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:
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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,
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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
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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.
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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
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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
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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
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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.
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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. : -
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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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