that identification,
but she did not call an expert on eyewitness identification
because she could not find one willing to work for what
Clardy could afford or what she understood the state
would pay. Clardy was convicted, and the conviction was
affirmed. Clardy then filed a petition for postconviction
review in state court where he argued, among other
things, that his trial counsel was ineffective for failing to
call an eyewitness expert. The state trial court denied that
petition and the court of appeals affirmed. The state courts
did not decide whether Clardy’s counsel had performed
deficiently but concluded that Clardy had suffered no
prejudice. Clardy then filed a petition for writ of habeas
corpus in federal court. The district court granted the writ
on the eyewitness-expert claim, concluding that counsel
had performed deficiently and that the state court had
unreasonably applied clearly established Supreme Court
precedent in concluding that Clardy was not prejudiced.
We REV ERSE and REM A ND because counsel’s
performance was not deficient.
I.
A.
On July 29, 2005, brothers Kirk and Kent Clouatre
were at Kent’s auto-repair shop in Madison, Tennessee.
State v. Clardy, No. M2007-02729-CCA-R3-CD, 2009
3a
Appendix A
Tenn. Crim. App. LEXIS 69, 2009 WL 230245, at *1
(Tenn. Crim. App. Feb. 2, 2009). That evening, Kirk told
Kent that “somebody was coming” to the shop to look at
a black Monte Carlo that Kirk was selling. 2009 Tenn.
Crim. App. LEXIS 69, [WL] at *4. Between 9:30 and
10:00 pm, Kirk called his wife, Melissa Clouatre, to pick
him up. Melissa loaded her two daughters and one of her
daughter’s friends into her car and drove to the shop.
There, Kirk noticed a problem with Melissa’s car, so he
pulled the vehicle into the shop to complete a quick repair.
While Kirk began the repair, Kent was gathering
trash outside of the shop. Kent saw three men pull up to
the shop in a “forest green [Ford] Taurus.” 2009 Tenn.
Crim. App. LEXIS 69, [WL] at *5. The men rolled down
the window and asked Kent whether the Monte Carlo
was still in the shop. Kent did not recognize the men
immediately but told them the car was in the garage and
“hollered” at his brother to inform him of their arrival.
2009 Tenn. Crim. App. LEXIS 69, [WL] at *4.
Kent saw three men wearing hooded sweatshirts exit
the vehicle and walk into the shop. As the men began to
speak with Kirk, Kent saw the driver’s face from the side
and recognized him as somebody that Kirk knew. Kent
knew the man only as “T.” Kent knew that T owned a
burgundy Monte Carlo and had previously spoken with
him about a black paint job for it. The men spoke to Kirk
until Kirk turned and walked away from them to continue
his work on Melissa’s car. Then the shooting started.
Kent saw T shoot Kirk. “[W]hen the two shots went
off, [T] turned to the side and [Kent] [saw] the side of
4a
Appendix A
his face.” 2009 Tenn. Crim. App. LEXIS 69, [WL] at *5.
That left Kent with “no doubt in his mind” that T was
the shooter. Id. A different man then shot Kent. Melissa,
standing apart from the men, also saw a gunman shoot
Kirk; the same gunman then shot Melissa. She did not get
a good look at the shooter, who was approximately thirty
feet away, but she did not think that she had ever seen
him before. The men returned to the car and fled. Melissa
went into the shop’s office to call 911. Kent hid behind a
telephone pole until the men left, calling two friends and
his fiancée “to find out if somebody was in the area that
could catch these individuals.” Id.
Kirk died before law enforcement reached the scene.
When police and paramedics arrived, Kent told a police
officer “it was a guy named T.” Id. Officer Bridget Ann
Griepentrop, the first officer on the scene, did not hear
Kent identify T but testified that Kent told her the
shooters drove a blue Buick. Officer Griepentrop testified
that Melissa identified the shooter as “a male black,
approximately 5’8[”], 140 [pounds] with [a] white shirt and
a[n] . . . afro.” 2009 Tenn. Crim. App. LEXIS 69, [WL] at
*6. Melissa would later testify, however, that she did not
recall making any statements to the police or paramedics
at the scene. Paramedics quickly took Kent and Melissa
to the hospital.
Kent repeatedly identified T as his brother’s shooter in
police interviews following the incident. Detective Cynthia
Quirouette interviewed Kent the day after the shooting,
while he was still unable to speak, but could write. When
she asked Kent who the shooters were, Kent wrote:
5a
Appendix A
“somebody that might know the guy T” and that “[T] was
there.” 2009 Tenn. Crim. App. LEXIS 69, [WL] at *9. In
an interview the next day, Kent described T “as 5’5” to
5’7”, 150-60 pounds, 25 to 28 years old with permed hair.”
R. 10-3, PageID 1291. One week after the shooting, Kent
described T “as 5’4” to 5’5”, 150 to 200 pounds, between 28
to 30 years old with permed greasy hair, a short flattened
out nose and crooked top front teeth.” Clardy, 2009 Tenn.
Crim. App. LEXIS 69, 2009 WL 230245, at *9. After he
was discharged from the hospital, Kent told Detective
Danny Satterfield and Sergeant Detective John Batty that
T was the driver of the vehicle and the gunman who shot
Kirk. According to the detectives’ report summarizing the
interview, Kent described T as “five foot six inches, 170
pounds, hair in small braids, tattoos.” 2009 Tenn. Crim.
App. LEXIS 69, [WL] at *6. When Satterfield showed
Kent a photo lineup, Kent identified Clardy as T.
Melissa also provided descriptions of the gunmen.
On the night of the shooting, Detective Jason Proctor
interviewed Melissa at the hospital. Melissa described the
man who shot her as five-foot-seven, one-hundred-seventy
pounds, in his late twenties or early thirties, with “frizzy
hair,” wearing a “white t-shirt.” 2009 Tenn. Crim. App.
LEXIS 69, [WL] at *7. Melissa described the shooters’
vehicle as a “90’s four-door blue car, possibly a Taurus.”
Id. Two days after the shooting, Melissa described three
suspects to Detective Quirouette. Melissa gave slightly
different descriptions, describing the man who shot
both her and Kirk as five-foot-six to five-foot-seven, onehundred-seventy pounds, with fluffy hair and a gray and
white t-shirt. Quirouette testified that Melissa also said
6a
Appendix A
the man who shot her wore something white on his head.
One week after the shooting, Melissa again told Quirouette
that the man who shot her was wearing a white shirt
and had an afro. She repeated her statement that the
“suspects were driving a blue four-door car with an oval
back” that looked like a “‘96 to ‘97 Sab[le] or Taurus.” R.
10-3, PageID 1263. Melissa was never able to identify any
of the shooters in a photo lineup.
Several weeks after the incident, Detective Quirouette
interviewed Quinton, one of the friends Kent had called
immediately after the shooting. On that call, Kent told
Quinton that T had shot his brother. Quinton passed
away after his interview with Quirouette, before the trial.
Quirouette also interviewed another friend of Kirk and
Kent’s, Roselle Wester. Wester testified that he recognized
Clardy as T from the neighborhood. He had seen Clardy
come around Kent’s shop a few times driving a “green
Taurus or Sable.”1 R. 10-2, PageID 1148. Wester said that
Kirk and Clardy did not get along and that there had been
several “[c]onfrontations” or “arguments” between the
two. Id. at 1147. A couple of weeks before the shooting,
Kirk told Clardy to leave the shop and never return.
Sergeant Detective John Batty subsequently visited
Clardy’s apartment. Though Clardy was absent, Batty
1. Mercury, a Ford brand, produced the Sable as a luxury trim
of the Ford Taurus. John Holusha, Ford Puts Its Future on the Line,
N.Y. TIMES (Dec. 1, 1985), https://www.nytimes.com/1985/12/01/
magazine/ford-puts-its-future-on-the-line.html. The two vehicles
are “very similar in appearance.” Clardy v. Boyd, No. 3:19-cv-01098,
2023 U.S. Dist. LEXIS 32937, 2023 WL 2287640, at *5 (M.D. Tenn.
Feb. 28, 2023) (Magistrate Judge Report and Recommendation).
7a
Appendix A
saw a “teal green” “[19]96 Mercury Sable” parked outside.
R. 10-3, PageID 1233. When Clardy later turned himself
in to police custody, his arrest report recorded that he
was five-foot-eight and one-hundred-seventy pounds.
Clardy was indicted on six counts: one count of firstdegree premeditated murder, two counts of attempted
first-degree premeditated murder, and three counts of
reckless endangerment.
At trial, Clardy’s counsel, Patricia Snyder, focused her
cross-examinations on inconsistencies relating to Kent’s
identification of the gunmen and the vehicle they drove.
Snyder asked Kent why he did not immediately identify the
shooter as T to the first police officer on the scene, Officer
Griepentrop. Kent replied that he had identified T to first
responders while he lay in an ambulance facing a female
officer. Yet, when Snyder cross-examined Griepentrop, she
said that Kent had been unable to provide any description
of the suspects at the scene and denied hearing Kent make
any reference to T that evening. On redirect, Griepentrop
acknowledged that Kent may have identified T to another
officer. Snyder asked Kent if he recalled telling Detective
Quirouette that he did not see T at the shooting during
his interview two days after the incident. Kent said he did
not recall making any such statement. Yet in response to
questioning by Snyder, Quirouette said that “at one point
[Kent] said that one of the guys in the front seat of the
Buick was T and at another point in the interview he said
he did not see T.” Clardy, 2009 Tenn. Crim. App. LEXIS
69, 2009 WL 230245, at *9. Quirouette also testified that
during one of Kent’s interviews, Kent said that “he did
not actually see [T], but he heard one of the men say ‘let’s
go T, let’s go.’” Id. Snyder asked Kent if he had initially
8a
Appendix A
described the shooters’ vehicle as a “‘87 Buick [Century]”
to police. 2009 Tenn. Crim. App. LEXIS 69, [WL] at *6.
Kent denied any memory of mentioning a Buick, recalling
describing the car as a Taurus instead. Yet, in response
to Snyder’s questions, Officer Griepentrop, Detective
Quirouette, and Detective Satterfield each said they
recalled Kent describing the vehicle as a Buick during
their interviews. Finally, Snyder asked Kent if he had
described T as having tattoos. Kent said that he did not
remember ever saying that T had tattoos and that he
had no idea how a reference to tattoos ended up in police
reports. Yet Detective Satterfield testified that Kent
described T as having tattoos.
Clardy called his wife, Rolesha, to testify. Rolesha
testified that she and Clardy had two cars, a gold 2004
Dodge Stratus and a green 1996 Mercury Sable. But
the “head gasket was blown” on the Sable, so it was
undrivable. 2009 Tenn. Crim. App. LEXIS 69, [WL] at
*10. She also said that Clardy had no tattoos. The evening
of the shooting, a friend of hers, Shakisha Thompson, had
picked up Rolesha’s son to take him bowling at around
7:30 or 8:00 p.m. and returned around 11:00 or 11:30 p.m.
Thompson was Clardy’s final witness. She confirmed
that she had picked up Rolesha’s son between 7:30 and
7:45 p.m. and dropped him off between 10:30 and 11:00
p.m. Both times, Clardy had met her at the door. When
she dropped off Rolesha’s son, Clardy seemed normal and
was wearing “a shirt, shorts, and ‘grandpa slippers.’” Id.
Thompson testified that she knew that Clardy’s Sable had
broken down and that, since then, he had been driving the
Stratus. Clardy did not testify.
9a
Appendix A
In closing argument, Clardy’s counsel, Snyder,
highlighted the inconsistencies in the testimony. She
pointed out that Melissa testified to seeing a blue or green
Taurus or Sable; but Kent had, at times, told officers
that he had seen a gray Buick Century. She emphasized
that Kent owned an auto-repair shop—“he’s a car man,
Kent’s a car man, he ought to know what kind of car he
saw.” R. 10-3, PageID 1341. She claimed that Melissa saw
four suspects; Kent saw three. Melissa said that the man
who shot her and Kirk wore a t-shirt; Kent said he wore
a hoodie. Kent at times said that T had tattoos; Clardy
has no tattoos. Snyder reiterated that Kent had been shot
and was in such a state that the responding officers did
not think he would survive. His ability to perceive would
likely have been impaired. She also suggested that Kent
knew Clardy generally from the neighborhood and that
there might have been reasons he would misidentify him.
She concluded by reminding the jury of Clardy’s alibi and
that his Sable was not operational.
B.
The jury convicted Clardy on all counts. His conviction
was affirmed, State v. Clardy, 2009 Tenn. Crim. App.
LEXIS 69, 2009 WL 230245 (Tenn. Crim. App. Feb. 2,
2009), and the Tennessee Supreme Court denied review,
State v. Clardy, No. M2007-02729-SC-R11-CD, 2009 Tenn.
LEXIS 372 (Tenn. June 15, 2009), https://www.tncourts.
gov/sites/default/files/certlist20090615.pdf. Clardy then
filed a petition for postconviction review in state court
raising several claims. Relevant here, he claimed that
his trial counsel had been constitutionally ineffective for
failing to call an expert on eyewitness identification.
10a
Appendix A
Snyder, who was retained trial counsel, testified at the
postconviction hearing. She said that she wanted to hire
an eyewitness expert, but Clardy could not afford one, and
counsel could not find an expert “who would be willing to
take the state fees if [she] got [Clardy] declared indigent.”
R. 10-18, PageID 2205. She spoke with one of Clardy’s
relatives who she thought might pay for an expert, but that
did not materialize. She drove an expert to the airport
after a seminar in an effort to convince the expert to take
the case, but that did not work out. She obtained a list
of experts from the Tennessee Association of Criminal
Defense Lawyers and “called everybody on that list” to no
avail. Id. at 2206. She looked inside and outside Tennessee
but could not find an expert who would work for what “the
State of Tennessee was paying.” Id. Counsel also said that,
at that time, the Tennessee Administrative Office of the
Courts “was not paying expert witness’s fees that were
being billed.” Id. at 2204-05. So, in addition to Clardy’s
inability to afford an expert, and experts being unwilling
to work for what Tennessee would pay if Clardy were
declared indigent, counsel could not find an expert who
would accept the state’s promise of fee payment.
After the fact, counsel felt that she “apparently should
have gotten an expert witness,” but at the time, she
“decided to go ahead with [trial].” Id. at 2205. She made
that decision without filing a motion for expert funding
because she “wanted to find [an expert] first.” Id. at 2206.
Dr. Jeffrey Neuschatz, a psycholog ist and an
expert on eyewitness identification, also testified at the
postconviction hearing. He described several problems
11a
Appendix A
with eyewitness identifications. As examples, he discussed:
weapon focus, which means that the presence of a weapon
draws attention away from the rest of the scene, making it
more difficult to remember other facts; cross-race effect,
which means that it is more difficult to identify people of
another race; and unconscious transference, which means
associating someone around the scene with the crime.
As an expert witness, though, Dr. Neuschatz was unable
to offer an opinion as to whether Kent’s identification of
Clardy was correct.
The state court denied Clardy’s postconviction
petition. His appeal from that denial was unsuccessful,
Clardy v. State, No. M2017-01193-CCA-R3-PC, 2018 Tenn.
Crim. App. LEXIS 779, 2018 WL 5046032 (Tenn. Crim.
App. Oct. 17, 2018), and the Tennessee Supreme Court
denied review, Clardy v. State, M2017-01193-SC-R11-PC,
2019 Tenn. LEXIS 179 (Tenn. Apr. 12, 2019) https://www.
tncourts.gov/sites/ default/files/discretionary_appeals_
list_2018apr15.pdf.
The decision affirming the denial of the state
postconviction petition is the last reasoned opinion
addressing Clardy’s ineffective assistance claim. Clardy,
2018 Tenn. LEXIS 779, 2018 WL 5046032, at *6-7; see
Wilson v. Sellers, 584 U.S. 122, 125, 138 S. Ct. 1188,
200 L. Ed. 2d 530 (2018). In that opinion, the Tennessee
Court of Criminal Appeals (TCCA) first cited Strickland
v. Washington, 466 U.S. 688 (1984), for the two-prong
ineffective-assistance-of-counsel standard: “a petitioner
must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Clardy,
12a
Appendix A
2018 Tenn. LEXIS 779, 2018 WL 5046032, at *2. It
then recounted counsel’s efforts to secure an expert
and Dr. Neuschatz’s testimony at the postconviction
hearing. 2018 Tenn. LEXIS 779, [WL] at *6-7. Finally, it
concluded that Clardy had not suffered prejudice because
Dr. Neuschatz “could not opine as to the correctness of
Kent’s identification,” and “[m]erely giving a jury more
information to consider without negating the identification
does not establish a reasonable probability, sufficient to
undermine the outcome, that the results of the proceeding
would have been different.” 2018 Tenn. LEXIS 779, [WL]
at *7. The TCCA did not evaluate counsel’s performance,
expressly relying on Strickland’s prejudice prong, instead.
Clardy then filed a habeas petition in federal court
raising several ineffective-assistance-of-counsel claims
and asserting actual innocence. See Clardy, 2023 U.S.
Dist. LEXIS 32937, 2023 WL 2287640, at *5. A federal
court’s review of a habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2241, et seq. Under AEDPA, a federal
court cannot grant habeas relief to a state prisoner on the
basis of a claim adjudicated on the merits in state court
unless the adjudication resulted in a decision: (1) “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) “that was
based on an unreasonable determination of the facts
in light of the evidence presented” in state court. Id.
§ 2254(d). However, when the claim is ineffective assistance
of counsel, and a state court expressly addresses only one
of the two Strickland prongs, we review the other prong
de novo. Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012).
13a
Appendix A
The district court first noted that, in resolving Clardy’s
eyewitness-expert claim, the TCCA had addressed only
Strickland’s prejudice prong, so de novo review applied
to the performance prong. Clardy v. Pounds, 680 F. Supp.
3d 872, 877-78 (M.D. Tenn. 2023). The district court then
held, on de novo review, that trial counsel had performed
deficiently. Id. at 880. The court concluded that counsel
had “failed to make the necessary efforts to procure
[expert] testimony, including by seeking funding and,
if necessary, postponing the trial to give her more time
to procure both an expert and the necessary funding.”
Id. The district court next acknowledged that AEDPA
deference applied to the prejudice prong but found that
deference overcome because the TCCA’s decision involved
an unreasonable application of Strickland. Id. at 883. The
district court said that the TCCA “appeared to interpret
‘prejudice’ to require that the proposed expert testimony
affirmatively negate evidence already in the record, and it
unreasonably concluded that simply giving the jury ‘more
information to consider,’ without negating the existing
evidence, could never change a jury’s verdict.” Id. Clardy
suffered prejudice because “no matter what efforts trial
counsel exerted in trying to impeach [Kent’s] identification
through other means, only an expert’s testimony could
show that ‘the eyewitness testimony was sufficiently
unreliable in ways not readily apparent to a lay jury.’” Id.
at 885 (citation omitted).
The district court granted the writ on the eyewitnessexpert claim. 2 The state appeals.
2. The district court did not address Clardy’s other claims.
14a
Appendix A
II.
A petitioner bringing an ineffective-assistance-ofcounsel claim must first show that “counsel made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. If a petitioner meets that
burden, he must then show that counsel’s deficient
performance caused him prejudice. Id.
At the performance prong, the district court concluded
that Clardy’s counsel performed deficiently by failing to
procure and present an eyewitness identification expert.
Because the state courts did not consider that question,
federal court review is de novo. Rayner, 685 F.3d at 638.
And, in a habeas appeal, we review the district court’s
legal conclusions de novo and its factual findings for clear
error. Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir. 2012).
Clardy’s argument proceeds in two steps. First, he
argues that an expert was needed in his case. Next, he
argues that counsel performed unreasonably by failing
to file a motion seeking expert funding.
We begin by noting that defense counsel is not always
required to “call an expert witness about the problems
with eyewitness testimony in identification cases or risk
falling below the minimum requirements of the Sixth
Amendment.” Perkins v. McKee, 411 F. App’x 822, 833
(6th Cir. 2011). Counsel, of course, must make reasonable
professional efforts to expose weaknesses in eyewitness
identifications that are central to the government’s case.
15a
Appendix A
Jackson v. Bradshaw, 681 F.3d 753, 762-63 (6th Cir. 2012).
But counsel need not invariably use an expert witness to
do that; instead, counsel may use “other means” such as
cross-examination, so long as the attorney’s performance
is reasonable under the circumstances. Id. at 763. When
reviewing the adequacy of counsel’s performance, the
Supreme Court has “often explained that strategic
decisions—including whether to hire an expert—are
entitled to a ‘strong presumption’ of reasonableness.”
Dunn v. Reeves, 594 U.S. 731, 739, 141 S. Ct. 2405, 210 L.
Ed. 2d 812 (2021) (per curiam) (citation omitted).
Jackson v. Bradshaw illustrates the point. There,
a habeas petitioner argued that trial counsel had been
ineffective for failing to secure an eyewitness identification
expert because, in his view, the identification was
“essential” to the case. 681 F.3d at 762. The eyewitnesses
in Jackson had observed the events while intoxicated,
the identification was cross-racial, and the eyewitnesses
had been exposed to outside information that might have
influenced their identification testimony. Id. This court
noted ‘the dangers inherent in eyewitness identification,’”
and acknowledged that expert testimony on the subject
is generally admissible. Id. Even so, we concluded that
defense counsel’s failure to seek an expert on eyewitness
testimony did not amount to deficient performance.
Instead, we held that counsel had performed reasonably
by “emphasiz[ing] the potential weaknesses” in the
identifications using “cross-examination” and “argument.”
Id. at 762-63; see also Dorch v. Smith, 105 F. App’x 650,
653, 656-57 (6th Cir. 2004); Moore v. Hardee, 723 F.3d
488, 490-98 (4th Cir. 2013).
16a
Appendix A
Even if expert testimony is not required in every
case, Clardy argues that it was required in his. He relies
upon two out-of-circuit cases to support this claim: United
States v. Nolan, 956 F.3d 71 (2d Cir. 2020), and Jones
v. United States, 262 A.3d 1114 (D.C. 2021). In Nolan,
perpetrators wearing disguises burst into the victims’
home wielding weapons and pistol-whipped one victim
into unconsciousness. 956 F.3d at 76, 80. The victims were
unable to give investigators a detailed description of the
perpetrators for more than a month after the crime and
the police engaged in the “highly irregular procedure[]”
of permitting the witnesses to discuss the identification
among themselves. Id. at 80-81. Nolan’s counsel did not
call or consult an eyewitness expert. Id. at 81. The court
concluded that an eyewitness expert was required to
adequately expose the weaknesses in the eyewitness
identifications. Id. at 82. In Jones, the victim awoke to find
an unknown woman standing next to his bed; the woman
demanded money and then hit him over the head with a
hard object in a sock. 262 A.3d at 1118-20. The victim was
unable to identify the defendant in a photo lineup and first
identified the defendant at trial. Id. at 1119. The victim’s
neighbor and landlord, who had entered the victim’s home
out of concern, also identified the defendant at trial and
claimed that she had pointed a shiny object at him when
she encountered him inside the front door. Id. at 1119-20.
Jones’ counsel did not consider consulting an eyewitness
expert. Id. at 1121. The court once again concluded that
an eyewitness expert was required. Id. at 1126.
The parties dispute whether Nolan and Jones are
distinguishable from the instant case. We need not resolve
17a
Appendix A
this dispute because, even if an expert should have been
called, the question is whether counsel is to blame for not
calling one. Counsel’s performance must be measured
against an “objective standard of reasonableness” as
defined by “prevailing professional norms.” Strickland,
466 U.S. at 688. This standard does not require success in
every effort, particularly in the face of limited resources.
See Yarbrough v. Johnson, 520 F.3d 329, 338 (4th Cir.
2008) (noting that the standards of adequate performance
concerning the retention of experts necessarily depend
on the level of funding available); Harrington v. Richter,
562 U.S. 86, 107, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)
(“Counsel was entitled to formulate a strategy that was
reasonable at the time and to balance limited resources
in accord with effective trial tactics and strategies.”). The
Sixth Amendment does not impose a duty on counsel to
secure an expert witness where no willing expert can
be found. See United States v. Stegawski, 687 F. App’x
509, 513-14 (6th Cir. 2017) (finding adequate performance
where counsel tried but could not find an expert willing to
testify); Flick v. Warren, 465 F. App’x 461, 464-65 (6th Cir.
2012); (finding adequate performance where counsel ended
efforts to call an expert after repeated refusals); Keigley
v. Rewerts, No. 22-1924, 2023 U.S. App. LEXIS 5402, 2023
WL 3294542, at *3 (6th Cir. Mar. 6, 2023) (order) (“It is
not deficient performance for an attorney to decide not to
call an expert witness if he is unable to find one willing to
challenge the prosecution’s theory of the case.”).
Unlike counsel in Nolan and Jones, Clardy’s counsel
tried to hire an eyewitness expert but was unable to do so
for reasons beyond her control. Clardy, 680 F.Supp.3d at
18a
Appendix A
880. She tried to get one of Clardy’s relatives to finance
an expert. R. 10-18, PageID 2204. She drove an expert to
the airport after a seminar in an attempt to convince the
expert to take the case. Id. at 2205. She obtained a list
of experts from the Tennessee Association of Criminal
Defense Lawyers and “called everybody on that list.”
Id. at 2206. She “even went out of state to try to find
somebody.” Id. She simply could not find an expert who
would work for what “[Clardy] could afford” or “what
the State of Tennessee was paying.” Id. And some of the
experts she consulted would not even take appointed cases
due to funding issues with the State of Tennessee. The
lack of expert funding in Tennessee is not attributable to
counsel and did not render her performance deficient. See
Stegawski, 687 F. App’x at 513-14.
Clardy argues that counsel’s failure to hire an
expert was based on her mere “speculat[ion]” about the
availability of funds, Appellee Br. at 25, and that Hinton
v. Alabama, 571 U.S. 263, 134 S. Ct. 1081, 188 L. Ed. 2d
1 (2014) (per curiam), establishes that counsel behaved
unreasonably by not filing a motion seeking funding.
But Hinton does not govern this case. There, counsel
mistakenly believed that state law capped expert funding
at $1,000. In truth, the legislature had removed the cap,
leaving the trial court free to authorize expert funding
for “any expenses reasonably incurred.” Id. at 267. The
Supreme Court found counsel’s performance deficient for
not seeking funding in an amount that would have secured
the services of a better expert, but the Court made clear
that “the only inadequate assistance of counsel [there] was
[counsel’s] inexcusable mistake of law.” Id. at 275.
19a
Appendix A
Clardy has shown no similar legal mistake on Snyder’s
part. Snyder explained that she did not file a motion for
expert funding because she “wanted to find [an expert]
first.” R. 10-18, PageID 2206. That hesitation seems to
have been required by Tennessee’s rules of procedure.
As Clardy himself acknowledges, those rules “require[]
a party seeking funding for an expert witness to identify
the expert by name in the motion and specify the proposed
hourly rate.” Appellee Br. at 35 (citing Tenn. Sup. Ct. R.
13 § 5(b)(2)(B)). 3 Clardy points to nothing in the record
suggesting that counsel committed legal error by not filing
a motion before she found a willing expert.
Snyder testified about her efforts to find a willing
expert. She explained that she sought, but could not find,
an expert willing to work for what the State would pay and
who would accept the State’s promise of payment. Clardy
3. Clardy contends that the state has forfeited any arguments
based on Rule 13’s motion-filing prerequisites, Tenn. Sup. Ct. R. 13
§ 5(b)(2)(B) (2023), claiming that the state failed to timely identify
this subsection of the rule below. That is wrong for a few reasons.
First, the issue of deficient performance is properly before this court
because “the district court decided that issue on the merits.” Owens
v. Parris, 932 F.3d 456, 458 (6th Cir. 2019). Next, both parties briefed
the question of Rule 13 § 5(b)(2)(B)’s effect on the reasonableness
of counsel’s performance to the district court. Without addressing
this subsection of the rule, the district court held that counsel
behaved unreasonably in not filing a fee motion because “nothing but
counsel’s speculation suggests that such a motion would not have been
approved.” Clardy, 680 F. Supp. 3d at 881. It should go without saying
that the State is entitled to respond to that reasoning by pointing to
arguments raised, but unaddressed, in the district court, providing
non-speculative reasons for counsel’s behavior.
20a
Appendix A
discounts this testimony. Noting that Snyder “never said
what hourly rate the experts with whom she spoke were
willing to accept,” Appellee Br. at 37, Clardy asks us to
assume that Snyder must have been just guessing (and
wrong) about what Tennessee would pay. Clardy claims
that without “filing a motion for funding with the court,”
Snyder could not have “reach[ed] an informed conclusion
about whether adequate funding was available.” Id. at 30.
But one need only look at the Tennessee rules in effect at
the time to see that they capped expert fees according to
a fee schedule, providing a maximum hourly rate of $150
for psychologists. Tenn. S. Ct. Rule 13 § 5 (d)(1) (2023);
see also Dotson v. State, 673 S.W.3d 204, 212 (Tenn.
2023) (reducing an hourly rate request to comply with
Rule 13’s rate schedule).4 The text of the rule provides no
4. As with the portion of Rule 13 related to motion-filing
prerequisites, Clardy says that we may not refer to Rule 13’s fee
cap because the State did not timely raise it below. But the district
court relied on one portion of Rule 13, “provid[ing] for the payment
or reimbursement of reasonable and necessary expenses,” Tenn. S.
Ct. Rule 13 § 5(a)(1) (2023), to conclude that counsel should have filed
a motion because “nothing but counsel’s speculation suggests that
such a motion would not have been approved.” Clardy, 680 F. Supp.
3d at 881. This court is not forbidden from reading the whole of Rule
13, to notice that those fees “shall not exceed the [listed] maximum
hourly rates.” Tenn. S. Ct. Rule 13 § 5 (d)(1) (2023). See Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S. Ct. 1711, 114 L. Ed.
2d 152 (1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify and
apply the proper construction of governing law.”); Bay Mills Indian
Cmty. v. Whitmer, 794 Fed. Appx. 485, 488 (6th Cir. 2019) (“[I]t was
improper for the parties to attempt to artificially constrain our ability
to read the statute as a whole.”).
21a
Appendix A
mechanism to request hourly rates in excess of that
schedule. See id.
It is true that the record does not reveal the precise
rate Snyder discussed with potential experts; Clardy
never asked her that question. But we cannot presume
from the record’s silence that Snyder was wrong about how
much Tennessee would pay. That would turn Strickland’s
“presumption of effectiveness on its head.” Burt v. Titlow,
571 U.S. 12, 23, 134 S. Ct. 10, 187 L. Ed. 2d 348 (2013).
The Supreme Court frequently reminds us that counsel
must be “‘strongly presumed to have rendered adequate
assistance and [to have] made all significant decisions in
the exercise of reasonable professional judgment.’” Id. at
22 (quoting Strickland, 466 U.S. at 690). “[T]he burden
to ‘show’” otherwise “rests squarely on” Clardy. Id. at
22-23 (quoting Strickland, 466 U.S. at 687). Nothing
in the record shows that counsel misunderstood what
Tennessee would pay or the way expert fees were being
handled on the ground. And “[i]t should go without saying
that the absence of evidence cannot overcome the ‘strong
presumption’” that counsel performed reasonably. Id. at
23 (quoting Strickland, 466 U.S. at 689) (emphasis added);
Dunn, 594 U.S. at 739.
Clardy has made no showing that his counsel was
wrong to wait to file a motion until she had a willing
expert, or that she was mistaken about the amount
Tennessee would pay, or the way expert fees were being
handled by the state courts. So he has not shown that
counsel performed unreasonably by failing to file a motion
for expert fees without a willing expert.
22a
Appendix A
Clardy contends that counsel still should have
“requested adequate funding for at least one of the many
experts with whom she described speaking, even if she
suspected that the court would have denied the request.”
Appellee Br. at 36-37 (emphasis omitted). But “[i]t simply
is not the case that a lawyer who fails to request funds
that are not available, or to which his [or her] client is
not entitled under governing local law, has rendered
ineffective assistance of counsel.” Yarbrough, 520 F.3d
at 339; see also United States v. Hanley, 906 F.2d 1116,
1121 (6th Cir. 1990) (denying an ineffective assistance of
counsel claim based on “motions that would likely have
been futile”).
A fter making reasonable efforts to secure an
expert—and failing through no fault of her own—Clardy’s
counsel deployed the traditional tools of argument and
cross-examination to highlight the vulnerabilities in the
eyewitness identification in this case. She emphasized the
discrepancies between Kent’s testimony at trial and what
he said to officers and detectives shortly after the shooting.
She elicited testimony from Melissa and various officers
and detectives that conflicted with Kent’s. She showed that
Clardy had no tattoos and that his fingerprints were not
found at the scene. She presented testimony that Clardy’s
Mercury Sable was undrivable and presented an alibi
witness. In closing argument, she reiterated Clardy’s
alibi; showed that Kent and Melissa disagreed with each
other, and across time, about the car, the number of men,
what the men were wearing, and what the men looked like;
and made arguments about the potential reasons for the
unreliability of Kent’s identification. Yet, despite these
efforts, the jury found the evidence sufficient to convict.
23a
Appendix A
The only question before this court is whether
counsel’s efforts were sufficient to show that she provided
“reasonably effective assistance.” Strickland, 466 U.S.
at 687. Here, counsel’s diligent effort to find an expert,
and, when that failed, her thorough use of argument and
cross-examination were enough to satisfy Strickland’s
performance prong. See Jackson, 681 F.3d at 762-63;
Moore, 723 F.3d at 498. The district court erred by
granting the writ because counsel’s performance was not
deficient.
***
We REVERSE and REMAND.
24a
B
APPENDIX B —Appendix
MEMORANDUM
OF THE
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE,
NASHVILLE DIVISION, FILED JUNE 30, 2023
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
No. 3:19-cv-01098
THOMAS E. CLARDY,
Petitioner,
v.
ZAC POUNDS, WARDEN,1
Respondent.
Filed June 30, 2023
MEMORANDUM
Thomas E. Clardy, a person in the custody of the
Tennessee Department of Correction (“TDOC”), has filed
a Petition for Writ of Habeas Corpus under 28 U.S.C.
1. The court takes judicial notice that Zac Pounds was
recently appointed Warden of Riverbend Maximum Security
Institution, where petitioner Clardy is incarcerated. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Pounds is
automatically substituted as the defendant in this action.
25a
Appendix B
§ 2254, challenging the constitutionality of his 2006
conviction in the Criminal Court for Davidson County,
Tennessee for murder, attempted murder, and reckless
endangerment. (Doc. No. 1.) Following referral under Rule
72 of the Federal Rules of Civil Procedure, the Magistrate
Judge issued a Report and Recommendation (“R&R”)
recommending that the petition be granted based on one
of the grounds for relief asserted by the petitioner. (Doc.
No. 25.)
Now before the court are the respondent’s Objections
to the R&R (Doc. No. 28), urging the court to reject the
Magistrate Judge’s ruling as it relates to the sole claim
for relief that he found to be meritorious. Clardy filed
a Response to the respondent’s Objections (Doc. No.
32), and he also filed his own Objections and supporting
Memorandum (Doc. Nos. 29, 30), challenging the
Magistrate Judge’s rejection of the other claims for relief
set forth in his habeas petition. The respondent has filed
a Response in opposition to the petitioner’s Objections.
(Doc. No. 33.)
As set forth herein, the court will accept and adopt
the Magistrate Judge’s ruling in its entirety, except as
modified herein, overrule the respondent’s Objections,
and grant the petitioner’s § 2254 petition.
I.
STANDARD OF REVIEW
When a magistrate judge issues a report and
recommendation regarding a dispositive pretrial matter,
the district court must review de novo any portion of the
26a
Appendix B
report and recommendation to which a proper objection is
made. Fed. R. Civ. P. 72(b)(1)(C); 28 U.S.C. § 636(b)(1)(C);
United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001);
Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993).
In conducting its review of the objections, the district
court “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” Fed. R. Civ.
P. 72(b)(3).
Substantively, Clardy’s petition is governed by 28
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Under
AEDPA, a federal court may not grant a habeas petition
unless the petitioner has “exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b).
In addition, where the state court decided a claim on the
merits, a federal district court may grant relief only if the
state court’s resolution of that 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.
Id. § 2254(d). This standard, on which the petitioner bears
the burden of proof, is “difficult to meet” and “highly
27a
Appendix B
deferential,” and it “demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster,
563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)
(quoting Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011), and Woodford v. Visciotti,
537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)
(per curiam)). A district court’s review is “limited to the
record that was before the state court that adjudicated
the claim on the merits.” Id.
A state court’s decision is “contrary” to federal
law, for purposes of § 2254(d)(1), if it “arrives at a
conclusion opposite to that reached” by the Supreme
Court on a question of law or “decides a case differently
than” the Supreme Court has “on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An
“unreasonable application” of federal law occurs under
§ 2254(d)(1) when a state court “identifies the correct
governing legal principle from” the Supreme Court’s
decisions “but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. at 412-13, 120 S.Ct. 1495.
“[T]he central inquiry is whether the state court decision
was objectively unreasonable and not simply erroneous or
incorrect.” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir.
2010) (quoting Harris v. Haeberlin, 526 F.3d 903, 910 (6th
Cir. 2008)).
The Sixth Circuit has held that, “[w]ith respect to
§ 2254(d)(2), ‘[f]actual determinations by state courts are
presumed correct absent clear and convincing evidence
to the contrary, § 2254(e)(1), and a decision adjudicated
28a
Appendix B
on the merits in a state court and based on a factual
determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence
presented in the state-court proceeding.’” Ayers, 623 F.3d
at 308 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340,
123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). This standard
is “demanding but not insatiable.” Id. (citation omitted).
II. THE RESPONDENT’S OBJECTIONS
A.
Background
In an attempt to avoid duplication of effort to the
extent possible, the court presumes familiarity with the
underlying state court record, the habeas petition, the
government’s response, and the R&R itself. In summary,
the habeas petition asserts claims for relief based on six
separate instances of ineffective assistance of counsel
(“IAC”), as well as a claim that the cumulative prejudicial
effect of counsel’s alleged errors warrants setting aside
the state court judgment. The petitioner also states claims
based on actual innocence: both a freestanding actual
innocence claim and a “gateway innocence” claim. (Doc.
No. 1, at 77.)
The Magistrate Judge recommends granting relief
only on the basis of the petitioner’s third IAC claim: that
trial counsel’s assistance was constitutionally deficient,
insofar as she failed to present expert testimony on
eyewitness identifications and that the petitioner was
prejudiced by that failure, particularly in light of the fact
that the only inculpating evidence presented at trial was
29a
Appendix B
victim Kent Clouatre’s eyewitness identification of Clardy
as the individual who shot and killed Kent’s brother, Kirk
Clouatre. (See Doc. No. 1, at 62-64; Doc. No. 25, at 20-31.)
It is undisputed that this claim was fully exhausted in the
state court proceedings.
The well known standard governing the initial review
of IAC claims is set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Under this standard, a petitioner seeking to prove that
he had ineffective assistance of counsel at trial must
demonstrate (1) constitutionally deficient performance by
his trial counsel; and (2) actual prejudice resulting from
that deficient performance. Id. at 687, 694, 104 S.Ct. 2052.
To show deficient performance, the petitioner must show
that his attorney’s performance “fell below an objective
standard of reasonableness,” based on “prevailing
professional norms.” Id. at 688, 104 S.Ct. 2052. The
prejudice component requires the petitioner to “show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.” Id. at 694, 104 S.Ct. 2052.
Under AEDPA, however, the standard for a review of
an IAC claim asserted in the context of a § 2254 motion
is not merely whether a petitioner can establish deficient
performance and prejudice under Strickland, but whether
the state court properly applied Strickland— whether
its decision rejecting his original IAC claim “(1) ‘was
contrary to, or involved an unreasonable application of,
30a
Appendix B
clearly established Federal law, as determined by the
Supreme Court’ or (2) ‘was based on an unreasonable
determination of the facts.’” Rogers v. Mays, 69 F.4th 381,
389 (6th Cir. 2023) (quoting 28 U.S.C. § 2254(d)); see also
Richter, 562 U.S. at 105, 131 S.Ct. 770 (“When 2254(d)
applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.”). In other words, this court must
give the state court decision “double deference.” Rogers,
69 F.4th at 389.
At the same time, however, when a state court’s ruling
relies “only on one Strickland prong to adjudicate an
ineffective assistance of counsel claim, AEDPA deference
does not apply to review of the Strickland prong not relied
upon by the state court.” Rayner v. Mills, 685 F.3d 631,
638 (6th Cir. 2012). Instead, the federal court applies de
novo review to the unadjudicated Strickland element. Id.;
see also Smith v. Cook, 956 F.3d 377, 392 n.4 (6th Cir. 2020)
(recognizing that this holding in Rayner “remains the law
of our circuit”), rehearing en banc denied (June 15, 2020).
The Tennessee Court of Criminal Appeals (“TCCA”),
in addressing the IAC claims raised in the petitioner’s
post-conviction petition, correctly cited the Strickland
standard. Clardy v. State, No. M2017-01193-CCA-R3PC, 2018 WL 5046032, at *2 (Tenn. Ct. Crim. App.
Oct. 17, 2018). The court also correctly observed that,
while a petitioner is required to prove both elements
to prevail on an IAC claim, “a court need not address
the components in any particular order or even address
31a
Appendix B
both if the [petitioner] makes an insufficient showing of
one component.” Id. (quoting Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996), and citing Strickland, 466 U.S.
at 697, 104 S.Ct. 2052). When the TCCA considered the
plaintiff’s IAC claim arising from trial counsel’s failure to
call an eyewitness expert, it addressed only the element
of prejudice. See id. at *6 (“The State contends that
Petitioner was not prejudiced by trial counsel’s failure.
We agree with the State.”). Finding no prejudice, it did
not consider whether trial counsel’s performance was
deficient under Strickland.
Regarding prejudice, responding to the petitioner’s
assertion that a jury hearing the information provided by
Dr. Jeff Neuschatz, an expert in psychology who testified
at the post-conviction hearing, would have reached a
different conclusion, the court stated:
We disagree. Dr. Neuschatz could not opine as to
the correctness of Kent’s identification. Merely
giving a jury more information to consider
without negating the identification does not
establish a reasonable probability, sufficient to
undermine the outcome, that the result of the
proceeding would have been different.
Id. at *7. 2
2. The post-conviction court likewise concluded only that the
petitioner was not “prejudiced by trial counsel’s failure to utilize
an expert in eyewitness identification,” in light of Kent Clouatre’s
testimony that he “knew the defendant.” (Doc. No. 10-16, at 54.)
Kent Clouatre, to be clear, did not have a personal relationship
32a
Appendix B
Clardy argued in his post-conviction appellate brief,
and he argues in his § 2254 petition here, that his counsel’s
failure to procure an expert on eyewitness identification
amounted to constitutionally deficient performance
and that he was prejudiced by that failure. He further
argues here that “any reasonable determination of the
facts ... compels the conclusion that Mr. Clardy received
constitutionally ineffective assistance of counsel.”
With respect to this particular claim, the Magistrate
Judge agreed. After summarizing the underlying events,
examining in some detail the procedural history of the
case, and setting forth the correct legal standards, the
Magistrate Judge applied de novo review to the question
of whether counsel’s performance was deficient and found
that it was. The Magistrate Judge also found the state
court’s determination that Clardy was not prejudiced by
that deficiency to be unreasonable, particularly in light
of the fact that the only evidence remotely inculpating
Clardy in this case was the eyewitness identification, such
that the “significance of [the expert] testimony cannot be
overstated,” and without which “the jury had no basis
beyond defense counsel’s word to suspect the inherent
unreliability of Kent [Clouatre’s] identification.” (Doc. No.
25, at 30 (quoting Ferensic v. Birkett, 501 F. 3d 469, 482
(6th Cir. 2007)).)
with Clardy, but he professed to recognize Clardy a few minutes
after he first arrived at the shop from having seen him around the
neighborhood and knew him by the nickname “T.” (See Trial Tr.
Vol. I, Doc. No. 10-2, at 79, 80, 81, 110.) He also testified that the
individual was wearing a hooded sweatshirt and moving quickly
and that he only really saw the side of his face. (Id. at 99.)
33a
Appendix B
The respondent raises a number of challenges to the
Magistrate Judge’s recommendation that relief be granted
on the basis of this claim. Regarding the prejudice prong, he
argues that the state court’s conclusion that the petitioner
failed to establish prejudice was not unreasonable—
more particularly, that it was not “contrary to,” and did
not “involve[] an unreasonable— application of, clearly
established federal law as determined by the Supreme
Court of the United States.” (Doc. No. 28, at 3 (quoting 28
U.S.C. § 2254(d)(1)).) He argues that there is no Supreme
Court precedent on this issue, which, he asserts, further
demonstrates the reasonableness of the decision. He also
contends that the Magistrate Judge erred in appearing
to rely on Ake v. Oklahoma, 470 U.S. 68, 70, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985), and Ferensic v. Birkett to
grant relief, in particular because Ake simply held that,
in that particular case, the petitioner had a due process
right to funding for a psychiatric expert, and Ferensic,
besides being factually distinguishable, does not qualify
as “clearly established federal law, as determined by the
Supreme Court.” (Id. at 5.) He asserts, in sum, that the
issue before the court is only whether “any fairminded
jurist [could] have concluded under the state-court record
that Petitioner failed to prove prejudice” and that the
answer to that question is clearly yes. (Id. at 8.)
Regarding deficiency, the respondent asserts that the
court need not consider this prong if it finds no prejudice,
but he also concedes that, if the court does reach it, de novo
review applies to this element of the Strickland analysis.
(Id. at 9.) Based on that standard, the respondent argues
that the Magistrate Judge erred in finding deficient
34a
Appendix B
performance, first, because “[n]o precedent establishes
that defense counsel must call an expert witness about the
problems with eyewitness testimony in identification cases
or risk falling below the minimum requirements of the
Sixth Amendment” (id. at 10 (quoting Perkins v. McKee,
411 F. App’x 822, 833 (6th Cir. 2011)).) The respondent
points to counsel’s testimony that she attempted to find an
expert but was unsuccessful in finding one the petitioner
could afford or who would “work for the fee that the State
paid for expert witnesses working for indigent clients” and
that she did not request funding for an expert, because she
“wanted to have one lined up before [she] did.” (Id. at 1011) (quoting or citing Post-Conviction Hearing Transcript
(“PC Hr’g Tr.”) 193-95. 3)
Second, the respondent also argues that counsel could
not have filed a motion for funding until she found a willing
expert, citing Tennessee Supreme Court Rule 13 § 5(b)(2)
(B), and that she cannot be deemed deficient for failing to
file a motion that would have been denied.
Third, the respondent argues that, even if Dr.
Neuschatz had been available, it is not clear that counsel
would have hired him or that his testimony would have
persuaded the jurors to disregard eyewitness testimony,
pointing to trial counsel’s testimony that some juries she
3. The two-volume Post-Conviction Hearing Transcript is
in the record in two places: at Doc. No. 1-5 and at Doc. Nos. 10-17
(Volume I) and 10-18 (Volume II). The court refers herein to the
transcript using the original pagination assigned by the court
reporter, rather than to the pagination assigned by the court’s
electronic filing system.
35a
Appendix B
had dealt with “would have hated him.” (Doc. No. 28, at
11 (quoting PC Hr’g Tr. 222).)
B. Discussion
1.
Deficient Performance
The court accepts and incorporates herein in its
entirety the Magistrate Judge’s assessment of trial
counsel’s constitutionally deficient performance. As the
Magistrate Judge notes, trial counsel herself recognized
that Kent Clouatre’s eyewitness identification was
effectively the only evidence the government had against
Clardy, and she acknowledged at the post-conviction
hearing that she “apparently should have gotten an expert
witness.” (PC Hr’g Tr. 194.) She tried but failed to procure
an expert whom Clardy could afford or who would accept
“what the State of Tennessee was paying” at the time.
(Id. at 195.) She blamed the Administrative Office of the
Courts for “not paying expert witness’s fees that were
being billed.” (Id. at 193-94.) However, she also admitted
that she never actually requested funding from the state
in any amount. (Id. at 195.)
Thus, as the Magistrate Judge found, counsel’s failure
to procure an expert witness, despite her recognition of the
need for one, was not a strategic decision. To the contrary,
she recognized the importance of challenging Clouatre’s
eyewitness testimony. Counsel never articulated a reason,
nor can the court imagine one, for failing to locate and seek
funding for an expert whose testimony counsel believed
to be critical to the case. Rather, she did not seek funding
because she did not believe it would be approved.
36a
Appendix B
Given that (1) eyewitness testimony was the only
inculpating evidence in the case; and (2) counsel herself
believed the testimony of an expert on eyewitness
identification to be of critical importance to the case but
failed to make the necessary efforts to procure such
testimony, including by seeking funding and, if necessary,
postponing the trial to give her time to procure both an
expert and the necessary funding, counsel’s performance
fell below that reasonably necessary to defend her client,
in the particular circumstances presented by this case.
(See Doc. No. 25, at 23.) Counsel repeatedly referenced
problems with the Administrative Office of the Courts to
excuse her failure, but she made no attempt to overcome
or circumvent the problems.
The respondent also argues that the Sixth Circuit
has stated that “[n]o precedent establishes that defense
counsel must call an expert witness about the problems
with eyewitness testimony in identification cases or risk
falling below the minimum requirements of the Sixth
Amendment.” (Doc. No. 28, at 10 (quoting Perkins v.
McKee, 411 F. App’x 822, 833 (6th Cir. 2011)).) Perkins,
however, is an unreported opinion in which the court also
recognized that “there [wa]s nothing about th[at] case
suggesting that such a witness was imperative here.” Id.
It does not appear that defense counsel recognized the
necessity of an eyewitness expert but failed to procure one
or that an expert testified at the post-conviction hearing
as to the problems inherent in the eyewitness testimony
presented in that case. In addition, unlike here, other
evidence implicated the petitioner, including that he was
arrested immediately after the crime near the scene and
37a
Appendix B
had attempted to evade police, and an accomplice already
in custody had tried to signal him. Id. at 825. Thus, the
court’s conclusion that counsel in Perkins was not deficient
for failing to call an eyewitness expert does not dictate
the outcome here.
The respondent also insists that counsel must be
granted “wide latitude” in making tactical decisions, citing
Harrington v. Richter, 562 U.S. 86, 106, 131 S.Ct. 770, 178
L.Ed.2d 624 (2011), but, as discussed above, counsel did
not make a strategic or tactical decision—she simply failed
to do something she herself believed was important to her
client’s case. This case, therefore, is distinguishable from
those cases in which counsel was deemed not ineffective
for affirmatively choosing to forego an eyewitness
identification expert. Moreover, even Richter recognized
that “[c]riminal cases will arise where the only reasonable
and available defense strategy requires consultation with
experts or introduction of expert evidence.” Id. at 106,
131 S.Ct. 770.
This case is also distinguishable from those holding
that there is no constitutional right to an expert on
eyewitness identification. Clardy is not claiming a
constitutional right to an eyewitness expert; he is relying
on his constitutional right to the effective assistance of
counsel. The Sixth Circuit and the Supreme Court have
both recognized “the dangers inherent in eyewitness
identification.” Jackson v. Bradshaw, 681 F.3d 753, 76263 (6th Cir. 2012) (quoting United States v. Ash, 413 U.S.
300, 329, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)). Counsel
in this case was objectively unreasonable in not pursuing
38a
Appendix B
an expert and funding for such an expert, where “the only
reasonable and available defense strategy require[d] ...
introduction of [such] expert evidence.” Richter, 562 U.S.
at 106, 131 S.Ct. 770.
Regarding the argument that counsel would not have
been able to seek funds until she found an expert willing
to take the case, under Tennessee Supreme Court Rule 13
§ 5, the respondent has never before raised this issue. The
Sixth Circuit has repeatedly recognized that arguments
“raised for [the] first time in objections to [a] magistrate
judge’s report and recommendation are deemed waived.”
Morgan v. Trierweiler, 67 F.4th 362, 367 (6th Cir. 2023)
(quoting Murr v. United States, 200 F.3d 895, 902 n.1 (6th
Cir. 2000)).4 Regardless, this argument is without merit,
because the petitioner’s attorney did not affirmatively
testify that she could not find an expert at all—rather, it
appears that she could not find one who would accept a
fee in the amount she thought the court would approve.
And nothing but counsel’s speculation suggests that such
a motion would not have been approved. The Rule itself
provides for the “payment or reimbursement of reasonable
and necessary expenses.” Tenn. S. Ct. Rule 13 § 5(a)(1).
Finally, the respondent argues that, even if Dr.
Neuschatz had been available, it is not clear that trial
counsel would have hired him. This argument is a red
herring. The fact that Dr. Neuschatz testified at the post4. The government also never raised this argument in the
state courts, but the “exhaustion” requirement pertains only to
a habeas petitioner’s claims, not to the government’s position as
to those claims.
39a
Appendix B
conviction hearing does not necessarily mean that he
would have testified at the trial—though his willingness
to testify at the post-conviction hearing further supports
the inference that trial counsel could have found him, or
someone, if she had looked hard enough. 5 As a result,
counsel’s speculation that trial counsel (or jurors) might
have been put off by Dr. Neuschatz’s demeanor neither
excuses counsel’s failure to procure an eyewitness expert
nor detracts from the potential prejudice to her client’s
case caused by the absence of such an expert, as discussed
below.
The respondent takes issue with the Magistrate
Judge’s conclusions that (1) trial counsel did not make a
strategic decision not to seek funding for an expert she
believed was critical to the defense and (2) the only reason
trial counsel did not seek funding was because she did not
think the court would approve it. The respondent has not
shown that either conclusion was erroneous. To be sure,
“Strickland ordinarily does not require defense counsel
to call any particular witness.” United States v. Nolan,
956 F.3d 71, 82 (2d Cir. 2020). “But under the unusual
circumstances presented here”—in particular that the
only actually inculpating evidence was one individual’s
eyewitness testimony and that his testimony was subject
to nearly all of the factors identified in the scientific
literature, discussed below, as adversely affecting
5. Dr. Neuschatz’s Curriculum Vitae, introduced as an exhibit
at the post-conviction hearing, indicates that Dr. Neuschatz has been
on the faculty at the University of Alabama in Huntsville since 2000
and has been publishing on the topic of memory since 1996. (Doc.
No. 10-20, Ex. 3.)
40a
Appendix B
eyewitness identifications—”counsel could not render
effective assistance without input from an expert.” Id.
Under the specific facts of this case, counsel’s failure to
procure an expert to testify about the potential fallibility
of eyewitness identifications fell below the reasonable
standard of care.
2.
Prejudice
(a) The State Appellate Court’s Decision
Involved an Unreasonable Application
of Strickland
Under Strickland, the TCCA was tasked with
determining whether prejudice resulted from the
petitioner’s attorney’s failure to obtain expert testimony—
that is, whether that error was “so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable.” Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This standard
does not require a petitioner to show that the attorney’s
error “more likely than not altered the outcome in the
case.” Id. at 693, 104 S.Ct. 2052. Rather, the petitioner
must show only that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
In other words, a showing of prejudice does not require
exculpatory evidence or even evidence that, if believed,
would necessarily result in an acquittal.
41a
Appendix B
In this case, Dr. Neuschatz testified at the postconviction hearing about how memory works generally
and, more specifically, in the context of eyewitness
identifications. He testified that, when something happens
quickly and in a stressful situation, memories of that
event will be more fragile and susceptible to error;
that exposure time affects the accuracy of memory;
that memory deteriorates over time; that cross-racial
identifications are particularly prone to error; that, when
a weapon is present, people tend to focus on the weapon
rather than on the face of the person wielding it, thus
impairing their ability to later accurately recall that face;
that head coverings dramatically affect the accuracy of
identification; and that unconscious transference can cause
a person to conflate memories of events that happen close
in time. (See PC Hr’g Tr. 50-66.) He explained unconscious
transference as follows:
Unconscious transference is basically that if
someone is around or near the scene at the
time of a crime who looks like the person who
committed the crime, they can be transferred
[in the witness’s memory] and be thought of as
the person who actually committed the crime
when they weren’t.
(Id. at 65-66.) Dr. Neuschatz also testified that a person’s
confidence in his memory says nothing about its actual
accuracy, and he testified that all of the factors he
discussed were present in the identification of Clardy by
Kent Clouatre in this case— including that the event was
very stressful, happened very quickly, involved multiple
firearms, that the shooter was a Black man (Clouatre is
42a
Appendix B
White) and was wearing a hooded sweatshirt that partially
covered his face, that Clouatre recognized Clardy from
having seen him around the neighborhood, and that he did
not positively identify him from a photographic array until
several weeks after the shooting—could have affected the
accuracy of Clouatre’s identification. (Id. at 60-70.) He also
testified that Clouatre’s confidence in his identification
of Clardy had little correlation with the accuracy of his
memory. (Id. at 69.)
Clardy’s post-conviction brief highlighted Dr.
Neuschatz’s testimony and asserted that this information
would have substantially assisted the trier of fact if it
had been presented to the jury. (Doc. No. 10-21, at 63.)
The petitioner argued that Dr. Neuschatz’s testimony
“establishes the value of an eye witness expert,” where the
“only real evidence against Mr. Clardy was the eye witness
testimony of Kent Clouatre,” and that any reasonable jury
would have reached a different conclusion if it had heard
the expert testimony. (Id. at 65.) The trial court rejected
this argument and the TCCA affirmed, stating only, as
set forth above, that it disagreed with the assertion that
a jury hearing Dr. Neuschatz’s testimony would have
reached a different conclusion, because:
Dr. Neuschatz could not opine as to the
correctness of Kent’s identification. Merely
giving a jury more information to consider
without negating the identification does not
establish a reasonable probability, sufficient to
undermine the outcome, that the result of the
proceeding would have been different.
Clardy, 2018 WL 5046032, at *7.
43a
Appendix B
The court finds that this conclusion is contrary to, and
involved an unreasonable application of, Strickland, which
constitutes clearly established federal law as determined
by the Supreme Court, for purposes of 28 U.S.C. § 2254(d)
(1). See Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000) (“It is past question that
the rule set forth in Strickland qualifies as ‘clearly
established Federal law, as determined by the Supreme
Court of the United States.’”). Although the TCCA paid lip
service to Strickland’s “reasonable probability” language,
Strickland, 466 U.S. at 694, 104 S.Ct. 2052, it appeared
to interpret “prejudice” to require that the proposed
expert testimony affirmatively negate evidence already
in the record, and it unreasonably concluded that simply
giving the jury “more information to consider,” without
negating the existing evidence, could never change a jury’s
verdict. As the petitioner asserts in his Response to the
Respondent’s Objections, in a case where the only evidence
against the petitioner was a single individual’s eyewitness
testimony, requiring him to negate that evidence in order
to prove prejudice effectively meant that only evidence
of actual innocence would have satisfied the standard.
Such a requirement is contrary to Strickland. (See Doc.
No. 32, at 16 (“Here, ... the TCCA required Mr. Clardy
to affirmative ‘negat[e]’ the only evidence of his guilt the
State had offered at trial.”).)
Moreover, “giving a jury more information” is exactly
the point. An expert’s job is not to opine on the credibility
of a specific witness’s testimony, and the trial court would
have properly rejected any effort by a testifying expert
to offer an opinion on the validity of any specific witness’s
testimony. Rather, the very purpose of his testimony would
44a
Appendix B
have been to cast doubt on the reliability of Kent Clouatre’s
eyewitness identification; without that testimony, the jury
was given no reason to discount the identification.
The TCCA clearly did not assess the effect of an
attorney’s error in light of the totality of the circumstances,
as required by Strickland:
[A] court hearing an ineffectiveness claim must
consider the totality of the evidence before the
judge or jury. Some of the factual findings will
have been unaffected by the errors, and factual
findings that were affected will have been
affected in different ways. Some errors will
have had a pervasive effect on the inferences to
be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or
conclusion only weakly supported by the record
is more likely to have been affected by errors
than one with overwhelming record support.
Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052 (emphasis
added). Applying Strickland here would have required
the court to acknowledge that the verdict was “weakly
supported by the record,” making it all the more likely that
expert evidence challenging the eyewitness testimony—
again, the only evidence placing Clardy at the scene of the
crime—would have an effect on the verdict.
Even if Clardy’s lawyer attempted during trial to
cast doubt on the validity of Kent Clouatre’s identification,
a lawyer’s statements are not evidence and cannot
45a
Appendix B
substitute for expert testimony. The Sixth Circuit, in fact,
has acknowledged that expert testimony on eyewitness
identifications is “universally recognized as scientifically
valid and of ‘aid [to] the trier of fact’ for admissibility
purposes.” Ferensic v. Birkett, 501 F.3d 469, 482 (6th
Cir. 2007). As in Ferensic, the potential significance
of eyewitness expert testimony in this case “cannot be
overstated,” given the absence of any other evidence
inculpating the petitioner in this case and the fact that
“‘other means’ of attacking eyewitness identifications [can]
not effectively substitute for expert testimony on their
inherent unreliability.” Id.
The court finds, in sum, that the TCCA unreasonably
applied Strickland when it required the proffered expert
testimony to “negate” Kent Clouatre’s testimony.
(b) This Court’s De Novo Review
Because the state court’s application of Strickland
was unreasonable, this court conducts a de novo review of
the question of prejudice, under Strickland. And applying
that standard, largely for the same reasons referenced
above, the court finds that there is more than a reasonable
probability that, but for counsel’s failure to obtain expert
testimony on eyewitness identification, the result of the
proceeding would have been different. 466 U.S. at 694,
104 S.Ct. 2052. Because the evidence of conviction in this
case was exceedingly weak, the likelihood that an expert’s
testimony challenging eyewitness identification would
“alter[] the outcome in the case” is very strong indeed.
Id. at 693, 104 S.Ct. 2052.
46a
Appendix B
The Sixth Circuit has recognized that “many aspects
of perception and memory are not within the common
experience of most jurors, and in fact, many factors that
affect memory are counter-intuitive.” United States v.
Smithers, 212 F.3d 306, 316 (6th Cir. 2000). In addition,
“research... indicates that neither cross-examination nor
jury instructions on the issue are sufficient to educate
the jury on the problems with eyewitness identification.”
State v. Copeland, 226 S.W.3d 287, 300 (Tenn. 2007). And
here, aside from the fact that Kent Clouatre’s eyewitness
identification was the only inculpating evidence against
Clardy, the State did not object to Dr. Neuschatz’s
qualifications as an expert, and his testimony at the postconviction hearing established that all of the factors he
identified as potentially undermining the reliability of
such identifications were present here. Accord United
States v. Nolan, 956 F.3d 71, 80 (2d Cir. 2020) (holding
that the defendant was prejudiced by counsel’s failure
to effectively contest eyewitness identification where the
identification, like that here, was potentially affected by
factors including the presence of head coverings, “weapon
focus,” the “high stress” of the events, the cross-racial
nature of the identification, and the time that elapsed
between the events and the identification). Thus, no
matter what efforts trial counsel exerted in trying to
impeach Clouatre’s identification through other means,
only an expert’s testimony could show that “the eyewitness
testimony was sufficiently unreliable in ways not readily
apparent to a lay jury.” Id. That is, the testimony of Dr.
Neuschatz or a similar expert would have offered “a
scientific, professional perspective” that no other witness
provided, and it would have “informed the jury of why the
47a
Appendix B
eyewitness[] identification[] [was] inherently unreliable.”
Ferensic, 501 F.3d at 477.
Such evidence would have been particularly helpful in
this case, where copious evidence in the record establishes
numerous inconsistencies in Kent Clouatre’s testimony,
as well as inconsistencies between his testimony and that
of Melissa Clouatre, Kirk Clouatre’s wife. In particular,
Kent Clouatre stated that all three suspects were
wearing hooded sweatshirts (Trial Tr. Vol. I, Doc. No.
10-2, at 112-13) and that the man who shot his brother in
particular—whom he did not initially recognize —was
trying “to hide his identity by wearing a hood, running
into the shop really quick.” (Id. at 99.) Clouatre claims he
did not recognize the shooter until he turned to the side
and Clouatre saw “the side of his face.” (Id.) This is the
individual he later identified as Clardy. But police records
indicate that Clouatre also told police that the shooter had
“small braids” and tattoos. (Trial Tr. Vol. II, Doc. No. 103, at 46.) Thomas Clardy has never had any tattoos. (Doc.
No. 10-2, at 162-63.) Contrary to Kent, Melissa testified,
and repeatedly told police, that the shooter was wearing
a white t-shirt, had something white on his head, and
had “fuzzy hair,” “frizzy hair,” or an afro. (Id. at 65, 133,
159.) She was never able to identify Clardy in a line up or
in person as the shooter. Although Kent testified at trial,
consistently with Melissa’s testimony, that the shooter
was driving a dark Taurus, the detectives’ notes indicate
that he initially described the car as an ‘87 Buick Sentry,
and later as a “bluish gray ‘84, ‘86 model Buick.” (Id. at
136; Trial Tr. Vol. II, Doc. No. 10-3, at 45.)
48a
Appendix B
Given this conflicting testimony and a record otherwise
devoid of inculpatory evidence, there is a reasonable
probability that an eyewitness expert’s perspective would
have led at least one juror to strike a different balance
when considering Clardy’s guilty and the reliability
of Kent Clouatre’s identification. Strickland prejudice
requires nothing more. See Andrus v. Texas, 590 U.S. 806,
140 S. Ct. 1875, 1886, 207 L.Ed.2d 335 (2020) (“[P]rejudice
... requires only a reasonable probability that at least one
juror would have struck a different balance.”). Strickland
prejudice in this case is abundantly clear.
The court, therefore, will overrule the respondent’s
Objections to the R&R and accept the Magistrate Judge’s
recommendation that Clardy’s § 2254 petition be granted
on the grounds that (1) his trial counsel was objectively
deficient for failing to obtain an expert on eyewitness
identifications, and (2) the Tennessee Court of Appeals
incorrectly and unreasonably applied Strickland when it
concluded that the petitioner was not prejudiced by that
failure.
III. THE PETITIONER’S OBJECTIONS
Having concluded that the petitioner is entitled to
relief on the grounds discussed above, the court will grant
his petition, thus rendering moot the plaintiff’s Objections
to the Magistrate Judge’s ruling on the other issues raised
in the petition.
49a
Appendix B
IV. CONCLUSION
For the reasons discussed above, the court will
overrule the respondent’s Objections and grant Clardy’s
Petition for Writ of Habeas Corpus. (Doc. No. 1.)
An appropriate Order is filed herewith.
/s/
Aleta A. Trauger
United States District Judge
50a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE, NASHVILLE
DIVISION, FILED JUNE 30, 2023
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
No. 3:19-cv-01098
THOMAS E. CLARDY,
Petitioner,
v.
ZAC POUNDS, WARDEN,1
Respondent.
Filed June 30, 2023
ORDER
In accordance with the Memorandum filed herewith,
the court CONDITIONALLY GRANTS petitioner
Thomas Clardy’s Petition for Writ of Habeas Corpus (Doc.
No. 1) on the basis of ineffective assistance of counsel.
1. The court takes judicial notice that Zac Pounds was
recently appointed Warden of Riverbend Maximum Security
Institution, where petitioner Clardy is incarcerated. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Pounds is
automatically substituted as the defendant in this action.
51a
Appendix C
Accordingly, the respondent shall release the petitioner
from custody UNLESS, within 180 days of the date of
this Order, the State of Tennessee affords the petitioner
a new trial.
This is the final order in this action for purposes of
Federal Rule of Civil Procedure 58.
It is so ORDERED.
/s/
Aleta A. Trauger
United States District Judge
52a
Appendix
D
APPENDIX
D — REPORT
AND
RECOMMENDATION OF THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE, NASHVILLE DIVISION,
FILED FEBRUARY 28, 2023
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
Civil Action No. 3:19-cv-01098
THOMAS E. CLARDY
Petitioner,
v.
BERT C. BOYD, WARDEN,
Respondent.
Filed February 28, 2023
REPORT AND RECOMMENDATION
Judge Trauger / Frensley
In July 2007, a jury convicted Petitioner Thomas E.
Clardy of one count of first-degree murder, two counts
of attempted first-degree murder, and three counts of
reckless endangerment. State v. Clardy, 2009 WL 230245,
at *1 (Tenn. Crim. App. Feb. 2, 2009), perm. app. denied
(Tenn. June 15, 2009); Docket No. 1 at 5-6. Clardy was
53a
Appendix D
sentenced to a mandatory term of life imprisonment.
Id. Having sought relief in state courts, Clardy has filed
a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 in which he argues (a) that he received ineffective
assistance of counsel at trial in violation of his rights
under the Sixth and Fourteenth Amendments of the U.S.
Constitution, and (b) that he is actually innocent of all the
crimes of which he was convicted. Docket No. 1 at 48-49.
As a component of his request for habeas relief, Clardy has
also requested that this Court grant him an evidentiary
hearing should this Court determine the need for further
factual development. Id. at 82.
For the reasons that follow, having considered the
parties’ arguments, the underlying record, and the
stringent standards of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), the Court will recommend
that Clardy’s petition be GRANTED. Further, Clardy’s
request for an evidentiary hearing is DENIED.
I.
BACKGROUND
A.
Factual Background
The Tennessee Court of Criminal Appeals (“TCCA”)
summarized the factual background of the case as follows:
On July 29, 2005, a group of men fired shots
at Kirk, Melissa, and Kent Clouatre1 at an
1. Throughout this Report and Recommendation, the Court
respectfully refers to Kent Clouatre as “Kent” since there are two
Mr. Clouatres involved in the case.
54a
Appendix D
automobile body shop in Madison, Tennessee.
State v. Clardy, No. M207-02729-CCA-R3-CD,
2009 WL 230245, at *1 (Tenn. Crim. App. Feb.
2, 2009), perm. app. denied (Tenn. June 15,
2009). One man’s shots killed Kirk and wounded
Melissa, Kirk’s wife. Id. Another man’s shot
wounded Kent, Kirk’s twin brother. Id. During
the shooting, Kirk and Melissa’s two children
and another child were sitting in a car at the
body shop. Id. The group of men retreated
to their vehicle and fled the scene. Id. Police
recovered several spent cartridge casings, live
rounds, and projectile fragments from the scene
but did not recover any weapons believed to
belong to the assailants. Id. at *7-8.
The identification of the perpetrators was the
central issue during the investigation and at
trial. Kent testified about his identification of
[Clardy] and testified regarding his descriptions
of the other men. At trial, Melissa did not
remember giving descriptions of the suspects
to the police, even when confronted with her
statements to the police.
Kent said that a man whom he knew as “T” fired
the shots that killed Kirk and struck Melissa.
“T” was the only one of the three suspects that
Kent had seen before. Kent identified Petitioner
as “T” in a photographic lineup and at trial.
Kent testified that “T” used a “[s]emiautomatic
.40 caliber” pistol. At the beginning of the
55a
Appendix D
investigation, Melissa gave police officers the
initial “D” when attempting to identify one of
the perpetrators, but later the initial changed
to a “T.” Kent used the initial “T” every time
that he was interviewed by Officer Cynthia
Quirouette. Officer Quirouette maintained that
“T” was the initial that came out through the
rest of the investigation. However, she was not
confident in the truthfulness of the witnesses
during the investigation.
When describing the suspect who shot at him,
Kent said, “He’s a little bit heavy set man,
little shorter. He had gold, I guess in his teeth,
diamonds were set sideways, when he gritted
[sic] at me.” He described the weapon used
by this man as a .38 caliber revolver. Kent
described the third individual as a taller, thin
guy. Melissa only described the third man.
Her description was limited to the fact that
he was wearing a blue shirt. When describing
this suspect’s gun, Kent was unsure of the
caliber, but stated that it was semiautomatic.
However, neither Kent nor Melissa recounted
this individual firing a weapon.
Melissa described the vehicle used by the
suspects as a “’96 or ’97 Sable or Taurus, blue
with an oval back.” Melissa also described the
color as “blue or possibly green.” According to
Officer Quirouette, Kent described the vehicle
as an “’84 to ’86 four-door Buick Century or
56a
Appendix D
Celebrity, silver or gunmetal gray.” Officer
Quirouette admitted that the descriptions
were “totally different.” However, at trial,
Kent disavowed any statement that the car
was a Buick and asserted that the vehicle was a
“forest green Ford Taurus.” Royleesha Mason,
Petitioner’s wife at the time of the crime, owned
a teal green 1996 Mercury Sable, which is very
similar in appearance to a Ford Taurus. That
car was frequently driven by [Clardy].
Clardy, 2018 WL 5046032, at *1-2 (Tenn. Crim. App. Oct.
17, 2018), perm. app. denied (Tenn. Apr. 12, 2019) (footnote
omitted).
B. Procedural History
1.
Trial and Direct Appeal
After the trial, a jury convicted Clardy of one count of
first-degree murder, two counts of attempted first-degree
murder, and three counts of reckless endangerment. Id.
Clardy was sentenced to a mandatory life sentence on the
first-degree murder conviction. Docket No. 1 at 6. Clardy
then timely appealed his convictions to the TCCA, which
affirmed the state trial court judgements. State v. Clardy,
No. M2007-02729-CCA-R3-CD, 2009 WL 230245, at *1.
Clardy then timely appealed to the Tennessee Supreme
Court, which denied review. State v. Clardy, No. M200702729-SC-R11-CD (Tenn. June 15, 2009); Docket No.
10-13.
57a
Appendix D
2.
Post-Conviction Proceedings
In December 2009, Clardy filed a timely pro se petition
for post-conviction relief. Specifically, he argued that
trial counsel rendered ineffective assistance based on the
following: (1) failure to investigate alternative suspects;
(2) failure to present an alternative theory of the crime;
(3) failure to obtain and impeach the surviving victims’
testimony; (4) failure to raise on direct appeal the State’s
failure to disclose evidence; (5) abandonment of a motive
defense; (6) failure to fully interview family witnesses
and file proper notice of alibi testimony; (7) failure to call
the defendant at trial; (9) failure to investigate Detective
Satterfield’s prior misconduct; and (10) failure to request
DNA testing, including of a blood trail found at the scene.
Docket No. 10-14 at 44-50.
After the petition was amended multiple times,
Clardy, with the assistance of counsel, filed the operative
amended petition (“TCCA Operative Amended Petition”)
for post-conviction relief on September 6, 2016. Doc
No. 10-16 at 327-38. The Operative Amended Petition
incorporated by reference the claims that Clardy asserted
in his pro se petition and requested relief on additional
grounds. Id. at 327. Those additional grounds included (1)
failure to conduct ballistics testing; (2) failure to obtain
an eyewitness identification expert; (3) failure to obtain
handwritten notes from victims’ interviews; (4) failure to
impeach the descriptions of the shooters offered by the
victims during trial; (5) failure to properly notice Clardy’s
wife as an alibi witness; (6) failure to obtain and inspect
photos from the crime scene; (7) failure to complete DNA
58a
Appendix D
testing of blood samples collected at the crime scene,
including from the blood trail leading away from the
crime scene; (8) failure to conduct date-time analysis for
the location of the shooting and Clardy’s home; (9) failure
to investigate and present argument about the victim’s
involvement in illegal drugs; (10) failure to impeach Kent
Clouatre with his prior convictions; (11) failure to present
evidence of Clardy’s inability to wear gold teeth; and (12)
failure to investigate or interview witness Darrell Cherry.
Id. at 331-36. The TCCA Operative Amended Petition also
asserted an actual innocence claim. Id. at 336.
A post-conviction hearing was held in September
2016, and the post-conviction court subsequently denied
Clardy’s petition for post-conviction relief in a written
order on May 17, 2017. Docket No. 1-5; Doc No. 1-2. The
post-conviction court order only addressed the claims that
were expressly asserted in the TCCA Operative Amended
Petition and did not consider any of the issues raised in
Clardy’s pro se petition. Docket No. 1-2; Docket No. 1 at
8. Petitioner then moved the court in a hearing to rule
on the additional grounds asserted in his pro se petition,
which the court denied without explanation. Docket No.
10-19 at 8.
Clardy then timely filed a notice of appeal of the
post-conviction court’s order denying his petition for postconviction relief. Docket No. 10-21. In his appeal before
the TCCA, Clardy asserted an ineffective assistance of
counsel claim based on the following errors committed
by trial counsel: (1) failure to investigate and present
evidence of alternative suspects; (2) failure to file an alibi
59a
Appendix D
notice for Clardy’s then-wife; (3) failure to investigate
or test the blood trail at the crime scene; (4) failure to
request or conduct DNA testing of other items found at
the scene; (5) failure to impeach the testimony of Detective
Satterfield; (6) failure to effectively cross-examine and
impeach Kent Clouatre; (7) failure to make the jury aware
that Melissa Clouatre had identified the wrong suspect
in the photo lineup; (8) failure to obtain an eyewitness
identification expert; and (9) cumulative error. Id. The
appeal also asserted his actual innocence and objected
to the post-conviction court’s refusal to accept photos of
Dantwan Collier as an offer of proof. Id.
The TCCA subsequently affirmed the post-conviction
court’s denial of Clardy’s petition for relief. Clardy, 2018
WL 5046032, at *1-2 (Tenn. Crim. App. Oct. 17, 2018).2 The
TCCA held, however, that the post-conviction court erred
in refusing to accept Petitioner’s offer of proof of photos
of Dantwan Collier but nonetheless determined that the
error was harmless. Id. at *8-9. After the TCCA denied
Clardy’s request for a rehearing of his appeal, Clardy
then timely appealed to the Tennessee Supreme Court.
Docket No. 10-32, 33. The Tennessee Supreme Court
denied Clardy’s appeal. Docket No. 10-32, 33.
In December 2019, Clardy petitioned this Court for
habeas relief under 28 U.S.C. § 2254. Respondents filed an
2. The TCCA’s summary of the facts adduced in the postconviction hearing appears in its discussion and analysis of each
subclaim. As such, the TCCA’s summary of the post-conviction
evidence also appears in this Court’s discussion of each subclaim
below.
60a
Appendix D
answer on March 3, 2020, to which Clardy filed a response
on May 5, 2020. Docket No. 12; 18.
II. LEGAL STANDARD
A.
Standard of Review of State Court Convictions
A state prisoner can petition a federal court for relief
of a state court conviction by applying for a writ of habeas
corpus “only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Under 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), (2). This standard is intentionally
difficult to meet. Woods v. Donald, 575 U.S. 312, 316
(2015) (quotation marks omitted). A district court may
only grant habeas relief under the “contrary to” clause if
61a
Appendix D
the state court decides a question of law or a materially
indistinguishable set of facts conversely to the Supreme
Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
To grant habeas relief under the “unreasonable
application” clause, the Court must find that the state
court’s decision was “objectively unreasonable,” and
not simply an erroneous or incorrect, application of the
correct legal principle to the facts. Id. at 409-11. But
even an incorrect state court decision is not necessarily
unreasonable. See Schriro v. Landrigan, 550 U.S. 465,
473 (2007) (“The question under AEDPA is not whether
a federal court believes the state court’s determination
was incorrect but whether that determination was
unreasonable—a substantially higher threshold.”) (citing
Williams, 529 U.S. at 410). Rather, this Court may grant
relief for a claim decided on its merits in state court only
where the petitioner demonstrates that the state court
ruling “was so lacking in justification that there was
an error understood and comprehended in existing law
beyond any possibility for fair-minded disagreement.”
Harrington v. Richter, 562 U. S. 86, 103 (2011).
AEDPA likewise requires heightened respect for
state factual findings. Herbert v. Billy, 160 F. 3d 1131,
1134 (6th Cir. 1998). When 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).
62a
Appendix D
B. Procedurally Defaulted and Unexhausted
Claims
In addition to the stringent standard for succeeding on
the merits of a claim, the grant of habeas relief is further
restrained by exhaustion requirements and the doctrine
of procedural default. 28 U.S.C. § 2254(b)(1); O’Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999). For a claim to be
considered on habeas review, the petitioner must first
exhaust state remedies for that claim. 28 U.S.C. § 2254(b)
(1). Exhaustion requires a petitioner to “fairly present,”
each federal claim to all levels of the state appellate
system, meaning he presented the “same claim under
the same theory” up to the state’s highest court, Wagner
v. Smith, 581 F.3d 410, 414, 418 (6th Cir. 2009), to ensure
that 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.
Tennessee has determined that presentation to the TCCA
will satisfy the requirement of presentation to the state’s
highest court. Adams v. Holland, 330 F. 3d 398, 402 (6th
Cir. 2003) (quoting Tenn. Sup. Ct. R. 39).
If a claim has never been presented to the highest
available state court and is now barred from such
presentation by a state procedural rule, that claim is
procedurally defaulted and barred from federal habeas
review. Coleman v. Thompson, 501 U.S. 722, 732 (1991).
Procedural default may also occur when a petitioner
presented the claim to the highest court, but the state
court was prevented from “reaching the merits of the
petitioner’s claim” because the petitioner failed to comply
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with an applicable state procedural rule, which is regularly
enforced and is an “adequate and independent” state
ground. Id. (citing Maupin v. Smith, 785 F. 2d 135, 138
(6th Cir. 1986)).
Procedurally bar red claims nonetheless may
be considered on their “merits only if the petitioner
establishes (1) cause for his failure to 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 v. Sexton, 570 Fed. Appx. 443, 452 (6th
Cir. 2014) (quoting Murray v. Carrier, 477 U.S. 478, 496
(1986)); see also 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. To demonstrate prejudice, Petitioner
must show that the inadequacies worked to his “actual
and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). The prejudice requirement
is not met where there is strong evidence of a petitioner’s
guilt and lack of evidence for his claim. Id. at 172.
C.
Standard for Granting Evidentiary Hearings
Since Clardy filed his petition for habeas corpus
in this Court, the law on the availability of evidentiary
hearings in federal court for state habeas petitioners
changed. As the Supreme Court recently recognized,
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AEDPA “restricts the ability of a federal habeas court to
develop and consider new evidence.” Shoop v. Twyford,
142 S. Ct. 2037, 2043 (2022). Specifically, the statute
allows the development of new evidence in “two quite
limited situations:” (1) when the claim relies on a “new”
and “previously unavailable” “rule of constitutional law”
made retroactive by the Supreme Court, or (2) when the
claim relies on a “factual predicate that could not have
been previously discovered through the exercise of due
diligence.” Id. at 2044 (quoting 28 U.S.C. § 2254(e)(2)).
Even if a prisoner can satisfy either of those
exceptions, to obtain an evidentiary hearing, the prisoner
still must show by “clear and convincing evidence” that
“no reasonable factfinder” would have convicted him of the
crime charged. Shinn v. Ramirez, 142 S. Ct. 1718, 1734
(2022) (quoting 28 U.S.C. § 2254(e)(2)(A)(i), (ii)).
Where a petitioner relies on Martinez v. Ryan, 132
S. Ct. 1309 (2012), to excuse a procedural default, “a
federal court may not hold an evidentiary hearing—or
otherwise consider new evidence—to assess cause and
prejudice,” Shinn v. Ramirez, 142 S. Ct. at 1739, if the
petitioner “failed to develop the factual basis of [his] claim
in State court proceedings.” 28 U.S.C. § 2254(e)(2).]
III. Analysis of Petitioner’s Request for an Evidentiary
Hearing
The undersigned finds that an evidentiary hearing is
not warranted. In deciding whether to grant an evidentiary
hearing this court must consider “whether such a hearing
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could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to
federal habeas relief.” Schriro v. Landrigan, 550 U. S. 465,
474 (2007). Additionally, the court must take into account
the deferential standards prescribed by § 2254. See Id.
The petitioner seeks an evidentiary hearing only
to the extent “the court determines there is a need for
further factual development.” Docket No. 1, p. 82; Docket
No. 18, p. 25. Upon consideration, the undersigned finds
that the claims in this case can be resolved without an
evidentiary hearing. See Schiriro, 550 U. S. at 574.
IV. Analysis of Clardy’s Ineffective Assistance of
Counsel Claims
Clardy first argues that trial counsel rendered
ineffective assistance of counsel on the following grounds:
trial counsel (1) failed to investigate ballistics testing of
firearms that would have identified viable alternative
suspects; (2) did not provide proper notice of Roylessha
Mason’s alibi testimony; (3) did not challenge the photo
lineups; (4) failed to obtain and present testimony by an
expert on eyewitness identifications; (5) neglected to
adequately investigate the crime scene, including the
blood trail; and (6), failed to effectively cross-examine
Kent about various drug-related facts and evidence.
Docket No. 1 at 50-51.
To establish an ineffective assistance of counsel claim
that warrants federal habeas corpus relief, a habeas
petitioner must satisfy the two-pronged standard set forth
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in Strickland v. Washington, 466 U.S. 668 (1984). That is,
he or she must demonstrate (1) counsel’s constitutionally
deficient performance, and (2) actual prejudice as a result
of such ineffective assistance. Id. at 687, 694. Deficiency
is established when a petitioner can demonstrate that
counsel’s performance falls below an objective standard
of reasonableness as measured by professional norms,
such that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Id. at 687-88. A
reviewing court’s scrutiny is to be “highly deferential” of
counsel’s performance, with an effort to “eliminate the
distorting effects of hindsight.” Id. at 689. In fact, counsel
is to be afforded a presumption that his actions were the
product of “sound trial strategy” and undertaken with the
exercise of reasonable professional judgment. Id.
Prejudice is established when the petitioner can
demonstrate to a reasonable probability that the result
of the proceedings would have been different but for the
challenged conduct, thereby undermining confidence
in the reliability of the outcome. Id. at 694. However,
an error, even if professionally unreasonable, does not
warrant setting aside the judgment if it had no effect on
the judgment. Id. at 691.
On habeas review, the issue for the district court is
not whether the Strickland standard is met, but rather,
whether the state-court’s decision that Strickland was not
met warrants relief under AEDPA standards. See Richter,
562 U.S. at 105 (“When 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question
is whether there is any reasonable argument that counsel
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satisfied Strickland’s deferential standard.”). This creates
a “doubly” deferential standard of review in federal habeas
proceedings. Id. Accordingly, when a Strickland claim has
been rejected on its merits by a state court, a petitioner
“must demonstrate that it was necessarily unreasonable”
for the state court to rule as it did in order to obtain federal
habeas relief. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
Thus, the question for this Court is whether the
TCCA’s adjudication of Clardy’s ineffective-assistanceof-counsel claims resulted in a decision that was contrary
to or involved an unreasonable application of federal law
as determined by Supreme Court precedent or was based
on an unreasonable determination of the facts in light of
the evidence presented in state court. Id. § 2254(d)(1), (2).
A.
Subclaim 1—Failure to Independently Test
Ballistics
Clardy first argues that the TCCA’s determination
that trial counsel’s failure to obtain independent ballistics
testing was a tactical decision that was unreasonable and
without support in the record. Docket No. 1 at 53-54. This
claim was fully exhausted in state court and is properly
before the Court on habeas review.
The TCCA rejected this claim on deficiency grounds
without reaching the issue of prejudice. Clardy, 2018
WL 5046032, at *3-4. This Court finds that the TCCA’s
determination was reasonable and adequately supported
by the record.
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The TCCA summarized the evidence presented at
the post-conviction hearing as it relates to this subclaim
as follows:
Pursuant to an agreed order entered by
the post-conviction court in November of
2015, Bridget Chambers, a forensic firearms
examiner with the Metro Nashville Police
Department, reexamined cartridge casings of
three different calibers that were recovered
from the crime scene. Upon reexamination,
she discovered a match for the two .40 Smith
and Wesson caliber cartridge casings. Ms.
Chambers matched those casings to a Glock 23
handgun that was used in a July 5, 2006 crime
by an individual named Dantwan Collier, who
had “gold teeth.” Additionally, Ms. Chambers
matched the two 9mm cartridge casings
recovered from the crime scene to other 9mm
cartridge casings that were found at the
scene of a January 5, 2006 homicide involving
Dantwan Collier’s cousin, Thomas Collier.
Finally, Ms. Chambers matched the .380 auto
cartridge case to a Hi-Point pistol chambered
in .380 auto that had been used in a 2006 case.
No explanation was given for the significance
of the match of the .380 auto cartridge.
Prior to Clardy’s trial in July of 2007, trial
counsel did not request any ballistics testing in
Clardy’s case. Trial counsel explained, “I didn’t
want to give the State an opportunity to find
something they may have missed if [Clardy’s]
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DNA was there. The ballistics, nobody had
tied—nothing had been tied to [Clardy.]” Trial
counsel did not recall a weapon being associated
with Clardy and did not recall Clardy having
any prior convictions for possession of a firearm.
Had trial counsel known that the ballistics from
the cartridge casings would match weapons
used in two other crimes prior to trial, she
“probably” would have used that information
as part of Clardy’s defense.
Id. at *3-4. The TCCA then determined that trial counsel’s
decision to forgo ballistics testing was a tactical choice at
the time and did not constitute deficient representation.
Id. It reasoned:
The post-conviction court found that trial
counsel’s decision to decline ballistics testing
of the cartridge casings recovered from the
crime scene was not deficient performance. The
post-conviction court attributed to hindsight
[Clardy’s] argument that an alternate suspect
could have been developed from ballistic
testing. The post-conviction court surmised
that ballistics results linking the recovered
cartridge casings to a gun used by another
person would not necessarily rule out [Clardy’s]
involvement in the crime because there were
three suspects.
Like the post-conviction court, we recognize
that hindsight is always twenty-twenty. Now
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that ballistics testing has been conducted,
revealing exculpatory evidence, it is easy to
look back at trial counsel’s decision to forego
ballistics testing with a critical eye. However,
if the ballistics testing had revealed a match to
a firearm registered to [Clardy], then [Clardy]
would have had abysmal chances of prevailing
at trial. We evaluate trial counsel’s actions
“from the attorney’s perspective at the time,”
and at the time there was no physical evidence
linking [Clardy] to the crime scene. At the time
that she was preparing for trial, there was
a chance that ballistics testing might reveal
either exculpatory or inculpatory evidence.
Rather than take a risk, trial counsel made
the tactical decision to play it safe and argue
that Kent’s identification, the only thing linking
[Clardy] to the crime, was inaccurate and
incorrect.
Id. at *4 (citation omitted). The TCCA correctly identified
and summarized the Strickland standard applicable to
Clardy’s claim. Therefore, the question for the Court is
whether the state court applied Strickland reasonably.
Harrington v. Richter, 562 U.S. 86, 101, 105 (2011). (“The
question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.”)
(emphasis added). AEDPA, along with Strickland,
requires this Court to give double deference to the
findings of the TCCA. Brown v. McKee, 460 Fed. Appx.
567, 579 (6th Cir. 2012) (“[T]he Court must determine
whether the state court’s application of Strickland was
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unreasonable, not whether defense counsel’s performance
fell below the Strickland standard.”) (citation omitted).
This Court is satisfied that the TCCA’s determination
was reasonable and adequately supported by the record.
Trial counsel’s testimony, which the TCCA credited,
indicates that she decided against ballistics testing after
she considered its risks in light of the government’s
case against Clardy. Clardy, 2018 WL 5046032, at *4;
Docket No. 1-5 at 197. Based on her testimony before the
post-conviction court, trial counsel recognized that the
government’s case was weak, noting that the only evidence
it had linking Clardy to the crime scene was impeachable
eyewitness testimony. Docket No. 1-5 at 191, 196-97.
Instead of pursuing independent ballistics testing, trial
counsel strategically chose to attack the weakness in the
government’s case by focusing on that lack of evidence and
discrediting the only piece of evidence the government
had presented against Clardy: the eyewitness testimony.
Docket No. 1-5 at 196 (“It came down to the surviving
twin’s identification of Thomas, he had known him before,
and I focused on him saying to Detective Satterfield
that the shooter had tattoos on his hands.”). Altogether,
this suggests that trial counsel exercised “reasonable
professional judgment” to forgo ballistics testing after
she “evaluated or weighed [its] risks and benefits” in
context of the entire case. See Parish Towns v. Smith,
395 F.3d 251, 260 (6th Cir. 2005); Strickland, 466 U.S. at
690 (“[S]trategic choices made after less than a complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations
on investigation”).
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Indeed, Strickland permits counsel to “make a
reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691; Harrington,
562 U. S. at 107-08 (citation omitted). It was at least
arguable that a reasonable criminal defense attorney could
decide to forgo an inquiry into ballistics testing in a case
like this where the prosecution’s entire case hinged only
on eyewitness
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