Appendix — Abdur'Rahman v. Bell

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(ORDER LIST:

01-9094

(014702)

535 U.S.)

MONDAY, APRIL 8, 2002

ORDER IN PENDING CASE

ABDUR' RAHMAN, ABU-ALI. V. BELL, WARDEN

The application for stay of execution of sentence of death

presented to Justice Stevens and by him referred to the Court is

granted pending the disposition of the petition for a writ of

certiorari. Should the petition for a writ of certiorari be

denied, this stay shall terminate automatically. In the event

the petition for a writ of certiorari is granted, the stay shall

terminate upon the sending down of the judgment of this Court.

CAPITAL CASE - EXECUTION DATE: 4/10/02 1:00

No. 01-4702

In The

Abu-Ali Abdur’ Rahman,

RECEIVED

AFTER HOURS

W42 1 8 200:

OrFiVE OF ine CocrK

SUPREME COURT. US.

FILE D Petitioner,

. , Vv.

nar | Y 20

. Ricky Beli,

Ise OF THE CLERK

ON PREME couRT, U.S. Respondent.

MOTION FOR A STAY OF EXECUTION

For the reasons set forth in the accompanying Petition

for a Writ of Certiorari, Petitioner Abu-Ali Abdur’ Rahman

respectfully requests that this Court enter

an order

Staying the execution of sentence of death pending the

disposition of the Petition and, if the Petition is

granted, until the issuance of the mandate of this Court.

Respectfully submitted,

Oe

Bradley MacLean Thomas C. Goldstein

Stites & Harbison PLLC (Counsel ef Record)

Suntrust Center, Suite 1800 Amy Howe

424 Church St. Goldstein & Howe, P.C.

Nashville, TN 37219 4607 Asbury Pl. NW

Washington, DC 20016

(202) 237-7594

William P. Redick, Jr.

P.O. Box 187

Whites Creek, TN 37189

March 18, 2002

In The RECEIVED

FTER HOURS

MA 1 8 200:

OrriVE OF Ht Coen

Abu-Ali Abdur’ Rahman, SUPREME COURT. U.S.

Petitioner,

Vv.

Ricky Bell,

Respondent.

In re Abu-Ali Abdur’ Rahman,

Petitioner.

The undersigned certifies that he has this 18th day of March,

2002, served a copy of the foregoing petition for a writ of

certiorari, petition for an original writ of habeas corpus, motions

for a stay of execution, and motions for leave to proceed in forma

pauperis upon the below-named counsel for respondent by facsimile,

Federal Express, and first-class mail, postage prepaid, and

furthermore certifies that all persons required to be served have

been served:

Gordon W. Smith Victor S. Johnson, III

Associate Solicitor General Office of the Dist. Att’y Gen.

425 Fifth Ave., North 20th Judicial District

Nashville, TN 37243 222 Second Avenue North, Suite 500

(615) 741-4150 Nashville, Tennessee 37201-1649

(615) 862-5507

“UV

Thomas, ¢. Goldstein

CAPITAL CASE —- EXECUTION DATE: 4/10/02 1:00 a.m.

Nos.01l-_— &

In The

Supreme Court of the United States

Abu-Ali Abdur’ Rahman,

Petitioner,

v.

Ricky Bell,

Respondent.

In re Abu-Ali Abdur’ Rahman,

Petitioner.

On Petitions for

a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit and

an Original Writ of Habeas Corpus and Other Extraordinary Relief

APPENDIX

Bradley MacLean Thomas C. Goldstein

Stites & Harbison PLLC (Counsel of Record)

Suntrust Center, Suite 1800 Amy Howe

424 Church St. Goldstein & Howe, P.C.

Nashville, TN 37219 4607 Asbury PI., NW

Washington, DC 20016

(202) 237-7594

William P. Redick, Jr.

P.O. Box 187

Whites Creek, TN 37189

March 18, 2002

TABLE OF CONTENTS

January 18, 2002 Order of the Sixth Circuit Denying Petitioner's Application for

a Certificate of Appealability, Request That Rule 60(b) Appeal Be Heard En

Banc, and Motion to Consolidate Rule 60(b) Appeal With Pending Motions to

Withhold Mandate, Grant Rehearing En Banc, and Remand

February | 1, 2002 Order of the Sixth Circuit Denying Petitioner's Motion for

Rehearing, Motion to Consolidate, Motion to Withhold Mandate, Motion for

Hearing En Banc and Rehearing of Denial of Certificate of Appealability, and

Application for Leave to File Second Habeas Petition; and Dismissing Appeal of

Order Transferring Rule 60(b) Motion for Lack of Jurisdiction

November 27, 2001 Order of the District Court Transferring Rule 60(b) Motion to

the Sixth Circuit

December 4, 2001 Order of the District Court Holding That It Lacks Jurisdiction

to Rule on Application for Certificate of Appealability

April 8, 1998 Order and Memorandum Granting Writ of Habeas Corpus as to

Petitioner's Death Sentence

September 13, 2000 Opinion of the Sixth Circuit Vacating Grant of Writ of

Habeas Corpus as to Petitioner's Death Sentence

December 22, 2000 Order of the Sixth Circuit Denying Petition for Rehearing En

Banc

Petitioner's October 10, 2001 Motion to Withhold the Mandate and Grant

Rehearing En Banc or Remand for Further Proceedings

State vy. Abu-Ali Abdur Rahman (formerly James Lee Jones): Prosecutorial

Misconduct (attached as Appendix B to Motion for Certificate of Commutation

Pursuant to Tenn. S. Ct. R. 12.4 and Tenn. Code Ann. § 40-27-106 and for Other

Relief Pursuant to Tenn. S. Ct. R. 11 (filed with Tenn. S. Ct. Dec. 21, 2001)) —

State vy. Abu-Ali Abdur Rahman (formerly James Lee Jones): Court Reprimands

of Zimmermann (attached as Appendix D to Memorandum in Support of

Petitioner's Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b)

(filed wath U.S. Dist. Ct. for the Middle Dist. of Tenn. Nov. 2, 2001))

NOT RECOMMENDED FOR PUBLICATION FILED

Nos. 98-6568/6569, 01-6504 JAN 1 8 2002

UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk

FOR THE SIXTH CIRCUIT

ABU-ALI ABDUR’RAHMAN, )

)

Petitioner-Appellant, )

) ‘

Vv ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR

) THE MIDDLE DISTRICT OF

RICKY BELL, ) TENNESSEE

)

Respondent-Appellee. )

Before: SILER, BATCHELDER and COLE, Circuit Judges.

SILER, Circuit Judge. This matter comes before the court on the application by Abdur’

Rahman for a certificate of appealability, a request that his Fed.R.Civ.P. 60(b) appeal be heard

initially en banc and a motion to consolidate his Rule 60(b) appeal with pending motions in Nos. 98-

6568/6569 to withhold mandate, grant a rehearing en banc, and remand. For the reasons stated

hereafter, insofar as we have the authority, the motions are denied.

His application for a certificate of appealability arises from the transfer by the district court

of this matter after he had applied for relief from judgment under Fed.R.Civ.P. 60(b). Petitioner

moved the district court for relief from judgment under Rule 60(b) based upon the fact that

Tennessee Supreme Court Rule 39 was just adopted on June 28, 2001, in which it stated:

In all appeals from criminal convictions or post-conviction relief matters from

and after July 1, 1967, a litigant shall not be required to petition for rehearing or to

file an application for permission to appeal to the Supreme Court of Tennessee

following an adverse decision of the Court of Criminal Appeals in order to be

deemed to have exhausted all available state remedies respecting a claim of error.

A-1

Nos. No. 01-6504

Rahman v. Bell

Rather, when the claim has been presented to the Court of Criminal Appeals or the

Supreme Court, and relief has been denied, the litigant shall be deemed to have

exhausted all available state remedies available for that claim. On automatic review

of capital cases by the Supreme Court pursuant to Tenn. Code. Ann. § 39-13-206,

a claim presented to the Court of Criminal Appeals shall be considered exhausted

even when such claim is not renewed in the Supreme Court on automatic review.

The petitioner raised it in a Rule 60(b) motion because this case was appealed to the

Tennessee Supreme Court after | 967 and the district court in this case found that certain claims were

barred by the failure of the petitioner to seek discretionary review from the Tennessee Supreme

Court. See Abdur’Rahman v. Bell, 999 F. Supp. 1073, 1080-82 (M.D. Tenn. 1988). The district

court properly found that a Rule 60(b) motion is the equivalent of a successive habeas corpus

petition, see McQueen v. Scroggy, 99 F.3d 1302, 1335 (6" Cir. 1996), so it transferred this case

to our court for a determination of whether the Rule 60(b) motion satisfied the gateway criteria of

28 U.S.C. § 2244(b).

We consider that this is the equivalent of a successive habeas corpus petition, so it is

necessary to determine whether the petition meets the criteria of 28 U.S.C. § 2244(b)(2).

Abdur’ Rahman has not been able to meet these criteria. First, he does not rely upon a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme Court. Second,

there is no factual predicate for the claim which could not have been discovered previously through

the exercise of due diligence. Finally, he does not show that the facts underlying the claim would

be sufficient to establish by clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found him guilty of the offense charged. Instead, his argument

rests upon a state procedural rule, adopted three years after the district court’s judgment. The district

A-2

Nos. No. 01-6504

Rahman v. Bell

court properly found that the claims were then unexhausted for failure to present them before the

Tennessee Supreme Court under the authority of Silverburg v. Evitts, 993 F.2d 124, 126 (6° Cir.

1993). In addition, the decision of this court on appeal from the judgment of the district court did

not rest upon any procedural default. See Abdur’Rahman v. Bell, 226 F.3d 696 (6° Cir. 2000).

Therefore, the application for a certificate of appealability is denied. The motions or requests

that the Rule 60(b) appeal be heard initially en banc and to consolidate the Rule 60(b) appeal with

pending motions in Nos. 98-6568/6569 are not matters which this panel can resolve, because they

should be decided by the en banc court. Thus, all relief requested to this panel is denied.

A-3

NOT RECOMMENDED FOR PUBLICATION

Nos. 98-6568/6562; 01-6487; 01-6504 FILED

UNITED STATES COURT OF APPEALS :

FOR THE SIXTH CIRCUIT FEB 1 3 2002

LEONARD GREEN, Clerk

ABU-AL! ABDUR RAHMAN,

Petitioner - Appellant.

Vv. ORDER

RICKY BELL, Warden,

i i i ed

Respondent - Appellee.

Before: SILER, BATCHELDER, and COLE, Circuit Judges

These cases are before the court upon the motions of the petitioner to withhold

issuance of the mandate in Nos. 98-6558/6569, the appeal and cross-appeal from the

decision of the district court on the application for a writ of habeas corpus, and to rehear

the cases en banc or remand to the district court for further proceedings. Petitioner has

also moved that the court hear en banc No. 01-6504, his appeal from the judgment of the

district court finding his Rule 60(b) motion to be a second or successive habeas corpus

petition subject to 28 U.S.C.§2244 and transferring it as such to this court, and to

consolidate it with the pending motions in Nos. 98-6568/6569, the latter request having

been the subject of a supplemental motion filed February 8, 2002. Additionally, petitioner

has asked for rehearing en banc of the panel's January 18, 2002 order denying, inter alia,

his request for a certificate of appealability in Nc. 01-6504: petitioner has supplemented

that request for en banc review with a statement of additional authority. Finally, petitioner

has applied for leave to file a new habeas corpus petition in No. 01-6487.

The requests for en banc consideration have not been favored by a majority of the

active judges of the court, and the matter is referred to the original panel. Upon

consideration of the pleadings noted above, it is the decision of the court that:

© Petitioner's motion for rehearing of Nos. 98-6568/6569 is hereby DENIED

e Petitioner's motion to vensolidate No. 01-6504 with Nos. 98-6568/6569

is hereby DENIED

° The mandate of the court in Nos. 98-6568/6569 shall issue forthwith

e The order construing an ostensible Rule 60(b) motion as an application

for leave to file a second habeas corpus petition and transferring it to the

court of appeals is not an appealable order in No. 01-6504, which is

therefore DISMISSED for lack of jurisdiction

° The motions for initial hearing en banc of No. 01-6504 and for rehearing

of the court's denial of a certificate of appealability in the matter are

hereby DENIED

e The application for leave to file a second habeas corpus petition, as

transferred to this court by the district court in No. 01-6487, is DENIED.

As we stated in an opinion filed in Nos. 98-6568/6569; 01-6504 on

January 18, 2002, “...the decision of this court on appeal from the

judgment of the district court did not rest upon any procedural default.”

With this order the court's review of Nos. 98-6568/6569, 01-6487, and 01-6504 is

hereby concluded.

IT IS SO ORDERED.

ENTERED BY ORDER OF THE COURT

Leonard , Clerk

st

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ABU-ALI ABDUR' RAHMAN )

)

v. ) No. 3:96-0380

) JUDGE CAMPBELL

RICKY BELL, Warden ) DEATH PENALTY

ORDER

Pending before the Court is Petitioner’s Motion for Relief from Judgment Pursuant to

Fed. R. Civ. P. 60(b) (Docket No. 254). Because the Motion is a second or successive petition

subject to 28 U.S.C. § 2244, this case is transfeired to the Sixth Circuit Court of Appeals

pursuant to 28 U.S.C. § 1631 and Inre Sims, 111 F.3d 45 (6 Cir. 1997).

Petitioner, in this capital habeas corpus case, has moved pursuant to Fed. R. Civ. P. 60(b)

for relief from this Court’s Judgment of April 8, 1998 (Docket Nos. 205 and 206).

Abdur’ Rahman v. Bell; 999 F.Supp. 1073 (M.D. Tenn. 1998), aff'd. in part and rev'd. in part,

226 F.3d 696 (6 Cir. 2000), cert. denied, 122 S.Ct. 386 (2001), pet. for reh’g pending. The Rule

60(b) Motion is predicated upon a new Tennessee Supreme Court Rule, Rule 39 (“Rule 39"),

adopted on June 28, 2001.!

Tennessee Supreme Court Rule 39 reads as follows:

In all appeals from criminal convictions or post-conviction relief matters from and after

July 1, 1967, a litigant shall not be required to petition for a rehearing or to file an application for

permission to appeal to the Supreme Court of Tennessee following an adverse decision of the

Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies

respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal

/wpeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have

exhausted al] available state remedies available for that claim. On automatic review of capital

cases by the Supreme Court pursuant to Tennessee Code Annotated, § 39-13-206, a claim

Thus deeument was entered on (contnued...)

the docket in compliance with

3 Rule 58 Rule 79 (a),

”" FRCP. omer y 72-9 269

oe Ae

In the 1998 Judgment, this Court ruled that certain of Petitioner’s claims had not been

exhausted in state court and, therefore, were defaulted. Based on new Rule 39, Petitioner asserts

that a petition for discretionary review by the Tennessee Supreme Court is not necessary for

exhaustion purposes and, therefore, the claims in question were exhausted and the Court must

now rule on the merits of those claims.

Respondent asserts that this Rule 60(b) Motion is actually a second or successive petition

subject to 28 U.S.C. § 2244. The proper procedure, according to Respondent, is for this Court to

transfer the matter to the Sixth Circuit for its determination of whether the Rule 60(b) Motion

satisfies the gateway criteria of 28 U.S.C. § 2244(b). Respondent relies pnmarily on McQueen v.

Scroggy, 99 F.3d 1302, 1335 (6* Cir. 1996). In McQueen, the Sixth Circuit held “[wJe agree

with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a

successive habeas corpus petition....” Id. See, also, United States v. Rich, 141 F.3d 550, 551 (5*

Cir. 1998); Thompson v. Calderon, 151 F.3d 918, 921 (9* Cir. 1998) (en banc); Felker v. Turpin,

101 F.3d 657, 660-61 (11° Cir. 1996); and United States v. Hernandez, 158 F.Supp.2d 388, 391

(D. Del. 2001).

Petitioner argues that this Rule 60(b) Motion is not a second or successive petition

because it raises no new claims, no new facts, and does not rely on new law. Petitioner relies

primarily on Rodriguez v. Mitchell, 252 F.3d 191, 198-200 (2™ Cir. 2001). In Rodriquez, the

Second Circuit held “a Motion under Rule 60(b) to vacate a judgment denying habeas is not a

‘(...continued)

presented to the Court of Cmmuna! Appeals shall be considered exhausted even when such claim

is not renewed in the Supreme Court on automatic review

Tenn. S. Ct. R. 39

C-2

second or successive habeas petition and should therefore be treated as any other motion under

Rule 60(b).” Jd. at 198.

In the Sixth Circuit, when a petitioner raises new matters in a Rule 60(b) Motion

challenging the previous denial of a § 2254 habeas corpus petition, the Rule 60(b) Motion must

be construed as an attempt by the petitioner to file a second or successive petition. McQueen v.

Scroggy, 99 F.3d at 1334-35. 28 U.S.C. § 2244(b)(3)(A) provides: “Before a second or

successive application permitted by this section is filed in the district court, the applicant shall

move in the appropriate court of appeals for an order authorizing the district court to consider the

application.”

Because this Rule 60(b) Motion presents a new theory predicated on a new rule of law

adopted by the Tennessee Supreme Court over three years after this Court’s Judgment, the Court

finds that the Motion is a second or successive habeas petition subject to 28 U.S.C. § 2244.

Accordingly, this Court is without jurisdiction to decide the Rule 60(b) Motion. The case is

hereby transferred to the Sixth Circuit Court of Avpeals pursuant to 28 U.S.C. § 1631 and Ipre

Sims, 111 F.3d 45 (6* Cir. 1997).

It is so ORDERED.

————

TODD J. CAMPBELL

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ABU-ALI ABDUR' RAHMAN )

)

v. ) No. 3:96-0380

) JUDGE CAMPBELL

RICKY BELL, Warden ) DEATH PENALTY

ORDER

Pending before the Court is Petitioner’s Application for Certificate of Appealability

(Docket No. 269). For the reasons described herein, the Court is without jurisdiction to rule on

the Application.

By Order (Docket No. 267) entered on November 27, 2001, the Court ruled that it was

without junsdiction to decide Petitioner’s Rule 60(b) Motion because the Motion was a second

or successive petition subject to 28 U.S.C. § 2244. The Court, accordingly, ordered the case

transferred to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631 and In re Sims,

111 F.3d 45 (6* Cir. 1997).'

Petitioner's Application for Certificate of Appealability asks the Court to grant a

certificate of appealability. See 28 U.S.C. §§ 2253(c); Fed. R. App. P. 22(b); Slack v. McDaniel,

529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). According to Petitioner:

Specifically, a COA should issue because reasonable jurists could

disagree (and have disagreed) with this Court’s conclusions that:

(1) Every 60(b) motion in a habeas case is a second or successive

‘The Court also notes that this case was on appeal at the time the Rule 60(b) Motion was

filed in this Court and that it remains on appeal at this time. Therefore, the Court generally lacks

junsdiction over the case due to the appeal. See . $35

F.2d 343 (6" Cir. 1976) regarding the procedure for a District Court to act on a Rule 60(b)

motion to vacate a judgment that is on appeal.

D-1 the docket in compliance with

Rule 58 ee

(500

petition; (2) Tennessee Supreme Court Rule 39 is a “new” rule of

law; and (3) Abu-Ali Abdur’Rahman is not entitled to relief,

despite egregious prosecutorial misconduct, including deliberate

falsification of evidence pivotal to the death sentence.

Application, Docket No. 269, p. 1.

For the reasons stated in the pnor Order (Docket No. 267), the Court finds that it does not

have jurisdiction to rule on Petitioner’s Application for Certificate of Appealability.

The Clerk shall send a copy of this Order to the Clerk of the Sixth Circuit Court of

Appeals.

It is so ORDERED.

TODD J. 4G

UNITED STATES DISTRICT JUDGE

a

L.

poe

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ABU-ALI ABDUR' RAHMAN

No. 3:96-0380

JUDGE CAMPBELL

v.

RICKY BELL

ORDER

Petitioner, Abu-Ali Abdur’ Rahman, has been sentenced to death by electrocution for first

degree murder. He has filed a Petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,

challenging both his conviction and sentence. The Court held an evidentiary hearing in this

matter beginning on February 6, 1998. For the reasons set forth in the accompanying

Memorandum, the Court issues the wrt of habeas corpus as to Petitioner's death sentence, but

denies issuance of the wmit as to Petitioner's conviction.

Accordingly, the Court vacates Petitioner's sentence of death, and remands this case to

the State of Tennessee for further proceedings not inconsistent with this opinion. Petitioner shall

remain incarcerated as descnbed in the Memorandum.

It is so ORDERED. “ | ad C 7 |

TODD J. CAMPBELL

UNITED STATES DISTRICT JUDGE

This document was entered on

the docket in compliance with

Rule 58 andior Rule 79\g)

FRCF. or 4-43-98 by ._ a

2)

UNITED STATES DISTRICT COURT and inform the jury about Petitioner's unstable menta! history and bizarre family background.

MIDDLE DISTRICT OF TENNESSEE — ie

NASHVILLE DIVISION The jury, as a result, did not hear significant mitigating evidence before deciding whether to

sentence Petitioner to death. This is not to suggest that Petitioner, or anyone with an unstable

-ALI ABDUR'’ RAHMAN

ABU mental history or bad childhood, cannot be sentenced to death However, a sentence of death

i

No. 3:96-0380 : ituti in thi

v ame TT must be imposed in accordance with the Constitution and in this case was not. This is not a case

K

RICKY BELL where counsel presented the jury with most of the available mitigation evidence and merely

missed some evidence. This is not an instance of harmless error Despite an abundance of

, mitigating evidence, there was virtually a complete failure by counsel to present a defense to the

Petitioner, Abu-Ali Abdur’ Rahman’, has been sentenced to death by electrocution for juty of Potiionss’s comtensing, Assesdingly. as is mare Cully Clesumes in Section Vill,

first degree murder. He has filed a Petition for a writ of habeas corpus, pursuant to 28 U.S.C. Ineffective Assistance of Counsel, the Constitution has been violated and the writ of habeas

corpus must issue as to Petitioner's death sentence.

Il. Proceedings in the State Courts

Petitioner was tned and convicted of first degree murder, assault with intent to commit

§ 2254, challenging both his conviction and sentence. The Court held an evidentiary hearing in

this matter beginning on February 6, 1998. For the reasons set forth below, the Court issues the

writ of habeas corpus as to Petitioner's death sentence, but denies issuance of the wmt as to

murder, and armed robbery. (Addendum |, at 2000) After a subsequent sentencing hearing,

Petitioner's conviction.

The basis of the Court's opinion, as is described in detail herein, is that Petitioner was Petitioner received the death penalty for the first degree murder conviction. The jury found the

unconstitutionally sentenced to death because he did not receive the effective assistance of eximence of three aggravating circumstances: (1) Petitioner had been convicted of prior violent

counsel guaranteed by the Sixth Amendment. This Court, along with the state post-conviction felonies (assault with a deadly weapon and second degree murder), (2) the murder was especially

trial and appellate courts, finds that tna! counse! for Petitioner failed to adequately represent their heinous, swocious, or crust in that & involved or depravity of mind; and (3) the murder

client. This Court further finds that Petitioner was senously prejudiced by utterly ineffective was committed while the Petitioner was engaged in c itting or stempting to commit a first

assistance of counsel at his sentencing heanng. Tal counsel, for instance, failed to investigate

- Petitioner has changed his name from James Lee Jones to Abu-Ali -

This documRb&tt’ Rahman

the docke! in cO™} « |

~ Rule 58 andior kure NIG -

FROP, on LI4E +, c |

£2 Coa

E-3

degree murder or robbery. (Addendum |, 1986-2001). The court sentenced the Petitioner to life

on each of the other offenses, to be served consecutively to each other. (Addendum |, at 13-14).

Petitioner was represented at tnal by Lionel Barrett and Sumter Camp. After trial, Mr.

Barrett and Mr. Camp withdrew, and the state court appointed Richard Dinkins to represent

Petitioner on direct appeal to the Tennessee Supreme Court. (Addendum 1, Technical Record, at

87). The Tennessee Supreme Court affirmed Petitioner's conviction and sentence. State v. Jones.

789 S.W.2d 545 (Tenn. 1990)

The state court appointed another attorney to assist Mr. Dinkins in the post-conviction

proceedings, who was joined by a volunteer lawyer from the Capital Case Resource Center.

(Addendum |1, Technical Record, at 23, 50, 82). The post-conviction trial court found trial

counsel had been ineffective in their representation of Petitioner at sentencing. (Addendum ! |, at

81-109). The court, however, went on to find that trial counsel's deficiencies did not result in

prejudice to the Petitioner and rejected al! other claims. (d.) The Tennessee Court of Criminal

Appeals’ affirmed that judgment, and the Tennessee Supreme Court denied Petitioner's

application for permission to appeal. Jones v. State, 1995 WL 75427, at *2 (Tenn. Crim. App.

Feb. 23, 1995)

The post-conviction tnal court gave the following summary of facts in its opinion:

: The court also determined that, if the death sentence were to later be reduced to a

life sentence, that sentence would be served consecutively to the other life sentences. (Addendum

|, at 14). In addition, the state sentences would be served consecutively to the federal sentence

for which Petiuoner was on parole when he was convicted of the state offenses. (Id.)

' The panel consisted of only two judges, rather than the usual three judges

E-4

went to the victims home. Petitioner wants to describe the events that took place

after that as a misguided attempt to nd the community of drug dealers, as it

Codefendant, Mr. Miller, testified for the State, however, and he described the

motive for the visit as robbery. The victim, Patrick Daniels, lived with Norma

What happened next is described in the appellate decision.

The victim in this case was bound, gagged, and blind

folded with duct tape. He was distressed, crying, and begging not

to be hurt. Defendants stood over him and stabbed him six (6)

times, four (4) times penetrating the heart. He then watched as the

mouth. His accomplice testified, “he was working himself up on a

rhythm,” he was “cool” and “under control.” The victim continued

to plead with the defendant as he was being stabbed.

State v. Jones, supra, at 550. The defendant also stabbed Norma Norman

(Addendum 11, 83-84). ‘

Ill. Proceedings in this Court

Prior to the evidentiary hearing in this case, the Court denied Petitioner's motion for

summary judgment on his claims that the tnal court's sentencing instructions regarding the

heinous, atrocious, or cruel aggravating circumstance, and unanimity (Amended Petition,

$4 C7(1), (4), C8) were unconstitutional. (Docket Nos. 123, 124). The Court granted summary

judgment to the Respondent on the following claims. the Batson challenge (Amended Petition, at

4 C2(2)); exclusion of jurors based on religious beliefs (¢¥ C2(3),(4)); failure to exclude certain

jurors for cause (§ C2(5)); sufficiency of evidence of robbery and first degree murder ({ C3),

inadequate proportionality review (§ C9), prosecutor's questions during guilt phase ({ D4),

prosecutorial misconduct involving publication of indictments to jury (D6), cross examination

E-5

of Petitioner at sentencing ({ D7), and State's argument at sentencing regarding the Southeastern

Gospel Ministry ({ D8(4)). (Docket Nos. 156, 157). The Court denied summary judgment on

Petitioner's conflict of interest and ineffective assistance of counsel claims, having found the

existence of a factual dispute. (Id.) The Court denied Respondent's motion for summary

judgment on procedural default issues because Petitioner raised factual issues regarding actual

innocence in response to the motion. (Docket Nos. 133, 134).‘

IV. Procedural Defenses

A. Generally

Respondent argues that the Court should not reach the merits of several of Petitioner's

claims because Petitioner failed to raise those claims in state court, and has, therefore,

procedurally defaulted those claims. Petitioner argues that none of his claims are procedurally

defaulted because: (|) al! the claims Petitioner raises have been presented to the state courts,

(2) the ineffectiveness of Petitioner's counsel in the state courts and prosecutorial misconduct

provide cause for any failure to raise a claim, and (3) Petitioner is actually innocent of the crime

for which he has been convicted, and of the death penalty.

Subsections (b) and (c) of 28 U.S.C. § 2254 require a habeas corpus petitioner to exhaust

the remedies available to him in state court before raising claims in federal court. If the

petitioner has no remedy currently available in state court, however, the exhaustion requirement

is satisfied. Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2080 (1996); Teague v. Lane, 489

U.S. 288, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989).

. Respondent also filed a Motion in Opposition to an Evidentiary Hearing (Docket

No. 110), which the Court denied. (Docket No. 116).

E-6

Although a claim may be fully exhausted under these circumstances, the petitioner's

failure to assert the claim in state court may constitute procedural default. jd. As a general rule,

procedural default bars the petitioner from raising claims in a federal habeas corpus proceeding

that he failed to raise in state court. [d, A petitioner may avoid this procedural bar by showing

cause for the default, and that prejudice resulted from the default, or by showing that he is

actually innocent. [d.; Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L_Ed.2d 808 (1995).

B. Exhaustion

First, Petitioner argues that his claims are not procedurally defaulted because they have

all been exhausted. Exhaustion requires that petitioners “fairly presen{t]” federal claims to the

state courts to provide them with an opportunity to correct alleged violations of its prisoners’

federal rights. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, $12, 30 L.Ed.2d 438 (1971). A

claim has been “fairly presented” if the petitioner identified the specific constitutional guarantee

allegedly vio.ated, as well as a statement of the facts which entitle the petitioner to relief. Gray,

116 S.Ct. at 2081.

It is not enough to make a general reference to a constitutional guarantee as broad as due

process to present the substance of such a claim to a state court. Gray, 116 S.Ct. at 2081.

E-7

Petitioner argues that many of his claims’ are exhausted because the Tennessee Supreme

Court had the independent duty to review each claim that could be based upon the record on

appea! even if the claim was not raised by the Petitioner. Petitioner cites Tennessee Code

Annotated Section 39-2-205(a), which was in effect at the time of Petitioner's trial, to support his

argument.

That statute provided for automatic direct review by the Tennessee Supreme Court where

the death penalty has been imposed. Tenn. Code Ann. § 39-2-205(a). The statute required that

the court review the death sentence to determine: (1) whether the sentence was imposed in an

arbitrary fashion, (2) whether the evidence supported the findings of an aggravating

’ Those claims are as follows: whether the indictments against Petitioner violated

his Fifth, Eighth and Fourteenth Amendment nghts (Amended Petition, 4 C1); whether Petitioner

was denied his nghts under the Sixth, Eighth and Fourteenth Amendments because he was not

permitted to question potential jurors in voir dire regarding their beliefs about parole eligibility (4

C2(1)), whether the evidence was sufficient to support Petitioner's conviction of assault (4

C3(3)); whether the trial court erred in instructing the jury that it could return a verdict finding

Petitioner guilty of either premeditated murder, felony murder, or both (J C4(1)); whether voir

dire, arguments and instructions to the jury unconstitutionally defined the elements of

premeditation and deliberation in a manner that violated Tennessee law ( C4(2)); whether the

trial court erred instructing the jury regarding lesser included offenses (§ C4(3)); whether the trial

court erred by failing to instruct the jury that accomplice testimony must be corroborated by

independent evidence (§ C4(4)); whether the trial court gave an erroneous definition of

reasonable doubt in its instructions to the jury by use of the language “moral certainty” (4 C4(5),

4 C7(3)), whether Tennessee law unconstitutionally prohibits presentation of certain specified

issues at a capital sentencing hearing ({ C5), whether the tal court unconstitutionally instructed

the jury regarding the felony murder aggravating circumstance (§ C7(2), 4 C8); whether the trial

court unconstitutionally instructed the jury that sympathy could not be a factor in its sentencing

decision (§ C7(5)); whether the sentencing instructions as a whole were unconstitutional (§ C6);

whether jury instructions regarding mitigating circumstances at the sentencing phase of the trial

were unconstitutional (F§ C7(6),(7),(8),(9),(10),(1 1),(12),(13),(14),(15)); whether the Tennessee

Death Penalty Statute is unconstitutional (§ C10), whether the prosecution made improper

closing argument at the guilt phase of trial regarding the term “pure pleasure” (§ D5(4)); and

whether the prosecution's argument dunng sentencing violated Petitioner's constitutional rights

(44 D8(1 )-(3),(5)-(8)).

E-8

circumstance(s), (3) whether the evidence supported the finding of the absence of any mitigating

circumstances sufficiently substantial to outweigh the aggravating circumstance(s) so found; and

(4) whether the death sentence is disproportionate to the penalty imposed in similar cases. Tenn.

Code Ann. § 39-2-205(c) (repealed and replaced by Tenn. Code Ann. § 39-13-206(c)(1)).

The Court is not persuaded that this statute excuses the requirement that the Petitioner

present issues to the state courts in the first instance, at least with respect to issues not

specifically delineated in the statute. Accepting Petitioner's argument would essentially

eviscerate the exhaustion requirement because defendants would have no incentive to raise issues

in the state court. The exception Petitioner advocates would also undermine the principles of

comity and federalism upon which the exhaustion requirement is based. Coleman v. Thompson,

$01 U.S. 722, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). Accordingly, the statutory

requirement that the Tennessee Supreme Court review a death sentence does not satisfy the

exhaustion requirement as to those issues not addressed in the statute.*

Petitioner argues that the exhaustion doctrine does not require a petitioner to seek

discretionary review of a claim before the state’s highest court. Petitioner argues that

presentation of claims to the Tennessee Court of Cnminal Appeals on appeal of the denial of his

post-conviction petition was sufficient for purposes of exhaustion because that was the last court

to which he was entitled to appeal as of nght. Although there is a split of authority on the issue,

see Dolny v. Erickson, 32 F.3d 381, 383-84 (8th Cir. 1994)(and cases cited therein), the Sixth

Circuit has held that a petitioner must seek discretionary review of a claim from a state's highest

Respondent does not allege that Petitioner's claims that track the statute are

procedurally defaulted.

E-9

court in order to satisfy the exhaustion requirement. Silverburg v. Evitts, 993 F.2d 124, 126 (6th

Cir. 1993). That the Tennessee Supreme Court exercises only discretionary review of post-

conviction matters, therefore, does not excuse the Petitioner from raising his claims before that

court.’

Petitioner argues other claims are exhausted for various reasons. First, Petitioner argues

that he has exhausted his claim that the evidence at trial was insufficient to support his

conviction of assault by presenting it to the Tennessee Supreme Court in his application for

discretionary review. (Amended Petition, § C3(3)). Petitioner contends that he presented this

claim to the court because it is related to his argument that the evidence was insufficient to

support premeditation and deliberation, in that both claims involve Petitioner's condition at the

time of the offense. The Court is not persuaded, however, that this claim was fairly presented to

the court simply because Petitioner's mental state was a basis for both claims. Thus, Petitioner's

sufficiency of the evidence supporting assault claim has not been exhausted.

With respect to his claim that voir dire, arguments and instructions to the jury

unconstitutionally defined the elements of premeditation and deliberation (Amended Petition, €

C4(2)), Petitioner argues that he raised the substantial equivalent of this claim by arguing that the

evidence was insufficient to support a finding of premeditation or deliberation under State v.

Brown, 836 S.W.2d 530 (Tenn. 1992), a case involving jury instructions on these elements.

Resolving a sufficiency of the evidence claim, however, does not require a court to determine

. Petitioner contends that his ineffective assistance of appellate counsel claim

(Amended Petition, § F) is exhausted based on this argument. Given the Court's rejection of this

argument, the exhaustion doctrine applies to bar this claim.

E-10

whether the court erred in its jury instructions. This claim was not fairly presented to the state

court, and therefore, has not been exhausted

Petitioner next argues that he has exhausted his claim that the mal court erred by failing

to instruct the jury that accomplice testumony must be corroborated by independent evidence

(Amended Petition, § C4(4)). Petitioner contends that he raised the substantial equivalent of this

claim by arguing to the Tennessee Supreme Cour’ on direct appeal that it was fundamentally

unfair to predicate his first degree murder conviction solely on the basis of the uncorroborated

testimony of co-defendant Harold Devalle Miller But, as stated above, resolving Petitioner's

fundamental! fairness claim would not require the court to review the jury instructions on this

particular issue. Accordingly, this claim was not fairly presented to the state courts, and has not

been exhausted.

Petitioner argues that his claim challenging the constitutionality of the Tennessee Death

Penalty Statute (Amended Petition, § C!0) was raised on direct appeal to the Tennessee Supreme

Court, because he stated in his bref.

In addition to the arguments set forth in Section I] A, B, C and D, supra.

defendant submits that, taking this case as a whole, the imposition of the death

penalty was improper and constitutes a depnvation of life without due process of

law and cruel and inhuman treatment.

E-11

(Bnef of the Appellant, at $9 (Addendum 2)). The bref then goes on to address the

proportionality issue

Despite the language in the heading, the brief does not specify, “as applied to the facts of

this case,” why the death penalty statute is unconstitutional, and what facts support the

constitutional challenge. Under these circumstances, the Court concludes that Petitioner did not

fairly present his constitutional challenge to the Tennessee Supreme Court on direct appeal.

Petitioner also points out that he challenged the “heinous, atrocious and cruel”

aggravating circumstance in his post-conviction application for permission to appeal to the

Tennessee Supreme Court. In a footnote, the bref states: “By discussing only the aggravating

circumstance of ‘heinous, atrocious or cruel,’ infra, the Appellant does not waive any previously

raised constitutional challenges. The Appellant relies on the arguments previously advanced and

ruled upon in his Brief to the Court of Cnminal Appeals.” (Application For Permission To

Appeal, at 2! n.11 (Addendum 15))

Although the Petitioner referred, in this footnote, to the bnef he filed in the Court of

Criminal Appeals, he did not attach a copy of that bnef to the Application. The Court is not

persuaded that referral to arguments made in another document by way of a footnote constitutes a

fair presentation of those arguments to the Tennessee Supreme Court. Thus, the Court concludes

that this claim has not been exhausted.

In his Amended Petition, Petitioner alleges a number of instances of prosecutorial

misconduct, numbered one through eight, with several subissues under each number. Ina

paragraph under the main heading “Prosecutonal Misconduct,” Petitioner states that the

prosecution “pursued a consistent course of deception,” which violated Petitioner's constitutional

E-12

nights (Amended Petition, ({ D)) . Respondent has asserted a procedural default defense to most

of the claims set forth under this heading.

Petitioner argues, however, that the heading “prosecutorial misconduct,” along with the

paragraph following that heading, constitute a separate claim to which the Respondent has not

asserted a procedural default defense. But the Court does not view this paragraph as a separate

claum. The paragraph does not allege specific constitutional violations, nor does it set forth

specific facts in connection with those alleged violations. Therefore, Respondent will not be

considered to have waived his procedural default defense to the prosecutorial misconduct claims.

For this same reason, the Court rejects Petitioner's argument that certain specific

allegations are noi defaulted because they fall within this general prosecutonal misconduct

claim.*

Petitioner contends that his claims regarding the failure to disclose co-defendant Miller's

pretrial statements (Amended Petition, 4§ D1(2) -(4)) were fairly raised to the Tennessee

Supreme Court in his application for permission to appeal because, in that application, he argued

that the prosecution made misleading statements in its argument to the jury. (Application For

. These claims include: whether the prosecution should have disclosed the

statements of Norman's children (¥ D1(5)), the redacted portion of Detective Garafola’s Report

({ D1(6)), other police reports ({ D1(8)), the memorandum in the prosecution's file concerning a

bank account in Patrick Daniels’ name ({ D1(9)), the statement of George Daniels/laboratory

reports (Fj D1(10\11)), and information regarding Petitioner's bank account ({ D1(12)). These

claims also include whether the prosecution unconstitutionally influenced Harold Devalle

Miller's testimony (§ D2(!)), whether the prosecution provided false information to MTMHI (4

D2(2)), whether the prosecution improperly attempted to manipulate Norma Norman's testimony

(§¥ D2(3)); whether the prosecution unconstitutionally misled defense counse! regarding

Petitioner's 1972 murder conviction ({ D3), whether the prosecution made improper closing

arguments at the guilt phase of tial ({{ D5S(1)-(4)); and whether the prosecution's argument

during sentencing violated Petitioner's constitutional nghts ({¥ D8(1 )-(3),(5)-(8)).

E-13

Permission To Appeal, at 9 (Addendum 15)). The Petitioner also argued that the prosecution

committed discovery violations, but did not mention Miller's pretnal statements.

The Court is not persuaded that thus discovery violation claim has been fairly presented to

the Tennessee Supreme Court. Determining whether a prosecutor has made a misleading closing

argument 1s not the same as determining whether the prosecution committed a discovery

violation. Thus, Petitioner has not exhausted this claim

Petitioner next contends that he has exhausted his claim that the prosecution provided

musleading statements to the Middle Tennessee Menta! Health Institute (*MTMHI”). (Amended

Petition, { D2(2)). Petitioner argues that he raised wus claim in his application for permission to

appeal to the Tennessee Supreme Court by reciting the facts upon which the claim is based.

Although Petitioner discussed the prosecutor's letter to MTMHI in the “Statement of the Facts”

section of the application, he did not raise this issue in arguing that the prosecution had engaged

in misconduct. (Application For Permission To Appeal, at xii-xili, 7-19 (Addendum 15)). The

prosecutona! misconduct claims presented to the Tennessee Supreme Court were limited to

Petitioner's allegations that the prosecution failed to disclose certain documents in violation of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L_Ed.2d 215 (1963), and that the prosecution

made a misleading closing argument (1d.) Although Petitioner alleged facts regarding the

prosecution's letter to MTMHI, he did not identify the constitutional violation allegedly shown

by those facts. Thus, this claim was not fairly presented to the Tennessee Supreme Court, and

has not been exhausted.

Respondent argues that Petitioner's ineffective assistance of counsel claim is procedurally

defaulted except as to the claim that defense counsel conducted a deficient investigation of

E-14

Petitioner's mental history (Amended Petition, % E1-E2(g)). Petitiener raised the ineffective

assistance of counsel claim in his post-conviction petition, and descnbed twenty-seven alleged

deficiencies by defense counsel. (First Amended Petition For Post-Conviction Relief, at 3-6

(Addendum |1)). As noted above, the trial court held that defense counsel conducted an

inadequate investigation of Petitioner's background and mental health history, but determined

that Petitioner was not prejudiced by that deficiency. (Memorandum and Order of the Fifth

Circuit Court For Davidson County (Addendum 1!1)). The Court of Cnminal Appeals agreed

with that assessment. Jones v. State. 1995 WL 75427 (Tenn. Cnm. App. Feb. 23, 1995).

In his application for permission to appeal to the Tennessee Supreme Court, Petitioner

argued that prejudice had been shown. (Application For Permission To Appeal, at 1-6

(Addendum 15)). Because Petitioner succeeded in demonstrating that tal counsel's

performance was deficient in the lower courts, it was not necessary for the Petitioner to raise all

those deficiencies again in arguing that his appeal of the prejudice issue should be accepted. The

Court concludes that Petitioner fairly presented the ineffective assistance of counsel claims to the

Tennessee Supreme Court.’

In conclusion, the only claims that have been exhausted by Petitioner and remain to be

decided by this Court are: Petitioner's prosecutorial misconduct claims involving certain lab

reports and the transcript from Petitioner's 1972 murder trial (Amended Petition, ¢¥ D1(1), (7)),

and Petitioner's claim that his tral counsel provided constitutionally ineffective assistance

° For the same reason, the Court also concludes that Petitioner has exhausted his

claim that trial counsel failed to test the adversarial process. (Amended Petition, ¢ A).

E-15

(Amended Petition, $§ A, E1-E2(g))."° With the exception of these claims, Petitioner has failed

to exhaust all the claims to which Respondent has asserted a procedural default defense.

Petitioner may no longer present those claims to the state court, however, because they would be

barred by the statute of limitations. See Tenn. Code Ann. § 40-30-202.'' Thus, because

Petitioner has no remedy currently available in state court, these claims are procedurally

defaulted. See Hannah v. Conley, 49 F.3d 1193, 1196-97 (6th Cir 1995)

C. Cause and Prejudice

Petitioner argues that even if his claims are the subject of procedural default, the default

should be excused because he can establish cause for the default, and that prejudice resulted from

the default. Petitioner also argues that the default should be excused to prevent a fundamental

miscarnage of justice in that he is actually innocent."

- Respondent has asserted a procedural default defense as to Petitioner's claim that

the cumulative effect of all errors at tnal violated Petiuoner’s due process nghts. (Amended

Petition, § B). In his bref, Petitioner indicatés that this is not a separate claim for habeas relief,

but is an argument to be considered in determining whether the state court's alleged errors should

be considered harmless. Therefore, the Court will not consider this argument as a separate claim.

" Section 40-30-202(a) is part of the Post-Conviction Procedure Act of 1995, Tenn.

Code Ann. §§ 40-30-201, ef seg. With some exceptions not applicable here, Section 202(a)

provides that a petition for post-conviction relief must be brought within one year of the date of

the final action of the highest state appellate court to which an appeal is taken. The previous

post-conviction statute required that a petition be filed within three years of the date of the final

action of the highest state appellate court to which an appeal was taken. Tenn. Code Ann. § 40-

30-102 (repealed 1995).

The Tennessee Supreme Court denied Petitioner's petition to rehear, on direct appeal, on

May 14, 1990. (Addendum 7). Therefore, Petitioner would be barred, under either statute, from

seeking to raise these claims through a post-conviction proceeding in state court.

Petitioner also argues that certain state procedural rules should not prevemt

(continued

E-16

)

In order to establish cause, a petitioner must show the procedural default was the result of

ineffective assistance of counsel, or “that some objective factor external to the defense impeded

counsel's efforts to comply with the State's procedural rule.” Murray vy. Camier, 477 U.S. 478,

106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). A petitioner may rely on ineffective assistance of

counsel to establish cause only if he has presented that claim to the state courts as an independent

constitutional claim, and he shows that counsel's incompetence nses to the level! of a

constitutional violation. 106 S.Ct. at 2645-46.

In order to demonstrate that an objective impediment provided cause for a procedural

default, a petitioner may show, for example, that “the factual or legal basis for a claim was not

reasonably available to counsel,” or that “some interference by officials’” made compliance with

the procedural rule impracticable. Murray, 106 S.Ct. at 2645 (citations omitted).

The cause and prejudice standard applies to claims that were defaulted on appeal as well!

as those defaulted at trial. Murray, 106 S.Ct. at 2646

In this case, Petitioner has presented an independent ineffective assistance of tna! counse!

claim that is not procedurally defaulted. Petitioner has not specified, however, any errors made

by tnal counsel that prevented any issues from being raised on appeal In other words, in

reviewing Petitioner's case on direct appeal, the Tennessee Supreme Court did not dismmss any of

(...contunued)

adjudication of claims by this Court. It does not appear, however, that Respondent relies on state

procedural rules to bar Petitioner's clams. Instead, Respondent argues that the claims at issue

were not raised at al! in the state courts. See [eague. 109 S.Ct. at 1069. Coleman v. Thompson.

111 S.Ct. at 2557 n. 1

E-17

Petitioner's claims based on the failure of tnal counse! to preserve those issues at tmal. See State

vy Jones, 789 S.W.2d $45 (Tenn. 1990)

Petitioner may not establish cause by alleging the ineffectiveness of appellate counsel! in

failing to present certain issues on appeal because this claim has not been presented to the state

courts. (See Footnote 7, and accompanying text).'’

Finally, Petitioner may not establish cause by alleging that post-conviction counsel were

ineffective in failing to raise certain issues to the state courts. There is no constitutional nght to

an attorney in state post-conviction proceedings, and therefore, a petitioner cannot claim

constututionally ineffective assistance of counse! regarding those proceedings. Coleman, | 1!

S.Ct. at 2566."*

Petitioner also argues that cause is established by the “widespread prosecutonal abuse

and judicial bias” which tainted the tna! and prevented post-conviction counsel from gaining “an

adequate picture of the circumstances surrounding the cmme and Petitioner's life.” (Petitioner's

Memorandum In Response To Respondent's Summary Judgment Motions And In Support Of An

Evidentiary Hearing, at $0 (Docket No. 113)). Petitioner does not, however, specify how failure

to raise a particular claim on direct appeal or dumng the post-conviction proceeding was umpeded

by the prosecution or the state court tnal judge Under these circumstances, the Court 1s not

as In any event, the Court notes that a defendant does no have a constitutional nght

to have every nonfrivolous issue raised on appeal. See Jones v. Barnes. 463 US. 745,103 SC

3308, 3312-14, 77 L.Ed. 2d 987 (1983).

- Furthermore, Petitioner has stated that he “is no longer pursuing the issue of

ineffective assistance of post-conviction counsel.” (Petitioner's Response To Motion To Compe!

Disclosure Of Documents From His State Court Attorneys’ Files, at 2 (Docket No 140))

E-18

persuaded that an obyective impediment prevented Petitioner from presenting claims to the state

courts.

In conclusion, Petitioner has not demonstrated cause for hus procedural default.

default.

D Actual lonocence

A petitoner who is unabie to demonstrate cause and prejudice for a procedural default

may nonetheless avoid a procedural default bar by demonstrating that he 1s actually innocent

Murray, 106 S.Ct. at 2649. In order to fall within the actual innocence exception to the

procedural default bar, a petitioner must provide evidence that negates an element of the cnme

for which he was convicted, or demonstrates that he was not eligible for the death penalty under

the applicable state law. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 2521-22, 120 L.Ed. 2d

269 (1992).

A petitioner who claims he is actually innocent of the cnme for which he was convicted

must show that “a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Schlup, 115 S.Ct. at 867 (quoting Murray v. Carer, 106 S.Ct. at 2649-2650).

“To establish the requisite probability, the petitioner must show that it is more likely than not

that no reasonable juror would have convicted him in the light of the new evidence.” ld. This

standard requires “a stronger showing than that needed to establish preyudice.” [d. (footnote

omutted).

To be credible, this claim of actual innocence “requires petitioner to support his

allegations of constitutional error with new reliable evidence -- whether it be exculpatory

E-19

scientific evidence, trustworthy eyewitness accounts, or cntical physical evidence -- that was not

presented at tral” Schlup, 115 S.Ct. at 865

In order to esiablish actual unnocence of the death penalty, a petitioner must provide

“clear and convincing evidence that, but for a constitutuonal error, no reasonable juror would

have found the petitioner” eligible for the death penalty under the applicable state law Sawyer

112 S.Ct. at 2517. In order to make this showing, the petitioner must focus on those elements

which render a defendant eligible for the death penalty, ¢.g., aggravating circumstances, and not

on additional mitigating evidence that was not introduced at sentencing. Sawyer, 112 S.Ct. at

2523

Petitioner claims he 1s actually innocent of first degree premeditated murder based on (| )

the tesumony of a forensic pathologist regarding blood splattering at the scene of the stabbings.

(2) the testumony of a psychiatric expert that Petitioner was insane at the tume of the stabbings,

and lacked the capacity to deliberate and premeditate, and (3) the lack of credibility of the

testimony of the co-defendant, Harold Devalle Miller. Petitioner also claims he is actually

innocent of felony murder because there was insufficient proof of the underlying felony -- theft.'°

First, Petitioner argues that certain blood splattennng evidence supports his claim of actual

innocence. At the hearing in this Court, Petitioner presented the testimony of Dr. Kris Sperry, a

- Although he mentions it in his bnef, Petitioner does not appear to have asserted a

freestanding actual innocence claim (that execution of one who 1s actually innocent violates the

Eighth Amendment) in his Amended Petition. In any event, the standard for this claim is even

higher than that set forth in Schlup Therefore, the Court is not persuaded that Petitioner has

established actual innocence as a separate claim. Schiup, 115 S.Ct. at 860-62; Herrera v. Collins.

$06 U.S. 390, 113 S.Ct. 853, 122 L-Ed. 2d 203 (1993). Cammiger v. Stewart, 132 F.3d 463, 476-77

(9th Cir. 1997)

E-20

wounds splattered on his body and his clothing. (Transcript of Hearing Beginning on February 6,

1998 (“Transcript”), at 37-38, 77). Petitioner points out, however, that crime lab reports indicate

there were no blood stains found on clothes, a coat and two pair of work pants, seized from the

Petitioner's apartment two days after the stabbings. (Lab Report, Petitioner's Exhibit 117; Search

Warrant, Petitioner's Exhibit | | 5).

On the other hand, there is no evidence that during the stabbings, Petitioner was wearing

a black coat when he arrived at the apartment. (Addendum I, at 1342-1343). Because Petitioner

taped her eyes before the stabbings were committed, however, she could not testify that he was

wearing the coat during the stabbings. (Addendum I, at 1375-1378). There was no evidence that

he was wearing one of the two pair of pants seized from his apartment two days after the

stabbings, or that he had not disposed of the pants worn during the cnme.'*

Although this evidence may have provided a good argument for defense counsel to raise

to the jury, the Court is not convinced that reasonable jurors probably would not have convicted

Petitioner if they had been presented with this evidence.

Moreover, both Dr. Sperry and Petitioner conveniently overlook the fact that Petitioner

admitted that he was guilty at the sentencing phase of the mal:

... But what | am saying is, I'm going to submit to the fact that | am the

individual that committed these particular felonies or assaults upon these two

people. But | don’t remember -- you know, | don't remember too much of why

= Petitioner's failure to dispose of his coat may be explained by his fondness for the

coat, which was given to him by his wife as a birthday gift. (Addendum I, at 1454-1455).

E-21

that all of a sudden came to me. Al! | know is that I'm the man that stabbed Mr.

Danie! Patricks (sic) and I'm the man that assaulted Ms. Norma Jean Norman.

(Addendum I, at 1865).

The only thing that | can recollect is that, when | was over there on this

young lady and realized that what | was doing -- | had stopped. The purpose to

me, you know, | didn’t want — go over there to hurt nobody. But it was her that !

seen underneath me that made me stop. And God spared her life. And after that |

left.

(Addendum I, at 1866-67).

Q. And you heard Mr. Miller testify from the very seat that you're in right

now, that you were the man who stabbed Mr. Daniels to death. And you knew it

when you were setting there, that that was true, didn’t you?

A. That | was the man, yes.

(Addendum I, at 1893. See also Addendum |, at 1894, limes 7-10; 1957, lines 18-19; 1961, lines

22-25; 1968, lines 19-23).

Next, Petitioner argues that the testimony of Dr. Robert Sadoff supports his claim of

actual innocence. Dr. Sadoff opined that, at the time of the stabbings, Petitioner was insane

because he lacked the substantial capacity to conform his conduct to the requirements of the law.

(Transcript, at 523-524).'’ Dr. Sadoff testified that Petitioner was suffering from Post-Traumatic

Stress Disorder, which is a mental illness. (Tramscript, at 455, 457). Dr. Sadoff also diagnosed

Petitioner as having a Borderline Personality Disorder, a mental disorder. (]d.)

The Court is not persuaded that Dr. Sadoff's testimony is sufficient to meet the Schlup

actual innocence standard. First, Dr. Sadoff's diagnosis comes almost twelve years after the

This was the applicable stamdard for establishing an insanity defense under

Tennessee law at the time of Petitioner's trial. See, ¢.g., State v. Clayton, 656 S.W.2d 344, 346

(Tenn. 1983).

E-22

~ er etree ee

crime, and Dr. Sadoff admitted that the passage of time made it more difficult for him to render a

diagnosis. (Transcript, at 584-585). On the other hand, a mental evaluation of the Petitioner

conducted shortly after the stabbings found that Petitioner was competent to stand trial, and that

an insanity defense could not be supported. (Petitioner's Exhibit 150). The evaluation was

performed by the staff of MTMHI after observing the Petitioner over a thirty-day period in

residence. (Id.) Dr. Craddock, who was a member of the MTMHI team that evaluated Petitioner,

testified at the hearing in this case. (Transcript, at 83-163). Although the MTMHI staff did not

possess all the Petitioner's previous institutional records at the time they made their diagnosis,

that diagnosis should not be given less weight than one made twelve years later.

In addition, Dr. Sadoff's opinion is based primarily on Petitioner's claim that he could

not remember the stabbings. (Transcript, at 569). Consequently, Dr. Sadofff opined that

Petitioner was probably “dissociating” at the time of the stabbings. (Transcript, at 517-518). As

a result, according to Dr. Sadoff, if Petitioner was dissociating, he lacked substantial capacity to

conform his conduct to the requirements of the law, or to engage in premeditation and

deliberation. (Transcript, at 523-524, 564).

But Petitioner has not always professed an inability to recall the stabbings. The MTMHI

records indicate that Petitioner stated he “remembers everything that happened” at the time of the

sattings. CCTHEE Stell Confrence Regen dated February i?, 1987, Petitioner's Exhibit 150;

Transcript, at 97). Nor has Petitioner adhered to the same story. Shortly after his arrest,

Petitioner claimed that a third party, Sam Blackstock, was involved in the stabbings. (Transcript,

at 210-212). That story turned out to be false. ([d.) Finally, although Petitioner insists that the

Court should not rely on Petitioner's testimony during the sentencing hearing, Petitioner clearly

E-23

Dad

admitted his guilt at that time. (Addendum I, at 1865-1867; 1893-1894; 1957; 1961; and 1968).

Because Dr. Sadoff's opinion strongly relies on the questionable, self-serving statements of the

Petitioner, the Court does not attach a great deal of weight to that opinion."*

Petitioner also argues that he is actually innocent because the testimony of co-defendant

Miller, which indicated that Petitioner committed the stabbings pursuant to a preconceived plan,

is not credible. But this argumeni is not supported by any “new” evidence, as contemplated by

Schlup, 115 S.Ct. at 865. See also McCoy v. Norris, 125 F.3d 1186, 1190-91 (8th Cir. 1997).

Furthermore, the Court is not persuaded that pointing out every inconsistency in Miller’s

testimony would have led the jury to change its verdict. See Sawyer, 112 S.Ct. at 2524 (evidence

“brought forward to impeach a prosecution witness will seldom, if ever, make a clear and

convincing showing that no reasonable juror would have believed the heart of [the witness’ ]

account of petitioner’s actions”). In other words, Petitioner has failed to show that “no

reasonable juror” would have voted to find him guilty in light of Miller's credibility problems.

Petitioner also fails to present new evidence regarding the robbery. Instead, Petitioner

argues that none of the witnesses saw the Petitioner take $300 from the apartment, and that it was

o These would include the statements made by the Petitioner while under hypnosis.

Dr. Sadoff admitted that there is no way to determine whether the statements made by the

Petitioner while under hypnosis are objective fact. (Transcript, at 504-505, 507, 508, 572, 575).

The Court notes that Petitioner did not testify at the hearing to memories purportedly recalled

during hypnosis.

During the hearing, the Court held that the hypnosis tape offered by the Petitioner was

admissible for the limited purpose of establishing what Dr. Sadoff relied upon in forming his

opinion. (Transcript, at 505-516). The Court also determined that the hypnosis tape did not

satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc,, 509 U.S. 579, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993), and declined to admit the statements made on the tape for

the truth of the events leading up to and include the stabbings. (Id.).

E-24

just as plausible, based on the evidence, that someone else had taken the money. As the Court

has determined in a previous Order (Docket Nos. 156, 157), although the evidence was

circumstantial, it was still sufficient to allow the jury to find the elements of robbery beyond a

reasonable doubt. Consewuently, Petitioner has failed to show that “no reasonable juror” would

have voted to find him guilty in light of Petitioner’s arguments regarding the lack of sufficient

evidence.

Petitioner also argues that this new evidence also shows he is actually innocent not only

of the crime, but also of the death penalty. As discussed above, the Schlup Court has pointed out

that the standard for establishing actual innocence of the death penalty, set forth in Sawyer, is

stricter than that required to show actual innocence of the capital crime. The stricter standard

requires Petitioner to provide clear and convincing evidence that, but for a constitutional error,

no reasonable juror would have found him eligible for the death penalty. For the reasons

explained above, the Court concludes that Petitioner has not shown actual innocence of the death

penalty.

Because Petitioner has not established cause and prejudice, or actual innocence, he may

not avoid the procedural default of the claims to which Respondent has asserted a procedural

default defense. Accordingly, the Court will only address the following claims: Petitioner’s

prosecutorial misconduct claims involving certain lab reports and the transcript from Petitioner's

1972 murder trial (Amended Petition, 4] D1(1), (7)), and Petitioner's claim that his trial counsel

provided constitutionally ineffective assistance (Amended Petition, {J A, E1-E2(g)).

E-25

vy. ; '

“Hei , The Inal Court's In. rel” nusuons Regarding the 7; | Upanim

Prior to the hearing in this case, the Court denied Petitioner's motion for summary

judgment on his claims that the trial court’s sentencing instructions regarding the heinous,

atrocious, or cruel aggravating circumstance, and unanimity (Amended Petition, ¥] C7(1), (4),

C8) were unconstitutional. (Docket Nos. 123, 124). For the reasons stated in that opinion, those

claims are without merit, and are dismissed. |

VI. Brady Violations

As noted above, two of Petitioner's Brady’ claims have been exhausted and are properly

before this Court. Petitioner claims that the prosecution should have provided trial counsel with

the transcript of his trial in 1972 for murder because, he contends, it would have supported an

insanity or mental illness defense. (Amended Petition, {] D1 (1)). Petitioner also claims that the

prosecution should have provided the crime lab analysis indicating that no blood was fourid on

the clothes seized from Petitioner's apartment. (Amended Petition, § D1! (7)).

In a series of cases beginning with Brady v. Maryland, 83 S.Ct. at 1196-97, the Supreme

Court has held that the prosecution must disclose exculpatory evidence to the defense, with or

without request. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976);

United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Suppression of

this evidence violates due process if the evidence is material either to guilt or to punishment,

regardless of the good faith of the prosecutor. Id.

‘© Brady v. Marvland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

E-26

Withheld evidence is material “only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.”

Bagley, 105 S.Ct. at 3383. A “reasonable probability” is a probability sufficient to undermine

confidence in the outcome. 105 S.Ct. at 3384. A showing of materiality does not require the

defendant to show that the suppressed evidence would have resulted in the defendant's acquittal.

105 S.Ct. at 3383-84. Materiality is concerned with whether suppression of the evidence

undermines confidence in the outcome of the trial. 105 S.Ct. at 3381.

The Supreme Court recently reaffirmed this standard for determining materiality in

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995). The Court

pointed out that “materiality” is not a sufficiency of the evidence test, which would require a

defendant to show insufficient evidence to convict after discounting the inculpatory evidence in

light of the undisclosed evidence. 115 S.Ct. at 1566. Rather, the defendant must show that “the

favorable evidence could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Jd, (footnote omitted).

The Court explained that in considering materiality, a reviewing court is to assess the

collective effect of the suppressed evidence in light of the evidence presented at trial. 115 S.Ct. at

1567. Finally, the Court pointed out that, once constitutional error is found under this standard,

there is no need for further harmless-error review because the error cannot be found harmless.

115 S.Ct. at 1566-67.

On appeal of the denial of Petitioner’s state post-conviction petition, the Tennessee Court

of Criminal Appeals considered this issue as follows:

E-27

Appellant next contends that his conviction and sentence were the result of

prosecutorial misconduct because the state failed to provide him with exculpatory

material as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). In order to estabiish a violation of Brady, appellant must

prove (1) the prosecutor suppressed evidence, (2) that the suppressed evidence

would have been favorable to the defendant and (3) the materiality of the

suppressed evidence.

The evidence claimed to have been suppressed consisted of the transcript

of the defendant's 1972 federal murder trial, lab reports on clothing seized from

appellant’s apartment, a police report about appellant’s violent behavior at the

time of his arrest, statements by his accomplice, Harold Devalle Miller, a police

report suggesting that property belonged to one victim rather than the other, and

information relative to the appellant’s bank account. None of the above evidence

was favorable to the defense. We find no merit to the appellant's claim of

prosecutorial misconduct.

Jones v. State, 1995 WL 75427, at *3 (Tenn. Crim. App. Feb. 23, 1995).

Whether a Brady due process nights violation has occurred presents a mixed question of

law and fact which is reviewed de novo. Brown v. Cain, 104 F.3d 744, 750 (Sth Cir. 1977);

Reese v. Delo, 94 F.3d 1177, 1183 (8th Cir. 1996); Hays v, Alabama, 85 F.3d 1492, 1498 (11th

Cir. 1996).

In 1972, Petitioner was tried in a Virginia federal court for the murder of a fellow

prisoner, Michael Stein. (Petitioner's Exhibit 131). He was convicted of second degree murder.

(Exhibit 105). At that trial, a otiate, Dr. Asot M. Masri, opined that Petitioner had been in

a “homosexual panic” when he stabbed Stein.” (Petitioner's Exhibit 131, at 48). He testified that

the Petitioner had a Borderline Personality Disorder and Schizoid Personality. (Petiticner’s

Exhibit 131, at 53). The Government called another psychiatrist, Dr. Robert Eardley, who

a Dr. Masri characterized homosexuality as a mental disease. (Petitioner's Exhibit

131, at 51).

_E-28

opined that Petitioner was not suffering from a mental disease when he stabbed Stein.

(Petitioner's Exhibit 131, at 57-58, 59, 66). -

Petitioner argues that this evidence was exculpatory because the State argued at trial that

Petitioner did not suffer from any emotional disturbance. -

There is no dispute that the prosecutor had this transcript in his possession at some point

before trial began. There is also no dispute that he did not provide the transcript to the defense.”'

Respondent contends that the state court was correct in concluding that the transcript was not

favorable to the defense because neither psychiatrist opined that the Petitioner was insane.

The Court believes this information was favorable to the Petitioner because the Petitioner

had stated his intention to rely on a mental illness defense at trial and sentencing (Transcript, at

959-60, 963), and Dr. Masri’s testimony supported that defense. The Court is not persuaded,

“ During the hearing, the prosecutor explained his reasoning:

Based on all the testimony, I concluded for two reasons,

one the lapse of time or I guess you might say the distance in time

between the two events and what I call very weak testimony from

the defense psychiatrist at the trial, that it was not exculpatory,

would have no bearing on explaining whether at the time of this

crime he had a mental illness or suffered from any kind of

emotional snapping, because the situation in the federal prison was

one where even taken in light most favorable to the defendant was

triggered as a result of a sexual assault on him.

That wasn’t the case here where the defendant sought out

the victim and went to the victim and pursued the victim.

(Transcript, at 1015-16).

As for mitigation, the prosecutor testified that his interpretation of the psychological

testimony was that during the previous killing, the Petitioner “got angry and snapped.”

(Transcript, at 1016). There was no evidence, according to the prosecutor, that there were any

external circumstances operating on the Petitioner during the 1986 crime. (Id.)

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however, that the prosecution's failure to provide the transcript to defense counsel rises to the

level of a due process violation because Dr. Masri's testimony was not “material.”

In a later section of this Memorandum, the Court concludes that Petitioner received

ineffective assistance of counsel because his trial counsel failed to investigate his mental health

history, background and other areas of mitigation. The Court is not persuaded, however, that

“the proceeding would have been different” if the prosecution had disclosed Dr. Masri’s

testimony to Petitioner's trial counsel. Petitioner's trial counsel already had various clues that

should have led them to investigate Petitioner's mental health history, such as the records of

Petitioner's evaluation at MTMHI before trial, and conversations with Petitioner’s wife. There is

no reason that Dr. Masri’s testimony should have been the key element prompting Petitioner's

counsel to take action.

Similarly, admission of this testimony as an item of evidence during the guilt phase of the

trial would not have affected the result. Had Petitioner's defense counsel hired an expert to opine

that Petitioner was insane at the time of the stabbings in 1986, Dr. Masri’s testimony about an

incident in 1972 could have supported that opinion, but it certainly would not have been vital.

Absent an insanity defense, there would be no reason to admit this evidence relating to a prior

crime during the guilt phase of the trial.

As for the sentencing phase, Dr. Masri’s testimony would have served as an item of

mitigation relating both to the prior murder conviction, and to his mental history. But that

iestimony is only one item of evidence that, as the Court explains below, should have been

introduced by trial counsel during the sentencing hearing as mitigation evidence. Standing alone,

E-30

the Court is not persuaded that the absence of Dr. Masri’s testimony undermines confidence in

the outcome of the sentencing hearing.

As for the lab reports finding that no blood was found on clothing seized from

Petitioner's apartment, there has been no evidence that the prosecutor kept this evidence from the

defense. The prosecutor testified that he provided the lab reports to Petitioner's first trial

counsel, Neal McAlpin, and Mr. McAlpin testified that he received them. (Transcript, at 223-25,

227, 925). Furthermore, the prosecutor testified that he filed the reports with the trial court as

part of his response to the Petitioner's discovery request. (Transcript, at 911, 926; Supplemental

Response Number Two To Defendant's Request For Discovery, Exhibit 19). Under these

circumstances, the Court concludes Petitioner's Brady claim regarding these lab reports is

without merit.

Accordingly, the Court concludes that Petitioner's Brady claims are without merit, and

are dismissed.

VII. Trial Counsel's Conflict of Interest

Petitioner claims that one of his trial attorneys, Lionel Barrett, had an irreconcilable

conflict of interest in representing Petitioner because he was paid a $5,000 retainer by

Southeastern Gospel Ministry (“SEGM”) member Alan Boyd to represent the Petitioner, and was

promised an additional $10,000 that was never paid (Amended Petition, at § E1).” Sometime

after his arrival in Nashville, Petitioner joined SEGM, a nascent religious group that had as its

goal “cleaning up” the African-American community by eliminating illegal activities, primarily

= $5,000 was inadequate to investigate and prepare this complex case for trial.

E-31

drug dealing. (Addendum 11, at 15-16). Petitioner's boss, Alan Boyd, co-defendant Miller, and

William Beard were also members of the group. (1d.). Petitioner and co-defendant Miller both

worked for Mr. Boyd at National Baptist Publishing.

Boyd and SEGM allegedly knew about and took part in the plan to visit the apartment of Patrick

stabbings. According to the Petitioner, Mr. Boyd retained Mr. Barrett and refused to pay him the

full retainer with the effect of preventing Mr. Barrett from investigating the role of SEGM and

Mr. Boyd in the crime.

In order to establish a Sixth Amendment violation, the Petitioner must show that an

actual conflict of interest affected his lawyer's performance. Burger v. Kemp, 483 U.S. 776, 107

S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987); United States v. Mays, 77 F.3d 906, 908 (6th Cir.

1996).” Whether facts give rise to a conflict of interest is a mixed question of fact and law,

which is to be reviewed de novo. Mays, 77 F.3d at 908.

In reviewing the denial of Petitioner's post-conviction petition, the Tennessee Court of

Criminal Appeals found that Mr. Barrett did not know the funds he received came from SEGM

member Alan Boyd. Jones v. State, 1995 WL 75427, at * 3 (Tenn. Crim. App. Feb. 23, 1995).

Petitioner argues that this finding is not fairly supported by the record because Gail Hughes

SORE ENO eT eT

= To the extent Petitioner argues that he is not required to show that the conflict

“affected his lawyer's performance,” this argument has been soundly rejected. See, e.g,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2067, 80 L_Ed.2d 674 (1984); Wilson

v. Rogers, 125 F.3d 856 (Table), 1997 WL 615767 (6th Cir. Oct. 3, 1997).

E-32

Mann, who delivered the money to Mr. Barrett, testified at the post-conviction hearing that she

told Mr. Barrett that the money came from Mr. Boyd. (Addendum !1, at 13).

Both Mr. Barrett and Ms. Mann testified in a hearing before this Court. Mr. Barrett was

quite certain he was not aware the funds came from Mr. Boyd. (Transcript, at 294, 410). Ms.

Mann, on the other hand, was more tentative:

Q. Did you tell him where the money came from?

A. I don’t remember that. I don’t know if 1 told him or not . I probably did. |

don’t know.

Q. In the post-conviction proceeding you testified you did tell Mr. Barrett?

A. Probably so.

Q. Can you testify to that today?

A. That I told him?

Q. Yes.

A. I don’t remember. I don’t know. I might have told him. If! say I told him

back then, I did then tell him.

(Transcript, at 1281). In her subsequent testimony, Ms. Mann was a bit more definite that she

had told Mr. Barrett the source of her funds, Mr. Boyd, would not be providing any more funds.

(Transcript, at 1288).

Based on the testimony of Mr. Barrett and Ms. Mann, the Court concludes that Mr.

Barrett was not aware that Mr. Boyd was the source of the fee, even if Ms. Mann happened to

mention it in a conversation with him. Even if Mr. Barrett was aware of the source of the fee, the

Court is not persuaded that it affected his representation.

Petitioner argues that the conflict of interest led Mr. Barrett to fail to request attorneys’

fees and funds for expert support services. Petitioner also argues this conflict led Mr. Barrett to

delay representation and to refuse to ask for a continuance.

E-33

In order to accept Petitioner's argument, the Court must find that the source of Mr.

Barrett's fees had interests contrary to Petitioner's interest. But, as noted above, the Petitioner

himself testified at sentencing that SEGM did not order him to commit the crimes for which he

was convicted.

Moreover, even if Mr. Boyd's interests were adverse to Petitioner, Mr. Barrett certainly

did not protect the interests of SEGM or Mr. Boyd during the trial and sentencing. Mr. Barrett

elicited testimony about another SEGM member, William Beard, during cross-examination of

Mr. Miller at the trial. (Addendum 1, at 1527, 1567). He also elicited testimony about SEGM

from the Petitioner at the sentencing hearing, including testimony that Mr. Boyd supplied him

with a shotgun, and William Beard supplied Mr. Miller with a pistol. (Addendum 1, at 1837-

1848, 1855-1856). Mr. Barrett also mentioned the Petitioner's connection with the group

during his argument. (Addendum |, at 1960). In addition, Mr. Barrett issued subpoenas for Mr.

Boyd and Mr. Beard to appear at the trial. (Transcript, at 358).

During the evidentiary hearing in this Court, in response to a question by the Court, Mr.

Barrett stated:

= According to co-defendant Devalle Miller's testimony at the post-conviction

proceeding, Alan Boyd met with Petitioner and Miller nght after the murder of Patrick Daniels,

and William Beard helped Miller leave town shortly thereafter. (Addendum 11 at 26-30). Mr.

Boyd purchased the shotgun carried by Petitioner during the murder from a gun dealer in 1983,

according to a firearms trace report. (Docket No. 200).

Alan Boyd and William Beard both asserted their Fifth Amendment privilege against

self-incnimination at depositions taken in this case. Boyd and Beard effectively refused to answer

any questions. (Petitioner's Exhibits 148, 149).

E-34

Your Honor, | am as certain as a person can be from something that

happened 10 years ago that | absolutely had no knowledge that these funds came

from Mr. Boyd. =

For the sake of argument only -- even if I had been told these funds came

from Allen Boyd, | would have had absolutely no hesitancy in going after him in

any way I could and would think he had wasted his money if that is what he was

attempting to do.

I am absolutely certain that there was no decision, no single issue of

strategy, not one question that Mr. Camp or | asked or did not ask had anything to

do with the source of the funds that came from Ms. Hughes or from Allen Boyd.

(Transcript, at 410).

The Court is not persuaded that any alleged conflict of interest affected the performance

of Mr. Barrett at trial or sentencing. Accordingly, Petitioner's conflict of interest claim is

without merit, and is dismissed.

VIII. Ineffective Assistance of Counse}

A. Generally

Petitioner contends that trial counsel was ineffective during the guilt phase and during the

sentencing phase of his trial (Amended Petition, at ¢ E2). In order to prevail on an ineffective

assistance of counsel claim, the burden is on the Petitioner to show: (1) trial counsel's

performance was deficient; and (2) actual prejudice resulted from the deficient performance.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984);

O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994).

In order to demonstrate that trial counsel's performance was deficient, a petitioner must

show that counsel “made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” 104 S.Ct. at 2064. The petitioner must

E-35

show that trial counsel's performance, fell below an objective standard of reasonableness,

measured by “prevailing professional norms.” |d.

In analyzing trial counsel's performance, the court must "indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance."

Strickland, 104 S.Ct. at 2065. The petitioner must overcome the presumption that the challenged

action by counsel was sound tral strategy. Id.

One of the duties of counsel is the duty to investigate his client's case. 104 S.Ct. at 2066.

“(Counsel has a duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” |d,

In order to show actual prejudice, a petitioner must show there is “a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different.” 104 S.Ct. at 2068. A reasonable probability is a “probability sufficient to

undermine confidence in the outcome.” |d.

Thus, when a petitioner challenges his conviction on ineffective assistance of counsel

grounds, the question is whether there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt about guilt. 104 S.Ct. at 2068-69. When the

petitioner challenges a death sentence, the question is whether there is a reasonable probability

that, absent the errors, the sentencer would have concluded that “the balance of aggravating and

mitigating circumstances did not warrant death.” 104 S.Ct. at 2069. In assessing prejudice, the

court is to assume that “the decisionmaker is reasonably, conscientiously, and impartially

applying the standards that govern the decision.” 104 S.Ct. at 2068.

E-36

_ Se

The ultimate question of whether Petitioner received efiective assistance of counsel is a

mixed question of law and fact, which is reviewed de novo. 104 S.Ct. at 2070; McQueen v.

Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996).

Petitioner's contention that his trial counsel, Lionel Barrett and Sumter Camp, were

ineffective was first raised on direct appeal by Petitioner's substitute counsel, Richard Dinkins.

Petitioner argued that trial counsel should have presented evidence of Petitioner's mental

incapacity at sentencing. (Addendum 2, at 57-59). In addressing this claim, the Tennessee

Segre Coun cated: “Taare teen erties to Gio eens er ery chargunef the Setiean'd

extensive criminai record to indicate he was either incompetent to stand trial or at the time this

offense was committed. There is nothing in this record to indicate a remand for a determination

of defendant’s mental status would be appropriate.” State v. Jones, 789 S.W.2d at 552.

Petitioner raised this issue again in his post-conviction petition. Petitioner based his

contention that counsel was ineffective on over twenty separate grounds. (First Amended Petition

For Post Conviction Relief, Addendum 11). At the post-conviction hearing, Petitioner's counsel

called Petitioner's initial attorney, Neal McA|pin; trial counsel, Lionel Barrett and Sumter Camp;

and appellate counsel, Richard Dinkins. (Addendum 11). Petitioner also called Gail Hughes

Mann; Petitioner's co-defendant, Harold Devalle Miller; Petitioner's wife, Susi Bynum Jones;

and a psychiatrist, Dr. Barry Nurcombe. (1d,)

The post-conviction trial court found that Petitioner's trial counsel had failed to

adequately investigate Petitioner's background and mental health history. (Memorandum and

Order entered August 26, 1993, Addendum 11). Specifically, the post-conviction court found that

trial counsel failed to investigate as follows:

E-37

1. Testimony and files of trial counsel showed that few witnesses were

investigated or interviewed regarding petitioner's background and mental health

history.

2. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner's prior

psychological consultation at ages 12 to 14 while at Ft. Shafter, Hawaii.

3. Testimony and files of trial counsel showed that they failed to

investigate and obtain readily available information concerning petitioner’s

psychological assessment at age 14 by the school psychologist at DuPont Jr. High

School at Ft. Lewis, Washington.

4. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner's juvenile

incarceration for being a psychopathic delinquent at Western State Hospital in

Tacoma, Washington.

5. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning the petitioner's school

records in Philadelphia, where on May 24, 1965 there was a request for

psychological service by Sayre High School.

6. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner’s school

records in Philadelphia, where on June 17 he was referred for Special Education.

7. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner's incarceration

at the Annadale Institute for Boys, New Jersey, when he was 15, his being placed

on psychiatric watch in January of 1967 and his referral to and psychological

examination at the New Jersey State [Psychiatric] hospital at Trenton in February

of 1967.

8. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner’s Army records

at ages 17 and 18 with notations regarding his “questionable mental status,”

bizarre behavior, and psychiatric reports leading ultimately to discharge.

9. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner's psychiatric

examination at St. Elizabeth's Hospital, Washington, D.C., following his

incarceration for assault on or about the day of his discharge from the Army,

despite the fact that part of this information was sent to MTMHI per their request.

10. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner’s institutional

records while in the federal prison system.

11. Testimony and files of trial counsel showed that they failed to

investigate and obtain available information concerning petitioner's psychiatric

examination following petitioner's 1972 killing of a fellow prisoner while

incarcerated for the assault referenced in paragraph 9 above.

E-38

12. Trial counsel has little knowledge of the facts related to the

petitioner's 1972 murder conviction.

13. They failed to interview the psychiatrist and psychologist who

conducted the MTMHI evaluation until after the trial began.

(Memorandum and Order entered August 26, 1993, at 5-6, Addendum 1! 1) (footnote omitted)

(emphasis in original).

The court concluded, however, that the failure to investigate did not prejudice the

Petitioner because his background also contained harmful information. (]d.)

The Tennessee Court of Criminal Appeals agreed with the trial court’s decision:

If the trial attorneys had investigated further, they would have found that

the appellant had a long history of violent behavior and anti-social personality

disorders. We agree with the trial judge’s finding that trial counsel were

ineffective in failing to further investigate the background of the accused under

the circumstances, but we also agree with Mr. Barrett’s testimony and the trial

judge’s conclusion that it probably would not have been the most prudent trial

strategy to use proof of appeliant’s history of violent behavior and anti-social

personality disorders at either the guilt or innocence phase or at the sentencing

phase of the trial.

Jones v. State, 1995 WL 75427, at *2.

During the evidentiary hearing in this Court, Petitioner called all the witnesses who

testified at the post-conviction proceeding except Dr. Nurcombe and Mr. Miller. In addition,

Petitioner presented, for the first time, the live testimony of Petitioner's half-sister, Nancy

Lancaster; Petitioner's former fiancé, Sarah Roberts Walton; co-defendant Miller's former

attorney, Ross Alderman; mental health experts, Dr. Sadoff, and Dr. Nancy McCoy; Dr. Ray

Winbush; and legal expert Brian Stephenson. Petitioner also presented, for the first time, the

testimony of Detective Mark Garafola, Elmer H. Bishop, William Delagrange, and Richard

Bretzlauf by deposition. (Petitioner's Exhibits 110, 135, 136, 152).

E-39

During their testimony before this Court, Mr. Barrett and Mr. Camp admitted most of the

_ deficiencies alleged by the Petitioner. Mr. Barrett was first requested to represent the Petitioner

in October, 1996. (Transcript, at 326). During the next month, Petitioner’s initial counsel, Neal

McAlpin, began to withdraw from representation. (Transcript, at 233-234). Mr. Barrett did not

begin actually working on the case, however, until March, 1987. (Transcript, at 336-337). On

April 20, 1987, Mr. Barrett first requested the help of Mr. Camp, who was an associate with Mr.

Barrett's firm at that time. (Transcript, at 271-272, 342, 691). Mr. Camp first began work on the

file sometime after May 11, 1987. (Transcript, at 691-692). Mr. Barrett took the lead in the case,

and Mr. Camp’s role was to assist him. (Transcript, at 695, 723). Trial was set for July 6, 1987.

(Transcript, at 338).

Trial counsel had three to four months to prepare for trial. The investigation they

conducted during this time was wholly inadequate. Mr. Barrett admits that he did not obtain Mr.

McAlpin’s file in the case, or discuss the case in any kind of depth with Mr. McAlpin, even

though Mr. McAlpin suggested that he do so. (Transcript, at 240-242, 277, 279, 722). Because

of that failure, and the subsequent failure to inspect the court file, Petitioner’s trial counsel were

not aware of the lab reports indicating that no blood was found on clothes seized from

Petitioner’s apartment. (Transcript, at 277, 292, 322, 341, 331-333). Counsel also failed to

respond to a request, sent to Mr. McAlpin, from MTMHI staff for background information to be

used in their psychiatric evaluation of the Petitioner. (Transcript, ai 242-243, 331-333).

Mr. Barrett failed to request Petitioner's extensive mental health records, or his

educational, prison, or military records. (Transcript, at 280-281). This was a serious failure.

E-40

Although Mr. Barrett prepared a motion requesting that the trial court declare his client

indigent, and approve funds for investigative and e> pert services, he did not file the motion. This

was a Significant error. (1 ranscript, at 278, 363-367, 701). Mr. Barrett did not consult or hire a

mental health expert to perform an independent mental evaluation of his client. (Transcript, at

278, 718-719). This was a grave omission.

Mr. Barrett did not introduce any information from the MTMHI records relating to

Petitioner’s background or mental history at the trial or at sentencing. (Transcript, 725). Tria!

counsel received the MTMHI records only a couple of weeks prior to the trial, and neither recall

speaking with any of the MTMHI staff about their report. (Transcript, at 280, 282, 352, 716-

717). These were substantial errors.

Petitioner’s attorneys did not call anyone in Petitioner’s family to testify during the

sentencing hearing. Mr. Barrett testified that someone in his office contacted Petitioner's

brother, Mark Jones, before trial, but he refused to assist in Petitioner's defense. (Transcript, at

286-289). Mr. Camp testified that he did not contact the Petitioner's brother. (Transcript, at

710). At the post-conviction hearing, Petitioner introduced an affidavit from Mark Jones”

indicating that he had not been contacted by Mr. Barrett's office. (Petitioner's Exhibit 74; PC

Exhibit 67). It is undisputed that Petitioner’s attorneys did not contact Petitioner’s half-sister,

Nancy Lancaster, even though she would have been available and willing to testify at the time of

= The Motion was prepared three days after jury selection began. (Transcript, at

727). A post-trial motion for indigent status was approved. (Transcript, at 376; Petitioner's

Exhibit 88).

= Mark Jones committed suicide on July 13, 1996. (Transcript, at 793).

E-41

trial. (Transcript, at 832). Mr. Barrett did not contact Petitioner's former fiancé, Sarah Roberts

Walton, even though the Petitioner told Mr. Barrett about her. (Transcript, at 356). These were

significant mistakes.

Finally, Mr. Barrett failed to investigate the nature of Petitioner's prior convictions.”’

(Transcript, at 281, 708-709, 714-715). This was a substantial error.

As the trial date approached, Mr. Camp suggested that they request a continuance to

conduct further investigation, but Mr. Barrett did not act on that suggestion. (Transcript, at 279,

705). This was a serious deficiency.

Although both these attorneys have good reputations in the bar, their performance in this

case was clearly inadequate. Mr. Barrett critiqued his own performance as follows:

] think as the trial progressed and on looking back on it now, I think that I should

have sought out further psychiatric evaluation. | think it became evident during

the course of the trial that Mr. Jones - and in Mr. Camp’s opinion and my opinion

had some psychiatric or psychological issues we may not have fully realized early

on in the case. . . Based upon the documents that I have now seen subsequent to

the trial, I feel that my performance certainly did not satisfy the standards that |

adhere to myself as far as pursuing the psychiatric aspect, particularly at the

sad Mr. Barrett testified that the prosecutor introduced him to FB] Agent William

Delagrange at trial, and that the agent said he would testify that Petitioner's 1972 conviction was

the result of a “drug turf war,” and not a homosexually-related killing, as Petitioner contended.

(Transcript, at 294-299). Given his failure to investigate Petitioner’s prior convictions, Mr.

Barrett did not have any independent information about the conviction, and therefore, did not

introduce mitigating evidence about this conviction at the sentencing hearing. (Transcript, at

299). As discussed herein, the 1972 conviction was not over drugs and gangs as represented by

the prosecution to defense counsel. The murder concerned homosexual conduct that the jury

could have found more mitigating.

E-42

(Transcript, at 394-395).**

Mr. Camp’s assessment was even more negative. He testified that he agreed with the

State courts that his representation was deficient:

We did not present the information to this jury so that they would know

James Jones, so that in deciding whether he was to live or die they would know

this man, they would know this human being. That was our failure.

.. . [W]e didn’t give the jury any reason to oppose death on James Jones. We

didn’t explain to them how James Jones came to be in that courtroom facing them.

(Transcript, at 734, 741, 766).

Thus, this Court, like the state post-conviction trial court and appeals court, finds that trial

counsel's performance during the guilt phase and during sentencing was deficient. Unlike those

courts, however, this Court concludes that Petitioner suffered prejudice as a result of that

deficiency during the sentencing phase of this trial.

Before addressing prejudice at sentencing, the Court will consider whether trial counsel's

deficiencies prejudiced Petitioner as to the guilt phase of the trial. Petitioner argues he was

= Shortly after the trial, defense counsel realized the need to fully consider

Petitioner’s mental state. Mr. Barrett wrote Mr. Camp the following memorandum on August 26,

1987:

You will get a copy of communication from James Lee Jones saying that

he thinks he is going to get the Nobel Peace Prize. I think he is probably crazy. I think that we

should move to have him psychiatrically evaluated prior to the sentencing hearing in view of the

United States Supreme Court decision that you cannot execute a person that is crazy. | also think

that in the sentencing provision in the code there is some indication that a person can be

psychatrically [sic] evaluated. We need to get this done as soon as possible and I would

appreciate it if you could prepare the paperwork.

(Petitioner's Exhibit 85).

E-43

prejudiced because trial counsel did not introduce the lab report indicating that no blood was

found on clothes seized from Petitioner's apartment, and because trial counsel failed to obtain an

expert to support an insanity defense.

The Court is not persuaded that if trial counsel had presented the lab report to the jury,

they would have had a reasonable doubt about guilt. As discussed above, there is no evidence

that Petitioner was wearing the clothes seized from his apartment during the stabbings.”

Similarly, the Court is not persuaded that trial counsel’s presentation of a mental health

expert to testify on behalf of the Petitioner would have left the jury with a reasonable doubt about

Petitioner's guilt. It is not clear that trial counsel would have found an expert to testify that

Petitioner was insane at the time of the stabbings. As noted above, Dr. Sadoff's opinion that

Petitioner was insane at the time of the offense comes some twelve years after the crime.

Furthermore, any testimony to this effect would have been countered by the prosecution with

MTMHI’s opinion that there was no basis for Petitioner to invoke an insanity defense. Thus, the

Court concludes that Petitioner suffered no prejudice at the guilt stage as a result of trial

counsels’ deficiencies.

As for sentencing, however, the Court conchades that there is more than a reasonable

probability that, had trial counsel introduced the mitigation evidence they would have had

available after a reasonable investigation, the result of the sentencing would have been different.

~—

- Petitioner aiso ignores the fact that he admitted his guilt at sentencing.

(Addendum I, at 1865, lines 5-12; 1866, line 25 through 1867, line 6; 1893, lines 4-8; 1894, lines

7-10; 1957, lines 18-19; 1961, lines 22-25; 1968, lines 19-23).

E-44

The Court is of the opinion that the complete lack of mitigation evidence at sentencing

undermines confidence in the outcome of the sentencing.

In evaluating the prejudice at sentencing, it is important to keep in mind the nature of

mitigation evidence during the sentencing proceeding. In the “eligibility” phase of the

sentencing proceeding, the jury narrows the class of defendants “eligible” for the death penalty,

generally by determining whether certain well-defined aggravating circumstances are applicable

to the case. Buchanan v. Angelone, U.S.___, 118 S.Ct. 757,761, L.Ed2d (1998);

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980). During the

“selection” phase, the jury determines whether to impose the death penalty on a particular

defendant. Buchanan, 118 S.Ct. at 761. In regard to making this “selection” decision, the

Supreme Court has “emphasized the need for a broad inquiry into all relevant mitigating

evidence to allow an individualized determination.” |d, Indeed, the Court has consistently held

that “the sentencer may not be precluded from considering, and may not refuse to consider, any

constitutionally relevant mitigating evidence.” Id.

Mitigating evidence relevant to the selection decision includes “‘any aspect of a

defendant's character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death."” Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct.

2934, 2946, 106 L.Ed.2d 256 (1989). As the Supreme Court has explained: “If a sentencer is to

make an individualized assessment of the appropriateness of the death penalty, ‘evidence about

the defendant's background and character is relevant because of the belief, long held by this

society, that defendants who commit criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be less culpable than defendants who

E-45

have no such excuse.”” 109 S.Ct. at 2947 (quoting California v. Brown, 479 U.S. 538, 545, 107

S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)). The sentencing decision should reflect “a reasoned

moral response to the defendant's background, character, and crime.” Id.

Thus, there is a broad array of evidence that is considered to be relevant to mitigation. In

addition, the rules of evidence do not apply to the presentation of that evidence. During the

relevant time period, Tennessee Code Annotated Section 39-2-203 (c) provided:

In the sentencing proceeding, evidence may be presented as to any matter

that the court deems relevant to the punishment and may include, but not be

limited to, the nature and circumstances of the crime; the defendant's character,

background history, and physical condition; any evidence tending to establish or

rebut the aggravating circumstances enumerated in subsection (i) below; and any

evidence tending to establish or rebut any mitigating factors. Any such evidence

which the court deems to have probative value on the issue of punishment may be

received regardless of its admissibility under the rules of evidence, provided that

the defendant is accorded a fair opportunity to rebut any hearsay statements so

admitted. However, this subsection shal] not be construed to authorize the

introduction of evidence secured in violation of the Constitution of the United

States or of the state of Tennessee.

(Exhibit 155).”° Consequently, Petitioner's counsel were not constrained by evidentiary

restrictions in introducing mitigation evidence at sentencing.

- Thus, this Court has used a similar standard in determining whether prejudice has

been established in light of the evidence that could have been admitted at the sentencing hearing.

In that regard, the Court notes that Rule 7 of the Rules Governing Section 2254 Cases provides

that the habeas corpus record may be expanded “by the inclusion of additional materials relevant

to the determination of the merits of the petition.” Habeas Corpus Rule 7(a). The Rule indicates

that copies of letters, documents, exhibits, and affidavits may be included in the expanded record.

Habeas Corpus Rule 7(b). The court “may require” the authentication of material added to the

record under the Rule. Habeas Corpus Rule 7(d). Thus, Rule 7 contemplates a relaxed

application of the hearsay, best evidence, authentication, and other evidentiary rules under the

Federal Rules of Evidence. Liebman, Federal Habeas Corpus Practice and Procedure, § 19.5, at

532 (2d ed. 1994).

E-46

In this case, there was an abundance of mitigation evidence available that was never used

at tial. For example, trial counsels’ reasonable investigation would have produced information

about Petitioner's childhood abuse by his father, a military policeman. Trial counsel could have

introduced evidence about this abuse through descriptions contained in some of Petitioner's

mental health records, through the testimony of Petitioner's step-sister, Petitioner's wife,

Petitioner's now-deceased brother, and Petitioner's former fiancé.”

During the hearing in this Court, Nancy Lancaster, Petitioner's half-sister, testified about

the abuse and difficulties Petitioner experienced during his childhood. (Transcript, at 786, 818,

822-823, 832, 838-839). Although some of the information Ms. Lancaster related was based on

statements made by other family members, the Court was very impressed with Ms. Lancaster's

Ms. Lancaster testified that she and the Petitioner share a common mother, who

abandoned Ms. Lancaster and her two brothers when she was an infant. (Transcript, at 786-787).

Petitioner's mother put her three children in a taxi, drove them to the woods, and left them.

(Transcript at 787). Petitioner's mother later married Petitioner's father, James Jones, Sr.

“ The affidavit of Mark Jones, Petitioner's deceased brother, which was introduced

at the post-conviction hearing, confirms Petitioner's statements about the abuse and other

difficulties he encountered during his childhood. (Mark Jones Affidavit, { 5, Petitioner's Exhibit

74). Sarah Roberts Walton and Susi Bynum testified in this Court about Petitioner's previous

statements to them that he had suffered abuse as a child. (Transcript, at 1191-1192; February 19,

1987 — MTMHI Social History, Petitioner's Collective Exhibit 150).

= As a result, Ms. Lancaster was unable to testify as to her age or birthday.

(Transcript at 787). The taxi driver went back to the woods, retrieved the children, and turned

them over to the state. Jd.

E-47

(Transcript, at 793-794). Three more children were born of that marriage -- James (Petitioner), A reasonable investigation would have produced information about Petitioner's mental

Mark, and Sylvia. history. A review of the MTMHI records, which trial counsel had in their possession before trial,

Petitioner's statements to mental health providers provide a vivid description of the abuse would have indicated that Petitioner had had prior mental evaluations, that he had servedinthe

Petitioner suffered at the hands of his father. Petitioner received regular beatings with a leather army, and had spent several years in prison. (Petitioner's Collective Exhibit 150). Petitioner's

strap from his father. (Transcript, at 629-634; Petitioner's Collective Exhibit 150; February 9, : school, military and prison records reveal that Petitioner had been diagnosed in | 964 as having

1967 — New Jersey State Hospital, Respondent's Collective Exhibit 9). Petitioner's father made a “paranoid personality” (December 11, 1964 -- Western State Hospital, Tacoma, Washington,

him take off his clothes, placed him hog-tied in a locked closet, and tethered him to a hook with a Respondent's Collective Exhibit 8) and, in 1971, as having a “passive aggressive personality,

piece of leather tied around the head of his penis. (Transcript, at 475, 631, 818; Petitioner's aggressive type.” (May 11, 1971 -- FR, Petersburg, Petitioner's Collective Exhibit 142). These

Collective Exhibit 150). Petitioner's father struck Petitioner's penis with a baseball bat. - records also describe the Petitioner as: “very sick” and in need of immediate commitment

(Transcript, at 475, 632). To punish him for smoking, Petitioner's father required him to eat a (November 12, 1964 -- Richard Stiles of Dupont Junior High School, Respondent’s Collective

pack of cigarettes, and when he vomited, was made to eat the vomit. (Transcript, at 634). None Exhibit 8), “in serious need of therapy” (May 24, 1965 — Sayre Junior High School Staff,

of this extraordinary abuse, which constitutes relevant mitigating evidence, was heard by the Respondent's Collective Exhibit 7); and “highly disturbed.” (December 30, 1970 -- FR,

jury. This was a grave omission by defense counsel. , Petersburg, Petitioner's Collective Exhibit 142; Respondent's Collective Exhibit 6, Tab 8). The

This, of course, is not to suggest that people who are abused as children should get away _ records also reflect numerous suicide attempts (February 9, 1967 -- New Jersey State Hospital,

with murder. People with bad childhoods can be sentenced to death. But, the Constitution Respondent's Collective Exhibit 9; April 15, 1969 ~- Baltimore City Jail, Respondent's

requires that these significant facts should have been presented to the jury at sentencing by Collective Exhibit 6, Tab 2; March 19, 1971 -- FR, Petersburg, Petitioner's Collective Exhibit

counsel. . 142; June, 1972 - FCI, Tallahassee, Addendum 11, PC Exhibit). None of this evidence was

Petitioner's school and mental health records indicate that Petitioner's family lived in 7 effeeed vo the jury. This wes significant ewer by counsel.

several different locations, and that Petitioner had undergone mental evaluations several times Petitioner also had a family history of serious mental conditions. Petitioner's sister,

during his childhood. Petitioner ran away from home several times, and eventually, at 15, left | Sylvia, attempted suicide on multiple occasions and was institutionalized several times for

home for good. (Mark Jones Affidavit at § 4, Petitioner's Collective Exhibit 74; Transcript, at ; mental health problems. (Transcript at 803, 815, 626). Petitioner's brother, Mark, committed

630).

E-48 E-49

suicide while this case was pending in this Court.” To call the Jones family dysfunctional would

be an understatement. (Transcript at 626).

Had counsel conducted an in-depth interview before calling Susi Bynum to testify at

sentencing, they would have gathered more evidence regarding Petitioner's mental health. They

would have learned about Petitioner's belief that he and his wife would have the next Messiah;

Petitioner's having carried on conversations with nonexistent people and animals; and his having

banged his head against the wall on various occasions. (Transcript, at 1224, 1225, 1229, 1216).*

Again, none of this evidence was made known to the jury. Ms. Bynum testified that she even told

Mr. Barrett that he should have a psychiatrist examine the Petitioner before the trial. (Transcript,

at 1250). These were serious deficiencies by defense counsel.

Had trial counsel heeded Ms. Bynum’s suggestion and hired a mental health professional

to evaluate the Petitioner, or had they interviewed MTMHI's Dr. Craddock, they could have

presented evidence that Petitioner had, at the very least, exhibited symptoms of a Borderline

Personality Disorder, including extreme emotional swings, identity disturbance, and self-

mutilating behavior. (Transcript, at 129-132; 140). A mental health professional, like Dr.

McCoy, could have offered testimony about Petitioner's background and mental history, and

could have offered an explanation placing in context the negative aspects of Petitioner's past.

= Sylvia Jones, as a teenager, had a child out of wedlock by her own father

according to Ms. Lancaster’s uncorroborated view of the family’s history. (Transcript at 793-

795). The whereabouts of Sylvia Jones is unknown. Mark Jones committed suicide on July 13,

1996. (Transcript at 793). The suicide was within days of his arrest for sexually and physically

abusing his children. (Transcript at 627).

” The Court notes that the MTMHI files also revealed much of this same

information. (Petitioner's Collective Exhibit 150).

E-50

(Transcript, at 613-663). By describing Petitioner's history of earnestly seeking a religious faith

with which to align himself, Dr. McCoy's testimony would have supported the notion that

Petitioner had been strongly influenced by the SEGM. None of this was put into evidence before

the jury. The failure of counsel to do so was a serious error.

Trial counsel could have presented testimony showing that, despite his mental health

problems, Petitioner had functioned as a productive member of society during the year before he

came to Tennessee. If they had heeded Petitioner's suggestion that they talk with Sarah Roberts

Walton, Petitioner’s former fiancé, they could have learned that after Petitioner was released

from prison in Chicago, in 1983, he was hard-working and giving. Ms. Walton, now an attorney

for the State of Maine,” testified that when she knew the Petitioner in 1983, he held a steady job,

attended college, and performed volunteer work with a Quaker youth group at Cabrini Green, a

large, infamous public housing development in Chicago known for its poverty and violence.

(Transcript, at 1181, 1195-1196, 1197, 1205; Bretzlauf deposition, at 14-15, 17). Ms. Walton

described the Petitioner as gentle, caring, and filled with dignity; a person with whom she shared

a sincere Christian belief. (Transcript, at 1204-1205). The jury heard nothing of the sort from any

witness. This was a very significant failure by defense counsel.

= Ms. Walton has represented the State of Maine on two murder appeals.

(Transcript at 1182).

= Ms. Walton ultimately broke off the engagement because she was concerned that

Petitioner had psychological problems. (Transcript, at 1189-1190). Petitioner subsequently

moved to Tennessee the year before the stabbings to be close to his brother, Mark Jones, who

was stationed at Fort Campbell. (Transcript, at 1195).

E-51

The Court finds the testimony of Ms. Walton to be extremely credible. The content of

her testimony, as well as her demeanor, made her a compelling mitigation witness on behalf of

Petitioner for purposes of sentencing. Ms. Walton's testimony, based on personal knowledge,

added a humanizing dimension to the life history and character of the Petitioner, good and bad,

that was absent from any prior proceeding in state court, and yet could have been presented to the

jury, had trial counsel conducted a reasonable investigation.

Had defense counse! learned more about the 1972 murder conviction, they could have

presented evidence to the jury that the killing occurred when Petitioner approached the victim,

Michael Stein, in his cell to confront him about spreading rumors that Petitioner had engaged in

homosexual conduct, and that Petitioner stabbed Stein during that confrontation. (Bishop

Deposition, at 22-23, 24-25, 26, Petitioner's Exhibit 135; Delagrange Deposition, at 18-19,

Petitioner's Exhibit 136; Petitioner's statement dated April 2, 1972, attached as Exhibit to

Delagrange Deposition, Petitioner's Exhibit 136; Letter dated April 15, 1987 from David G.

Lowe to John Zimmerman, attached as Exhibit to Delagrange Deposition, Petitioner's Exhibit

136; Memo dated April 7, 1972 from H.R. Hogan to Norman A. Carlson, attached as Exhibit to

9 rome

Delagrange Deposition, Petitioner's Exhibit 136).’’ The prison murder was not about drugs and

gangs as represented by the prosecution to defense counsel.

More importantly, Dr. Masri testified at the 1972 murder trial that Petitioner had a

“homosexual panic” and lost contro! when he killed Stein. (Petitioner's Exhibit 131, at 48). As

noted above, Dr. Masri also diagnosed the Petitioner as having a Borderline Personality Disorder

and Schizoid Personality. (Petitioner's Exhibit 131, at 53). Although this information does not

provide a justification for the murder, it does provide the jury with some information upon which

to evaluate it. Without some information tending to mitigate this prior murder, there was nothing

to alter the likely mindset of the jury that because Petitioner had killed someone before, he was

not deserving of any leniency. The jury heard none of this evidence. Again, defense counsel

made a substantial mistake.

Instead, at the sentencing hearing, the jury heard only two witnesses for the defense, the

Petitioner and his wife. The defense was breathtakingly brief in content, and lacking in quality,

and quantity. (Addendum 1, at 1836-1930). Petitioner's testimony on direct was essentially

limited to his relationship with SEGM, his account of the events surrounding the stabbings, and a

plea for his life. (Addendum 1, at 1836-1870). During cross-examination, the Petitioner initially

sad In response to a claim made by Mrs. Stein after her son’s death, representatives of

the federal institution where he had been incarcerated took the position that:

Mr. Stein was a member of a group of inmates who were attempting to apply

extortionate pressures on Jones to submit to Stein’s demands for homosexual

activities. The assault itself on April 1 arose out of an attempted assault on Jones

approximately two weeks earlier by members of this group.

(Petitioner's Collective Exhibit 142; Bishop Deposition, at 25, Exhibit 135).

E-53

lost his composure, and was not particularly articulate in answering the prosecutor's questions.

(Addendum 1, at 1870-1905). Mr. Camp described the Petitioner's performance as “one of the

saddest things I have seen in my legal career.” (Transcript, at 731).

The only line of questioning put to Petitioner's wife, Susi Bynum Jones, related to

whether she had written some bad checks before Petitioner was incarcerated. (Addendum |, at

1919-1929).* Counsel did not even attempt to elicit testimony from Mrs. Jones that she loved

her husband, found good in him, or hoped he would not be executed.“

The jury in this case heard no witnesses who expressed a concern whether Petitioner lived

or died, even though such witnesses were available and known to defense counsel. This was a

grievous flaw.

= Mr. Camp described trial counsels’ deficiencies regarding Petitioner's testimony:

It is my opinion that Mr. Jones was not prepared to go on

the stand, that because of what I perceived to be his mental health

problems that it would be hard for him to have been successful on

the stand because we had not provided the factual foundation that

the jury needed to be able to hear this man in context, that all they

got was literally this man begging for his life.

And it was more than he could handle and that he just

broke down.

(Transcript, at 731).

- Even though he conducted the direct examination of the Petitioner’s wife, the only

mitigation witness offered besides the Petitioner, Mr. Camp did not conduct an interview with

her prior to trial. (Transcript, at 724; 1248, 1250).

S Ms. Jones spoke effervescently about her husband at the hearing in this case.

“Well, when I first met James, he opened up his mouth, it was like thunder from heaven ... | was

fascinated with James ... he was different, just different from any man I ‘iad ever met ... he

wanted to do something for the world. I was intrigued by that.” (Transcript, at 1216).

E-54

. ae

As Respondent argues, and the state courts found, there was also a considerable amount

of negative evidence that the prosecution could have introduced during the sentencing hearing.

That evidence includes a criminal record which indicates that Petitioner was convicted of assault

at the age of 15, and two more assaults at the age of 19. (Petitioner’s Exhibit 105; Petitioner's

Exhibit 146; Respondent's Collective Exhibit 9; Respondent's Collective Exhibit 10). As noted

above, Petitioner was convicted of the second degree murder of Michael Stein at the age of 21.

(Petitioner’s Exhibit 105).

Petitioner has been diagnosed as having a sociopathic personality disturbance with anti-

social reaction and mild depression, (March 10, 1967 -- New Jersey State Hospital,

Respondent’s Collective Exhibit 9), as having an anti-social personality (November 7, 1968 --

Fort Meade, Maryland, Respondent's Collective Exhibit 10; June, 1977 -- USP Leavenworth,

Kansas, Respondent’s Collective Exhibit 6, Tab 59), and as having a psychopathic personality.

(January 13, 1978 — USP Leavenworth, Kansas, Respondent’s Collective Exhibit 6, Tab 67).

Petitioner has also been diagnosed as having no mental illness. (April 15, 1969 —

Baltimore City Jail, Respondent's Collective Exhibit 6, Tab 2; December 31, 1969 -- St.

Elizabeth's Hospital, Respondent's Collective Exhibit 11; April, 1970 -- Dr. Angus,

Respondent’s Collective Exhibit 6, Tab 101; Dr. Eardley testimony at Stein murder mal,

Petitioner’s Exhibit 131, at 57-58, 59, 66).

The prosecution could have introduced evidence that during his many years in prison,

Petitioner was involved in numerous citations for misconduct, including possession of a knife.

(Respondent’s Collective Exhibit 6). Prison records would also show that Petiioner escaped

E-55

shortly before his parole date in 1982, but was recaptured a few months later. (Respondent's

Collective Exhibit 6, Tab 94). While on escape, Petitioner was a witness in a murder case.

Petitioner’s army records indicate that during his service in the army, Petitioner was

absent without leave on more than one occasion, and ultimately, was discharged under conditions

other than honorable. (Respondent's Collective Exhibit 10).

Finally, Petitioner's school records indicate that he was suspended from school for

threatening a teacher with a knife. (May 24, 1965 -- Sayre Junior High School, April 25, 1966 --

Shaw Junior High School, Respondent’s Collective Exhibit 7; February 9, 1967 ~ New Jersey

State Hospital, Respondent’s Collective Exhibit 9).

Notwithstanding this negative evidence, however, the Court is persuaded that had counsel

presented the other evidence of Petitioner's background and mental history, there is more than a

reasonable probability that at least one juror would have voted for a life sentence rather than the

death penalty. It only takes one juror to decide that the mitigation evidence presented by the

Petitioner outweighs the aggravating circumstances established by the prosecution. (Tenn. Code

Ann. § 39-2-203; Exhibit 155). No mitigation evidence was presented during Petitioner’s

sentencing, and therefore, it is not surprising that the jury struck the balance in favor of the death

penalty.

This is not a case where counsel collected and put on the significant mitigating evidence

and merely failed to get everything. This is a case of no mitigating evidence -- none -- being

offered to the jury despite its availability and abundance. Defense counsel was substantially

ineffective and Petitioner was thereby deprived of a constitutionally fair trial.

Petitioner stated it succinctly to the jury at sentencing:

E-56

I don’t know you. You don’t know me. So, it ain’t no feeling there what

you should do to me.

(Addendum I, at 1869, lines 15-16).

According to the prosecutor’s assessment after trial, given the paucity of evidence that

was presented by Petitioner’s attorneys, the jury had little reason to hesitate in imposing the

death penalty: “The jurors all expressed to us their satisfaction with their verdict and were quite

surprised at their own ability to impose the death penalty on this particular man with no

reluctance whatsoever.” (Letter dated July 17, 1987 from John Zimmerman to David G. Lowe;

Petitioner’s Collective Exhibit 136).

The Court acknowledges that Lionel Barrett and Sumter Camp have good reputations in

the Nashville bar for being fine criminal defense lawyers. This case illustrates that lawyers do not

make cases based on their reputations. A lawyer must actually work on each case. Cases are

made through factual investigation, research, writing, witness preparation, trial strategy, and a bit

of good fortune. In this case, the hard work required was simply not done. This Court agrees

with the state post-conviction trial and appellate courts that Mr. Barrett and Mr. Camp provided

inadequate representation. Good lawyers can and do fail. Here, Mr. Barrett and Mr. Camp

utterly failed in their duty to adequately represent their client, who, as a result of this miscarriage

of justice, was unconstitutionally sentenced to death.*' This is not a case of harmless error.

This conclusion is not one the Court reaches casually. The Court is mindful of the

importance of the sovereignty of the State of Tennessee and the need to respect the certainty and

“ Mr. Barrett as lead counsel, and Mr. Camp as assistant counsel, each had an

independent duty to provide effective assistance of counsel.

E-57

It is so ORDERED.

finality of court judgments. This Court has no interest in simply second-guessing the decisions of

the state courts. But the overwhelming nature of the evidence presented to this Court, a

TODD J. CAMPBELL a0

significant portion of which was not presented to the jury or the state courts,” and the almost UNITED STATES DISTRICT JUDGE

complete failure to present a defense at Petitioner's sentencing hearing, compels the Court’s

conclusion that Petitioner’s death sentence cannot stand. The Constitution of the United States,

and this Court’s duty to uphold its principles, mandate the issuance of the writ of habeas corpus

as to Petitioner’s death sentence.

IX. Conclusion | d

All Petitioner's claims are procedurally defaulted except Petitioner's Brady claims, trial

counsel conflict of interest claim, the ineffective assistance of counsel claim, and those claims

already addressed by the Court in previous orders. The Court concludes that Petitioner’s Brady

claims, and conflict of interest claims, are without merit, and they are dismissed.

With respect to Petitioner's ineffective assistance of counsel claim, the Court concludes

that Petitioner received ineffective assistance of counsel during the sentencing phase of his trial,

and therefore, Petitioner’s petition for a writ of habeas corpus relief is granted as to that claim.

Accordingly, the Court vacates Petitioner's sentence of death, and remands this case to the State

of Tennessee for further proceedings not inconsistent with this opinion. As noted above,

Petitioner is also serving two consecutive life terms for assault with intent to commit murder and

armed robbery and shall remain incarcerated.

S For example, Nancy Lancaster, Sarah Roberts Walton, Robert Sadoff, Diana

McCoy, Kris Sperry, Raymond Winbush and Brian Stephenson were not called as witnesses in

the state post-conviction proceeding.

E-58 E-59

FILED

UNITED STATES COURT OF APPEALS SEP 13 2000

FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk

Nos. 98-6568; 98-6569

ABU-ALI ABDUR’RAHMAN,

Petitioner - Appellee/Cross-Appellant,

Vv.

RICKY BELL, Warden,

Respondent - Appellant/Cross-Appellee.

Before: SILER, BATCHELDER, and COLE, Circuit Judges.

JUDGMENT

On Appeal! from the United States District Court

for the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the record from the district court and was argued

by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s

finding of prejudice at the sentencing stage is REVERSED; the district court’s

judgment granting the petition for a writ of habeas corpus as to petitioner Abu-Ali

Abdur’ Rahman's death sentence is VACATED; the district court’s judgment denying

the petition for a writ of habeas corpus as to Petitioner’s conviction is AFFIRMED.

ENTERED BY ORDER OF THE COURT

fu Green /Clerk

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APPENDIX

ABU-ALI ABDUR’RAHMAN,

Petitioner-Appellee/Cross-Appellant,

v.

RICKY BELL, Warden,

Respondent-Appellant/Cross-Appellee.

Case Nos. 98-6568/6569

for the Middle District of Tennessee at Nashville

No. 96-00380--Todd J. Campbell, District Judge.

Argued: January 31, 2000

Decided and Filed: September 13, 2000

Before: SILER, BATCHELDER, and COLE, Circuit Judges.

COUNSEL

ARGUED: Gordon W. Smith, OFFICE OF THE

ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION,

Nashville, Tennessee, for Appellant. Bradley A. MacLean,

FARRIS, WARFIELD & KANADAY, Nashville, Tennessee,

William P. Redick, Jr, Whites Creek, Tennessee, for

Appellee. ON BRIEF: Gordon W. Smith, OFFICE OF THE

ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION,

Nashville, Tennessee, for Appellant. Bradley A. MacLean,

FARRIS, WARFIELD & KANADAY, Nashville, Tennessee,

William P. Redick, Jr., Whites Creek, Tennessee, Brian K.

Frazier, NEAL & HARWELL, Nashville, Tennessee, for

Appellee.

SILER, J., delivered the opinion of the court.

BATCHELDER, J. (pp. 34-41), delivered a separate

concurring opinion. COLE, J. (pp. 42-50), delivered a

separate opinion concurring in part and dissenting in part.

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OPINION

SILER, Circuit Judge. Respondent, Ricky Bell, Warden

(“State”), appeals the issuance of a writ of habeas corpus to

Petitioner, Abu-Ali Abdur’Rahman (“Petitioner”),' vacating

Petitioner’s sentence of death for first-degree murder on the

grounds of ineffective assistance of counsel at the sentencing

phase of Petitioner’s trial. Additionally, Petitioner cross-

appeals the denial of his petition for a writ of habeas corpus

seeking relief from his conviction for first-degree murder.

We reverse the district court’s finding that Petitioner was

prejudiced by his trial counsel’s deficient performance at the

sentencing stage and vacate the portion of the district court’s

judgment granting the petition for a writ of habeas corpus as

to the death sentence. Additionally, we affirm the portion of

the district court’s judgment denying the petition for a writ of

habeas corpus as to the conviction.

I. BACKGROUND

Petitioner was tried and convicted of first-degree murder,

assault with intent to commit murder, and armed robbery. He

received the death penalty for the murder conviction and two

consecutive life terms for the each of the other convictions.

The death sentence was imposed pursuant to the jury’s

finding of three aggravating circumstances: (1) the defendant

was previously convicted of one or more felonies whose

statutory elements involved the use of violence to the person;

(2) the murder was especially heinous, atrocious or cruel in

that it involved torture or serious physical abuse beyond that

necessary to produce death; and (3) the murder was

committed while the defendant was engaged in committing,

or was an accomplice in the commission of, or was

attempting to commit, or was fleeing after committing or

attempting to commit, any first-degree murder, arson, rape,

robbery, burglary, theft, or kidnapping. _Petitioner’s

convictions arose out of an offense that occurred in 1986.

On February 16, 1986, Petitioner purchased a small

amount of marijuana from Patrick Daniels at the duplex in

which Daniels lived in Nashville, Tennessee. Petitioner and

Harold Devalle Miller later agreed to rob Daniels. The pian

‘Petitioner was originally named James Lee Jones, but he

changed his name to Abu-Ali Abdur’ Rahman.

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his way into the duplex and “rob” both Daniels and Petitioner

with a shotgun that Petitioner had supplied. This plan was

never executed, however, as Miller became too frightened to

go through with it. Petitioner then formulated a second plan

to rob Daniels, this time using a knife to avoid making too

much noise.

On February 17, 1986, Petitioner, armed with a shotgun,

and Miller, armed with an unloaded pistol, entered the duplex

under the pretext of making a drug purchase. Petitioner and

Miller displayed their firearms and forced Daniels and his

girlfriend, Norma Norman, to the floor. Petitioner then bound

Daniels and Norman with duct tape about their hands, feet,

eyes, and mouth. After stealing Daniels’s bank card,

Petitioner forced Daniels to reveal his PIN number. Petitioner

also searched the house and found some marijuana in some

sofa cushions.

Petitioner then told Daniels that he had been sent from

Chicago to “clean up everything” and that he was there to

teach Daniels a lesson. Petitioner obtained a butcher knife

from the kitchen and stabbed Daniels six times in the chest,

penetrating his heart four times. Prior to and during the

stabbing, Daniels was crying and begging Petitioner not to

stabbed Norman in the back several times, but Miller pulled

Petitioner away and the two men fled, leaving the knife in

Norman’s back. Daniels died as the result of his wounds, but

Norman survived. Petitioner and Miller also took $300 from

a box in Norman’s bedroom.

At trial, Petitioner argued that the real motivation for the

crime was born out of the influence of his membership in a

“quasi-religious paramilitary group” called the Southeastern

Gospel Ministry (“SEGM”). Petitioner had a long criminal

history, including a conviction for second-degree murder in

1972 and a conviction for assault with a dangerous weapon (a

knife) in 1970. Following his incarceration for these

offenses, he moved to a halfway house in Nashville. While

living at the halfway house he worked for an organization

called the Baptist Publishing Board, and eventually met Allen

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Boyd, one of the Board’s owners, and Boyd’s associate,

William Beard. Boyd and Beard were the leaders of the

SEGM; Miller was also a member of the SEGM. One of the

alleged goals of the SEGM was to cleanse the black

community of drug dealers and other undesirable elements.

Boyd allegedly furnished the shotgun used during the offense

and assisted Petitioner and Miller after the offense, including

giving Miller some money to flee.

Petitioner was initially represented by Neal McAlpin, who

was asked by Boyd to take on the representation. Boyd

allegedly indicated to McAlpin that he would be paying

Petitioner’s attorney’s fees. However, McAlpin subsequently

determined that Boyd was a member of the SEGM. With

Boyd being the source of his fees, as well as perhaps being

involved in the crime, McAlpin felt that a conflict of interest

existed within the third-party fee arrangement and that he

could not continue the representation. Gail Hughes, an

associate of Boyd’s, then requested that Lionel Barrett

t Petitioner. Barrett agreed to do so for a retainer fee

of $15,000, $5,000 of which was paid to him fairly soon,

though he never inquired as to the source of the funds.

Barrett and another attorney, Sumter Camp, represented

Petitioner at trial.

Petitioner alleges that this representation was ineffective

throughout the trial, including both the guilt phase and the

sentencing phase. Barrett testified that at the time he received

the first $5,000 of the retainer he decided he was not going to

perform any work on the case until he received the balance of

the retainer fee, a balance that was never paid. Petitioner also

claims that Barrett performed no work on the case until he

filed pre-trial motions. Petitioner alleges that Barrett's

performance as counsel was ineffective due to failure to: (1)

investigate; (2) present potentially exculpatory evidence, and

(3) present mitigating evidence at the sentencing stage.

His conviction and sentence were affirmed by the

Tennessee Supreme Court in State v. Jones, 789 S.W.2d 545

(Tenn.), cert. denied, 498 U.S. 908 (1990). He sought post-

conviction relief in the state trial court which conducted a

hearing, made findings, and denied relief. The judgment was

affirmed in Jones v. State, No. 01C01-9402-CR-00079, 1995

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WL 75427 (Tenn. Crim. App. Feb. 23, 1995), and the

Tennessee Supreme Court denied review. The United States

Supreme Court denied a petition for a writ of certiorari in

Jones v. Tennessee, 516 U.S. 1122 (1996). Petitioner later

filed this petition for a writ of habeas corpus, challenging

both his conviction and sentence. After Petitioner’s motion

for partial summary judgment was denied, the district court

held an evidentiary hearing to address the merits of his habeas

petition. The district court granted the writ on Petitioner’s

claim of ineffective assistance of counsel at the sentencing

stage due to counsel’s failure to present mitigating evidence

despite its availability. However, the district court denied

Petitioner's claim of ineffective assistance of counsel at the

guilt stage, holding that although the performance of Barrett

and Camp was deficient, Petitioner suffered no prejudice

thereby. Abdur’Rahman v. Bell, 999 F.Supp. 1073 (M.D.

Tenn. 1998). This is an appeal from that decision.

a Aree ey

’s Appeal Challenging the Judgment

the Petition for a Writ of Habese Corpas as to the Donte

Sentence

1. Presumption of Correctness Under 28 U.S.C. § 2254

The State argues that the district court improperly

dispensed with the presumption of correctness that is to be

accorded to state court findings of fact under 28 U.S.C. §

2254(d)’ without providing a statement of its reasons for

728 U.S.C. § 2254(d) (repealed), in effect when the instant

*,* the

petition was filed, states:

(d) In any proceeding instituted in a Federal court by an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in a

proceeding to which the applicant for the writ and the State

or an officer or agent thereof were parties, evidenced by a

written finding, written Opinion, or other reliable and

adequate written indicia, shall be presumed to be correct,

unless the applicant shall establish or it shall otherwise

7 pr hte sen ll

merits of the factual dispute resolved

in the State court hearing; oe

F-6

doing so as required by Sumner v. Mata, 449 U.S. 539 (1981),

and Mitchell v. Rees, 114 F.3d 571 (6th Cir. 1997). Petitioner

responds that claims of ineffective assistance of counsel

involve mixed questions of law and fact that are not accorded

the presumption of correctness under Strickland v.

Washington, 466 U.S. 668 (1984).

The post-conviction trial court held that Petitioner’s trial

counsel had failed to adequately investigate Petitioner’s

background and mental history, making the following factual

findings in the process:

(2) that the factfinding procedure employed by the State

court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at

the State court hearing;

(4) that the State court lacked jurisdiction of the subject

matter or over the person of the applicant in the State court

proceeding;

(5) that the applicant was an indigent and the State court, in

deprivation of his constitutional right, failed to appoint

counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; or

(7) that the_applicant was otherwise denied due process of

law in the State court proceeding;

(8) or unless that part of the record of the State court

proceeding in which the determination of such factual issue

was made, pertinent to a determination of the sufficiency of

the evidence to support such factual determination, is

produced as provided for hereinafter, and the Federal court

on a consideration of such part of the record as a whole

concludes that such factual determination is not fairly

supported by the record.

And in an evidentiary hearing in the proceeding in the Federal

court, when due proof of such factual determination has been made,

unless the existence of one or more of the circumstances

respectively set forth in paragraphs numbered (1) to (7), inclusive,

is shown by the applicant, otherwise appears, or is admitted by the

respondent, or unless the court concludes pursuant to the provisions

of paragraph numbered (8) that the record in the State court

proceeding, considered as a whole, does not fairly support such

factual determination, the burden shall rest upon the applicant to

establish by convincing evidence that the factual determination by

the State court was erroneous.

F-7

1. Testimony and files of trial counsel showed that

few witnesses were investigated or interviewed

regarding petitioner’s background and mental health

2. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

information concerning petitioner’s prior

psychological consultation at ages 12 to 14 while at

Ft. Shafter, Hawaii.

3. Testimony and files of trial counsel showed that

they failed to investigate and obtain readily available

information concerning petitioner’s psychological

assessment at age 14 by the school psychologist at

Dupont Jr. High School at Ft. Lewis, Washington.

4. Testimony and files of trial counsel showed that ~

they failed to investigate and obtain available

information concerning petitioner’s juvenile

incarceration for being a psychopathic delinquent at

Western State Hospital in Tacoma, Washington.

5. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

information concerning the petitioner’s school records

in Philadelphia, where on May 24, 1965 there was a

request for psychological service by Sayre High

School.

6. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

information concerning petitioner’s school records in

Philadelphia, where on June 17 he was referred for

Special Education.

7. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

information concerning petitioner’s incarceration at

the Annadale Institute for Boys, New Jersey, when he

was 15, his being placed on psychiatric watch in

January of 1967 and his referral to and psychological

examination at the New Jersey State [Psychiatric]

hospital at Trenton in February of 1967.

8. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

F-8

Abdur ’Rahman, 999 F.Supp. at 1093.

information concerning petitioner’s Army records at

ages 17 and 18 with notations regarding his

“questionable mental status,” bizarre behavior, and

psychiatric reports leading ultimately to discharge.

9. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

information concerning ppetitioner’s _ psychiatric

examination at St. Elizabeth’s Hospital, Washington,

D.C., following his incarceration for assault on or

about the day of his discharge from the Army, despite

the fact that part of this information was sent to

MTMHI [Middle Tennessee Mental Health Institute]

per their request.

10. Testimony and files of trial counsel showed that

they failed to investigate and obtain available

information conceming ppetitioner’s institutional

records while in the federal prison system.

11. Testimony and files of trial counsel showed that

ey failed to investigate and obtain available

formation concerning petitioner's psychiatric

examination following petitioner’s 1972 killing of a

fellow prisoner while incarcerated for the assault

referenced in paragraph 9 above.

12. Trial counsel has little knowledge of the facts

related to the petitioner’s 1972 murder conviction.

13. They failed to interview the psychiatrist and

psychologist who conducted the MTMHI evaluation

until after the trial began.

The district court

relevant portion of Strickland indicates that while the ultimate

question of ineffective assistance of counsel is a mixed

question of law and fact, the factual findings of state courts

underlying such an analysis are accorded the presumption of

correctness:

Although state court findings of fact made in the

course of deciding an ineffectiveness claim are

subject to the deference requirement of § 2254(d),

and although district court findings are subject to the

clearly erroneous standard of Federal Rule of Civil

Procedure 52(a), both the performance and the

prejudice components of the ineffectiveness inquiry

are mixed questions of law and fact.

Strickland, 466 U.S. at 698 (emphasis added). Thus, the state

post-conviction trial court’s findings of fact underlying its

ineffectiveness inquiry should have been presumed correct.

This presumption is not mandatory because a district court

may preclude its application upon the finding of any one of

the listed exceptions in 28 U.S.C. § 2254(d). However, in

order-to do so “a habeas court should include in its opinion

granting the writ the reasoning which led it to conclude that

any of the first seven factors were present, or the reasoning

which led it to conclude that the state finding was ‘not fairly

supported by the record.”” Sumner, 449 U.S. at 551. In the

recent opinion in Mitchell v. Rees, this court discussed this

requirement.

We begin with the application of 28 U.S.C. §

2254(d), which establishes a presumption of

correctness for factual determinations made by the

state courts whose judgments are challenged by the

referred to these findings in its opinion partially granting

habeas relief, but did not address the presumption of

correctness that arguably applied to them under 28 U.S.C. §

2254. Instead, citing Strickland v. Washington, 466 U.S. 668,

698 (1984), and Queen v. Scroggy, 99 F.3d 1302, 1311 (6th

Cir. 1996), it merely noted that “[t]he ultimate question of

whether Petitioner received effective assistance of counsel is

a mixed question of law and fact, which is reviewed de

novo.” Abdur Rahman, 999 F.Supp. at 1092.

This was an accurate statement of the law by the district

court, though not a complete one. A close reading of the

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federal habeas petitioner. The Supreme Court, in

Sumner v. Mata, held that § 2254(d) mandated that the

presumption of correctness be applied by the habeas

court to a finding of the state appellate court that “‘the

facts of the present case’ did not adequately support

respondent’s claim.” The Court went on to lay down

the rule that “a habeas court should include in its

opinion granting the writ the reasoning which led it to

conclude that any of the first seven factors were

present, or the reasoning which led it to conclude that

F-10

the state finding was ‘not fairly supported by the

record.” The reason for this requirement, the Court

explained, is that “[n]o court reviewing the grant of an

application for habeas corpus should be left to guess

as to the habeas court’s reasons for granting relief

notwithstanding the provisions of § 2254(d).” And in

a footnote, the Court further explained that “the 1966

amendments embodied in § 2254(d) were intended by

Congress as limitations on the exercise of [federal

court] jurisdiction. As we held in Louisville &

Nashville R. Co. v. Mottley, and have repeatedly since

reaffirmed, ‘it is the duty of this [C]ourt to see to it

that the jurisdiction of the [district court] which is

defined and limited by statute, is not exceeded.’”

. . . It was error, therefore, for the district court to

dispense with the presumption of correctness

embodied in § 2254(d) and to order an evidentiary

hearing without providing a written statement of the

“reasoning which led it to conclude that any of the

first seven factors were present, or the reasoning

which led it to conclude that the state finding was ‘not

fairly supported by the record.””

Mitchell, 114 F.3d at 575-77 (citations omitted). Thus, the

district court committed the same error by apparently

dispensing with the presumption of correctness without a

statement of its reasons for granting relief notwithstanding the

provisions of § 2254(d).

Relying solely upon the erroneous argument that the

presumption of correctness does not apply to the post-

conviction trial court’s findings of fact, Petitioner fails to

argue that any one of the listed exceptions in § 2254(d)

applies and requires that the court dispense with the

presumption of correctness. However, he argues that §

2254(d\(8) would entitle him to an evidentiary hearing,

pointing to evidence in the record allegedly showing that he

did not receive a full and fair hearing in state court at trial,

during post-conviction proceedings, and on appeal. The State

argues that due to Petitioner’s formal presence before the

State trial and appellate courts, his ability to call witnesses and

otherwise present evidence, and his pursuit of his claims on

F-11

ee ee ee em

appeal, he cannot be heard to claim that he did not receive a

full and fair hearing. This position is correct. See Andrews v.

Collins, 21 F.3d 612, 619 (Sth Cir. 1994) (noting that the

opportunity to present evidence, to present witnesses, and to

fully cross-examine prosecution witnesses supports the

finding of a full and fair hearing); see also Sumner, 449 U.S.

at 546 (stating that “[s]ince that court [state appellate court]

was requested to determine the issue by respondent [the

convicted murderer], we do not think he may now be heard to

assert that its proceeding was not a ‘hearing’ within the

meaning of § 2254(d).”). Thus, because Petitioner received a

full and fair hearing the presumption of correctness applies.

It is clear that the court erred in not addressing the

presumption of correctness as required by Sumner, Strickland,

and Mitchell. However, it is unclear as to whether the district

court held that the presumption of correctness did not apply.

This ambiguity arises because the district court ordered an

evidentiary hearing and received evidence that was not

presented in any of the state court proceedings. Additionally,

it considered the new evidence in its opinion partially

granting habeas relief to Petitioner, yet failed to explicitly

find whether the new evidence contradicted and possibly

rebutted the presumption of correctness, or merely

supplemented the post-conviction trial court’s findings of

fact.

Presumably, however, because the court simply exercised

de novo review under its mistaken interpretation of Strickland

it did dispense with the presumption of correctness. Thus, the

district court erred by failing to recognize that the

presumption of correctness applied to the post-conviction trial

court’s findings of fact and erred by failing to include in its

opinion the reasoning why the presumption of correctness did

not apply. Unlike Mitchell, however, this error does not

require a remand because we hold that the district court

properly ordered an evidentiary hearing and properly

considered the evidence it heard.

F-12

2. Inherent Discretion to Order an Evidentiary Hearing

Applying the presumption of correctness under § 2254(d)

is an entirely separate and distinct issue from whether a

district court may or is required to order an evidentiary

hearing to settle allegedly disputed issues of material fact.

However, as a practical matter, when a district court finds that

the presumption of correctness does not apply due to one of

the listed exceptions in § 2254(d), a hearing is probably

warranted. As discussed below, this is an issue that is

independent of whether a habeas Petitioner is entitled to an

evidentiary hearing. This latter issue is not raised by the

instant appeal, because the district court properly ordered an

evidentiary hearing pursuant to its inherent discretionary

authority.

The district court ordered an evidentiary hearing “to

resolve the numerous complex factual and legal issues

presented.” The State argues that the district court abused its

discretion in ordering an evidentiary hearing because Mitchell

does not allow for such a hearing in the absence of a finding

of one of the § 2254(d) factors. Alternatively, it argues that

Petitioner is not entitled to an evidentiary hearing due to his

failure to show either cause and prejudice for the failure to

develop the facts in the state proceedings or that a

fundamental miscarriage of justice would result from the

district court’s failure to hold an evidentiary hearing.

Petitioner responds by attempting to distinguish Mitchell and

by arguing that a district court has inherent authority to order

an evidentiary hearing to settle claims of ineffective

assistance of counsel.

As the above-quoted portion of Mitchell shows, this court

has held that a district court does not have the authority to

order an evidentiary hearing when it fails to properly dispense

with the presumption of correctness. Additionally, this court

succinctly discussed the cause and prejudice requirements

that the State argues are relevant to this appeal:

Because § 2254(d) is an express limitation on the

district court’s jurisdiction, a district court is without

authority to hold an evidentiary hearing on a matter on

which the state court has made findings unless one of

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the factors contained in § 2254(d) applies. It was

error, therefore, for the district court to dispense with

the presumption of correctness embodied in § 2254(d)

and to order an evidentiary hearing without providing

a written statement of the “reasoning which led it to

conclude that any of the first seven factors were

present, or the reasoning which led it to conclude that

the state finding was ‘not fairly supported by the

record.”

Once a district court has properly determined that

it may dispense with the presumption of correctness

mandated by § 2254(d), the court has some discretion

in determining whether to hold an evidentiary hearing.

However, an [sic] habeas petitioner who has not

developed the record in state court is entitled to an

evidentiary hearing only if he shows (1) “cause for his

failure to develop the facts in state-court proceedings

and actual prejudice resulting from that failure” or (2)

“that a fundamental miscarriage of justice would

result from failure to hold a federal evidentiary

hearing.” Therefore, a district court abuses its

discretion by ordering such a hearing without first

requiring the petitioner to make the requisite showing.

Mitchell, 114 F.3d at 577 (citations omitted). Thus, strictly on

the basis of Mitchell, because the district court did not find

that one of the factors contained in § 2254(d) supplies, the

court lacked the authority to order an evidentiary hearing.”

Petitioner argues that Mitchell is inconsistent with both

Supreme Court authority and other authority emanating from

this Circuit which recognizes that district courts always have

> Petitioner attempts to distinguish Mitchell arguing

Batson v. Kentucky, 476 U.S. 79 (1986), iaimen oil Gate

instant case involves an ineffectiveness of counsel claim that was

clearly a mixed finding of fact and law. In turn, Petitioner argues

that because the presumption of correctness does not apply in the

instant case, Mitchell is not applicable and therefore not

controlling. However, as the above-stated conclusion shows, the

preeneeae © aaemane Gate covty to te pomeumtation viel

find P |. Thus, Petitioner’ listinguisl

Mitchell is erroneous. : -

F-14

the inherent authority to order evidentiary hearings to settle

disputed issues of material fact. Petitioner cites and quotes to

Townsend v. Sain, 372 U.S. 293 (1963), overruled by Keeney

v. Tamayo-Reyes, 504 U.S. 1 (1992), for the proposition that

“the power of inquiry on federal habeas review is plenary.”

Id. at 312. Although Townsend was partially overruled a

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