# Appendix — Abdur'Rahman v. Bell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0574%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 88

## Text

(ORDER LIST:

01-9094
(014702)

535 U.S.)

MONDAY, APRIL 8, 2002
ORDER IN PENDING CASE
ABDUR' RAHMAN, ABU-ALI. V. BELL, WARDEN

The application for stay of execution of sentence of death
presented to Justice Stevens and by him referred to the Court is
granted pending the disposition of the petition for a writ of
certiorari. Should the petition for a writ of certiorari be
denied, this stay shall terminate automatically. In the event
the petition for a writ of certiorari is granted, the stay shall

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

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

No. 01-4702

In The

Abu-Ali Abdur’ Rahman,

RECEIVED

AFTER HOURS
W42 1 8 200:

OrFiVE OF ine CocrK
SUPREME COURT. US.

FILE D Petitioner,
. , Vv.
nar | Y 20
. Ricky Beli,
Ise OF THE CLERK
ON PREME couRT, U.S. Respondent.

MOTION FOR A STAY OF EXECUTION

For the reasons set forth in the accompanying Petition
for a Writ of Certiorari, Petitioner Abu-Ali Abdur’ Rahman

respectfully requests that this Court enter

an order

Staying the execution of sentence of death pending the
disposition of the Petition and, if the Petition is
granted, until the issuance of the mandate of this Court.

Respectfully submitted,

Oe
Bradley MacLean Thomas C. Goldstein
Stites & Harbison PLLC (Counsel ef Record)
Suntrust Center, Suite 1800 Amy Howe
424 Church St. Goldstein & Howe, P.C.
Nashville, TN 37219 4607 Asbury Pl. NW

Washington, DC 20016

(202) 237-7594

William P. Redick, Jr.

P.O. Box 187

Whites Creek, TN 37189

March 18, 2002

In The RECEIVED

FTER HOURS
MA 1 8 200:

OrriVE OF Ht Coen

Abu-Ali Abdur’ Rahman, SUPREME COURT. U.S.
Petitioner,
Vv.
Ricky Bell,
Respondent.

In re Abu-Ali Abdur’ Rahman,

Petitioner.

The undersigned certifies that he has this 18th day of March,
2002, served a copy of the foregoing petition for a writ of
certiorari, petition for an original writ of habeas corpus, motions
for a stay of execution, and motions for leave to proceed in forma
pauperis upon the below-named counsel for respondent by facsimile,
Federal Express, and first-class mail, postage prepaid, and
furthermore certifies that all persons required to be served have
been served:

Gordon W. Smith Victor S. Johnson, III

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

425 Fifth Ave., North 20th Judicial District

Nashville, TN 37243 222 Second Avenue North, Suite 500
(615) 741-4150 Nashville, Tennessee 37201-1649

(615) 862-5507

“UV

Thomas, ¢. Goldstein

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

Nos.01l-_— &

In The
Supreme Court of the United States

Abu-Ali Abdur’ Rahman,
Petitioner,
v.
Ricky Bell,

Respondent.
In re Abu-Ali Abdur’ Rahman,

Petitioner.

On Petitions for
a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit and
an Original Writ of Habeas Corpus and Other Extraordinary Relief

APPENDIX
Bradley MacLean Thomas C. Goldstein
Stites & Harbison PLLC (Counsel of Record)
Suntrust Center, Suite 1800 Amy Howe
424 Church St. Goldstein & Howe, P.C.
Nashville, TN 37219 4607 Asbury PI., NW

Washington, DC 20016
(202) 237-7594

William P. Redick, Jr.
P.O. Box 187
Whites Creek, TN 37189

March 18, 2002

TABLE OF CONTENTS

January 18, 2002 Order of the Sixth Circuit Denying Petitioner's Application for
a Certificate of Appealability, Request That Rule 60(b) Appeal Be Heard En
Banc, and Motion to Consolidate Rule 60(b) Appeal With Pending Motions to
Withhold Mandate, Grant Rehearing En Banc, and Remand

February | 1, 2002 Order of the Sixth Circuit Denying Petitioner's Motion for
Rehearing, Motion to Consolidate, Motion to Withhold Mandate, Motion for
Hearing En Banc and Rehearing of Denial of Certificate of Appealability, and
Application for Leave to File Second Habeas Petition; and Dismissing Appeal of
Order Transferring Rule 60(b) Motion for Lack of Jurisdiction

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

December 4, 2001 Order of the District Court Holding That It Lacks Jurisdiction
to Rule on Application for Certificate of Appealability

April 8, 1998 Order and Memorandum Granting Writ of Habeas Corpus as to
Petitioner's Death Sentence

September 13, 2000 Opinion of the Sixth Circuit Vacating Grant of Writ of
Habeas Corpus as to Petitioner's Death Sentence

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

Petitioner's October 10, 2001 Motion to Withhold the Mandate and Grant
Rehearing En Banc or Remand for Further Proceedings

State vy. Abu-Ali Abdur Rahman (formerly James Lee Jones): Prosecutorial
Misconduct (attached as Appendix B to Motion for Certificate of Commutation
Pursuant to Tenn. S. Ct. R. 12.4 and Tenn. Code Ann. § 40-27-106 and for Other
Relief Pursuant to Tenn. S. Ct. R. 11 (filed with Tenn. S. Ct. Dec. 21, 2001)) —

State vy. Abu-Ali Abdur Rahman (formerly James Lee Jones): Court Reprimands
of Zimmermann (attached as Appendix D to Memorandum in Support of
Petitioner's Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b)
(filed wath U.S. Dist. Ct. for the Middle Dist. of Tenn. Nov. 2, 2001))

NOT RECOMMENDED FOR PUBLICATION FILED

Nos. 98-6568/6569, 01-6504 JAN 1 8 2002
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
ABU-ALI ABDUR’RAHMAN, )
)
Petitioner-Appellant, )
) ‘
Vv ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
RICKY BELL, ) TENNESSEE
)
Respondent-Appellee. )
Before: SILER, BATCHELDER and COLE, Circuit Judges.

SILER, Circuit Judge. This matter comes before the court on the application by Abdur’
Rahman for a certificate of appealability, a request that his Fed.R.Civ.P. 60(b) appeal be heard
initially en banc and a motion to consolidate his Rule 60(b) appeal with pending motions in Nos. 98-
6568/6569 to withhold mandate, grant a rehearing en banc, and remand. For the reasons stated
hereafter, insofar as we have the authority, the motions are denied.

His application for a certificate of appealability arises from the transfer by the district court
of this matter after he had applied for relief from judgment under Fed.R.Civ.P. 60(b). Petitioner
moved the district court for relief from judgment under Rule 60(b) based upon the fact that
Tennessee Supreme Court Rule 39 was just adopted on June 28, 2001, in which it stated:

In all appeals from criminal convictions or post-conviction relief matters from
and after July 1, 1967, a litigant shall not be required to petition for rehearing or to
file an application for permission to appeal to the Supreme Court of Tennessee

following an adverse decision of the Court of Criminal Appeals in order to be
deemed to have exhausted all available state remedies respecting a claim of error.

A-1

Nos. No. 01-6504
Rahman v. Bell

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

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

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

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

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

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

The petitioner raised it in a Rule 60(b) motion because this case was appealed to the
Tennessee Supreme Court after | 967 and the district court in this case found that certain claims were
barred by the failure of the petitioner to seek discretionary review from the Tennessee Supreme
Court. See Abdur’Rahman v. Bell, 999 F. Supp. 1073, 1080-82 (M.D. Tenn. 1988). The district
court properly found that a Rule 60(b) motion is the equivalent of a successive habeas corpus
petition, see McQueen v. Scroggy, 99 F.3d 1302, 1335 (6" Cir. 1996), so it transferred this case
to our court for a determination of whether the Rule 60(b) motion satisfied the gateway criteria of
28 U.S.C. § 2244(b).

We consider that this is the equivalent of a successive habeas corpus petition, so it is
necessary to determine whether the petition meets the criteria of 28 U.S.C. § 2244(b)(2).
Abdur’ Rahman has not been able to meet these criteria. First, he does not rely upon a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court. Second,
there is no factual predicate for the claim which could not have been discovered previously through
the exercise of due diligence. Finally, he does not show that the facts underlying the claim would
be sufficient to establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found him guilty of the offense charged. Instead, his argument

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

A-2

Nos. No. 01-6504
Rahman v. Bell

court properly found that the claims were then unexhausted for failure to present them before the
Tennessee Supreme Court under the authority of Silverburg v. Evitts, 993 F.2d 124, 126 (6° Cir.
1993). In addition, the decision of this court on appeal from the judgment of the district court did
not rest upon any procedural default. See Abdur’Rahman v. Bell, 226 F.3d 696 (6° Cir. 2000).

Therefore, the application for a certificate of appealability is denied. The motions or requests
that the Rule 60(b) appeal be heard initially en banc and to consolidate the Rule 60(b) appeal with
pending motions in Nos. 98-6568/6569 are not matters which this panel can resolve, because they

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

A-3

NOT RECOMMENDED FOR PUBLICATION

Nos. 98-6568/6562; 01-6487; 01-6504 FILED
UNITED STATES COURT OF APPEALS :
FOR THE SIXTH CIRCUIT FEB 1 3 2002
LEONARD GREEN, Clerk
ABU-AL! ABDUR RAHMAN,
Petitioner - Appellant.
Vv. ORDER

RICKY BELL, Warden,

i i i ed

Respondent - Appellee.

Before: SILER, BATCHELDER, and COLE, Circuit Judges

These cases are before the court upon the motions of the petitioner to withhold
issuance of the mandate in Nos. 98-6558/6569, the appeal and cross-appeal from the
decision of the district court on the application for a writ of habeas corpus, and to rehear
the cases en banc or remand to the district court for further proceedings. Petitioner has
also moved that the court hear en banc No. 01-6504, his appeal from the judgment of the
district court finding his Rule 60(b) motion to be a second or successive habeas corpus
petition subject to 28 U.S.C.§2244 and transferring it as such to this court, and to
consolidate it with the pending motions in Nos. 98-6568/6569, the latter request having
been the subject of a supplemental motion filed February 8, 2002. Additionally, petitioner
has asked for rehearing en banc of the panel's January 18, 2002 order denying, inter alia,

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

that request for en banc review with a statement of additional authority. Finally, petitioner
has applied for leave to file a new habeas corpus petition in No. 01-6487.

The requests for en banc consideration have not been favored by a majority of the
active judges of the court, and the matter is referred to the original panel. Upon
consideration of the pleadings noted above, it is the decision of the court that:

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

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

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

e The order construing an ostensible Rule 60(b) motion as an application
for leave to file a second habeas corpus petition and transferring it to the
court of appeals is not an appealable order in No. 01-6504, which is
therefore DISMISSED for lack of jurisdiction

° The motions for initial hearing en banc of No. 01-6504 and for rehearing
of the court's denial of a certificate of appealability in the matter are
hereby DENIED

e The application for leave to file a second habeas corpus petition, as
transferred to this court by the district court in No. 01-6487, is DENIED.
As we stated in an opinion filed in Nos. 98-6568/6569; 01-6504 on
January 18, 2002, “...the decision of this court on appeal from the
judgment of the district court did not rest upon any procedural default.”

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

IT IS SO ORDERED.

ENTERED BY ORDER OF THE COURT

Leonard , Clerk

st

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ABU-ALI ABDUR' RAHMAN )
)
v. ) No. 3:96-0380
) JUDGE CAMPBELL
RICKY BELL, Warden ) DEATH PENALTY
ORDER

Pending before the Court is Petitioner’s Motion for Relief from Judgment Pursuant to
Fed. R. Civ. P. 60(b) (Docket No. 254). Because the Motion is a second or successive petition
subject to 28 U.S.C. § 2244, this case is transfeired to the Sixth Circuit Court of Appeals
pursuant to 28 U.S.C. § 1631 and Inre Sims, 111 F.3d 45 (6 Cir. 1997).

Petitioner, in this capital habeas corpus case, has moved pursuant to Fed. R. Civ. P. 60(b)
for relief from this Court’s Judgment of April 8, 1998 (Docket Nos. 205 and 206).
Abdur’ Rahman v. Bell; 999 F.Supp. 1073 (M.D. Tenn. 1998), aff'd. in part and rev'd. in part,
226 F.3d 696 (6 Cir. 2000), cert. denied, 122 S.Ct. 386 (2001), pet. for reh’g pending. The Rule
60(b) Motion is predicated upon a new Tennessee Supreme Court Rule, Rule 39 (“Rule 39"),

adopted on June 28, 2001.!

Tennessee Supreme Court Rule 39 reads as follows:

In all appeals from criminal convictions or post-conviction relief matters from and after
July 1, 1967, a litigant shall not be required to petition for a rehearing or to file an application for
permission to appeal to the Supreme Court of Tennessee following an adverse decision of the
Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies
respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal
/wpeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have
exhausted al] available state remedies available for that claim. On automatic review of capital
cases by the Supreme Court pursuant to Tennessee Code Annotated, § 39-13-206, a claim

Thus deeument was entered on (contnued...)
the docket in compliance with

3 Rule 58 Rule 79 (a),
”" FRCP. omer y 72-9 269

oe Ae

In the 1998 Judgment, this Court ruled that certain of Petitioner’s claims had not been
exhausted in state court and, therefore, were defaulted. Based on new Rule 39, Petitioner asserts
that a petition for discretionary review by the Tennessee Supreme Court is not necessary for
exhaustion purposes and, therefore, the claims in question were exhausted and the Court must
now rule on the merits of those claims.

Respondent asserts that this Rule 60(b) Motion is actually a second or successive petition
subject to 28 U.S.C. § 2244. The proper procedure, according to Respondent, is for this Court to
transfer the matter to the Sixth Circuit for its determination of whether the Rule 60(b) Motion
satisfies the gateway criteria of 28 U.S.C. § 2244(b). Respondent relies pnmarily on McQueen v.
Scroggy, 99 F.3d 1302, 1335 (6* Cir. 1996). In McQueen, the Sixth Circuit held “[wJe agree
with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a
successive habeas corpus petition....” Id. See, also, United States v. Rich, 141 F.3d 550, 551 (5*
Cir. 1998); Thompson v. Calderon, 151 F.3d 918, 921 (9* Cir. 1998) (en banc); Felker v. Turpin,
101 F.3d 657, 660-61 (11° Cir. 1996); and United States v. Hernandez, 158 F.Supp.2d 388, 391
(D. Del. 2001).

Petitioner argues that this Rule 60(b) Motion is not a second or successive petition
because it raises no new claims, no new facts, and does not rely on new law. Petitioner relies
primarily on Rodriguez v. Mitchell, 252 F.3d 191, 198-200 (2™ Cir. 2001). In Rodriquez, the

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

‘(...continued)
presented to the Court of Cmmuna! Appeals shall be considered exhausted even when such claim
is not renewed in the Supreme Court on automatic review

Tenn. S. Ct. R. 39

C-2

second or successive habeas petition and should therefore be treated as any other motion under
Rule 60(b).” Jd. at 198.

In the Sixth Circuit, when a petitioner raises new matters in a Rule 60(b) Motion
challenging the previous denial of a § 2254 habeas corpus petition, the Rule 60(b) Motion must
be construed as an attempt by the petitioner to file a second or successive petition. McQueen v.
Scroggy, 99 F.3d at 1334-35. 28 U.S.C. § 2244(b)(3)(A) provides: “Before a second or
successive application permitted by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing the district court to consider the
application.”

Because this Rule 60(b) Motion presents a new theory predicated on a new rule of law
adopted by the Tennessee Supreme Court over three years after this Court’s Judgment, the Court
finds that the Motion is a second or successive habeas petition subject to 28 U.S.C. § 2244.
Accordingly, this Court is without jurisdiction to decide the Rule 60(b) Motion. The case is
hereby transferred to the Sixth Circuit Court of Avpeals pursuant to 28 U.S.C. § 1631 and Ipre
Sims, 111 F.3d 45 (6* Cir. 1997).

It is so ORDERED.

————

TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ABU-ALI ABDUR' RAHMAN )
)
v. ) No. 3:96-0380
) JUDGE CAMPBELL
RICKY BELL, Warden ) DEATH PENALTY

ORDER

Pending before the Court is Petitioner’s Application for Certificate of Appealability
(Docket No. 269). For the reasons described herein, the Court is without jurisdiction to rule on
the Application.

By Order (Docket No. 267) entered on November 27, 2001, the Court ruled that it was
without junsdiction to decide Petitioner’s Rule 60(b) Motion because the Motion was a second
or successive petition subject to 28 U.S.C. § 2244. The Court, accordingly, ordered the case
transferred to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631 and In re Sims,
111 F.3d 45 (6* Cir. 1997).'

Petitioner's Application for Certificate of Appealability asks the Court to grant a
certificate of appealability. See 28 U.S.C. §§ 2253(c); Fed. R. App. P. 22(b); Slack v. McDaniel,
529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). According to Petitioner:

Specifically, a COA should issue because reasonable jurists could

disagree (and have disagreed) with this Court’s conclusions that:
(1) Every 60(b) motion in a habeas case is a second or successive

‘The Court also notes that this case was on appeal at the time the Rule 60(b) Motion was
filed in this Court and that it remains on appeal at this time. Therefore, the Court generally lacks
junsdiction over the case due to the appeal. See . $35
F.2d 343 (6" Cir. 1976) regarding the procedure for a District Court to act on a Rule 60(b)

motion to vacate a judgment that is on appeal.
D-1 the docket in compliance with

Rule 58 ee

(500

petition; (2) Tennessee Supreme Court Rule 39 is a “new” rule of
law; and (3) Abu-Ali Abdur’Rahman is not entitled to relief,
despite egregious prosecutorial misconduct, including deliberate
falsification of evidence pivotal to the death sentence.
Application, Docket No. 269, p. 1.
For the reasons stated in the pnor Order (Docket No. 267), the Court finds that it does not
have jurisdiction to rule on Petitioner’s Application for Certificate of Appealability.
The Clerk shall send a copy of this Order to the Clerk of the Sixth Circuit Court of
Appeals.
It is so ORDERED.

TODD J. 4G

UNITED STATES DISTRICT JUDGE

a
L.

poe

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ABU-ALI ABDUR' RAHMAN

No. 3:96-0380
JUDGE CAMPBELL

v.

RICKY BELL

ORDER

Petitioner, Abu-Ali Abdur’ Rahman, has been sentenced to death by electrocution for first
degree murder. He has filed a Petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging both his conviction and sentence. The Court held an evidentiary hearing in this
matter beginning on February 6, 1998. For the reasons set forth in the accompanying
Memorandum, the Court issues the wrt of habeas corpus as to Petitioner's death sentence, but
denies issuance of the wmit as to Petitioner's conviction.

Accordingly, the Court vacates Petitioner's sentence of death, and remands this case to
the State of Tennessee for further proceedings not inconsistent with this opinion. Petitioner shall

remain incarcerated as descnbed in the Memorandum.

It is so ORDERED. “ | ad C 7 |
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
This document was entered on

the docket in compliance with
Rule 58 andior Rule 79\g)

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

2)

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

MIDDLE DISTRICT OF TENNESSEE — ie
NASHVILLE DIVISION The jury, as a result, did not hear significant mitigating evidence before deciding whether to

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

-ALI ABDUR'’ RAHMAN
ABU mental history or bad childhood, cannot be sentenced to death However, a sentence of death

i

No. 3:96-0380 : ituti in thi
v ame TT must be imposed in accordance with the Constitution and in this case was not. This is not a case
K
RICKY BELL where counsel presented the jury with most of the available mitigation evidence and merely
missed some evidence. This is not an instance of harmless error Despite an abundance of
, mitigating evidence, there was virtually a complete failure by counsel to present a defense to the

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

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

corpus must issue as to Petitioner's death sentence.

Il. Proceedings in the State Courts
Petitioner was tned and convicted of first degree murder, assault with intent to commit

§ 2254, challenging both his conviction and sentence. The Court held an evidentiary hearing in
this matter beginning on February 6, 1998. For the reasons set forth below, the Court issues the

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

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

Petitioner's conviction.

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

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

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

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

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

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

- Petitioner has changed his name from James Lee Jones to Abu-Ali -
This documRb&tt’ Rahman
the docke! in cO™} « |

~ Rule 58 andior kure NIG -

FROP, on LI4E +, c |
£2 Coa

E-3

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

on each of the other offenses, to be served consecutively to each other. (Addendum |, at 13-14).
Petitioner was represented at tnal by Lionel Barrett and Sumter Camp. After trial, Mr.

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

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

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

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

The state court appointed another attorney to assist Mr. Dinkins in the post-conviction
proceedings, who was joined by a volunteer lawyer from the Capital Case Resource Center.
(Addendum |1, Technical Record, at 23, 50, 82). The post-conviction trial court found trial
counsel had been ineffective in their representation of Petitioner at sentencing. (Addendum ! |, at
81-109). The court, however, went on to find that trial counsel's deficiencies did not result in
prejudice to the Petitioner and rejected al! other claims. (d.) The Tennessee Court of Criminal
Appeals’ affirmed that judgment, and the Tennessee Supreme Court denied Petitioner's
application for permission to appeal. Jones v. State, 1995 WL 75427, at *2 (Tenn. Crim. App.
Feb. 23, 1995)

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

: The court also determined that, if the death sentence were to later be reduced to a
life sentence, that sentence would be served consecutively to the other life sentences. (Addendum
|, at 14). In addition, the state sentences would be served consecutively to the federal sentence
for which Petiuoner was on parole when he was convicted of the state offenses. (Id.)

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

E-4

went to the victims home. Petitioner wants to describe the events that took place
after that as a misguided attempt to nd the community of drug dealers, as it
Codefendant, Mr. Miller, testified for the State, however, and he described the
motive for the visit as robbery. The victim, Patrick Daniels, lived with Norma
What happened next is described in the appellate decision.
The victim in this case was bound, gagged, and blind
folded with duct tape. He was distressed, crying, and begging not
to be hurt. Defendants stood over him and stabbed him six (6)
times, four (4) times penetrating the heart. He then watched as the
mouth. His accomplice testified, “he was working himself up on a
rhythm,” he was “cool” and “under control.” The victim continued
to plead with the defendant as he was being stabbed.

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

(Addendum 11, 83-84). ‘
Ill. Proceedings in this Court
Prior to the evidentiary hearing in this case, the Court denied Petitioner's motion for

summary judgment on his claims that the tnal court's sentencing instructions regarding the
heinous, atrocious, or cruel aggravating circumstance, and unanimity (Amended Petition,

$4 C7(1), (4), C8) were unconstitutional. (Docket Nos. 123, 124). The Court granted summary
judgment to the Respondent on the following claims. the Batson challenge (Amended Petition, at
4 C2(2)); exclusion of jurors based on religious beliefs (¢¥ C2(3),(4)); failure to exclude certain
jurors for cause (§ C2(5)); sufficiency of evidence of robbery and first degree murder ({ C3),
inadequate proportionality review (§ C9), prosecutor's questions during guilt phase ({ D4),

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

E-5

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

Gospel Ministry ({ D8(4)). (Docket Nos. 156, 157). The Court denied summary judgment on
Petitioner's conflict of interest and ineffective assistance of counsel claims, having found the
existence of a factual dispute. (Id.) The Court denied Respondent's motion for summary
judgment on procedural default issues because Petitioner raised factual issues regarding actual
innocence in response to the motion. (Docket Nos. 133, 134).‘

IV. Procedural Defenses
A. Generally

Respondent argues that the Court should not reach the merits of several of Petitioner's
claims because Petitioner failed to raise those claims in state court, and has, therefore,
procedurally defaulted those claims. Petitioner argues that none of his claims are procedurally
defaulted because: (|) al! the claims Petitioner raises have been presented to the state courts,
(2) the ineffectiveness of Petitioner's counsel in the state courts and prosecutorial misconduct
provide cause for any failure to raise a claim, and (3) Petitioner is actually innocent of the crime
for which he has been convicted, and of the death penalty.

Subsections (b) and (c) of 28 U.S.C. § 2254 require a habeas corpus petitioner to exhaust
the remedies available to him in state court before raising claims in federal court. If the
petitioner has no remedy currently available in state court, however, the exhaustion requirement
is satisfied. Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2080 (1996); Teague v. Lane, 489
U.S. 288, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989).

. Respondent also filed a Motion in Opposition to an Evidentiary Hearing (Docket
No. 110), which the Court denied. (Docket No. 116).

E-6

Although a claim may be fully exhausted under these circumstances, the petitioner's
failure to assert the claim in state court may constitute procedural default. jd. As a general rule,
procedural default bars the petitioner from raising claims in a federal habeas corpus proceeding
that he failed to raise in state court. [d, A petitioner may avoid this procedural bar by showing
cause for the default, and that prejudice resulted from the default, or by showing that he is
actually innocent. [d.; Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L_Ed.2d 808 (1995).

B. Exhaustion

First, Petitioner argues that his claims are not procedurally defaulted because they have
all been exhausted. Exhaustion requires that petitioners “fairly presen{t]” federal claims to the
state courts to provide them with an opportunity to correct alleged violations of its prisoners’
federal rights. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, $12, 30 L.Ed.2d 438 (1971). A
claim has been “fairly presented” if the petitioner identified the specific constitutional guarantee
allegedly vio.ated, as well as a statement of the facts which entitle the petitioner to relief. Gray,
116 S.Ct. at 2081.

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

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

E-7

Petitioner argues that many of his claims’ are exhausted because the Tennessee Supreme
Court had the independent duty to review each claim that could be based upon the record on
appea! even if the claim was not raised by the Petitioner. Petitioner cites Tennessee Code
Annotated Section 39-2-205(a), which was in effect at the time of Petitioner's trial, to support his
argument.

That statute provided for automatic direct review by the Tennessee Supreme Court where
the death penalty has been imposed. Tenn. Code Ann. § 39-2-205(a). The statute required that
the court review the death sentence to determine: (1) whether the sentence was imposed in an

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

’ Those claims are as follows: whether the indictments against Petitioner violated
his Fifth, Eighth and Fourteenth Amendment nghts (Amended Petition, 4 C1); whether Petitioner
was denied his nghts under the Sixth, Eighth and Fourteenth Amendments because he was not
permitted to question potential jurors in voir dire regarding their beliefs about parole eligibility (4
C2(1)), whether the evidence was sufficient to support Petitioner's conviction of assault (4
C3(3)); whether the trial court erred in instructing the jury that it could return a verdict finding
Petitioner guilty of either premeditated murder, felony murder, or both (J C4(1)); whether voir
dire, arguments and instructions to the jury unconstitutionally defined the elements of
premeditation and deliberation in a manner that violated Tennessee law ( C4(2)); whether the
trial court erred instructing the jury regarding lesser included offenses (§ C4(3)); whether the trial
court erred by failing to instruct the jury that accomplice testimony must be corroborated by
independent evidence (§ C4(4)); whether the trial court gave an erroneous definition of
reasonable doubt in its instructions to the jury by use of the language “moral certainty” (4 C4(5),
4 C7(3)), whether Tennessee law unconstitutionally prohibits presentation of certain specified
issues at a capital sentencing hearing ({ C5), whether the tal court unconstitutionally instructed
the jury regarding the felony murder aggravating circumstance (§ C7(2), 4 C8); whether the trial
court unconstitutionally instructed the jury that sympathy could not be a factor in its sentencing
decision (§ C7(5)); whether the sentencing instructions as a whole were unconstitutional (§ C6);
whether jury instructions regarding mitigating circumstances at the sentencing phase of the trial
were unconstitutional (F§ C7(6),(7),(8),(9),(10),(1 1),(12),(13),(14),(15)); whether the Tennessee
Death Penalty Statute is unconstitutional (§ C10), whether the prosecution made improper
closing argument at the guilt phase of trial regarding the term “pure pleasure” (§ D5(4)); and
whether the prosecution's argument dunng sentencing violated Petitioner's constitutional rights
(44 D8(1 )-(3),(5)-(8)).

E-8

circumstance(s), (3) whether the evidence supported the finding of the absence of any mitigating
circumstances sufficiently substantial to outweigh the aggravating circumstance(s) so found; and
(4) whether the death sentence is disproportionate to the penalty imposed in similar cases. Tenn.
Code Ann. § 39-2-205(c) (repealed and replaced by Tenn. Code Ann. § 39-13-206(c)(1)).

The Court is not persuaded that this statute excuses the requirement that the Petitioner
present issues to the state courts in the first instance, at least with respect to issues not
specifically delineated in the statute. Accepting Petitioner's argument would essentially
eviscerate the exhaustion requirement because defendants would have no incentive to raise issues
in the state court. The exception Petitioner advocates would also undermine the principles of
comity and federalism upon which the exhaustion requirement is based. Coleman v. Thompson,
$01 U.S. 722, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). Accordingly, the statutory
requirement that the Tennessee Supreme Court review a death sentence does not satisfy the
exhaustion requirement as to those issues not addressed in the statute.*

Petitioner argues that the exhaustion doctrine does not require a petitioner to seek
discretionary review of a claim before the state’s highest court. Petitioner argues that
presentation of claims to the Tennessee Court of Cnminal Appeals on appeal of the denial of his
post-conviction petition was sufficient for purposes of exhaustion because that was the last court
to which he was entitled to appeal as of nght. Although there is a split of authority on the issue,
see Dolny v. Erickson, 32 F.3d 381, 383-84 (8th Cir. 1994)(and cases cited therein), the Sixth

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

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

E-9

court in order to satisfy the exhaustion requirement. Silverburg v. Evitts, 993 F.2d 124, 126 (6th
Cir. 1993). That the Tennessee Supreme Court exercises only discretionary review of post-
conviction matters, therefore, does not excuse the Petitioner from raising his claims before that
court.’

Petitioner argues other claims are exhausted for various reasons. First, Petitioner argues
that he has exhausted his claim that the evidence at trial was insufficient to support his
conviction of assault by presenting it to the Tennessee Supreme Court in his application for
discretionary review. (Amended Petition, § C3(3)). Petitioner contends that he presented this
claim to the court because it is related to his argument that the evidence was insufficient to
support premeditation and deliberation, in that both claims involve Petitioner's condition at the
time of the offense. The Court is not persuaded, however, that this claim was fairly presented to
the court simply because Petitioner's mental state was a basis for both claims. Thus, Petitioner's
sufficiency of the evidence supporting assault claim has not been exhausted.

With respect to his claim that voir dire, arguments and instructions to the jury
unconstitutionally defined the elements of premeditation and deliberation (Amended Petition, €
C4(2)), Petitioner argues that he raised the substantial equivalent of this claim by arguing that the
evidence was insufficient to support a finding of premeditation or deliberation under State v.
Brown, 836 S.W.2d 530 (Tenn. 1992), a case involving jury instructions on these elements.

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

. Petitioner contends that his ineffective assistance of appellate counsel claim
(Amended Petition, § F) is exhausted based on this argument. Given the Court's rejection of this
argument, the exhaustion doctrine applies to bar this claim.

E-10

whether the court erred in its jury instructions. This claim was not fairly presented to the state
court, and therefore, has not been exhausted

Petitioner next argues that he has exhausted his claim that the mal court erred by failing
to instruct the jury that accomplice testumony must be corroborated by independent evidence
(Amended Petition, § C4(4)). Petitioner contends that he raised the substantial equivalent of this
claim by arguing to the Tennessee Supreme Cour’ on direct appeal that it was fundamentally
unfair to predicate his first degree murder conviction solely on the basis of the uncorroborated
testimony of co-defendant Harold Devalle Miller But, as stated above, resolving Petitioner's
fundamental! fairness claim would not require the court to review the jury instructions on this
particular issue. Accordingly, this claim was not fairly presented to the state courts, and has not
been exhausted.

Petitioner argues that his claim challenging the constitutionality of the Tennessee Death
Penalty Statute (Amended Petition, § C!0) was raised on direct appeal to the Tennessee Supreme

Court, because he stated in his bref.

In addition to the arguments set forth in Section I] A, B, C and D, supra.
defendant submits that, taking this case as a whole, the imposition of the death
penalty was improper and constitutes a depnvation of life without due process of
law and cruel and inhuman treatment.

E-11

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

Despite the language in the heading, the brief does not specify, “as applied to the facts of
this case,” why the death penalty statute is unconstitutional, and what facts support the
constitutional challenge. Under these circumstances, the Court concludes that Petitioner did not
fairly present his constitutional challenge to the Tennessee Supreme Court on direct appeal.

Petitioner also points out that he challenged the “heinous, atrocious and cruel”
aggravating circumstance in his post-conviction application for permission to appeal to the
Tennessee Supreme Court. In a footnote, the bref states: “By discussing only the aggravating
circumstance of ‘heinous, atrocious or cruel,’ infra, the Appellant does not waive any previously
raised constitutional challenges. The Appellant relies on the arguments previously advanced and
ruled upon in his Brief to the Court of Cnminal Appeals.” (Application For Permission To
Appeal, at 2! n.11 (Addendum 15))

Although the Petitioner referred, in this footnote, to the bnef he filed in the Court of
Criminal Appeals, he did not attach a copy of that bnef to the Application. The Court is not
persuaded that referral to arguments made in another document by way of a footnote constitutes a
fair presentation of those arguments to the Tennessee Supreme Court. Thus, the Court concludes
that this claim has not been exhausted.

In his Amended Petition, Petitioner alleges a number of instances of prosecutorial
misconduct, numbered one through eight, with several subissues under each number. Ina
paragraph under the main heading “Prosecutonal Misconduct,” Petitioner states that the

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

E-12

nights (Amended Petition, ({ D)) . Respondent has asserted a procedural default defense to most
of the claims set forth under this heading.

Petitioner argues, however, that the heading “prosecutorial misconduct,” along with the
paragraph following that heading, constitute a separate claim to which the Respondent has not
asserted a procedural default defense. But the Court does not view this paragraph as a separate
claum. The paragraph does not allege specific constitutional violations, nor does it set forth
specific facts in connection with those alleged violations. Therefore, Respondent will not be
considered to have waived his procedural default defense to the prosecutorial misconduct claims.

For this same reason, the Court rejects Petitioner's argument that certain specific
allegations are noi defaulted because they fall within this general prosecutonal misconduct
claim.*

Petitioner contends that his claims regarding the failure to disclose co-defendant Miller's
pretrial statements (Amended Petition, 4§ D1(2) -(4)) were fairly raised to the Tennessee
Supreme Court in his application for permission to appeal because, in that application, he argued

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

. These claims include: whether the prosecution should have disclosed the
statements of Norman's children (¥ D1(5)), the redacted portion of Detective Garafola’s Report
({ D1(6)), other police reports ({ D1(8)), the memorandum in the prosecution's file concerning a
bank account in Patrick Daniels’ name ({ D1(9)), the statement of George Daniels/laboratory
reports (Fj D1(10\11)), and information regarding Petitioner's bank account ({ D1(12)). These
claims also include whether the prosecution unconstitutionally influenced Harold Devalle
Miller's testimony (§ D2(!)), whether the prosecution provided false information to MTMHI (4
D2(2)), whether the prosecution improperly attempted to manipulate Norma Norman's testimony
(§¥ D2(3)); whether the prosecution unconstitutionally misled defense counse! regarding
Petitioner's 1972 murder conviction ({ D3), whether the prosecution made improper closing
arguments at the guilt phase of tial ({{ D5S(1)-(4)); and whether the prosecution's argument
during sentencing violated Petitioner's constitutional nghts ({¥ D8(1 )-(3),(5)-(8)).

E-13

Permission To Appeal, at 9 (Addendum 15)). The Petitioner also argued that the prosecution
committed discovery violations, but did not mention Miller's pretnal statements.

The Court is not persuaded that thus discovery violation claim has been fairly presented to
the Tennessee Supreme Court. Determining whether a prosecutor has made a misleading closing
argument 1s not the same as determining whether the prosecution committed a discovery
violation. Thus, Petitioner has not exhausted this claim

Petitioner next contends that he has exhausted his claim that the prosecution provided
musleading statements to the Middle Tennessee Menta! Health Institute (*MTMHI”). (Amended
Petition, { D2(2)). Petitioner argues that he raised wus claim in his application for permission to
appeal to the Tennessee Supreme Court by reciting the facts upon which the claim is based.
Although Petitioner discussed the prosecutor's letter to MTMHI in the “Statement of the Facts”
section of the application, he did not raise this issue in arguing that the prosecution had engaged
in misconduct. (Application For Permission To Appeal, at xii-xili, 7-19 (Addendum 15)). The
prosecutona! misconduct claims presented to the Tennessee Supreme Court were limited to
Petitioner's allegations that the prosecution failed to disclose certain documents in violation of
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L_Ed.2d 215 (1963), and that the prosecution
made a misleading closing argument (1d.) Although Petitioner alleged facts regarding the
prosecution's letter to MTMHI, he did not identify the constitutional violation allegedly shown
by those facts. Thus, this claim was not fairly presented to the Tennessee Supreme Court, and
has not been exhausted.

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

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

E-14

Petitioner's mental history (Amended Petition, % E1-E2(g)). Petitiener raised the ineffective
assistance of counsel claim in his post-conviction petition, and descnbed twenty-seven alleged
deficiencies by defense counsel. (First Amended Petition For Post-Conviction Relief, at 3-6
(Addendum |1)). As noted above, the trial court held that defense counsel conducted an
inadequate investigation of Petitioner's background and mental health history, but determined
that Petitioner was not prejudiced by that deficiency. (Memorandum and Order of the Fifth
Circuit Court For Davidson County (Addendum 1!1)). The Court of Cnminal Appeals agreed
with that assessment. Jones v. State. 1995 WL 75427 (Tenn. Cnm. App. Feb. 23, 1995).

In his application for permission to appeal to the Tennessee Supreme Court, Petitioner
argued that prejudice had been shown. (Application For Permission To Appeal, at 1-6
(Addendum 15)). Because Petitioner succeeded in demonstrating that tal counsel's
performance was deficient in the lower courts, it was not necessary for the Petitioner to raise all
those deficiencies again in arguing that his appeal of the prejudice issue should be accepted. The
Court concludes that Petitioner fairly presented the ineffective assistance of counsel claims to the
Tennessee Supreme Court.’

In conclusion, the only claims that have been exhausted by Petitioner and remain to be
decided by this Court are: Petitioner's prosecutorial misconduct claims involving certain lab
reports and the transcript from Petitioner's 1972 murder trial (Amended Petition, ¢¥ D1(1), (7)),

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

° For the same reason, the Court also concludes that Petitioner has exhausted his
claim that trial counsel failed to test the adversarial process. (Amended Petition, ¢ A).

E-15

(Amended Petition, $§ A, E1-E2(g))."° With the exception of these claims, Petitioner has failed
to exhaust all the claims to which Respondent has asserted a procedural default defense.
Petitioner may no longer present those claims to the state court, however, because they would be
barred by the statute of limitations. See Tenn. Code Ann. § 40-30-202.'' Thus, because
Petitioner has no remedy currently available in state court, these claims are procedurally
defaulted. See Hannah v. Conley, 49 F.3d 1193, 1196-97 (6th Cir 1995)

C. Cause and Prejudice

Petitioner argues that even if his claims are the subject of procedural default, the default
should be excused because he can establish cause for the default, and that prejudice resulted from
the default. Petitioner also argues that the default should be excused to prevent a fundamental

miscarnage of justice in that he is actually innocent."

- Respondent has asserted a procedural default defense as to Petitioner's claim that
the cumulative effect of all errors at tnal violated Petiuoner’s due process nghts. (Amended
Petition, § B). In his bref, Petitioner indicatés that this is not a separate claim for habeas relief,
but is an argument to be considered in determining whether the state court's alleged errors should
be considered harmless. Therefore, the Court will not consider this argument as a separate claim.

" Section 40-30-202(a) is part of the Post-Conviction Procedure Act of 1995, Tenn.
Code Ann. §§ 40-30-201, ef seg. With some exceptions not applicable here, Section 202(a)
provides that a petition for post-conviction relief must be brought within one year of the date of
the final action of the highest state appellate court to which an appeal is taken. The previous
post-conviction statute required that a petition be filed within three years of the date of the final
action of the highest state appellate court to which an appeal was taken. Tenn. Code Ann. § 40-
30-102 (repealed 1995).

The Tennessee Supreme Court denied Petitioner's petition to rehear, on direct appeal, on
May 14, 1990. (Addendum 7). Therefore, Petitioner would be barred, under either statute, from
seeking to raise these claims through a post-conviction proceeding in state court.

Petitioner also argues that certain state procedural rules should not prevemt
(continued

E-16

)

In order to establish cause, a petitioner must show the procedural default was the result of
ineffective assistance of counsel, or “that some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule.” Murray vy. Camier, 477 U.S. 478,
106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). A petitioner may rely on ineffective assistance of
counsel to establish cause only if he has presented that claim to the state courts as an independent
constitutional claim, and he shows that counsel's incompetence nses to the level! of a
constitutional violation. 106 S.Ct. at 2645-46.

In order to demonstrate that an objective impediment provided cause for a procedural
default, a petitioner may show, for example, that “the factual or legal basis for a claim was not
reasonably available to counsel,” or that “some interference by officials’” made compliance with
the procedural rule impracticable. Murray, 106 S.Ct. at 2645 (citations omitted).

The cause and prejudice standard applies to claims that were defaulted on appeal as well!
as those defaulted at trial. Murray, 106 S.Ct. at 2646

In this case, Petitioner has presented an independent ineffective assistance of tna! counse!
claim that is not procedurally defaulted. Petitioner has not specified, however, any errors made
by tnal counsel that prevented any issues from being raised on appeal In other words, in

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

(...contunued)

adjudication of claims by this Court. It does not appear, however, that Respondent relies on state
procedural rules to bar Petitioner's clams. Instead, Respondent argues that the claims at issue
were not raised at al! in the state courts. See [eague. 109 S.Ct. at 1069. Coleman v. Thompson.
111 S.Ct. at 2557 n. 1

E-17

Petitioner's claims based on the failure of tnal counse! to preserve those issues at tmal. See State
vy Jones, 789 S.W.2d $45 (Tenn. 1990)

Petitioner may not establish cause by alleging the ineffectiveness of appellate counsel! in
failing to present certain issues on appeal because this claim has not been presented to the state
courts. (See Footnote 7, and accompanying text).'’

Finally, Petitioner may not establish cause by alleging that post-conviction counsel were
ineffective in failing to raise certain issues to the state courts. There is no constitutional nght to
an attorney in state post-conviction proceedings, and therefore, a petitioner cannot claim
constututionally ineffective assistance of counse! regarding those proceedings. Coleman, | 1!
S.Ct. at 2566."*

Petitioner also argues that cause is established by the “widespread prosecutonal abuse
and judicial bias” which tainted the tna! and prevented post-conviction counsel from gaining “an
adequate picture of the circumstances surrounding the cmme and Petitioner's life.” (Petitioner's
Memorandum In Response To Respondent's Summary Judgment Motions And In Support Of An
Evidentiary Hearing, at $0 (Docket No. 113)). Petitioner does not, however, specify how failure
to raise a particular claim on direct appeal or dumng the post-conviction proceeding was umpeded

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

as In any event, the Court notes that a defendant does no have a constitutional nght
to have every nonfrivolous issue raised on appeal. See Jones v. Barnes. 463 US. 745,103 SC
3308, 3312-14, 77 L.Ed. 2d 987 (1983).

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

ineffective assistance of post-conviction counsel.” (Petitioner's Response To Motion To Compe!
Disclosure Of Documents From His State Court Attorneys’ Files, at 2 (Docket No 140))

E-18

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

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

D Actual lonocence

A petitoner who is unabie to demonstrate cause and prejudice for a procedural default
may nonetheless avoid a procedural default bar by demonstrating that he 1s actually innocent
Murray, 106 S.Ct. at 2649. In order to fall within the actual innocence exception to the
procedural default bar, a petitioner must provide evidence that negates an element of the cnme
for which he was convicted, or demonstrates that he was not eligible for the death penalty under
the applicable state law. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 2521-22, 120 L.Ed. 2d
269 (1992).

A petitioner who claims he is actually innocent of the cnme for which he was convicted
must show that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Schlup, 115 S.Ct. at 867 (quoting Murray v. Carer, 106 S.Ct. at 2649-2650).
“To establish the requisite probability, the petitioner must show that it is more likely than not
that no reasonable juror would have convicted him in the light of the new evidence.” ld. This
standard requires “a stronger showing than that needed to establish preyudice.” [d. (footnote
omutted).

To be credible, this claim of actual innocence “requires petitioner to support his
allegations of constitutional error with new reliable evidence -- whether it be exculpatory

E-19

scientific evidence, trustworthy eyewitness accounts, or cntical physical evidence -- that was not
presented at tral” Schlup, 115 S.Ct. at 865

In order to esiablish actual unnocence of the death penalty, a petitioner must provide
“clear and convincing evidence that, but for a constitutuonal error, no reasonable juror would
have found the petitioner” eligible for the death penalty under the applicable state law Sawyer
112 S.Ct. at 2517. In order to make this showing, the petitioner must focus on those elements
which render a defendant eligible for the death penalty, ¢.g., aggravating circumstances, and not

on additional mitigating evidence that was not introduced at sentencing. Sawyer, 112 S.Ct. at
2523

Petitioner claims he 1s actually innocent of first degree premeditated murder based on (| )
the tesumony of a forensic pathologist regarding blood splattering at the scene of the stabbings.
(2) the testumony of a psychiatric expert that Petitioner was insane at the tume of the stabbings,
and lacked the capacity to deliberate and premeditate, and (3) the lack of credibility of the
testimony of the co-defendant, Harold Devalle Miller. Petitioner also claims he is actually
innocent of felony murder because there was insufficient proof of the underlying felony -- theft.'°

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

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

- Although he mentions it in his bnef, Petitioner does not appear to have asserted a
freestanding actual innocence claim (that execution of one who 1s actually innocent violates the
Eighth Amendment) in his Amended Petition. In any event, the standard for this claim is even
higher than that set forth in Schlup Therefore, the Court is not persuaded that Petitioner has
established actual innocence as a separate claim. Schiup, 115 S.Ct. at 860-62; Herrera v. Collins.
$06 U.S. 390, 113 S.Ct. 853, 122 L-Ed. 2d 203 (1993). Cammiger v. Stewart, 132 F.3d 463, 476-77
(9th Cir. 1997)

E-20

wounds splattered on his body and his clothing. (Transcript of Hearing Beginning on February 6,
1998 (“Transcript”), at 37-38, 77). Petitioner points out, however, that crime lab reports indicate
there were no blood stains found on clothes, a coat and two pair of work pants, seized from the
Petitioner's apartment two days after the stabbings. (Lab Report, Petitioner's Exhibit 117; Search
Warrant, Petitioner's Exhibit | | 5).

On the other hand, there is no evidence that during the stabbings, Petitioner was wearing
a black coat when he arrived at the apartment. (Addendum I, at 1342-1343). Because Petitioner
taped her eyes before the stabbings were committed, however, she could not testify that he was
wearing the coat during the stabbings. (Addendum I, at 1375-1378). There was no evidence that
he was wearing one of the two pair of pants seized from his apartment two days after the
stabbings, or that he had not disposed of the pants worn during the cnme.'*

Although this evidence may have provided a good argument for defense counsel to raise
to the jury, the Court is not convinced that reasonable jurors probably would not have convicted
Petitioner if they had been presented with this evidence.

Moreover, both Dr. Sperry and Petitioner conveniently overlook the fact that Petitioner
admitted that he was guilty at the sentencing phase of the mal:

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

individual that committed these particular felonies or assaults upon these two
people. But | don’t remember -- you know, | don't remember too much of why

= Petitioner's failure to dispose of his coat may be explained by his fondness for the
coat, which was given to him by his wife as a birthday gift. (Addendum I, at 1454-1455).

E-21

that all of a sudden came to me. Al! | know is that I'm the man that stabbed Mr.
Danie! Patricks (sic) and I'm the man that assaulted Ms. Norma Jean Norman.

(Addendum I, at 1865).

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

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

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

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

left.

(Addendum I, at 1866-67).
Q. And you heard Mr. Miller testify from the very seat that you're in right
now, that you were the man who stabbed Mr. Daniels to death. And you knew it
when you were setting there, that that was true, didn’t you?
A. That | was the man, yes.
(Addendum I, at 1893. See also Addendum |, at 1894, limes 7-10; 1957, lines 18-19; 1961, lines
22-25; 1968, lines 19-23).

Next, Petitioner argues that the testimony of Dr. Robert Sadoff supports his claim of
actual innocence. Dr. Sadoff opined that, at the time of the stabbings, Petitioner was insane
because he lacked the substantial capacity to conform his conduct to the requirements of the law.
(Transcript, at 523-524).'’ Dr. Sadoff testified that Petitioner was suffering from Post-Traumatic
Stress Disorder, which is a mental illness. (Tramscript, at 455, 457). Dr. Sadoff also diagnosed
Petitioner as having a Borderline Personality Disorder, a mental disorder. (]d.)

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

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

This was the applicable stamdard for establishing an insanity defense under
Tennessee law at the time of Petitioner's trial. See, ¢.g., State v. Clayton, 656 S.W.2d 344, 346
(Tenn. 1983).

E-22

~ er etree ee

crime, and Dr. Sadoff admitted that the passage of time made it more difficult for him to render a
diagnosis. (Transcript, at 584-585). On the other hand, a mental evaluation of the Petitioner
conducted shortly after the stabbings found that Petitioner was competent to stand trial, and that
an insanity defense could not be supported. (Petitioner's Exhibit 150). The evaluation was
performed by the staff of MTMHI after observing the Petitioner over a thirty-day period in
residence. (Id.) Dr. Craddock, who was a member of the MTMHI team that evaluated Petitioner,
testified at the hearing in this case. (Transcript, at 83-163). Although the MTMHI staff did not
possess all the Petitioner's previous institutional records at the time they made their diagnosis,
that diagnosis should not be given less weight than one made twelve years later.

In addition, Dr. Sadoff's opinion is based primarily on Petitioner's claim that he could
not remember the stabbings. (Transcript, at 569). Consequently, Dr. Sadofff opined that
Petitioner was probably “dissociating” at the time of the stabbings. (Transcript, at 517-518). As
a result, according to Dr. Sadoff, if Petitioner was dissociating, he lacked substantial capacity to
conform his conduct to the requirements of the law, or to engage in premeditation and
deliberation. (Transcript, at 523-524, 564).

But Petitioner has not always professed an inability to recall the stabbings. The MTMHI
records indicate that Petitioner stated he “remembers everything that happened” at the time of the
sattings. CCTHEE Stell Confrence Regen dated February i?, 1987, Petitioner's Exhibit 150;
Transcript, at 97). Nor has Petitioner adhered to the same story. Shortly after his arrest,
Petitioner claimed that a third party, Sam Blackstock, was involved in the stabbings. (Transcript,
at 210-212). That story turned out to be false. ([d.) Finally, although Petitioner insists that the

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

E-23

Dad

admitted his guilt at that time. (Addendum I, at 1865-1867; 1893-1894; 1957; 1961; and 1968).
Because Dr. Sadoff's opinion strongly relies on the questionable, self-serving statements of the
Petitioner, the Court does not attach a great deal of weight to that opinion."*
Petitioner also argues that he is actually innocent because the testimony of co-defendant
Miller, which indicated that Petitioner committed the stabbings pursuant to a preconceived plan,
is not credible. But this argumeni is not supported by any “new” evidence, as contemplated by
Schlup, 115 S.Ct. at 865. See also McCoy v. Norris, 125 F.3d 1186, 1190-91 (8th Cir. 1997).
Furthermore, the Court is not persuaded that pointing out every inconsistency in Miller’s
testimony would have led the jury to change its verdict. See Sawyer, 112 S.Ct. at 2524 (evidence
“brought forward to impeach a prosecution witness will seldom, if ever, make a clear and
convincing showing that no reasonable juror would have believed the heart of [the witness’ ]
account of petitioner’s actions”). In other words, Petitioner has failed to show that “no
reasonable juror” would have voted to find him guilty in light of Miller's credibility problems.
Petitioner also fails to present new evidence regarding the robbery. Instead, Petitioner

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

o These would include the statements made by the Petitioner while under hypnosis.
Dr. Sadoff admitted that there is no way to determine whether the statements made by the
Petitioner while under hypnosis are objective fact. (Transcript, at 504-505, 507, 508, 572, 575).
The Court notes that Petitioner did not testify at the hearing to memories purportedly recalled
during hypnosis.

During the hearing, the Court held that the hypnosis tape offered by the Petitioner was
admissible for the limited purpose of establishing what Dr. Sadoff relied upon in forming his
opinion. (Transcript, at 505-516). The Court also determined that the hypnosis tape did not
satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc,, 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), and declined to admit the statements made on the tape for
the truth of the events leading up to and include the stabbings. (Id.).

E-24

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

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

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

reasonable doubt. Consewuently, Petitioner has failed to show that “no reasonable juror” would
have voted to find him guilty in light of Petitioner’s arguments regarding the lack of sufficient
evidence.

Petitioner also argues that this new evidence also shows he is actually innocent not only
of the crime, but also of the death penalty. As discussed above, the Schlup Court has pointed out
that the standard for establishing actual innocence of the death penalty, set forth in Sawyer, is
stricter than that required to show actual innocence of the capital crime. The stricter standard
requires Petitioner to provide clear and convincing evidence that, but for a constitutional error,
no reasonable juror would have found him eligible for the death penalty. For the reasons
explained above, the Court concludes that Petitioner has not shown actual innocence of the death
penalty.

Because Petitioner has not established cause and prejudice, or actual innocence, he may
not avoid the procedural default of the claims to which Respondent has asserted a procedural
default defense. Accordingly, the Court will only address the following claims: Petitioner’s
prosecutorial misconduct claims involving certain lab reports and the transcript from Petitioner's

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

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

E-25

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

Prior to the hearing in this case, the Court denied Petitioner's motion for summary
judgment on his claims that the trial court’s sentencing instructions regarding the heinous,
atrocious, or cruel aggravating circumstance, and unanimity (Amended Petition, ¥] C7(1), (4),
C8) were unconstitutional. (Docket Nos. 123, 124). For the reasons stated in that opinion, those
claims are without merit, and are dismissed. |

VI. Brady Violations

As noted above, two of Petitioner's Brady’ claims have been exhausted and are properly
before this Court. Petitioner claims that the prosecution should have provided trial counsel with
the transcript of his trial in 1972 for murder because, he contends, it would have supported an
insanity or mental illness defense. (Amended Petition, {] D1 (1)). Petitioner also claims that the
prosecution should have provided the crime lab analysis indicating that no blood was fourid on
the clothes seized from Petitioner's apartment. (Amended Petition, § D1! (7)).

In a series of cases beginning with Brady v. Maryland, 83 S.Ct. at 1196-97, the Supreme
Court has held that the prosecution must disclose exculpatory evidence to the defense, with or
without request. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976);
United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Suppression of
this evidence violates due process if the evidence is material either to guilt or to punishment,

regardless of the good faith of the prosecutor. Id.

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

E-26

Withheld evidence is material “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.”
Bagley, 105 S.Ct. at 3383. A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome. 105 S.Ct. at 3384. A showing of materiality does not require the
defendant to show that the suppressed evidence would have resulted in the defendant's acquittal.
105 S.Ct. at 3383-84. Materiality is concerned with whether suppression of the evidence
undermines confidence in the outcome of the trial. 105 S.Ct. at 3381.

The Supreme Court recently reaffirmed this standard for determining materiality in
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995). The Court
pointed out that “materiality” is not a sufficiency of the evidence test, which would require a
defendant to show insufficient evidence to convict after discounting the inculpatory evidence in
light of the undisclosed evidence. 115 S.Ct. at 1566. Rather, the defendant must show that “the
favorable evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Jd, (footnote omitted).

The Court explained that in considering materiality, a reviewing court is to assess the
collective effect of the suppressed evidence in light of the evidence presented at trial. 115 S.Ct. at
1567. Finally, the Court pointed out that, once constitutional error is found under this standard,
there is no need for further harmless-error review because the error cannot be found harmless.
115 S.Ct. at 1566-67.

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

of Criminal Appeals considered this issue as follows:

E-27

Appellant next contends that his conviction and sentence were the result of
prosecutorial misconduct because the state failed to provide him with exculpatory

material as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). In order to estabiish a violation of Brady, appellant must

prove (1) the prosecutor suppressed evidence, (2) that the suppressed evidence
would have been favorable to the defendant and (3) the materiality of the

suppressed evidence.
The evidence claimed to have been suppressed consisted of the transcript
of the defendant's 1972 federal murder trial, lab reports on clothing seized from
appellant’s apartment, a police report about appellant’s violent behavior at the
time of his arrest, statements by his accomplice, Harold Devalle Miller, a police
report suggesting that property belonged to one victim rather than the other, and
information relative to the appellant’s bank account. None of the above evidence
was favorable to the defense. We find no merit to the appellant's claim of
prosecutorial misconduct.
Jones v. State, 1995 WL 75427, at *3 (Tenn. Crim. App. Feb. 23, 1995).
Whether a Brady due process nights violation has occurred presents a mixed question of
law and fact which is reviewed de novo. Brown v. Cain, 104 F.3d 744, 750 (Sth Cir. 1977);

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

In 1972, Petitioner was tried in a Virginia federal court for the murder of a fellow
prisoner, Michael Stein. (Petitioner's Exhibit 131). He was convicted of second degree murder.
(Exhibit 105). At that trial, a otiate, Dr. Asot M. Masri, opined that Petitioner had been in
a “homosexual panic” when he stabbed Stein.” (Petitioner's Exhibit 131, at 48). He testified that
the Petitioner had a Borderline Personality Disorder and Schizoid Personality. (Petiticner’s

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

a Dr. Masri characterized homosexuality as a mental disease. (Petitioner's Exhibit
131, at 51).

_E-28

opined that Petitioner was not suffering from a mental disease when he stabbed Stein.
(Petitioner's Exhibit 131, at 57-58, 59, 66). -

Petitioner argues that this evidence was exculpatory because the State argued at trial that
Petitioner did not suffer from any emotional disturbance. -

There is no dispute that the prosecutor had this transcript in his possession at some point
before trial began. There is also no dispute that he did not provide the transcript to the defense.”'
Respondent contends that the state court was correct in concluding that the transcript was not
favorable to the defense because neither psychiatrist opined that the Petitioner was insane.

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

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

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

“ During the hearing, the prosecutor explained his reasoning:

Based on all the testimony, I concluded for two reasons,
one the lapse of time or I guess you might say the distance in time
between the two events and what I call very weak testimony from
the defense psychiatrist at the trial, that it was not exculpatory,
would have no bearing on explaining whether at the time of this
crime he had a mental illness or suffered from any kind of
emotional snapping, because the situation in the federal prison was
one where even taken in light most favorable to the defendant was
triggered as a result of a sexual assault on him.
That wasn’t the case here where the defendant sought out
the victim and went to the victim and pursued the victim.
(Transcript, at 1015-16).
As for mitigation, the prosecutor testified that his interpretation of the psychological
testimony was that during the previous killing, the Petitioner “got angry and snapped.”

(Transcript, at 1016). There was no evidence, according to the prosecutor, that there were any
external circumstances operating on the Petitioner during the 1986 crime. (Id.)

E-29

however, that the prosecution's failure to provide the transcript to defense counsel rises to the
level of a due process violation because Dr. Masri's testimony was not “material.”

In a later section of this Memorandum, the Court concludes that Petitioner received
ineffective assistance of counsel because his trial counsel failed to investigate his mental health
history, background and other areas of mitigation. The Court is not persuaded, however, that
“the proceeding would have been different” if the prosecution had disclosed Dr. Masri’s
testimony to Petitioner's trial counsel. Petitioner's trial counsel already had various clues that
should have led them to investigate Petitioner's mental health history, such as the records of
Petitioner's evaluation at MTMHI before trial, and conversations with Petitioner’s wife. There is
no reason that Dr. Masri’s testimony should have been the key element prompting Petitioner's
counsel to take action.

Similarly, admission of this testimony as an item of evidence during the guilt phase of the
trial would not have affected the result. Had Petitioner's defense counsel hired an expert to opine
that Petitioner was insane at the time of the stabbings in 1986, Dr. Masri’s testimony about an
incident in 1972 could have supported that opinion, but it certainly would not have been vital.
Absent an insanity defense, there would be no reason to admit this evidence relating to a prior
crime during the guilt phase of the trial.

As for the sentencing phase, Dr. Masri’s testimony would have served as an item of
mitigation relating both to the prior murder conviction, and to his mental history. But that

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

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

E-30

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

As for the lab reports finding that no blood was found on clothing seized from
Petitioner's apartment, there has been no evidence that the prosecutor kept this evidence from the
defense. The prosecutor testified that he provided the lab reports to Petitioner's first trial
counsel, Neal McAlpin, and Mr. McAlpin testified that he received them. (Transcript, at 223-25,
227, 925). Furthermore, the prosecutor testified that he filed the reports with the trial court as
part of his response to the Petitioner's discovery request. (Transcript, at 911, 926; Supplemental
Response Number Two To Defendant's Request For Discovery, Exhibit 19). Under these
circumstances, the Court concludes Petitioner's Brady claim regarding these lab reports is
without merit.

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

VII. Trial Counsel's Conflict of Interest

Petitioner claims that one of his trial attorneys, Lionel Barrett, had an irreconcilable
conflict of interest in representing Petitioner because he was paid a $5,000 retainer by
Southeastern Gospel Ministry (“SEGM”) member Alan Boyd to represent the Petitioner, and was
promised an additional $10,000 that was never paid (Amended Petition, at § E1).” Sometime
after his arrival in Nashville, Petitioner joined SEGM, a nascent religious group that had as its

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

= $5,000 was inadequate to investigate and prepare this complex case for trial.
E-31

drug dealing. (Addendum 11, at 15-16). Petitioner's boss, Alan Boyd, co-defendant Miller, and
William Beard were also members of the group. (1d.). Petitioner and co-defendant Miller both
worked for Mr. Boyd at National Baptist Publishing.
Boyd and SEGM allegedly knew about and took part in the plan to visit the apartment of Patrick
stabbings. According to the Petitioner, Mr. Boyd retained Mr. Barrett and refused to pay him the
full retainer with the effect of preventing Mr. Barrett from investigating the role of SEGM and
Mr. Boyd in the crime.

In order to establish a Sixth Amendment violation, the Petitioner must show that an
actual conflict of interest affected his lawyer's performance. Burger v. Kemp, 483 U.S. 776, 107
S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987); United States v. Mays, 77 F.3d 906, 908 (6th Cir.
1996).” Whether facts give rise to a conflict of interest is a mixed question of fact and law,
which is to be reviewed de novo. Mays, 77 F.3d at 908.

In reviewing the denial of Petitioner's post-conviction petition, the Tennessee Court of
Criminal Appeals found that Mr. Barrett did not know the funds he received came from SEGM
member Alan Boyd. Jones v. State, 1995 WL 75427, at * 3 (Tenn. Crim. App. Feb. 23, 1995).

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

SORE ENO eT eT

= To the extent Petitioner argues that he is not required to show that the conflict
“affected his lawyer's performance,” this argument has been soundly rejected. See, e.g,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2067, 80 L_Ed.2d 674 (1984); Wilson
v. Rogers, 125 F.3d 856 (Table), 1997 WL 615767 (6th Cir. Oct. 3, 1997).

E-32

Mann, who delivered the money to Mr. Barrett, testified at the post-conviction hearing that she
told Mr. Barrett that the money came from Mr. Boyd. (Addendum !1, at 13).

Both Mr. Barrett and Ms. Mann testified in a hearing before this Court. Mr. Barrett was
quite certain he was not aware the funds came from Mr. Boyd. (Transcript, at 294, 410). Ms.
Mann, on the other hand, was more tentative:

Q. Did you tell him where the money came from?

A. I don’t remember that. I don’t know if 1 told him or not . I probably did. |

don’t know.

Q. In the post-conviction proceeding you testified you did tell Mr. Barrett?

A. Probably so.

Q. Can you testify to that today?

A. That I told him?

Q. Yes.

A. I don’t remember. I don’t know. I might have told him. If! say I told him

back then, I did then tell him.

(Transcript, at 1281). In her subsequent testimony, Ms. Mann was a bit more definite that she
had told Mr. Barrett the source of her funds, Mr. Boyd, would not be providing any more funds.
(Transcript, at 1288).

Based on the testimony of Mr. Barrett and Ms. Mann, the Court concludes that Mr.
Barrett was not aware that Mr. Boyd was the source of the fee, even if Ms. Mann happened to
mention it in a conversation with him. Even if Mr. Barrett was aware of the source of the fee, the
Court is not persuaded that it affected his representation.

Petitioner argues that the conflict of interest led Mr. Barrett to fail to request attorneys’
fees and funds for expert support services. Petitioner also argues this conflict led Mr. Barrett to

delay representation and to refuse to ask for a continuance.

E-33

In order to accept Petitioner's argument, the Court must find that the source of Mr.
Barrett's fees had interests contrary to Petitioner's interest. But, as noted above, the Petitioner
himself testified at sentencing that SEGM did not order him to commit the crimes for which he
was convicted.

Moreover, even if Mr. Boyd's interests were adverse to Petitioner, Mr. Barrett certainly
did not protect the interests of SEGM or Mr. Boyd during the trial and sentencing. Mr. Barrett
elicited testimony about another SEGM member, William Beard, during cross-examination of
Mr. Miller at the trial. (Addendum 1, at 1527, 1567). He also elicited testimony about SEGM
from the Petitioner at the sentencing hearing, including testimony that Mr. Boyd supplied him
with a shotgun, and William Beard supplied Mr. Miller with a pistol. (Addendum 1, at 1837-
1848, 1855-1856). Mr. Barrett also mentioned the Petitioner's connection with the group

during his argument. (Addendum |, at 1960). In addition, Mr. Barrett issued subpoenas for Mr.

Boyd and Mr. Beard to appear at the trial. (Transcript, at 358).
During the evidentiary hearing in this Court, in response to a question by the Court, Mr.

Barrett stated:

= According to co-defendant Devalle Miller's testimony at the post-conviction
proceeding, Alan Boyd met with Petitioner and Miller nght after the murder of Patrick Daniels,
and William Beard helped Miller leave town shortly thereafter. (Addendum 11 at 26-30). Mr.
Boyd purchased the shotgun carried by Petitioner during the murder from a gun dealer in 1983,
according to a firearms trace report. (Docket No. 200).

Alan Boyd and William Beard both asserted their Fifth Amendment privilege against

self-incnimination at depositions taken in this case. Boyd and Beard effectively refused to answer

any questions. (Petitioner's Exhibits 148, 149).
E-34

Your Honor, | am as certain as a person can be from something that
happened 10 years ago that | absolutely had no knowledge that these funds came

from Mr. Boyd. =
For the sake of argument only -- even if I had been told these funds came

from Allen Boyd, | would have had absolutely no hesitancy in going after him in
any way I could and would think he had wasted his money if that is what he was
attempting to do.

I am absolutely certain that there was no decision, no single issue of
strategy, not one question that Mr. Camp or | asked or did not ask had anything to
do with the source of the funds that came from Ms. Hughes or from Allen Boyd.

(Transcript, at 410).

The Court is not persuaded that any alleged conflict of interest affected the performance
of Mr. Barrett at trial or sentencing. Accordingly, Petitioner's conflict of interest claim is
without merit, and is dismissed.

VIII. Ineffective Assistance of Counse}
A. Generally

Petitioner contends that trial counsel was ineffective during the guilt phase and during the
sentencing phase of his trial (Amended Petition, at ¢ E2). In order to prevail on an ineffective
assistance of counsel claim, the burden is on the Petitioner to show: (1) trial counsel's
performance was deficient; and (2) actual prejudice resulted from the deficient performance.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984);
O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994).

In order to demonstrate that trial counsel's performance was deficient, a petitioner must
show that counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” 104 S.Ct. at 2064. The petitioner must

E-35

show that trial counsel's performance, fell below an objective standard of reasonableness,
measured by “prevailing professional norms.” |d.

In analyzing trial counsel's performance, the court must "indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance."
Strickland, 104 S.Ct. at 2065. The petitioner must overcome the presumption that the challenged
action by counsel was sound tral strategy. Id.

One of the duties of counsel is the duty to investigate his client's case. 104 S.Ct. at 2066.
“(Counsel has a duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” |d,

In order to show actual prejudice, a petitioner must show there is “a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” 104 S.Ct. at 2068. A reasonable probability is a “probability sufficient to
undermine confidence in the outcome.” |d.

Thus, when a petitioner challenges his conviction on ineffective assistance of counsel
grounds, the question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt about guilt. 104 S.Ct. at 2068-69. When the
petitioner challenges a death sentence, the question is whether there is a reasonable probability
that, absent the errors, the sentencer would have concluded that “the balance of aggravating and
mitigating circumstances did not warrant death.” 104 S.Ct. at 2069. In assessing prejudice, the
court is to assume that “the decisionmaker is reasonably, conscientiously, and impartially

applying the standards that govern the decision.” 104 S.Ct. at 2068.

E-36

_ Se

The ultimate question of whether Petitioner received efiective assistance of counsel is a
mixed question of law and fact, which is reviewed de novo. 104 S.Ct. at 2070; McQueen v.
Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996).

Petitioner's contention that his trial counsel, Lionel Barrett and Sumter Camp, were
ineffective was first raised on direct appeal by Petitioner's substitute counsel, Richard Dinkins.
Petitioner argued that trial counsel should have presented evidence of Petitioner's mental
incapacity at sentencing. (Addendum 2, at 57-59). In addressing this claim, the Tennessee
Segre Coun cated: “Taare teen erties to Gio eens er ery chargunef the Setiean'd
extensive criminai record to indicate he was either incompetent to stand trial or at the time this
offense was committed. There is nothing in this record to indicate a remand for a determination
of defendant’s mental status would be appropriate.” State v. Jones, 789 S.W.2d at 552.

Petitioner raised this issue again in his post-conviction petition. Petitioner based his
contention that counsel was ineffective on over twenty separate grounds. (First Amended Petition
For Post Conviction Relief, Addendum 11). At the post-conviction hearing, Petitioner's counsel
called Petitioner's initial attorney, Neal McA|pin; trial counsel, Lionel Barrett and Sumter Camp;
and appellate counsel, Richard Dinkins. (Addendum 11). Petitioner also called Gail Hughes
Mann; Petitioner's co-defendant, Harold Devalle Miller; Petitioner's wife, Susi Bynum Jones;
and a psychiatrist, Dr. Barry Nurcombe. (1d,)

The post-conviction trial court found that Petitioner's trial counsel had failed to
adequately investigate Petitioner's background and mental health history. (Memorandum and
Order entered August 26, 1993, Addendum 11). Specifically, the post-conviction court found that

trial counsel failed to investigate as follows:

E-37

1. Testimony and files of trial counsel showed that few witnesses were
investigated or interviewed regarding petitioner's background and mental health
history.

2. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner's prior
psychological consultation at ages 12 to 14 while at Ft. Shafter, Hawaii.

3. Testimony and files of trial counsel showed that they failed to
investigate and obtain readily available information concerning petitioner’s
psychological assessment at age 14 by the school psychologist at DuPont Jr. High
School at Ft. Lewis, Washington.

4. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner's juvenile
incarceration for being a psychopathic delinquent at Western State Hospital in
Tacoma, Washington.

5. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning the petitioner's school
records in Philadelphia, where on May 24, 1965 there was a request for
psychological service by Sayre High School.

6. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner’s school
records in Philadelphia, where on June 17 he was referred for Special Education.

7. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner's incarceration
at the Annadale Institute for Boys, New Jersey, when he was 15, his being placed
on psychiatric watch in January of 1967 and his referral to and psychological
examination at the New Jersey State [Psychiatric] hospital at Trenton in February
of 1967.

8. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner’s Army records
at ages 17 and 18 with notations regarding his “questionable mental status,”
bizarre behavior, and psychiatric reports leading ultimately to discharge.

9. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner's psychiatric
examination at St. Elizabeth's Hospital, Washington, D.C., following his
incarceration for assault on or about the day of his discharge from the Army,
despite the fact that part of this information was sent to MTMHI per their request.

10. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner’s institutional
records while in the federal prison system.

11. Testimony and files of trial counsel showed that they failed to
investigate and obtain available information concerning petitioner's psychiatric
examination following petitioner's 1972 killing of a fellow prisoner while
incarcerated for the assault referenced in paragraph 9 above.

E-38

12. Trial counsel has little knowledge of the facts related to the
petitioner's 1972 murder conviction.
13. They failed to interview the psychiatrist and psychologist who

conducted the MTMHI evaluation until after the trial began.

(Memorandum and Order entered August 26, 1993, at 5-6, Addendum 1! 1) (footnote omitted)
(emphasis in original).

The court concluded, however, that the failure to investigate did not prejudice the
Petitioner because his background also contained harmful information. (]d.)

The Tennessee Court of Criminal Appeals agreed with the trial court’s decision:

If the trial attorneys had investigated further, they would have found that

the appellant had a long history of violent behavior and anti-social personality

disorders. We agree with the trial judge’s finding that trial counsel were

ineffective in failing to further investigate the background of the accused under

the circumstances, but we also agree with Mr. Barrett’s testimony and the trial

judge’s conclusion that it probably would not have been the most prudent trial

strategy to use proof of appeliant’s history of violent behavior and anti-social
personality disorders at either the guilt or innocence phase or at the sentencing

phase of the trial.

Jones v. State, 1995 WL 75427, at *2.

During the evidentiary hearing in this Court, Petitioner called all the witnesses who
testified at the post-conviction proceeding except Dr. Nurcombe and Mr. Miller. In addition,
Petitioner presented, for the first time, the live testimony of Petitioner's half-sister, Nancy
Lancaster; Petitioner's former fiancé, Sarah Roberts Walton; co-defendant Miller's former
attorney, Ross Alderman; mental health experts, Dr. Sadoff, and Dr. Nancy McCoy; Dr. Ray
Winbush; and legal expert Brian Stephenson. Petitioner also presented, for the first time, the
testimony of Detective Mark Garafola, Elmer H. Bishop, William Delagrange, and Richard

Bretzlauf by deposition. (Petitioner's Exhibits 110, 135, 136, 152).

E-39

During their testimony before this Court, Mr. Barrett and Mr. Camp admitted most of the
_ deficiencies alleged by the Petitioner. Mr. Barrett was first requested to represent the Petitioner

in October, 1996. (Transcript, at 326). During the next month, Petitioner’s initial counsel, Neal
McAlpin, began to withdraw from representation. (Transcript, at 233-234). Mr. Barrett did not
begin actually working on the case, however, until March, 1987. (Transcript, at 336-337). On
April 20, 1987, Mr. Barrett first requested the help of Mr. Camp, who was an associate with Mr.
Barrett's firm at that time. (Transcript, at 271-272, 342, 691). Mr. Camp first began work on the
file sometime after May 11, 1987. (Transcript, at 691-692). Mr. Barrett took the lead in the case,
and Mr. Camp’s role was to assist him. (Transcript, at 695, 723). Trial was set for July 6, 1987.
(Transcript, at 338).

Trial counsel had three to four months to prepare for trial. The investigation they

conducted during this time was wholly inadequate. Mr. Barrett admits that he did not obtain Mr.

McAlpin’s file in the case, or discuss the case in any kind of depth with Mr. McAlpin, even
though Mr. McAlpin suggested that he do so. (Transcript, at 240-242, 277, 279, 722). Because
of that failure, and the subsequent failure to inspect the court file, Petitioner’s trial counsel were
not aware of the lab reports indicating that no blood was found on clothes seized from
Petitioner’s apartment. (Transcript, at 277, 292, 322, 341, 331-333). Counsel also failed to
respond to a request, sent to Mr. McAlpin, from MTMHI staff for background information to be
used in their psychiatric evaluation of the Petitioner. (Transcript, ai 242-243, 331-333).

Mr. Barrett failed to request Petitioner's extensive mental health records, or his

educational, prison, or military records. (Transcript, at 280-281). This was a serious failure.

E-40

Although Mr. Barrett prepared a motion requesting that the trial court declare his client
indigent, and approve funds for investigative and e> pert services, he did not file the motion. This
was a Significant error. (1 ranscript, at 278, 363-367, 701). Mr. Barrett did not consult or hire a
mental health expert to perform an independent mental evaluation of his client. (Transcript, at
278, 718-719). This was a grave omission.

Mr. Barrett did not introduce any information from the MTMHI records relating to
Petitioner’s background or mental history at the trial or at sentencing. (Transcript, 725). Tria!
counsel received the MTMHI records only a couple of weeks prior to the trial, and neither recall
speaking with any of the MTMHI staff about their report. (Transcript, at 280, 282, 352, 716-
717). These were substantial errors.

Petitioner’s attorneys did not call anyone in Petitioner’s family to testify during the
sentencing hearing. Mr. Barrett testified that someone in his office contacted Petitioner's
brother, Mark Jones, before trial, but he refused to assist in Petitioner's defense. (Transcript, at
286-289). Mr. Camp testified that he did not contact the Petitioner's brother. (Transcript, at
710). At the post-conviction hearing, Petitioner introduced an affidavit from Mark Jones”
indicating that he had not been contacted by Mr. Barrett's office. (Petitioner's Exhibit 74; PC
Exhibit 67). It is undisputed that Petitioner’s attorneys did not contact Petitioner’s half-sister,

Nancy Lancaster, even though she would have been available and willing to testify at the time of

= The Motion was prepared three days after jury selection began. (Transcript, at
727). A post-trial motion for indigent status was approved. (Transcript, at 376; Petitioner's
Exhibit 88).

= Mark Jones committed suicide on July 13, 1996. (Transcript, at 793).

E-41

trial. (Transcript, at 832). Mr. Barrett did not contact Petitioner's former fiancé, Sarah Roberts
Walton, even though the Petitioner told Mr. Barrett about her. (Transcript, at 356). These were
significant mistakes.

Finally, Mr. Barrett failed to investigate the nature of Petitioner's prior convictions.”’
(Transcript, at 281, 708-709, 714-715). This was a substantial error.

As the trial date approached, Mr. Camp suggested that they request a continuance to
conduct further investigation, but Mr. Barrett did not act on that suggestion. (Transcript, at 279,
705). This was a serious deficiency.

Although both these attorneys have good reputations in the bar, their performance in this
case was clearly inadequate. Mr. Barrett critiqued his own performance as follows:

] think as the trial progressed and on looking back on it now, I think that I should

have sought out further psychiatric evaluation. | think it became evident during

the course of the trial that Mr. Jones - and in Mr. Camp’s opinion and my opinion

had some psychiatric or psychological issues we may not have fully realized early

on in the case. . . Based upon the documents that I have now seen subsequent to

the trial, I feel that my performance certainly did not satisfy the standards that |

adhere to myself as far as pursuing the psychiatric aspect, particularly at the

sad Mr. Barrett testified that the prosecutor introduced him to FB] Agent William
Delagrange at trial, and that the agent said he would testify that Petitioner's 1972 conviction was
the result of a “drug turf war,” and not a homosexually-related killing, as Petitioner contended.
(Transcript, at 294-299). Given his failure to investigate Petitioner’s prior convictions, Mr.
Barrett did not have any independent information about the conviction, and therefore, did not
introduce mitigating evidence about this conviction at the sentencing hearing. (Transcript, at
299). As discussed herein, the 1972 conviction was not over drugs and gangs as represented by
the prosecution to defense counsel. The murder concerned homosexual conduct that the jury
could have found more mitigating.

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(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0574%3A03. Public record. Not legal advice.