Appendix — Bell v. Thompson

f (. A /Supreme Court, U.S.

FILED

No. 04- |

i

In The OFFICE OF THE CLERK

Supreme Court of the United States

+

RICKY BELL, WARDEN,

Petitioner,

v.

GREGORY THOMPSON,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

VOLUME II, PAGES 202 TO 386

¢

PAUL G. SUMMERS

Attorney General

State of Tennessee

MICHAEL E. MOORE

Solicitor General

JENNIFER L. SMITH

Associate Deputy Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 20207

Nashville, Tennessee 37202

(615) 741-3487

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

App. 202

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at WINCHESTER

GREGORY THOMPSON _ )

Petitioner,

Vv. ) No. 4:98-cv-006

RICKY BELL,WARDEN, ) 4gar

Riverbend Maximum )

Security Institution, .

Respondent. )

MEMORANDUM

(Filed Feb. 17, 2000)

This is a petition for the writ of habeas corpus under

28 U.S.C. § 2254; Gregory Thompson (“Thompson” or

“petitioner”) is presently incarcerated on death row. Before

the Court is the respondent’s answer to the amended

petition and motion for summary judgment, the peti-

tioner’s traverse to the answer, and the petitioner’s re-

sponse to the motion for summary judgment. For the

following reasons, the respondent’s motion for summary

judgment (Court File No. 81) will be GRANTED, and

Thompson’s petition and emended petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 (Court File

Nos. 3 & 17) will be DISMISSED.

I. Procedural Background

The State of Tennessee has provided the Court with

copies of petitioner’s state court proceedings. (Court File

No. 5, Addenda 1A-K, 2-11, 12 A-K, 13-20; the record

consists of 20 volumes of record, 3 video tapes, and 1 folder

App. 203

of large trial exhibits). Petitioner was convicted of the first

degree murder of Mrs. Brenda Blanton Lane and was

sentenced to death by electrocution. (Technical Record of

petitioner’s pre-trial proceedings and criminal trial,

criminal trial exhibits, transcript of the evidence, Addenda

1A-K). His conviction and sentence were affirmed on direct

appeal. State v. Thompson, 768 S.W. 239 (Tenn. 1989).

Petitioner, through his court-appointed attorneys,

Robert J. Warner, Jr. and Joseph E. Ford, filed the origi-

nal petition for post-conviction relief on October 16, 1990,

in the Circuit Court of Coffee County, Tennessee. Peti-

tioner alleged several instances of ineffective assistance of

counsel:

(a) Trial counsel failed to adequately investi-

gate the background, personal, and medical

history of petitioner to present mitigating

evidence during the penalty phase of trial.

(b) Trial counsel failed to request and obtain

adequate expert and investigative assis-

tance regarding petitioner’s head injuries

during his youth, and failed to obtain ade-

quate expert assistance regarding peti-

tioner’s competency at the time of

petitioner’s confession.

(c) Trial counsel failed to present an adequate

defense at trial. Counsel failed to cross-

examine numerous witnesses and failed to

challenge the prosecutor’s implication to the

jury during his closing argument that peti-

tioner was required to present a defense.

Counsel repeatedly referred to the fact that

Gregory Thompson “committed the act” and

repeatedly referred to the “atrocity” and

“horrible” nature of the crime.

App. 204

(d) Trial counsel failed to cross-examine the

(e)

(f)

(g)

(h)

(i)

district attorney about the district attor-

ney’s professional attorney’s professional

misconduct and racial bias.

Trial counsel sailed to request additional

time from the trial court to properly prepare

witnesses during the penalty phase of the

trial. Counsel failed to prepare witnesses

during the penalty phase of the trial. Coun-

sel failed to prepare witnesses such as Ar-

lene Cajulao for areas of cross-examination

and failed to show witnesses documents

that were later used for impeachment pur-

poses of the witnesses in front of the jury.

Trial counsel failed to adequately explain to

petitioner potential conflict of interest of

counsel and failed to allow petitioner the

opportunity to select new counsel. Counsel

also failed to insure the protection of peti-

tioner’s rights against self-incrimination by

allowing petitioner to go to Central State

Hospital for interrogation without the assis-

tance of counsel.

Trial counsel failed to object to jury instruc-

tions at the penalty phase which shifted the

burden of proof to petitioner to show the ex-

istence of mitigating circumstances.

Trial counsel failed to object to the jury’s

consideration of the victim’s character in de-

termining whether to impose the death pen-

alty and during the state’s case-in-chief.

Trial counsel failed to object to jury instruc-

tions which limited the jury’s individualized

consideration of mitigating factors includ-

ing, but not limited to, sympathy.

App. 205

(j) Trial counsel failed to object to the inade-

quate jury instructions by the court concern-

ing the death penalty and failed to object to

the trial court’s failure to tailor the instruc-

tions to the individual facts of the case.

Counsel failed to present the Court with al-

ternative jury instructions to remedy these

deficiencies.

(k) Trial counsel failed to recuse themselves

and withdraw from the appeal of petitioner

once the issue of ineffective assistance of

counsel was raised as an issue.

(1) Trial counsel failed to object to the exclusion

of jurors based upon a religious test of said

jurors in violation of Article 1, Section 6 of

the Tennessee Constitution.

(m) Trial counsel failed to adequately investi-

gate petitioner’s military career. Counsel

committed error by improperly raising the

subject of petitioner's “good character” and

“opened the door” for the prosecution to ad-

mit damaging information regarding peti-

tioner in front of the jury.

(n) Trial counsel failed to raise such issues on

appeal and was constitutionally ineffective

in failing to raise and properly brief the

claims which petitioner raised in his state

post-conviction petition. Petitioner did not

consent to representation by Mr. Richard-

son and Mr. Parsons on appeal and peti-

tioner should have been appointed new

counsel to represent his interest.

Petitioner also challenged the jury instructions given at

the guilt phase, including but not limited to, the instruction

App. 206

regarding inference that the killing was done maliciously;

instructions which shifted the burden of proof on an

element of the crime to petitioner; and inconsistent jury

instructions that petitioner’s confession was an acknow!l-

edgment of guilt. Petitioner also challenged the following

jury instructions given at the penalty phase:

(a) Instructions that shifted the burden to peti-

tioner to show the existence of mitigating cir-

cumstances;

(b) Instructions on aggravating circumstances

which failed to narrow the class of person

eligible for the death penalty;

(c) Instructions which limited the jury’s consid-

eration of mitigating factors including, but

not limited to, sympathy.

(d) Instructions that diminished the jury’s re-

sponsibility for imposing the death penalty; -

(e) Instructions on aggravating circumstances

were vague and overbroad and did not prop-

erly channel the jury’s discretion and invited

arbitrary, capricious and inconsistent appli-

cation of the death penalty;

(f) Instructions which failed to advise the jury

that they were the sole judges of the law and

the facts during the penalty phase of the

trial.

Petitioner also made numerous allegations to support

his contention that the trial court committed reversible

error in its conduct of the trial. Petitioner also alleged the

state made numerous constitutional violations during

trial. Petitioner alleged the Tennessee Death Penalty

Statute is unconstitutional and that Thompson was not

competent to be executed. At the conclusion of an eviden-

App. 207

tiary hearing, the trial court denied the petition.

Petitioner appealed to the Tennessee Court of Crimi-

nal Appeals on the following issues:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

whether the post-conviction court erred by

finding petitioner received effective assis-

tance of counsel;

whether the post-conviction court erred by

denying funding for a psychologist or psy-

chiatrist and an investigator;

wether [sic] the post-conviction court erred

by refusing te set aside the order designat-

ing Judge William Russell to hear this case

and in refusing to reinstate Judge Buddy D.

Perry;

whether erroneous jury instructions defin-

ing deliberation and premeditation require

reversal;

whether the jury instructions on the “hei-

nous, atrocious or cruel” aggravating cir-

cumstance were unconstitutionally vague;

whether the petitioner's confession was

unlawfully obtained and illegally admitted

at his trial;

whether the failure of the trial court to in-

struct the jury on the effect of non-

unanimity and the option to recommend life

imprisonment violated the petitioner’s

rights under the Eighth and Fourteenth

Amendments;

whether the trial court’s allowing Dr. Wat-

son to testify and introduce psychiatric/

oe eee ree

App. 208

psychological reports through his testimony

was an unconstitutional denial of petitioner's

rights;

(9) whether the petitioner was denied his con-

stitutional right to a trial by jury by the ex-

clusion of two prospective jurors; and

(10) whether the petitioner's constitutional

rights were violated by implicit references

to his failure to testify.

The Tennessee Court of Criminal Appeals affirmed

the judgment of the trial court. Specifically, the Tennessee

Court of Criminal Appeals found no merit in the first four

issues that were appealed and that issues five through

eight were previously determined by the Tennessee

Supreme Court on direct appeal and that issues nine and

ten were waived.

Thompson appealed the judgment of the Tennessee

Court of Criminal Appeals affirming the trial court’s

denial of relief on his post-conviction petition. The Tennes-

see Supreme Court denied Thompson’s application for

permission to appeal. Thompson appealed the following

issues to the Tennessee Supreme Court:

I. There is a need to secure settlement of

important issues of law relating to the

standard by which the competence of

criminal attorneys is measured.

Il. There exists the need to secure the set-

tlement of an important issue of law with

regard to what type of hearing an appli-

cant is allowed under the ruling of Owens

v. State and under what circumstances

funds for expert services should be

granted in a capital post-conviction case.

App. 209

Ill. There is a need to settle the important is-

sue of law regarding the effectiveness of

Orders issues by a Judge in a capital post-

conviction case when the Judge subse-

quently recuses himself.

IV. This court should exercise its supervisory

authority by reviewing the decision to

remove as trial Judge in the post-

conviction action Judge Buddy D. Perry

and replacing the same, without cause,

with Judge William Russell.

V. This Court should review this case to set-

tle the important question of law of the

retroactive application of State v. Brown.

VI. There is a need to settle the important

question of law as to whether the “hei-

nous, atrocious or cruel” aggravating cir-

cumstance is unconstitutionally vague

even when using the additional defini-

tional terms from State v. Williams.

VII. There is a need to settle the important

question of law regarding the admissibil-

ity of confessions under the heightened

standard announced in State v. Crump.

VIII. There exists a need to settle the impor-

tant question of law regarding the proper

jury instruction of the affect of non-

unanimity and the option to recommend

life imprisonment.

II. Standard of Review

Thompson may obtain habeas relief if he can demon-

strate he is in custody pursuant to the judgment of a state

App. 210

court in violation of the Constitution or laws or treaties of

the United States. 28 U.S.C. § 2254. Under Rule 8 of the

RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE

UNITED STATES DISTRICTS [sic] COURTS, the Court is to

determine, after a review of the response, the transcript,

record of state court proceedings, and the expanded record,

whether an evidentiary hearing is required. If a hearing is

not required, the district judge is to dispose of the case as

justice dictates. The Court finds it is unnecessary to hold

an evidentiary hearing in the present case.

Chapter 153 of the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 2414

(1996) (‘AEDPA”), signed into law on April 24, 1996, has

significantly amended Title 28 of the UNITED STATES CODE

and altered the standard of review that a federal court

must employ when deciding whether to grant a writ of

habeas corpus. As amended, 28 U.S.C. § 2254(d) (1997)

provides as follows:

An application for a writ of habeas corpus on be-

half of a person in custody pursuant to the judg-

ment of a State court shall not be granted with

respect to any claim that was adjudicated on the

merits in State court proceedings unless the ad-

judication of the claim —

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as deter-

mined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

App. 211

As amended, 28 U.S.C. § 2254(e) provides as follows:

(1) In a proceeding instituted by an application

for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State

court, a determination of a factual issue

made by a State court shall be presumed to

be correct. The applicant shall have the

burden of rebutting the presumption of cor-

rectness by clear and convincing evidence.

(2) If the applicant has failed to develop the

factual basis of a claim in State court pro-

ceedings, the court shall not hold an eviden-

tiary hearing on the claim unless the

applicant shows that —

(A) the claim relies on-

(i) a new rule of constitutional law,

made retroactive to cases on collat-

eral review by the Supreme Court,

that was previously unavailable; or

(ii) a factual predicate that could not

have been previously discovered

through the exercise of due dili-

gence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and con-

vincing evidence that but for constitu-

tional error, no reasonable fact-finder

would have found the applicant guilty

of the underlying offense.

Thompson filed his application for a writ of habeas

corpus on June 12, 1998, after the effective date of

AEDPA. The United States Supreme Court has instructed

that the AEDPA generally applies to cases filed after the

App. 212

act became effective. See Lindh v. Murphy, 521 U.S. 320

(1997) (holding the new provisions of Chapter 153 gener-

ally apply only to cases filed after the effective date of the

Act). The Sixth Circuit has previously held that the

provisions of the AEDPA, including the amended standard

of review apply in cases filed after April 24, 1996. There-

fore, revised §§ 2254(d) and (e) govern the inquiry as to

whether or not habeas corpus relief is appropriate in this

case.

Federal courts must now give greater deference to the

determinations made by state courts than they were

required to do under the previous law. Spreitzer v. Peters,

114 F.3d 1435, 1441 (7th Cir.), modified on other grounds,

127 F.3d 551 (1997), cert. denied, 118 S. Ct. 1060 (1998);

Nevers v. Killinger, 990 F. Supp. 844, 849-850 (E.D. Mich.

1997), aff'd 169 F.3d 352, cert denied, 119 S. Ct. 2340

(1999). These amendments to § 2254 mean that the “the

federal courts must respect all reasonable decisions of the

state courts.” Tinsley v. O’Dea, 1998 WL 124045, *2 (Table,

text at 142 F.3d 436) (6th Cir. March 12, 1998)) (UNPUB-

LISHED DECISION). See also Harpster v. State of Ohio,

128 F.3d 322 (6th. Cir. 1997), cert. denied, 118 S. Ct. 1044

(1998).

Although the United States Supreme Court and the

Court of Appeals for the Sixth Circuit have not yet decided

how to implement these new standards, this Court is

guided by the Sixth Circuit’s recent opinions in Barker v.

Yukins, __ F.3d __, 1999 WL 1146742, at *4 (6th Cir.

Dec. 15, 1999); Nevers v. Killinger, 169 F.3d 352, 357-362

(6th Cir. 1999), and Harpster v. State of Ohio, 128 F.3d

322 (6th Cir. 1997), cert. denied, 118 S. Ct. 1044 (1998). In

those opinions the Sixth Circuit was confronted wiih

mixed questions of law and fact and the Sixth Circuit

App. 213

determined it must decide whether the state court decision

involved an unreasonable application of clearly estab-

lished federal law, as determined by the Supreme Court.

In Nevers, the Sixth Circuit “determined that, as a general

rule, the (unreasonableness of a state court’s application of

clearly established Supreme Court precedent will not be

‘debatable among reasonable jurists,’ if it is ‘so offensive to

existing precedent, so devoid of record support, or so

arbitrary, as to indicate that it is outside the universe of

plausible, credible outcomes.’” Nevers, 169 F.3d 362.

Therefore, in the Sixth Circuit, a writ may issue only if

reasonable jurists would find a state court’s application of

federal law was so arbitrary, unsupported, or offensive to

existing precedent as to fall outside the realm of plausible

credible outcomes.

In determining how to apply the basic habeas test

announced in Nevers to the specific issue of whether the

state court’s finding of harmless error involved an unrea-

sonable application of federal law, the Sixth Circuit has

determined that

[(T]he] test is whether the error “had substantial

and injurious effect or influence in determining

the jury’s verdict,” [and] it is the habeas peti-

tioner’s burden to demonstrate that the trial er-

ror resulted in “actual prejudice,” If the

petitioner is able to make that showing, he will

surely have demonstrated that the state court’s

finding that the error was harmless beyond a

reasonable doubt ... was outside the realm of

plausible credible outcomes, and therefore re-

sulted from an unreasonable application of [fed-

eral law].

Barker v. Yukins, __ F.3d ___, 1999 WL 1146742, at *4.

App. 214

The Sixth Circuit discussed the opinions of other

circuits regarding the standard of review. The Fifth

Circuit reads § 2254 as addressing three distinct chal-

lenges to a state court’s decision. It has interpreted the

“contrary to” clause in § 2254(d)(1) as addressing ques-

tions of pure law; the “unreasonable application” clause in

§ 2254(d)(1) as addressing mixed questions of law and fact;

and § 2254(d)(2) as addressing questions of pure fact. The

Seventh Circuit has articulated an approach very similar

to that of the Fifth Circuit. See Lindh v. Murphy, 96 F.3d

856, 870 (7th Cir. 1996) (en banc) rev'd on other grounds.

The Eleventh Circuit developed an approach similar

to that of the Fifth and Seventh Circuits. See Neelley v.

Nagle, 138 F.3d 917 (11th Cir. 1998). The Eleventh Circuit

first determines the clearly established law at the relevant

time. Then, the Eleventh Circuit applies the “contrary to”

clause to errors of pure law and the “unreasonable applica-

tion” clause to mixed question of law and fact. In Neelley,

the Court found “two situations in which a state court

decision would be ‘contrary to’ clearly established Supreme

Court” precedent under that phrase’s plain meaning: “.. .

when a state court faces a set of facts that is essentially

the same as those the Supreme Court has faced earlier,”

but reaches a different result; and when a state court “fails

to apply the correct legal principles,” as enunciated by

Supreme Court case law, to decide a case. Id. at 923.

A state court’s determination of a factual issue is

presumed correct and the petitioner can rebut the pre-

sumption only by clear and convincing evidence. Nevers,

990 F. Supp. at 850. The challenge to a mixed question of

law and fact requires the application of the second clause of

§ 2254(d)(1), and habeas relief will not be granted unless

the state court’s decision amounted to an unreasonable

App. 215

‘application of clearly established federal law, as deter-

mined by the Supreme Court of the United States. 28

U.S.C. § 2254(d\(1); Harpster, 128 F.3d at 326. “Mixed

questions of law and fact are those decisions which require

the application of a legal standard to fact determinations.”

Nevers, 990 F. Supp. at 850 (citing Thompson v. Keohane,

516 U.S. 99, 109-11 (1995)).

The Sixth Circuit has recently addressed what consti-

tutes an unreasonable application of clearly established

Federal law in Nevers, 169 F.3d at 362. The Sixth Circuit

held that in arriving at the correct answer to the question

of unreasonableness,

[t]he deference to the state courts’ judgments re-

quired by the AEDPA is achieved by adopting the

rule that the unreasenableness of a state court’s

application of clearly established Supreme Court

precedent will not be “debatable among reason-

able jurists,” Drinkard v. Johnson, 97 F.3d(751)

at, 769[ (5th Cir. 1996), cert. denied, 520 US.

1107 (1997)], if it is “so offensive to existing

precedent, so devoid of record support, or so arbi-

trary, as to indicate that it is outside the uni-

verse of plausible, credible outcomes,” O’Brien [v.

Dubois,] 145 F.3d [16] at 25 [1st Cir. 1998}.

Nevers, 169 F.3d at 362.

Some of the grounds asserted by Thompson in support

of his present § 2254 petition for writ of habeas corpus are

similar to the grounds asserted by Thompson in his appeal

in the Tennessee courts. The review in this case involves

an identical record to that considered by the state courts, a

factor the Supreme Court has considered important in

measuring the deference to be given to those courts. See

Sumner v. Mata, 449 U.S. 539, 547 (1981).

App. 216

The respondent has filed a motion for summary

judgment. (Court File No. 81). FED. R. Civ. P. 56 provides

that summary judgment will be rendered if there is no

genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. “Summary

judgment is proper (if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is

entitled to judgment as a matter of law.’” Johnson v.

Turner, 125 F.3d 324, 332 (6th Cir. 1997) (quoting FED. R.

Civ. P. 56(c)). The burden is on the moving party to con-

clusively show that no genuine issue of material fact

exists, and the Court must view the facts and all infer-

ences to be drawn therefrom in the light most favorable to

the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris v.

Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997);

White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941,

943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822

F.2d 1432, 1435 (6th Cir. 1987).

The moving party is not required to support a motion

with evidence disproving the nonmoving party’s claim but

only needs to show the district court that there is an

absence of evidence to support the nonmoving party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Hartsel

v. Keys, 87 F.3d 795, 799 (6th Cir. 1996), cert. denied, 519

U.S. 1055 (1997). “The pivotal question is whether the

party bearing the burden of proof has presented a jury

question as to each element of its’ case.” Hartsel, 87 F.3d

at 799, citing Celotex, 477 U.S. at 322.

Hearsay evidence is not considered on a motion for

summary judgment. Hartsel, 87 F.3d at 799. “The mere

App. 217

possibility of a factual dispute is not enough.” Jd. (Cita-

tions omitted). A court is required to make a preliminary

assessment of the evidence when deciding whether plain-

tiff’s evidence concerns a material issue and is more than

de minimis. Id.

“Only factual disputes that might affect the outcome

of a lawsuit under substantive law are ‘material.’” Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cable

v. Calhoun County Jail, 124 F.3d 196, 1997 WL 595090, at

*1 (6th Cir. Sept. 25, 1997). To qualify as a genuine issue

as to any material fact, a dispute must involve evidence

which a jury could find for the non-moving party. Cable,

1997 WL 595090, at *1. The moving party has the burden

of showing there is an absence of evidence to support the

non-moving party’s case. Jd., at *1. Once the moving party

presents evidence sufficient to support a motion under

Rule 56, the nonmoving party is not entitled to a trial

merely on the basis of allegations. The nonmoving party is

required to come forward with some significant probative

evidence which makes it necessary to resolve the factual

dispute at trial. Celotex Corp. v. Catrett, 477 U.S. at 324-

325; White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at

1435. “The plaintiff must present more than a mere

scintilla of evidence in support of her position; the plaintiff

must present ‘evidence on which the jury could reasonably

find for the plaintiff.’” Hartsel, 87 F.3d at 799 (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. at 252).

The nonmoving party cannot rest on pleadings and

allegations, but must present probative evidence which

necessitates a resolution of the factual dispute at trial,

Mathis v. Bowater, Inc., 985 F.2d 277, 278 (6th Cir. 1993).

If the nonmoving party fails to carry his or her burden by

not making a sufficient showing of an essential element of

App. 218

his or her case, summary judgment is appropriate. Celotex,

477 U.S. at 323. The moving party is entitled to summary

judgment if the nonmoving party fails to make a sufficient

showing on an essential element of the case with respect

to which it has the burden of proof. Celotex, 477 U.S. at

323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996),

cert. denied, 520 U.S. 1267 (1997).

The judge’s function at the point of summary judg-

ment is limited to determining whether sufficient evidence

has been presented to make the issue of fact a proper jury

question, and not to weigh the evidence, judge the credibil-

ity of witnesses, and determine the truth of the matter,

Anderson v. Liberty Lobby, Inc., 477 U.S. at 249; 60 Ivy

Street, 822 F.2d at 1435-36. The standard for summary

judgment mirrors the standard for directed verdict. The

Court must determine “whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.” Anderson, 477 U.S. at 251-52 see also

Lapeer County, Mich. v. Montgomery County, Ohio, 108

F.3d 74, 78 (6th Cir. 1997). There must be some probative

evidence from which the jury could reasonably find for the

nonmoving party. Anderson, 477 U.S. at 252; Bailey v

Floyd County Bd. Of Educ., 106 F.3d 135, 140 (6th Cir.

1997). If the Court concludes that a fair-minded jury could

not return a verdict in favor of the nonmoving party based

on the evidence presented, it may enter a summary

judgment. Anderson, 477 U.S. at 251-52; University of

Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280

(6th Cir. 1995); LaPointe v. UAW Leeal 600, 8 F.3d 376,

378 (6th Cir. 1993).

After reviewing, under the summary judgment stan-

dards, each ground asserted by Thompson, this Court

App. 219

concludes that he received a full and fair hearing on the

merits of each issue he raised in the state court-on his

direct appeal from his conviction and in his post-conviction

petition. This Court further finds that the state courts

adequately resolved the questions of law and fact; and

their decision did not involve an unreasonable application

of clearly established Federal law as determined by the

Supreme Court or an unreasonable determination of the

facts. 28 U.S.C. §§ 2254(d)(1) and (2).

Ill. Factual Background

The following brief recitation of the facts is taken from

the Tennessee Court of Criminal Appeals opinion:

On January 1, 1985, the petitioner and Joanne

McNamara, a juvenile, kidnaped the victim,

Brenda Lane, at knife point in a Wal-Mart park-

ing lot in Shelbyville, Tennessee. Thompson

forced the victim to drive them to an isolated

area outside Manchester, Tennessee, where he

stabbed her four times in the back and then

abandoned her. Thompson and McNamara re-

turned to Georgia and attempted to burn the ve-

hicle. After his arrest, the petitioner confessed to

the crime and assisted authorities in locating the

body. His confession was introduced as evidence

during the trial.

At the penalty phase of the trial several wit-

nesses testified petitioner was a well-behaved,

good student prior to leaving home in 1979. The

petitioner’s girlfriend, Arlene Cajulao, testified

about his life after he left home, when he was in

the military service and stationed in Hawaii. Dr.

George Copple, a clinical psychologist, testified

about the general abilities of the petitioner and

App. 220

what kinds of work he could perform during his

imprisonment. Dr. Robert Watson testified that

the petitioner exhibited anti-social adult behav-

ior, was not remorseful, and malingered mental

illness.

Thompson v. State, 958 S.W. 2d 156, 160 (Tenn. Crim.

App. 1997).

IV. Analysis

Neither the original (Court File No. 7) nor amended

petition (Court File No. 17) filed in this case complied with

the verification requirements of 28 U.S.C. § 2242 or Rule

2(c) of the RULES GOVERNING SECTION 2254 CASES IN THE

UNITED STATES DistRIcCT COURTS, which provide that a

petition for writ of habeas corpus shall be signed under

penalty of perjury by the petitioner, Rule 2(c); or signed

and verified by either the petitioner or by one acting on his

behalf. 28 U.S.C. § 2241. This Court ordered the amended

petition for writ of habeas corpus to be signed and verified

and returned to the Court. Instead of abiding by the

Court’s order, counsel for petitioner returned the amended

petition for writ of habeas corpus unsigned and unverified,

along with a document titled verification of amended

petition for writ of habeas corpus signed only by counsel.

The Court issued another order requiring Thompson

to personally sign and verify the amended petition for writ

of habeas corpus. However, counsel has notified the Court

that counsel is unable to provide this Court with a verifi-

cation bearing Mr. Thompson’s signature. Counsel submit-

ted an affidavit from his investigator which in pertinent

part states as follows:

App. 221

3. Since April 1999, I have only seen Greg once.

On that occasion Greg was behaving

strangely and acting out. Due to his erratic

behavior our meeting was cut short.

4. On January 13, 2000, I traveled to Riverbend

Maximum Security Institution in Nashville

to obtain Greg’s signature on a verification of

his amended petition for writ of habeas cor-

pus. Greg is housed in Unit One as opposed

to Unit Two which is death row. A correc-

tions officer informed Greg that I was there

to talk to him about his case. Greg did not

come out of his cell. The corrections officer

said Greg has up and down days. He de-

scribed Greg as withdrawn and keeping to

himself.

Counsel submits he is acting on Thompson’s behalf

and in the past petitioner expressed his intent to pursue

the remedy of habeas corpus and litigate his case to its

conclusion. Counsel further states petitioner has never

indicated a desire to dismiss this case. (Court File No. 121,

p. 5). The Court acknowledges that counsel for Thompson

is acting on Thompson’s behalf, and the Court will accept

counsel’s verification of amended petition for writ of

habeas corpus.

Petitioner filed an amended petition for writ of habeas

corpus which included all allegations made in his original

petition. (Court File No. 17). Thompson’s [sic] makes

numerous claims which the Court will address in the same

order, using the same number sequence, as petitioner did

in his petition. However, Claims 17 and 20 will be ad-

dressed together since both claims allege failure to fund

mental health experts. First, the Court will address

petitioner's contention that all of the claims the state

App. 222

contends are procedurally barred, are simply unexhausted

and the Court is required to dismiss the petition without

prejudice unless respondent waives exhaustion. Petitioner

argues that if the respondent waives exhaustion, all

claims must be considered de novo.

A habeas petitioner must first exhaust available state

remedies before requesting relief under § 2254. See Gran-

berry v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy,

455 U.S. 509, 519 (1982); Rule 4 RULES GOVERNING SEC-

TION 2254 CASES IN THE UNITED STATES DISTRICT COURTS.

A petitioner has failed to exhaust his available state

remedies if he has the opportunity to raise his claim by

any available state procedure. Preiser v. Rodriguez, 411

U.S. 475, 477, 489-90 (1973).

To exhaust these state remedies, the applicant must

have presented the very issue on which he seeks relief

from the federal courts to the courts of the state that he

claims is wrongfully confining him. Picard v. Connor, 404

U.S. 270, 275-76 (1971); Rust v. Zent, 17 F.3d 155, 160 (6th

Cir. 1994). “[A] claim for relief in habeas corpus must

include reference to a specific federal constitutional

guarantee, as well as a statement of the facts which entitle

petitioner to relief,” Gray v. Netherland, 518 U.S. 152, 162-

63 (1996) (citing Picard, 404 U.S. at 271). “‘[T]he sub-

stance of a federm) babeas corpus claim must first be

presented te the stmite courts.” Gray, 518 U.S. at 163

(quoting Picard, 494 \'.8. at 278). A habeas petitioner does

not satisfy the exhaustion requirement of 28 U.S.C.

§ 2254(b) “by presenting the state courts only with the

facts necessary to state a claim for relief.” Gray, 518 U'S.

at 163.

App. 223

“It is not enough to make a general appeal to a consti-

tutional guarantee as broad as due process to present the

‘substance’ of such a claim to a state court.” Jd. When a

petitioner raises different factual issues under the same

legal theory, he is required to present each factual claim to

the highest state court in order to exhaust his state

remedies. See O'Sullivan v. Boerckel, 119 S. Ct. 1728,

1732-33 (1999) (holding that exhaustion requirement

mandates presentation of all claims to state court through

discretionary review process). A petitioner has not ex-

hausted his state remedies if he has merely presented a

particular legal theory to the courts, without presenting

each factual claim. Pillette v. Foltz, 824 F.2d 494, 497-98

(6th Cir. 1987). The claims must be presented to the state

courts as [sic] matter of federal law. “It is not enough that

all the facts necessary to support the federal claim were

before the state courts, or that a somewhat similar state-

law claim was rnade.” Anderson V. Harless, 459 U.S. 4, 6

(1982); Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If a

habeas petitioner wishes to claim that an evidentiary

ruling at a state court trial denied him the due process of

law guaranteed by the Fourteenth Amendment, he must

say so, not only in federal court, but state court.”). Cf.

Gray, 518 U.S. at 163.

Moreover, the state court must address the merits of

those claims. Coleman, 501 U.S. at 734-35. If the state

court decides those claims on an adequate and independ-

ent state ground, such as a procedural rule prohibiting the

state court from reaching the merits of the constitutional

claim, the petitioner is barred by this procedural default

from seeking federal habeas review, unless he can-show

cause and prejudice for that default. See Wainwright v.

Sykes, 433 U.S. 72, 87-88 (1977).

App. 224

When a petitioner’s claims have never been actually

presented to the state courts but a state procedural rule

prohibits the state courts from addressing the claims, then

those claims are deemed exhausted, but procedurally

barred. Coleman, 501 U.S. at 752-53; Teague v. Lane, 489

U.S. 288, 297-99 (1989); Wainwright v. Sykes, 433 U.S. at

87-88; Rust, 17 F.3d at 160. A petitioner confronted with

procedural default must show cause and prejudice for the

default in order to obtain federal review of his claim.

Teague, 489 U.S. at 297-99; Wainwright v. Sykes, 433 U.S.

at 87-88. Cause for a procedural default depends on some

“objective factor external to the defense” that interfered

with the petitioner’s efforts to comply with the procedural

rule. Coleman, 501 U.S. at 752-53; Murray v. Carrier, 477

U.S. 478, 488 (1986). A petitioner may avoid the proce-

dura: bar, and the necessity of showing cause and preju-

dice, by demonstrating “that failure to consider the claims

will result in a fundamental miscarriage of justice.”

Coleman, 501 U.S. at 750. The petitioner must show that

“a constitutional violation has probably resulted in the

conviction of one who is actually innocent of the crime,”

Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray,

477 U.S. at 496). “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 light

of the new evidence.” Schlup, 513 U:S. at 327.

Petitioner argues that any claim the state contends is

procedurally barred should be reviewed de novo by the

Court or the petition should be dismissed because it

contains unexhausted claims. Petitioner contends these

claims are simply unexhausted, not procedurally barred.

Surely, counsel is aware the Tennessee statute of limita-

tions for post-conviction relief bars petitioner from filing a

App. 225

state post-conviction petition at this time. Therefore, his

claims are not simply unexhausted, they are procedurally

barred. Petitioner cites Mapes v. Coyle, 171 F.3d 408, 429

(6th Cir.), cert. denied, 120 S. Ct. 369 (1999) for the propo-

sition that non-procedurally barred habeas corpus claims

not considered on the merits in state court are reviewed de

novo. Petitioner’s counsel apparently overlooked the fact

that Mapes applies to non-procedurally barred claims.

Petitioner does not have any non-procedurally barred

claims that were not considered on the merits in state

court. Petitioner has procedurally barred claims that he

failed to present to the highest Tennessee state courts.

Petitioner claims the Tennessee Supreme Court has

held in Burford v. State, 845 S.W.2d 204 (Tenn. 1992); and

Sands v. State, 903 S.W. 2d 297, 301 (Tenn. 1995), that, in

deciding whether to apply the Tennessee post-conviction

statute of limitations. Tennessee courts are to weigh the

state’s interest in finality against the importance of the

underlying constitutional error. Presumably, he is arguing

this Court is not allowed to dismiss claims on procedural

default unless the Tennessee court has ruled petitioner is

procedurally barred from filing a state post-conviction

petition. |

Petitioner misplaces his reliance on the Burford

exception where the Burford court concluded, “that appli-

cation of Tenn. Code Ann. § 40-30-102 to bar consideration

of the petition in this case deprives Burford of liberty

without due process of law.” Burford v. State, 845 S.W.2d

at 209). Burford is a very narrow exception which does not

apply in the case before this Court. Burford’s grounds for

relief, (earlier enhancing convictions which were subse-

quently declared void) occurred after the state’s highest

appellate court action, and the question arose as to the

App. 226

effect of the later arising grounds on the statute of limita-

tions period. Burford did not have grounds upon which he

could challenge his Trousdale County sentence until the

Wilson County convictions were declared invalid. Fur-

thermore, that court found that “[i]t was abundantly clear

that the petitioner has a valid claim to have his sentence

reduced, and all the Trousdale County court will have to

do is examine the record of the Wilson county proceedings.

The Trousdale County court can then resentence Burford

using the appropriate consideration set forth in the Crimi-

nal Sentencing Reform Act.” Burford v. State, 845 S.W. 2d

at 209.

First, the Court notes that Burford deals with the

effect of later arising grounds on the statute of limitations;

and the case before this Court does not deal with later

arising grounds. Petitioner also cites Sands v. State, 903

S.W.2d 297 (Tenn. 1995), presumably for the argument

that if his procedurally defaulted claims were sent back to

state court, the statute of limitations might not be strictly

applied. In Sands, the Tennessee Supreme Court was

addressing a previous version of Tennessee’s Post-

Conviction Act. Under the new Act, the exceptions are

explicitly set forth in TENN. CODE ANN. 40-30-202(b)’ and

‘ (a) Except as provided in subsections (b) and (c), a person in

custody under a sentence of a court of this state must petition for post-

conviction relief under this part within one (1) year of the date of the

final action of the highest state appellate court to which an appeal is

taken or, if no appeal is taken, within one (1) year of the date on which

the judgment became final, or consideration of such petition shall be

barred. The statute of limitations shall not be tolled for any reason,

including any tolling or saving provision otherwise available at law or

equity. Time is of the essence of the right to file a petition for post-

conviction relief or motion to reopen established by this chapter, and

the one-year limitations period is an element of the right to file such an

(Continued on following page)

App. 227

Thompson has failed to show that his claims fall within

one of these exceptions.

Since Thompson’s claims do not fall within one of the

exceptions, it would be futile for Thompson to go back to

state court. A federal court need not require a federal

claim be presented to a state court if it is clear that the

state court would hold the claim procedurally barred.

Harris v. Reed, 489 U.S. 255, 263 n.9 (1989). Under the

circumstances of this case, it would be futile for the Court

action and is a condition upon its exercise, Except as specifically

provided in subsections (b) and (c), the right to file a petition for post-

conviction relief or a motion to reopen under this chapter shall be

extinguished upon the expiration of the limitations period.

(b) No court shall have jurisdiction to consider a petition filed after

such time unless:

(1) The claim in the petition is based upon a final ruling of

an appellate count establishing a constitutional right that

was not recognized as existing at the time of trial, if retro-

spective application of that right is required. Such petition

must be filed within one (1) year of the ruling of the highest

state appellate court or the United States supreme court es-

tablishing a constitutional right that was not recognized as

existing at the time of trial;

(2) The claim in the petition is based upon new scientific

evidence establishing that such petitioner is actually inno-

cent of the offense or offenses for which the petitioner was

convicted; or

(3) The claim asserted in the petition seeks relief from a

sentence that was enhanced because of a previous convic-

tion and such conviction in the case in which the claim is

asserted was not a guilty plea with an agreed sentence, and

the previous conviction has subsequently been held to be in-

valid, in which case the petition must be filed within one (1)

year of the finality of the ruling holding the previous convic-

tion to be invalid.

(c) This part contemplates the filing of only one (1) petition for post-

conviction relief. . . .

App. 228

to send this petitioner back to state court because it would

be futile to pursue these procedurally-barred issues in

state court. Exhaustion of state court remedies in this case

is not required because all applicable statutes of limita-

tions have expired, and any attempt to raise the unex-

hausted claim before the state court would be futile. See

Matlock v. Rose, 731 F.2d 1236, 1240 (6th Cir. 1984) cert.

denier, 470 U.S. 1050 (1985).

Petitioner does not set out his arguments relative to

cause and prejudice concisely, but generally proffers

ineffective assistance of post-conviction counsel as cause

for his procedural default. Petitioner has no constitutional

right to counsel in post-conviction proceedings. Coleman,

501 U.S. at 752. Since petitioner had no right to counsel in

these proceedings in the first place, ineffective assistance

rendered during the proceedings cannot serve as cause.

See Evitts v. Lucey, 469 U.S. 387, 397 n.7 (1985) (holding

that right to effective assistance of counsel depends on

right to counsel itself). See also Murray v. Giarrantano,

492 U.S. 1, 10 (1989), Pennsylvania v. Finley, 481 U.S. 551

(1987).

Claim17: INADEQUATE STATE PROCE-

DURE RESULTED IN THE DE-

NIAL OF A FULL AND FAIR

HEARING ON CONSTITUTIONAL

VIOLATIONS; and

Claim 20: DENIAL OF EXPERT FUNDING

A. Denial of Expert Services

Petitioner claims he was denied funding for mental

health and investigative experts at trial and during state

post-conviction proceedings. (Court File No. 17, pp. 6-9,

Claim 17). The question of whether the trial court erred by

App. 229

failing to provide Thompson with funds to hire an inde-

pendent expert witness is a mixed question of law and

fact. Therefore, the Court must decide if the state court’s

denial of an expert witness “involved an unreasonable

application of [| clearly established Federal Law as de-

termined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

In Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the United

States Supreme Court held:

([W]hen a defendant demonstrates to the trial

judge that his sanity at the time of the offense is

to be a significant factor at trial, the State must,

at a minimum, assure the defendant access to a

competent psychiatrist who will conduct an ap-

propriate examination and assist in evaluation,

preparation, and presentation of the defense.

This is not to say, of course, that the indigent de-

fendant has a constitutional right to choose a

psychiatrist of his personal liking or to receive

funds to hire his own. Our concern is that the in-

digent defendant have access to a competent psy-

chiatrist for the purpose we have discussed, and

as in the case of the provision of counsel we leave

to the State the decision on how to implement

this right.

At a minimum, Ake requires the petitioner to make

allegations supported by a factual showing that his sanity

is in fact at issue in the case. Kordenbrock v. Scroggy, 919

F.2d 1091, 1119 (6th Cir.), cert denied, 499 U.S. 970

(1991). Such a factual showing is not made by merely

making a factually baseless claim that the defendant is

insane or by entering a plea of not guilty due to insanity.

App. 230

1. Denial of Funding for Experts at Trial

Petitioner's allegation that he was denied funding for

mental health and investigative experts at trial “in all

likelihood a word processing error more than any other|,]”

according to petitioner’s counsel. (Motion Hearing Tran-

script, pp. 40). Although petitioner’s counsel informed the

Court during the hearing on the respondent’s motion for

summary judgment that there was no claim being made

regarding petitioner’s access to mental health experts at

trial, the Court will list the numerous pretrial motions and

orders filed in the state trial court and the results of the

proof at the trial court level to show what the state post-

conviction court relied on when ruling upon motions for

funds to pay mental health experts. The following motions

and orders pertaining to requests for mental health and

investigative experts are filed in Addendum 1A:

(1) Motion for Mental or Psychological Exami-

nation of Defendant — filed February 26,

1995 — requesting that a mental or psycho-

logical evaluation be ordered by the Court to

determine whether petitioner was compe-

tent to stand trial and to determine his

mental capacity at the time of the alleged

commission of the crime.

(2) Supplementary Motion for Psychiatric Ex-

amination; and in Addition, for Neurological

Examination — filed March 26, 1985 — re-

questing psychiatric evaluation and neuro-

logical examination of Thompson to

determine whether Thompson was compe-

tent to stand trial and assist counsel with

his defense, to determine whether Thomp-

son was suffering from a mental illness on

the date of the offense, and to determine

(3)

(4)

(5)

(6)

App. 231

_ whether Thompson was in need of hospitali-

zation for further psychiatric evaluation

and/or treatment. A supporting affidavit by

Thompson’s trial attorney stated Thompson

previously received two serious close-head

injuries. When Thompson was sixteen years

of age he was involved in a car wreck which

resulted in Thompson being hospitalized

with a serious concussion. The second injury

occurred when he was in the United States

Navy in 1981. He was beaten in the head

with a hammer and received serious inju-

ries, including, but not limited to, a concus-

sion.

Order Directing Forensic Evaluation by the

Mental Health Center — March 28, 1985 —

referring Thompson to the Multi-County

Mental Health Center to determine Thomp-

son’s competency to stand trial and his

mental capacity at the time of the crime.

Order Directing Forensic Evaluation by the

Mental Health Institute —- April 4, 1985 —

referring Thompson to Middle Tennessee

Mental Health Institute to determine

Thompson’s competency to stand trial and

his mental capacity at the time of the crime.

Notice of Intent to use Industrial Psycholo-

gist — filed June 20, 1985, by Thompson of

his intention to use the testimony of Dr.

George Copple, a clinical psychologist re-

garding Thompson’s mental conditions and

abilities.

Order (Ex Parte, Sealed) — filed July 29,

1985 — ordering that the charges of a pri-

vate psychiatrist and pathologist, their

App. 232

travel, motel and food expenses shall be

paid by the executive secretary of the Su-

preme Court of the State of Tennessee for

services performed by them on behalf of the

defendant.

(7) Ex Parte Order — filed May 13, 1985 (Ad-

dendum 1B) — ordered that the requested

sum of up to $800.00 shall be paid by the

State of Tennessee to Dr. George Copple for

services provided to Thompson.

(8) Ex Parte Order — eutered August 13, 1985

(Addendum 1B) — approving that the State

of Tennessee pay Dr. George Copple $300.00

per day for each day Dr. Copple attended

the defendant’s trial. ©

(9) Order Approving Attorney’s Fees (Adden-

dum 1B) — filed January 28, 1996 — ap-

proved payment of $945.00 to Dr. David K.

Wheaton, a psychologist, for his consulta-

tion and testimony.

The murder was committed on January 1, 1985.

(Court File 17, p. 2). On March 28, 1985, the state trial

court, acting upon Thompson’s motion, referred Thompson

to the Multi-County Mental Health Center for certain

forensic evaluations. (Addendum 1 A). The order directed

the Multi-County Mental Health Center to evaluate

Thompson for competency to stand trial, competency to

assist counsel with his defense, and competency at the

time the crime was committed. (Addendum 1A). Another

order directing forensic evaluation was entered on April 4,

1985. Based upon motion of Thompson and based upon the

recommendation of the Multi-County Mental Health

Canter, Thompson was referred to Middle Tennessee

Mental Health Institute for a maximum of thirty (30) days

App. 233

for forensic evaluation. The trial court ordered the exami-

nation of Thompson by a team of examiners at Middle

Tennessee Mental Health Institute, Thompson was sent to

Middle Tennessee Mental Health Institute on or about

April 18, 1985, and remained there for approximately a

month. (Addendum 1 I, p.148). The report from Middle

Tennessee Mental Health Institute was prepared in April

of 1985 and found Thompson to be competent. The psycho-

logical findings failed to support a defense of insanity or a

recommendation for judicial commitment. At Middle

Tennessee Mental Health Institute Thompson was diag-

nosed as suffering from adult antisocial behavior. (Adden-

dum 1 I, p. 62). The team specifically found:

He exhibited none of the signs of an affective ill- _

ness. His judgment and insight are rather poor.

Psychological testing revealed him to be function-

ing in the average range intellectually, to exhibit

no signs of organicity or brain damage on the

Bender-Gestalt Test and the Bender Interference

Procedure. Personality profiles revealed no evi-

dence of a psychosis, but indicated malingering

in the mental illness direction. (For example, the

schizophrenic score was at T 120, while clinical

observations revealed no evidence of a thought

disorder. )

(Addendum 1 I, p.159).

Dr. George Ellis Copple, a clinical psychologist,

testified on behalf of Thompson during the punishment

phase of his trial. (Addendum 1 H, pp. 112-143; Addendum

1 I, pp. 2-98). Dr. Copple, at the request of Thompson’s

trial counsel, evaluated Thompson. (Addendum 1 H, p.

118). Dr. Copple’s evaluation consisted of hours of testing

and talking to Thompson, but mostly testing, and listening

_ App. 234

to the witnesses during Thompson’s trial. (Addendum 1 H,

pp. 118-119).

Dr. Copple met with Thompson on May 15, 1985, at

the Forensic Unit of the Middle Tennessee Mental Health

Institute in private. Dr. Copple spent about three hours

with Thompson giving him tests. (Addendum 1 H, p, 120).

Dr. Copple gave Thompson some ability tests to determine

what things Thompson might be capable of doing in a

prison situation and what usefulness he might have to

himself or others in a prison situation. (Addendum 1 H, p.

121).

Dr. Copple spent another three and one half hours

with Thompson on August 2, 1985, at the Coffee County

Jail giving him the Minnesota Multiplasic Personality

Inventory, the Thematic Apperception Test, the Rotter

Incomplete Sentences Blank, and the Rorschach or Ink

Blot Test. (Addendum 1 H, pp. 124-126). Dr. Copple also

met with Thompson for two twenty minute sessions after

his trial began at Thompson's request. (Addendum 1 H, p.

127). Dr. Copple testified about Thompson’s abilities and

what jobs he could perform in prison. He also testified

about Thompson’s motivations in general and his behavior

for which he was convicted as tied to his nurturant moti-

vation. (Addendum 1Hh pp. 137-143, Addendum 1 I, pp. 2-

6). Dr. Copple testified that Thompson's need to nurture

“was very strong, strong enough to impel him to some

unwise actions. . .. He had had opportunities to break this

tie and this feeling of responsibility and protection he had

with Joanne.’ He had had numerous opportunities to do

* Joanne was the teenager with Thompson who distracted the

victim by asking the victim for directions to the hospital so Thompson

could come behind her and put a knife to her throat.

App. 235

that, but he hadn’t done that because of this inordinate or

extremely strong drive to protect.” (Addendum 1 I, p. 3).

Dr. Copple further testified that Thompson is not crazy in

any legal or psychiatric sense. Dr. Copple testified he did

not think Thompson was abnormal or suffering from a

mental illness, Dr. Copple administered the MMPI[*] and

there was no indication that Thompson was crazy. (Ad-

dendum 1 I, p. 55-61).

The record clearly shows Thompson was provided

with mental health experts and funds to pay for his own

expert at trial. The trial court granted Thompson’s motion

for an independent state-paid psychiatrist and provided

funds to pay an expert of Thompson’s choice. Neither

expert found Thompson to be incompetent or insane.

Consequently, defense counsel did not put the experts on

the witness stand during the innocence-guilt phase of the

trial. Therefore, Thompson’s claim for denial of an expert

at trial will be DISMISSED. He is not entitled to any

relief under § 2254.

2. Denial of Funds for Experts at State

Post-Conviction P li

Thompson claims the State of Tennessee denied him,

the expert and investigative funding necessary to present

his claims of constitutional error and then denied him a

transcript of the hearing on the motion for expert services,

thus precluding state review of the issue. The state con-

tends this does not state a habeas claim because it does

* Thompson took the MMPI for Dr. Watson, and Dr. Watson

concluded that Thompson attempted to take schizophrenia.

App. 236

not go to the constitutionality of his conviction. Petitioner

filed an ex parte motion for funds to pay a mental health

expert and an investigator to assist with his post-

conviction hearing. The motion was denied by the state

post-conviction court. The motion was initially denied by

Judge Ewell, who subsequently recused himself, and again

by Judge Russell because petitioner failed to demonstrate

a need for the requested funds.*

The writ of habeas corpus is not the proper means by

which a prisoner should challenge errors or deficiencies in

state post-conviction proceedings because these claims

address collateral matters and not the underlying state

* This Court has reviewed the record, including the deposition of

petitioner's recently hired expert, and does not find that Thompson

App. 237

conviction giving rise to the prisoner’s incarceration. Kirby

v. Dutton, 94 F.2d 245, 247 (6th Cir. 1986), “Claims attack-

ing a state court’s application of post-conviction proce-

dures do not state a basis for a federal claim under 28

U.S.C. § 2254.” Gattis v. Snyder, 46 F.Supp. 2d 344 (D.De.

1999). A claim challenging the state post-conviction

proceedings fails to state a federal constitutional claim

cognizable in a federal habeas proceeding. Steele v. Young,

11 F.3d 1518, 1524 (10th Cir. 1993); Duff Smith ». Collins,

973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S.

1056 (1993). “Even where there may be some error in state

post-conviction proceedings, this would not entitle appel-

lant to federal habeas corpus relief since appellants claim

nere represents an attack on a proceeding collateral to

detention of appellant and not on the detention itself...

Infirmities in state habeas corpus proceedings do not

constitute grounds for federal habeas relief.” Vail v.

Procnier, 747 F.2d 277 (5th Cir. 1984). “Moreover, because

state post-conviction proceedings are civil in nature, the

Sixth Amendment right to effective assistance of counsel

does not attach.” Noble v. Sigler, 351 F.2d 673, 678 (8th

Cir. 1965), cert. denied, 385 U.S. 853 (1966); see also

Coleman v. Thompson, 501 U.S. 722, 752 (1991); Kirby v.

Dutton, 794 F.2d at 246 n.1.

Section 2254 gives federal courts the jurisdiction to

determine the constitutionality of a state criminal convic-

tion, but not the authority to review state post-conviction

proceedings, Williams-Bey v. Trickey, 894 F.2d 314, 317

(8th Cir.), cert. denied, 495 U.S. 936 (1990); Mitchell v.

Wyrick, 727 F.2d 773, 774 (8th Cir.), cert. denied, 469 U.S.

823 (1984). The constitution does not require the states to

provide a means of post-conviction review, therefore an

infirmity in a state post-conviction proceeding does not

App. 238

raise a constitutional issue and is not cognizable in a

federal habeas petition. Tokar v Bowersox, 1 F. Supp. 2d

986, 1015 (ED. MO 1998), aff'd, __ F.3d __, 1999 WL

1116835 (8th Cir. Dec. 8, 1999); Gee v. Groose, 110 F.3d

1346, 1351-52 (8th Cir. 1997); Jolly v. Gammon, 28 F.3d

51, 54 (8th Cir.), cert. denied, 513 U.S. 983 (1994); Wil-

liams-Bey v. Trickey, 894 F.2d at 317. Accordingly, peti-

tioner’s claim that he was denied funds for experts during

state post-conviction proceedings and denied investigative

funding will be DISMISSED.

To the extent Thompson claims he was denied a full

and fair state past-conviction hearing, the Court finds he

has failed to set forth facts supporting this claim as

required by Rule 2 of the RULES GOVERNING SECTION 2254

CASES IN THE UNITED STATES DISTRICT Courts, and

Thompson has failed to provide this Court with any

substantial evidence that the state post-conviction court

denied him a full and fair hearing. To the extent Thomp-

son claims he was denied a full and fair hearing on this

state post-conviction motion for funds to hire experts he

has failed to cite to or produce that part of the record

pertinent to this claim or to inform the Court that he is

unable to produce such part of the record. See 28 U.S.C.

§ 2254(f).

Although, Thompson has failed to properly state this

claim, this Court has read the state post-conviction tran-

script and does not find petitioner was denied a full and

fair hearing.” After Judge Ewell denied the motion for

4 was denied a full and fair post-conviction

sen Se aan an state post-conviction court denied him a

full and fair hearing which prevented him from developing his —-

Thompson was represented by counsel and presented evidence. His

(Continued on following page)

App. 239

funds for experts,’ he recused himself. Judge Buddy Perry

was assigned the case and upon a motion to reconsider the

denial of expert and investigative funds, Judge Perry

stayed the matter pending the release of the Court of

Criminal Appeals of Tennessee opinion in the case of

Owens v. State, 1994 WL 112997 (Tenn. Crim. App. March

25, 1994), rev'd in part, 908 S.W.2d 923 (Tenn. 1995).

However, Judge Perry was replaced by Judge Russell who

specifically found, in denying the motion, that “[t]he issue

of the petitioner’s mental competency was thoroughly

litigated upon his trial. The Court finds that there has

been no demonstrated need for the funds requested, and

the motion is again denied.” (Addendum 12 A, p. 262).

The state past-conviction court noted that Thompson

alleged mental incompetence at the time of trial’ and

incompetence at the time of his post-conviction hearing

alleging his incompetence prevented him from being

subjected to the death penalty. However, the post-

conviction court found that those issues were abandoned

in post-hearing brief and argument. The post-conviction

count further found that based on the court’s observation

attorneys were permitted to introduce evidence and examine and cross

examine witnesses. The state post-conviction court held a hearing and

made finding of facts and ruled on the issues.

* Petitioner failed to submit the transcript of this hearing to the Court

of Appeals or to this Court. Therefore, this Court is unable to review this

transcript. However, the record supports the trial court’s finding that

petitioner did not demonstrate a need for funds to hire experts.

" The State trial court granted Thompson’s notion for an independ-

ent state-paid psychiatrist (Dr. Watson) and provided funds to pay an

expert of Thompson’s choice (Dr. Copple). Neither expert found

Thompson to be incompetent or insane. The proof at trial clearly

indicated Thompson was not incompetent and did not indicate any

mental health mitigating evidence.

App. 240

of the petitioner and the evidence presented, the petitioner

was not mentally incompetent. (Addendum No. 12 a, pp.

394-395).

The Tennessee Criminal Court of Appeals found that:

Judge Ewell’s order denying services was not

rendered void by his subsequent recusal. More-

over, without the transcript of the hearing be-

fore Judge Ewell, we cannot conclude there was

an abuse of discretion in denying the services.

It is the burden of the appellant to prepare a

record on appeal that presents a complete and

accurate account of what transpired in the trial

court with respect to the issue on appeal. Tenn.

R. App. P. 24(b). The failure to do so results in

a waiver of such issues and a presumption that

the ruling of the trial court was correct. On the

record before us, we cannot conclude the trial

court abused its discretion by denying the ser-

vices.

\

(Addendum 17, p. 31-32) (Citations omitted).

To the extent Thompson is claiming the state post-

conviction court incorrectly determined from the facts he

submitted that he did not demonstrate a need for mental

health experts, this claim is without merit because he has

failed to rebut the presumption of correctness by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1), Thompson

failed to develop the factual basis of this claim in state

court. Therefore, pursuant to 28 U.S.C. § 2254(2)(A) and

(B),’ this Court is prohibited from holding an evidentiary

i i 1 basis of a

. If the applicant has failed to develop the factual basis «

claim anne patie. sonra oat the court shall not hold an evidentiary

hearing on the claim unless the applicant shows that -

(Continued on following page)

App. 241

hearing on this claim. To the extent Thompson claims his

post-conviction counsel’s failure to submit the transcript of

the denial of funds is an excuse for his procedural default

of this issue the Court finds this issue is without merit

because there is no constitutional right to an attorney in

state post-conviction proceedings. Consequently a petition

cannot claim constitutionally ineffective assistance of

counsel in such a proceeding. Therefore, Thompson must

“bear the risk of attorney error that results in, a proce-

dural default.” Coleman v. Thompson, 501 U.S. 722, 752-

53 (1991). Under Coleman the alleged ineffective perform-

ance of Thompson’s attorney in the post-conviction pro-

ceeding cannot be “cause” for Thompson’s procedural

default. Consequently this claim is not cognizable in this

federal habeas corpus proceeding.

After thoroughly reviewing this record, this Court is

unable to find that Thompson provided any reason to sup-

port the appointment of another psychiatrist. A psychiatric

examination is not an adversary proceeding. Its purpose is to

determine Thompson’s sanity and/or competency and any

mitigating mental health evidence. Thompson does not have

a right to the appointment of a psychiatrist who will reach a

biased or favorable conclusion.

(A) the claim relies on -

(i) a new rule of constitutional law made retroactive to cases

on collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error, no

reasonable fact-finder would have found the applicant guilty of the

underlying offense.

App. 242

Therefore, Thompson’s claim for denial of experts at

his post-conviction hearing and denial of a full and fair

post-conviction hearing will be DISMISSED. He is not

entitled to any relief on these issues under § 2254.

Claim 18: QUALIFIED REQUEST FOR

FURTHER. AMENDMENT

Petitioner requests leave to amend his petition should

additional relevant facts be disclosed in the future. This

case is presently before the Court on a motion for sum-

mary judgment and petitioner has not filed any further

amendment. During oral argument counsel for petitioner

stated this claim is “somewhat mooted.” Therefore, this

Claim 18 will be DISMISSED as MOOT.

Claim 19: TRIAL COUNSEL’S CONFLICTS

OF INTEREST

Petitioner claims he was denied his rights under the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution by virtue of the appointments of

attorneys John W. Rollins and H. Thomas Parsons, who

suffered from actual conflicts of interests. Thompson claims

John W. Rollins suffered a conflict due to his concurrent

and active representation of Coffee County, Tennessee,

during critical stages of Mr. Thompson’s state court pro-

ceedings. Petitioner claims H. Thomas Parsons suffered a

conflict due to his concurrent and active representation of

the Sheriff of Coffee County during critical stages of Mr.

Thompson’s state court proceedings. Parsons represented

the Coffee County Sheriff in an unrelated civil matter in

federal district court. Petitioner claims H. Thomas Parsons

was burdened by an additional conflict of interest by the

App. 243

fact he was actively engaged in a financial relationship with

the prosecuting attorney, Charles Buck Ramsey.’

The Supreme Court of Tennessee addressed the issue

of conflict of interest regarding the attorney’s representa-

tion of Thompson and the county or sheriff when Thompson

appealed his conviction. As noted by the Supreme Court of

Tennessee, both attorneys quickly moved to withdraw after

being appointed to represent Thompson. Furthermore, Mr.

Rollins did not confer with petitioner and took no part in his

representation and was relieved on April 9, 1985. On the

same day Mr. Doyle Richardson was substituted as co-

counsel. State v. Thompson, 768 S.W.2d 239, 244 (1989).

On June 20, 1985, Mr. Parsons was relieved as coun-

sel for Thompson by order of the Tennessee Court of

Criminal Appeals because of the possibility that the

Sheriff's subordinates would give material testimony at

trial. On July 5, 1985, Mr. Richardson, on behalf of

Thompson, moved to have Mr. Parsons re-appointed since

the conflict was resolved by the settlement of the Sheriff’s

civil suit. On July 10, 1985, the court of criminal appeals

ordered his reappointment. Jd.

The Supreme Court of Tennessee did not find any

actual conflict. “[T]he conflict claimed here was only a

potential one and quite remote; and it was resolved before

trial. Without a showing of prejudice — and an attorney’s

good faith assertion of his disqualification is not in itself

Mr. Parson testified that the fact he helped General Ramsey, the

prosecuting attorney, in some way in his financial matters did not enter

into ong nah this case in any respect. Furthermore, Thompson

apparently signed a waiver waiving any objecti i

conflict (Addendum 12B, pp. 35-36). a

App. 244

ineffective representation — there is no denial of counsel.”

Id. Furthermore, the evidence shows that only one Sheriffs

employee testified at trial and his testimony was limited to

establishing the chain of custody of the knife found by the

road crew. The majority of the investigation was conducted

by the Tennessee Bureau of Investigation.

Petitioner has not alleged nor does this Court find

that the state court’s decision was contrary to or an

unreasonable application of established federal law as

determined by the United States Supreme Court, or that it

involved an unreasonable determination of the facts in

light of the state court evidence. Accordingly, Thompson’s

claim that he was denied his constitutional rights due to

trial counsel’s conflict will be DISMISSED.

Petitioner claims Mr. Parsons also had a conflict of

interest by the fact he was actively engaged in a financial

relationship with the prosecuting attorney, Charles Buck

Ramsey. The state claims the issue regarding Mr. Parson’s

conflict due to an active financial relationship with the

prosecuting attorney is procedurally defaulted.

Although, there was some testimony regarding a

financial relationship between Parsons and the District

Attorney, Thompson did not present this issue on his

direct appeal or in his appeal of his post-conviction peti-

tion. Thompson presented this claim during his state post-

conviction petition hearing.

However, he failed to raise this issue on appeal.

Thompson contends he was denied the opportunity to

establish the claim. However, the record does not support

his claim. The following colloquy took place:

MR. PARSONS:

MR. FORD:

MR. PARSON:

MR. FORD:

MR. PRUDEN:

THE COURT:

MR. FORD:

MR. PRUDEN:

MR. FORD:

THE COURT:

App. 245

... The matter which you are

getting to involves financial prob-

lems that Mr. Ramsey got into.

Do you recall when he got into

the financial problems?

I really don’t. It was back in the

early ‘80s, late “70’s or early ‘80s.

Was it going on at the time of

the Thompson trial?

Objection, relevance, Your Honor.

How is this relevant, Mr. Ford?

We are going to an issue of con-

flict, Your Honor. I believe the

proof will, show that Mr. Par-

sons and other people came to

the financial aid of Buck Ram-

sey, actually helped him in the

purchase of a house.

Your Honor, it’s not in the petition.

Conflict. We put “conflict” in

there. Our client would raise

that also but we did put the is-

sue of conflict in there.

Let me ask you this questions,

assuming that the facts show

Mr. Parsons assisted the Dis-

trict Attorney General in his

financial matters, how is that

going to be detrimental to this

petitioner? I would think that

would be about the best thing

you could do.

App. 246

MR. FORD: Apparently at some point, the

conflict was recognized by Mr.

Parsons who got out [sic] client

to sign a wavier [sic] waiving

any objection to this conflict so

apparently, it entered into the

mind of Mr. Parsons and ap-

parently, it entered into the

mind of Mr. Parsons and

caused him some pause. There-

fore, we feel like we need to

delve into it and see what, if

any effect it had on his repre-

sentation of this man. Appar-

ently, it caused him enough

pause to get a waiver signed.

THE COURT: Well, let’s just ask him that ques-

tion and get right to the heart of

it. Mr. Parsons, did the fact you

had apparently helped General

Ramsey in some way in his finan-

cial matters enter into the trial of

this case in any respect?

THE WITNESS: Not at all.

MR. FORD: You cut out about half of my

questions, Judge.

THE COURT: That was my purpose.

The record shows Mr. Ford was not prevented from

questioning the witness further. Mr. Ford stated that the

Judge’s question cut out about half of his questions but the

Judge did not prevent him from asking further relevant

questions. Petitioner was not denied an opportunity to estab-

lish this claim. The Judge did not prevent questioning regard-

ing the petitioner signing the waiver or circumstances

App. 247

surrounding the signing of the waiver. Accordingly, the

Court finds that petitioner was provided with an opportu-

nity to establish this claim. The Court further finds that

Thompson has failed to fairly present this issue to the

Tennessee Supreme Court resulting in procedural default.

Thompson has not shown cause and prejudice to excuse

this default. Accordingly, petitioner’s claim that he was

denied a full and fair hearing on his claim that counsel

suffered from conflicts will be DISMISSED.

Claim 21: COMPETENCY TO STAND

TRIAL AND AT THE TIME

OF THE CRIME

Petitioner claims he was incompetent at the time of

the crime and at the time of trial. The state contends and

the record confirms that petitioner has failed to present

this claim to the state appellate courts.

Thompson is barred from seeking review of these

claims in a state court proceeding because he had the

opportunity to raise the issues during the course of his

direct appeal and post-conviction but failed to do so. See

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

cause and prejudice, this Court cannot reach the merits of

claims that have been procedurally defaulted in state

court by a state prisoner in a defendant’s direct criminal

appeal. Reed v. Farley, 512 U.S. 339, 354 (1994). To

establish cause Thompson must present a substantial

reason to excuse the default. Thompson must also show he

was actually prejudiced as a result of the claimed constitu-

tional error. United States v. Frady, 456 U.S. 152, 174

(1982); Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir.),

cert. denied, 516 U.S. 992 (1995).

App. 248

To establish cause, Thompson must present a substan-

tial reason to excuse the default. Thompson alleges he was

denied funding for mental health and investigative experts

as cause for his failure to timely raise these issues in his

direct appeal, or post-conviction appeal to the Court of

Criminal Appeal or to the Tennessee Supreme Court. How-

ever, the Court has previously determined that Thompson

was provided with funding for mental health experts at the

state trial court level and the trial court record reveals that

Thompson was competent at the time of the crime and his

trial. Thompson’s factually unsupported claim, that the state

post-conviction court’s denial of his motion for funds to hire

experts excuses his default, fails to provide cause to excuse

his procedural default. Consequently, Thompson’s claim is

procedurally barred, thereby necessitating the DISMISSAL

of this issue in his § 2254 petition.

Claim 22: INEFFECTIVE ASSISTANCE OF

COUNSEL

Thompson presents twenty-two claims of ineffective

assistance of counsel in his § 2254 petition. The state

contends only four of the twenty-two claims have been

fairly presented to the Tennessee Supreme Court. The

state contends petitioner never presented eighteen of the

sub-parts of his ineffective assistance of counsel claim to

the Tennessee state courts for consideration and has no

remedy currently available under Tennessee law to pre-

sent these claims to the state courts. Therefore, respon-

dent contends petitioner is procedurally barred from

consideration of these claims in this habeas proceeding.

However, it is the Court’s opinion that at least portions of

seven of the twenty-two claims have been fairly presented

to the Tennessee Supreme Court. Thompson has not

procedurally defaulted or waived the issues of ineffective

App. 249

assistance of counsel on approximately seven of the

twenty-two asserted factual bases, specifically portions of

sub-parts 1, 2, 3, and 4, and issues 6, 7, and 9 were fairly

presented to the Tennessee state courts and adjudicated

on the merits. With the exception of these seven claims,

Thompson has failed to exhaust all the claims to which

Respondent has asserted a procedural default defense.

Thompson has procedurally defaulted on the other fifteen

claims which this Court will address individually.

Petitioner appealed the denial of his post-conviction

petition to the Court of Criminal Appeals and claimed his

state trial attorneys were ineffective for nine different

reasons. Thompson v. State, (Addendum No. 18). Specifi-

cally, the claims Thompson made to the Tennessee Court

of Criminal Appeals that are related to his first four

claims of ineffective assistance in this petition, are that

trial counsel were ineffective for failure to interview wit-

nesses who could have been beneficial to him, failure to

adequately investigate prior head injuries, failure to prepare

and present defense witnesses, and by opening the door to

damaging evidence during the penalty phase of the trial.

Thompson then appealed the denial of state post-

conviction relief to the Tennessee Supreme Court by filing

an application for permission to appeal, which was denied.

He presented the following question regarding ineffective

assistance of counsel for review:

I. There is a need to secure settlement of im-

portant issues of law relating to the standard

by which the competence of criminal attor-

neys is measured.

In support of this claim he argued trial counsel did

not warn Ms. Arlene Calajuo of the State’s ability to

App. 250

cross-examine her about Thompson’s military history and

their decision to use her as a witness was not an informed

one. Petitioner also claimed trial counsel was ineffective

because at the penalty stage of the trial they used their

own psychological testimony to opened [sic] the door to

allow unfavorable testimony regarding Thompson’s

evaluation at Middle Tennessee Mental Health Center.

The unfavorable testimony included evidence that Thomp-

son was a malinger who showed no remorse and that he

had been violent and disruptive at the facility, Thompson

also claimed trial counsel failed to develop proof regarding

Federal courts must defer to state court factual

findings, according them a presumption of correctness that

the petitioner may rebut only with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). This presumption only

applies to underlying basic, primary, or historical facts,

and not to mixed questions of facts and law. Rickman v.

Bell 131 F.3d 1150, 1153 (6th Cir. 1997), cert. denied, 118

S. Ct. 1827, 140 L.Ed.2d 962 (1998); West v. Seabold, 73

F.3d 81, 84 (6th Cir.), cert. denied, 518 U.S. 1027 (1996).

Ineffective assistance of counsel in a petition for

habeas corpus review presents a mixed question of law

and fact. West v. Seabold, 73 F.3d at 84. Therefore, a state

court’s conclusion counsel rendered effective assistance is

not a finding of fact binding on the federal court to the

extent stated by 28 U.S.C. § 2254 (e)(1). Ineffectiveness is

a mixed question of law and fact, not a question of basic,

primary, or historical fact. State court findings of fact

made in the course of deciding an ineffectiveness claim are

subject to the deference requirement of 28 U.S.C.

§ 2254(e). However, the performance and prejudice com-

ponents of the ineffectiveness inquiry, which are mixed

questions of law and fact, are not entitled to the deference.

App. 251

See Rickman, 131 F.3d at 1153-54. To obtain ~elief, Thomp-

son must show the state court’s adjudication resulted in a

decision that involved an unreasonable application of clearly

established Federal law as determined by the United States

Supreme Court. 28 U.S.C. § 2254(d)(1).

In order to demonstrate ineffective assistance of

counsel, Thompson must not only show his attorney’s

representation fell below the standard of competence

demanded of attorneys in criminal cases, but also, there is

a reasonable probability, but for the attorney’s unprofes-

sional errors, the result of the proceeding would have been

different. The Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984), established the criteria for determin-

ing whether a Sixth Amendment claim of ineffective

assistance of counsel is meritorious.

To establish his attorney was not performing within

the range of competence demanded of attorneys in crimi-

nal cases, the defendant must demonstrate the attorney’s

representation fell below an objective standard of reason-

ableness. Strickland, 466 U.S. at 687-88; McMann uv.

Richardson, 397 U.S. 759, 771 (1970). The Strickland test

requires that a defendant demonstrate two essential

elements: (1) counsel’s performance was deficient, i.e.,

counsel was not functioning as counsel guaranteed the

defendant by the Sixth Amendment, and (2) counsel’s

deficient performance prejudiced the defense, i.e., deprived

the defendant of a fair trial rendering the outcome of the

trial unreliable. Jd. at 687-88; McQueen v. Scroggy, 99

F.3d 1302, 1310-11 (6th Cir. 1996), cert. denied, 520 U.S.

1257 (1997); Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th

Cir. 1992). See also Flippins v. United States, 808 F.2d 16,

17-18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987). As the

Sixth Circuit explained in United States v. Morrow, 977

App. 252

F.2d 222, 229 (6th Cir. 1992), cert. denied, 508 U.S. 975

(1993): “Counsel is constitutionally ineffective only if

performance below professional standards caused the

defendant to lose what he otherwise would probably have

won.” See also West v. Seabold, 73 F.3d at 84. “An error by

counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceed-

ing if the error had no effect on the [ultimate] judgment.”

West, 73 F.3d at 84, quoting Strickland, 466 U.S. at 691,

citing Smith v. Jago, 888 F.2d 399, 404-05 (6th Cir. 1989),

cert. denied, 495 U.S. 961 (1990). There is a strong pre-

sumption that counsel’s conduct was within the wide

range of reasonable professional assistance. Strickland,

466 U.S. at 689; Sims, 970 F.2d at 1579-80.

“Reviewing courts focus on whether counsel’s errors

have undermined the reliability of and confidence that the

trial was fair and just.” Austin v. Bell, 126 F.3d 843, 847

(6th Cir. 1997), cert. denied, 118 S. Ct. 1526, 140 L.Ed.2d

677 (1998), citing Strickland, 477 U.S. at 687; United

States v. Cronic, 466 U.S. 648, 658 (1984); McQueen v.

Scroggy, 99 F.3d at 1310-1311. The Count cannot indulge

in hindsight, but must instead evaluate the reasonable-

ness of counsel’s performance within the context of the

circumstances at the time of the alleged errors. Strickland,

466 U.S. at 690; McQueen, 99 F.3d at 1311. Trial counsel’s

tactical decisions are particularly difficult to attack.

McQueen, 99 F.3d at 1311; O’Hara v. Wigginton, 24 F.3d

823, 828 (6th Cir. 1994). A defendant’s challenge to such

decisions must overcome a presumption that the chal-

lenged actions might be considered sound trial strategy.

McQueen, 99 F.3d at 1311; O’Hara, 24 F.3d at 828. Effec-

tive assistance of counsel is presumed, and the Court will

not generally question matters involving trial strategy. See

App. 253

United States v. Chambers, 944 F.2d 1253, 1272 (6th Cir.

1991), cert. denied, 502 U.S. 1112 and 503 U.S. 989 (1992).

To establish the prejudice prong, Thompson must

show that absent his attorney’s errors, the result of his

trial would have been different. Lynott v. Story, 929 F.2d

228, 232 (6th Cir. 1991). “[R)eviewing court{s) must

remember that ‘counsel is strongly presumed to have

rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judg-

ment.’” Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998),

quoting Strickland v. Washington, 466 U.S. at 690. The

Court must make an independent judicial evaluation of

counsel’s performance, and determine whether counsel

acted reasonably under all the circumstances. McQueen,

99 F.3d at 1311; O'Hara, 24 F.3d at 828; Ward v. United

States, 995 F.2d 1317, 1321-22 (6th Cir. 1993); Sims, 970

F.2d at 1580-81.

This opinion will, deal with each sub-part seriatim.

The state contends Thompson procedurally defaulted on

sub-parts one through four, except, to the extent that

subpart 3 challenges counsel’s investigation and prepara-

tion of the issue of his prior head injuries which was the

only issue that was specifically raised and addressed on

the merits by the Tennessee appellate court. This Court

will address the first four sub-parts of Mr. Thompson’s

ineffective of assistance of counsel claim together since

they are intertwined and based on the broad allegation

that trial counsel failed to investigate his background and

mental heath [sic] history. The first four sub-parts of his

claim of ineffective assistance of counsel consists of five

pages of allegations. To the extent Thompson failed to

fairly present any of the claims made in the first four sub-

parts of his ineffective assistance claim to the state courts,

App. 254

this Court cannot address them because he has failed to

show cause to excuse his failure to present the claim in the

state courts and actual prejudice. See Gray v. Netherland,

518 U.S. at 160-161. However, for the reasons that follow

this Court finds that the state court’s decision did not

involve an unreasonable application of established federal

law as determined by the United States Supreme Court,

nor did it involve an unreasonable determination of the

facts in light of the state court evidence.

This Court will address the first four sub-parts of

Claim 22 together. The following are the first four sub-

parts of Claim 22:

1. Thompson claims trial counsel failed to

perform a reasonable investigation of

his background. Counsel at all critical

stages failed to reasonably investigate

Mr. T’»ompson’s background and mental

health history. Petitioner claims they

would have discovered that in the years

after he graduated from high school, he

experienced intermittently, bizarre and

delusional thought patterns. Further,

they would have discovered his father

had a history of severe mental illness.

2. Petitioner claims counsel was ineffec-

tive for failing to fully investigate and

present relevant evidence of his mental

health history and to secure adequate

expert assistance to defend petitioner, in-

cluding psychologists, neuropsychologi-

cal and or neurological experts to

statutory mitigating factors under Ten-

nessee law. Petitioner contends he suf-

fered from substantial mental disorders

and demonstrable physical brain damage

App. 255

which made him unable to conform his

behavior to the law.

3. Counsel failed to discover available evi-

dence of mental illness caused by two

serious head injuries. Counsel failed to

obtain medical and other important re-

cords for the purpose of presenting evi-

dence in mitigation. Experts recently

obtained by Petitioner’s present counsel -

have revealed that Petitioner was in-

competent under Tennessee law at the

time of the crime and throughout court

proceedings. Petitioner suffered, and

continues to suffer from schizophrenia,

delusional thought processes, and an

inability to control his actions secon-

dary to frontal lobe organicity.

4. Counsel failed to investigate and chal-

lenge Petitioner’s competency to stand

trial as well as his competency at the

time of the offense, Testing conducted

at MTMHI was unreliable and trial

counsel were ineffective in failing to

challenge the results from MTMHI. |

The record shows that trial counsel conducted an

extensive investigation of Thompson’s background and

childhood. Although trial counsel were informed of Thomp-

son’s allege head injuries and researched the subject, it

does not appear they obtained the medical records show-

ing Thompson was treated for two head injuries. However,

Thompson has failed to submit any medical records or

proof to this Court that he actually sustained these alleged

head injuries or that they resulted in any permanent

damage. Thompson claims trial counsel failed to discover

his father had a history of severe mental illness. However,

App. 256

Thompson does not make any showing that failure to

discover his father’s history of severe mental illness

prejudiced him in any way.

Mr. Parsons, one of petitioner’s trial counsel, testified

that during his interviews with the family members or

with Thompson, he was told that Thompson suffered a

head injury from a car wreck when he was young, and

suffered a head injury as a result of an assault in the

military. In addition, Thompson’s trial counsel researched

closed head injuries but since neither psychological ex-

amination revealed any mental illness or mitigating

evidence, they made the strategic decision to present

Thompson in the most positive light possible. (Addendum

12B, p. 102).

The trial judge found Thompson’s trial counsel ade-

quately investigated his background and prior medical

history. The trial judge also found Thompson's post-

conviction counsel did not present any proof of mental

problems on the part of Thompson that would have been a

defense to the charge, or that would constitute a shield

against execution. The trial judge found trial counsel did

not seek expert and investigative assistance regarding

alleged head injuries to Thompson during his youth, or

testimony as to Thompson’s incompetency at the time of

his confession because the facts and circumstances did not

indicate the necessity for such action. The Tennessee

Court of Criminal Appeals concluded Thompson failed to

establish that the head injuries had any effect upon his

mental stability at the time of the murder or that any type

of psychological impairment in general may have existed

which would have been mitigating evidence. The state

court concluded Thompson failed to demonstrate any

prejudice from the failure of trial counsel to further

App. 257

investigate the head injuries and the evidence did not

preponderate against the trial court’s findings of effective

assistance of counsel. (Addendum No. 18, Thompson uv.

State, C.C.A. No. 01C01-9506-CC-00180, pp. 12-14). The

Tennessee Court of Criminal Appeals further found the

decision not to further pursue the head injuries was

reasonable strategy:

Trial counsel’s decision to emphasize the peti-

tioner’s positive qualities rather than to suggest

brain damage, while unsuccessful, was based

upon adequate investigation. “[T]he fact that a

particular strategy or tactic failed or even hurt

the defense does not, alone, support a claim of

ineffective assistance.” Cooper [v. State], 847

S.W.2d [521] at 528 [Tenn. Crim. App.1992]. Def-

erence must be given to an informed trial strat-

egy. This court must refrain from _ second-

guessing trial counsel’s decision to emphasize the

petitioner’s positive attributes rather than possi-

ble brain damage. Because two experts did not

detect brain damage, counsel cannot be faulted

for discarding a strategy that could not be sup-

ported by a medical opinion.

(Addendum No. 18, Thompson v. State, C.C.A. No. 01C01-

9506-CC-00180, pp. 13-15),

The record shows there were medical experts who

evaluated Thompson and they found no substantial

mental disorders nor physical brain damage. Specifically,

the team at Central State concluded there was no organic-

ity (brain damage) and Dr. Copple found no indication of

brain damage. (Addendum No. 12 B, p. 189). Upon motion

of Thompson’s trial counsel, Thompson was sent to the

Middle Tennessee Mental Health Institute for a forensic

mental evaluation prior to trial. (Addendum No. 12 B, pp.

App. 258

33, 69). Trial counsel, Mr. Parsons and Mr. Richardson,

also hired Dr. Copple to testify Thompson had some

positive characteristics and had abilities that would be

beneficial to society wherever he was because there was

virtually no likelihood that another psychiatrist could find

mental illness. (Addendum No. 12 B, p. 112). Mr. Parsons

acknowledged that once the defense introduced positive

evidence about Thompson he knew the state would have

the opportunity to introduce negative evidence about

Thompson and the only way to prevent that situation

would have been to present no evidence during the pun-

ishment phase. (Addendum No. 12 B, p. 128). Therefore, to

ensure that nothing detrimental came to light, trial

counsel would have had to keep Dr. Copple off the witness

stand, thereby preventing the jury from hearing any

expert proof about Thompson.

Dr. Copple, the clinical psychologist hired by the

defense, testified on ithompson’s behalf during the penalty

phase of his state jury trial. (Addendum. 1 H, pp. 112-143;

Addendum 1 I, pp. 2-98). Dr. Copple spent approximately

seven hours with Thompson, interviewing and testing him.

In addition. Dr. Copple listened to the trial testimony of

the people who testified for both sides and spent approxi-

mately forty minutes with Thompson during the trial,

(Addendum 1 H, p. 127). Although Dr. Copple testified

Thompson’s arithmetic level was that of a good strong

seventh grader and his reading level was a high sixth

grade level, he testified Thompson had the ability to

succeed at the training offered at an average community

college. (Addendum 1 H, p. 130). Dr. Copple further

testified Thompson had been successful at completing

some college work. On a standard test of reasoning,

Thompson scored in about the 64th percentile of high

App. 259

school graduates, which means that 36 percent of the high

school senior males would score higher and 64% would

score below him. (Addendum 1 H, p. 133).

Dr. Copple testified Thompson is a sensitive, caring

person, who has “this nurturance need to the extreme.”

(Addendum 1 I, p. 21). Dr. Copple testified he consistently

saw strong remorse in Thompson. (Addendum 1 I, p. 31).

When Mr. Richardson was asked if it was true that he

did all he could to develop evidence of brain damage, he

responded,

Did try to hire a psychiatrist but that was not

successful and it was, you know, it was the type

thing it was a theory as to whether to go with his

good character and reservoir of moral upbring-

ing, a man with a great deal of ability that could

be used in the penitentiary and a life sentencing.

I doubt if there will ever be another man on

death row that had as good a background as he

did. I don’t know of any, and then the question as

to whether to mix into that or try to accentuate

some brain damage that we hadn’t been able to

spot, but at the same time, probably with some

more digging may could have and then give the

jury the idea that this man, if he ever gets out of

prison with some brain damage, he will kill ...

somebody else, that is kind of counter productive.

We went with one strategy and probably if we

had to do it over again, would go with the other

strategy because that one didn’t work.

(Addendum No. 12 B, pp. 193-194).

The record shows Thompson’s mental health was

investigated and he received adequate expert assistance to

attempt to establish valid mitigating factors. The mental

App. 260

health experts were aware of his behavior and the experts

did not find any brain damage and found Thompson was

competent, Counsel was aware of Thompson’s inappropri-

ate behavior which occurred while he was in the Navy but

they made the strategic decision not to introduce that

evidence. However, some of the testimony included the

problems he had while in the Navy and much of that

information was introduced to the jury.

Mr. Parsons testified he and others working on the

defense team traveled to Molena, Georgia, and Zebulon,

Georgia, and interviewed petitioner's family members,

neighbors, teachers, and a preacher. Mr. Parsons testified

they obtained all they could of Thompson’s military

records.

Mr. Parsons testified that based on the overwhelming

evidence, they did not think they had a chance of winning

the guilt phase. However, rather than enter a plea of not

guilty, they chose not to have Mr. Thompson enter any

plea for strategic reasons. They wanted the state to go

through the guilt phase and put all the proof on and let it

settle before going into the punishment phase. They did

not want all the proof entered during the punishment

phase where it would be fresh to the jury. (Addendum 12

B, pp. 109-110). Mr. Parsons testified trial counsel ac-

knowledged the terrible crime and that the proof showed

overwhelmingly that petitioner committed the crime. Trial

counsel concluded all they could hope for was that Thomp-

son would receive a life sentence, so they developed a

strategy to show the jury that petitioner had “social

worth,” (Addendum 12 B, p. 110). Mr. Parsons testified

that since they could not mitigate the crime, they chose to

introduce mitigating evidence at the penalty phase of

petitioner’s worth as an individual. They attempted to

App. 261

show petitioner’s skills and abilities and that he could be

productive to society and in prison.

Trial counsel developed this strategy after receiving

the results of a mental evaluatien t/:ey sought at Central

State. Mr. Parsons requested a competency evaluation of

Thompsen at Central State which resulted in no finding of

mental illness, mental defect, nor insanity. (Addendum 12

B, pp. 74, 111). Trial counsel did not want to focus on the

fact Thompson had been involved in fights in the military

or any violence in his background. Mr. Parsons felt any

negative evidence about Thompson should be introcuced

by the prosecution. (Addendum 12 B, p. 74). Therefore,

during the penalty phase, they put on witnesses who

testified about petitioner’s positive traits. (Addendum 12

B, pp. 37-138). Petitioner’s ex-girlfriend who met him after

he graduated from high school, was one of the witnesses

who testified during the penalty phase of his trial. She

testified about their relationship, Thompson receiving

stitches in his head after being hit in the head with a crow

bar, and generally about Thompson’s life during the time

she knew him.

In his appeal to the Tennessee Criminal Court of

Appeals, petitioner alleged ineffective assistance of coun-

sel for failing to interview witnesses who could have been

beneficial to this case, especially during the penalty phase.

Specifically, Thompson contended counsel failed to inter-

view his step-father, his attorney in the military, the

mother of his co-defendant, a witness who worked with the

petitioner after his head injuries, a woman who lived in

the residence where the arrest was made, and an em-

ployee at the Middle Tennessee Mental Health Institute.

The Court of Criminal Appeals of Tennessee observed that

Thompson’s brief suggested that these witnesses could

App. 262

have been useful to show head injuries might have con-

tributed to his commission of the offenses. The Tennessee

Court concluded that it could not speculate upon the

usefulness of the witnesses without the information those

witnesses might have provided. The Tennessee Criminal

Court of Appeals found that since none of the witnesses

testified, Thompson failed to show prejudice. (Addendum

No. 18, Thompson v. State, C.C.A. No. 01C01-9506-CC-

00180).

In the case before this Court, petitioner failed to

submit affidavits from the witnesses he alleges would have

testified about “petitioner’s bizarre behavior.” Thompson

has failed to provide any significant probative evidence

which would make it necessary for this Court to resolve a

factual dispute. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Bailey v. Floyd County Bd. Of Educ., 106 F.3d 135,

140 (6th Cir. 1997). Hearsay evidence is not considered on

a motion for summary judgment. Hartsel v. Keys, 87 F.3d

795, 799 (6th Cir. 1996), cert. denied, 117 S. Ct. 683 (1997).

Furthermore, trial counsel testified their strategy was to

keep out testimony of Thompson’s previous violent behav-

ior and show the jury he had some positive qualities. The

testimony petitioner contends was not introduced was not

the result of ineffective assistance of counsel, but legiti-

mate trial strategy. Although petitioner contends his co-

defendant, Joanne McNamara, recalled that while they

were waiting to receive money which was being wired

“[s]uddenly and without warning or reason, Greg ‘snapped’

and the events of the crime followed[,]” Thompson does not

allege she would have testified for him.

Thompson contends his ex-girlfriend, Arlene Cajulao

could have testified about several instances when he

“snapped,” but because she was not informed about the

App. 263

nature of the penalty phase only testified about things she

felt would help petitioner. First, this Court notes trial

counsel and the prosecutor asked the questions, so Ms.

Cajulao’s testimony was in response to the questions

counsel chose to ask. Furthermore, as previously stated,

trial counsel’s strategy was to present Thompson’s positive

qualities and behaviors. However, the Court notes Ms.

Cajulao did testify about incidents of inappropriate behav-

ior exhibited by Thompson including the fact Thompson

was kicked out of the Navy and began demonstrating

unusual behavior. She testified as follows:

Q: From the standpoint of his personal security

and safety, did he start demonstrating any

unusual behavior after that?

A: Yeah. He would get very paranoid. When we

lived together, we had a fern tree growing

on the side of the house; and he was con-

stantly chopping the back side of it down.

He would tell me when I came home to

make sure nobody was standing behind

there that might hurt me. If we heard

noises in the evening, I would get up and

find him walking around the house, think-

ing somebody might be there. He got very

paranoid after that.

(Addendum No. 1 H, Transcript Vol. 18, pp. 55-57).

Ms. Cajulao also testified Thompson was discharged

from the Navy. One of the incidents that led to the dis-

charge was Thompson’s failure to obey an order of a higher

ranking officer. Ms. Cajulao testified that when the officer

tapped Thompson on the back while he was drinking

water, Thompson turned around and pushed him and

dislocated the officer's shoulder. (Addendum No. 1 H,

App. 264

Transcript Vol. 18, p. 57). Upon cross examination she

admitted she knew Thompson was found guilty of wrong-

fully picking up and throwing the officer to the asphalt

deck and breaking his collarbone. (Addendum No. I H,

Transcript Vol. 18, pp. 87-88). She further testified on

cross examination that she was aware he was found guilty

of unlawfully striking a Navy Airman on the chest, and

was also found guilty of unlawfully threatening to strike

an officer on the head with a torque wrench extension bar.

(Addendum No. 1 H, Transcript Vol. 18, pp. 89-90). Addi-

tionally, Thompson was found guilty of assault with a

deadly weapon when he grabbed a five-inch steak knife

and threatened to cut his roommates if they turned the

lights on. (Addendum No. 1 H, Transcript Vol. 18, p. 92).

Dr. Copple administered the MMPI to Thompson and

testified it did not show Thompson was “crazy.” (Adden-

dum 1 I, p. 59). He testified neither he nor Dr. Watson

found Thompson to be abnormal or suffering from a

mental illness. (Addendum 1 I, p. 58). Dr. Watson found

that Thompson malingered schizophrenia and suffered

from adult antisocial behavior at the Middle Tennessee

Mental Health Institute. (Addendum 1 I, p. 58-61). Adult

antisocial behavior was described as behavior that was

previously identified as sociopathic. Antisocial behavior

includes the inability to sustain a consistent social behav-

ior, lack of conscience or guilt, unrealistically optimistic,

and threatening suicide with little likelihood of following

through. (Addendum 1 I, pp. 61-63).

Dr. Watson was the clinical psychologist at Middle

Tennessee Mental Health Institute involved in Thomp-

son’s evaluation. Dr. Watson’s deposition was introduced

as rebuttal testimony by the state. (Addendum 1 I, p. 144-

180). While in the Forensic Services Division at Middle

App. 265

Tennessee Mental Health Institute Thompson received a

medical exam which was a physical, laboratory analysis of

urine and blood and serology for venereal disease, chest X-

ray, and electroencephalogram. Thompson also received a

psychological evaluation and a psychiatric examination.

Dr. Watson testified he talked with Thompson on three or

four occasions for a total of approximately one and a half

hours. Dr. Watson iestified Thompson’s full-scale I.Q. was

92, which places him in the lower average range intellec-

tually, and indicates there is no intellectual impairment.

Thompson’s reading level was better than 70% of the test

population. (Addendum No. 1 I, pp. 144-151). Dr. Watson

testified they primarily gave this test for the purpose of

assessing his reading ability because Thompson claimed

he could not read or write. (Addendum 1 I, p. 151).

Dr. Watson testified Thompson was given the Bender

Visual-Motor Gestalt Test which was a general assess-

ment for brain damage. This test is a drawing test and the

professionals are looking for evidence of organicity, which

is brain damage. Dr. Watson testified there was a history

in his background of a concussion at the age of 16 with

reported hospitalizations, and being hit over the head with

a hammer while in the military, but they did not have the

records. Dr. Watson testified the Bender showed a few

errors, but no real evidence of organicity or brain damage.

However, to further test this, the Bender Interference

Procedure was performed and what they expected was the

results of that procedure would be worse than the results

obtained on the original test if the person is suffering from

organicity or brain damage. However, since they found

less errors on the Bender Interference Procedure than on

the original, that further strengthened their belief that

Thompson did not suffer from any serious organicity.

App. 266

(Addendum 1 I, pp. 152-153). The lack of brain damage

was also seen on the electroencephalogram the interpreta-

tion of which was a normal EEG. (Addendum 1 I, p. 156).

Dr. Watson testified Thompson appeared to endorse all the

psychotic symptoms that he could on the MMPI which

drove the score almost off the graph. Therefore, they did

not believe there was any clinical evidence of psychosis

and found the test result indicated malingering mental

illness. (Addendum 1 I, p. 153).

Dr. Watson testified Thompson claimed to hear voices

but he only made that claim one time and none of the tests

supported his claim of hearing voices. (Addendum 1 I, p.

155). The diagnosis on Thompson was Axis 1, Adult

Antisocial Behavior, which is not a mental illness. (Ad-

dendum 1 I, p. 162). Dr. Watson further testified he and

his colleagues concluded, based upon their examinations

and discussions with Thompson, that he showed very little

or no emotion or expressions of empathy, and Dr. Watson

saw no evidence of remorse. (Addendum 1 I, pp. 164-165).

Dr. Watson also testified they found Thompson resisted

authority and does what he wants to do. Dr. Watson

further testified that Thompson was not suffering from a

mental illness which made him harmful to himself or to

others but that did not mean that he is not harmful to

himself or to others. (Addendum 1 I, p. 169).

During Thompson’s state post-conviction hearing, Dr.

Gillian Blair, a clinical psychologist who received her Ph.

D. from Vanderbilt in 1988, testified on Thompson’s

behalf. Dr. Blair first became involved in the Thompson

case in 1990. (Addendum. No. 12 B, pp. 199-203). Dr. Blair

reviewed Mr. Thompson’s institutional records, records

from the assessment at Middle Tennessee Mental Health

Institute, Forensic Services Division, and some records

App. 267

which were brief and sketchy regarding Thompson’s

childhood. She reviewed the social history written by the

social worker at the Middle Tennessee Mental Health

Institute which were mainly based on a written question-

naire completed by Thompson’s grandmother. (Addendum

No. 12 B, p. 704). Dr. Blair interviewed Thompson on

several occasions in March and April of 1992 at Riverbend

Maximum Security Institution. (Addendum No. 12 B, p.

206). During those interviews she administered “a basic

psychological battery of tests with some additional neuro-

psych, neuropsychological tests because of the history of

head injuries that Mr. Thompson had received and that

were well documented in his medical record.” (Addendum

No. 12 B, p. 206). She was unable to give an opinion as to

his present condition at the post-conviction hearing

because she had not spoken to him in three years. Dr.

Blair reviewed some of Thompson’s medical records for

1993 and 1994 from Riverbend prior to testifying at

Thompson’s post-conviction hearing on March 29, 1995.

Dr. Blair testified that prior to meeting Thompson,

her opinion, based on the medical records from Riverbend,

was that Thompson had shown a deteriorating mental

status and became psychotic. When Dr. Blair saw Thomp-

son in 1992 he was heavily medicated, and she testified he

was on Lithium to treat the mood swings, the bipolar

disorder; on Haldol, which is an anti-psychotic medication

to treat the psychotic symptoms; on Cogentin to minimize

the side effects of the anti-psychotic medication; and

Ativan to reduce agitation. (Addendum No. 12 B, p. 211).

However, review of the 1994 records revealed Thompson

was receiving Meilaril, an anti-psychotic medication but

on November 25, 1994, he requested he be allowed to

discontinue the medication and against medical advice, he

App. 268

discontinued the medication, and as of January 5 or 15,

1995, he was still off the medication. (Addendum No. 12 B,

p. 212). She testified that throughout the Riverbend

records “there was some question as to whether [Thomp-

son] accurately fit the diagnostic criteria for [schizoaffec-

tive] disorder or schizophrenia or a bipolar disorder, all of

which usually begin in early adulthood.” (Addendum No.

12 B, pp. 214-215). Dr. Blair stated she could not give any

definite opinion as to his present condition nor did she

have an opinion about his diagnostic status in 1985.

(Addendum No. 12 B, pp. 219-220).

Dr. Blair testified she found similar results to the

results found in 1985 and in other areas her results were

not consistent with the 1985 results. (Addendum No. 12 B,

p. 225). When asked if Thompson’s educational achieve-

ments and test scores between 100 and 80 percent, were

consistent or inconsistent with the person being psychotic,

Dr. Blair testified the achievements and scores were

consistent with someone who is stable through the ad-

ministration of medication or through the absence of any

psychosis. (Addendum 12 B, pp. 243-247). Dr. Blair stated

“I think we have well established that for at least, or more

than 12 months prior to the end of November 1994, that

Thompson had been stable, that be had been in remission

of all of his psychotic symptoms.” (Addendum 12 B, pp.

246-247). When asked if she could state with a reasonable

degree of scientific certainty whether Thompson was

psychotic, schizophrenic, or had a bipolar disorder as he

sat in court on March 29, 1995, Dr. Blair responded that to

make a diagnosis she would need more than to just look at

him, but he looked as if he was stable at that time. (Ad-

dendum No. 12 B, p. 248).

App. 269

Petitioner claims experts recently obtained by him

have revealed that he was incompetent under Tennessee

law at the time of the crime and throughout his court

proceedings. Petitioner has failed to state the name of the

expert and failed to provide the proof of these revelations.

The Court has read the deposition of Dr. Crown. (Court

File No. 11, Exhibit 1) but was unable to located [sic] his

opinion that Thompson was incompetent at the time of the

crime and throughout his court proceedings. As a matter

of fact, Dr. Crown stated he was not asked to render any

determination about whether or not Thompson was

comretent during his state jury trial. (Court File No. 91,

Exhibit 1, pp. 7-9). Dr. Crown stated he was only asked to

make a competency determination at the time he met Mr.

Thompson on June 12, 1998. After meeting with Thomp-

son for two and a half to three hours, which consisted of

taking a brief history for twenty-five to thirty minutes and

the remainder of the time was spent administering tests,

it was his opinion that Thompson was competent on June

12, 1998. (Court File No. 91, Exhibit 1, p. 7-47).

Dr. Crown did testify Thompson had a significant

auditory processing deficit which means he is easily

distracted by external auditory stimuli. (Court File No. 91,

Exhibit 1, p. 20). He further testified that some of the test

results led him to conclude there was some sort of organic

brain damage. However, he is not able to make any as-

sessment of the severity of the damage nor does he intend

to make such an evaluation. (Court File No, 91, Exhibit 1,

pp. 24-28). Dr. Crown, believes this organicity is secondary

to a thought disorder which he refers to as a schizo-

affective disorder-bipolar subtype with organic compo-

nents. Dr. Crown bases his conclusion on the reports of the

people who have treated Thompson for the last fourteen

App. 270

years. (Court File No. 91, Exhibit, 1, pp. 31-32). Dr. Crown

did not administer a specific malingering test to Thomp-

son. (Court File No. 91, Exhibit, 1, p. 35).

Respondent hired Dr. Blau to rebut Dr. Crown’s

testimony. Portions of Dr. Blau’s testimony have been filed

with the Court. Dr. Blau testified he did not observe or see

any indications of organic brain damage on the test he

administered. Dr. Blau found Thompson’s responses

during testing were rational and appropriate. (Court File

No. 89, Attachment C, pp. 31, 47-48).

Thompson has failed to provide any significant proba-

tive evidence which would make it necessary for this Court

to resolve a factual dispute. See Celotex Corp. v. Catrett,

477 US. 317 (1986); Bailey v. Floyd County Bd. Of Educ.,

106 F.3d 135, 140 (6th Cir. 1997). Hearsay evidence is not

considered on a motion for summary judgment. Hartsel v.

Keys, 87 F.3d 795, 799 (6th Cir 1996), cert. denied, 117

S. Ct. 683 (1997). Thompson has not provided this Court

with anything other than factually unsupported allega-

tions that he was incompetent at the time he committed

the crime and at the time of his jury trial. Nor has Thomp-

son provided this Court with any significant probative

evidence that Thompson was suffering from a significant

mental disease that should have been presented to the

jury during the punishment phase as mitigation evidence.

Petitioner had two different psychological evaluations

and both resulted in findings of competency at the time of

the crime and at the time of trial. Additionally, the record

shows that trial counsel did reasonably investigate

Thompson’s background and mental health history.

Accordingly, to the extent Thompson did not proce-

durally default on sub-claims one through four of Claim 22

App. 271

— Ineffective Assistance of Counsel, this Court finds

petitioner has failed to show that the state court’s decision

involved an unreasonable application of established

federal law as determined by the United States Supreme

Court, nor did it involve an unreasonable determination of

the facts in light of the state court evidence. Accordingly,

subpart numbers one though four of Claim 22 regarding

counsel’s failure to investigate are without merit and will

be DISMISSED.

In sub-part five of Claim 22 — Ineffective Assistance of

Counsel, Thompson alleges counsel failed to impeach the

credibility of Thompson’s confession by presenting evi-

dence to establish that Thompson’s description of the

murder was inconsistent with the physical facts and the

confession was taken in violation of his Fourth, Fifth,

Sixth, and Fourteenth Amendment rights. In sub-part six

of his ineffective assistance of counsel claim, Thompson

contends trial counsel failed to object to clearly inadmissi-

ble and prejudicial hearsay regarding whether Thompson,

after first invoking his right to counsel, initiated a conver-

sation with a Georgia prosecuting attorney. The respon-

dent contends Thompson procedurally defaulted on issue

five and has failed to demonstrate the state court’s deci-

sion on sub-part six was contrary to or was the result of an

unreasonable application of established federal law as

determined by the United States Supreme Court, or

involved an unreasonable determination of the facts in

light of the evidence.

Thompson has procedurally defaulted on sub-part

five, and since he has failed to show cause and prejudice

for his procedural default, this Court cannot address this

issue and it will be DISMISSED. Sub-part six addresses

App. 272

the suppression of his confession which has been properly

presented to the highest Tennessee state court.

Thompson claims trial counsel was ineffective for

failing to object to inadmissible prejudicial hearsay that

Thompson initiated a conversation with a Georgia prose-

cuting attorney after he invoked his right to counsel.

(Court File No. 17, Claim 22, p. 25). Although Thompson

fails to set forth the facts supporting this claim as required

by Rule 2 of the RULES GOVERNING SECTION 2254 CASES IN

THE UNITED STATES DistricT Courts, and he fails to

identify the “inadmissible, prejudicial hearsay,” the Court

presumes he is claiming trial counsel was ineffective for

failing to object to TBI Agent Jerry Eubanks’ testimony at

the suppression hearing.

Thompson raised the issue of Eubank’s testimony

during his state post-conviction proceedings. During his

state post-conviction proceedings, Thompson specifically

claimed counsel was ineffective for failing to object to the

following testimony .of TBI Agent Jerry Eubanks: “I

remember Detective Graham coming out of the interview

room and telling the Attorney General that Gregory

Thompson wanted to talk with him.” (Addendum No. 1 B,

p. 92); also see State v. Thompson, 958 S.W.2d 156, 162

(Tenn. Crim. App. 1997). The Tennessee Court of Criminal

Appeals found that Thompson failed to demonstrate any

prejudice from the failure to object to the hearsay. Specifi-

cally, the Court found that Thompson testified during the

suppression hearing that he wanted to talk with the

District Attorney again. Jd. at 162-163).

Prior to trial, defense counsel for Thompson filed a

motion to suppress statements he made to law enforce-

ment officials. (Addendum No. 1 B, p. 12). When asked on

App. 273

cross-examination, “[flinally you told Detective Graham

... that you wanted to see that lawyer [the District Attor-

ney] again|[,)” Thompson responded “[yles.” Jd. at 162,

(Addendum No. 1B, p. 46). Later in the hearing during

cross examination the following colloquy takes place:

Q: ... Then you tell Graham that you want to

talk to him (the District Attorney) again,

didn’t you?

A: Yes sir, after he came in.

Q: You told somebody, at least, I say Graham —

the man who just walked in the courtroom —

you told him that you wanted to talk to that

District Attorney?

A: Yes.

Q: And that’s when he came back in and you

drew him a map.

A: Yes sir.

(Addendum No. 1 B, p. 53-54).

The Tennessee Court of Criminal Appeals found that

Thompson acknowledged he reinitiated contact with the

District Attorney and the hearsay evidence at issue was

not necessary to establish that fact. Thus, they found there

was no showing of prejudice.

This Court has reviewed the transcripts and finds

Thompson has failed to show any prejudice from counsel's

failure to object to this hearsay. Thompson was the first to

testify at the suppression hearing and Thompson testified

he told Graham he wanted to talk with the District Attor-

ney again. (Addendum No. 1B, pp. 53-54). This Court

agrees with the state court’s determination of the facts in

App. 274

light of the evidence. Further, there is nothing in the

record to indicate that the state court’s decision involved

an unreasonable application of established federal law as

determined by the United States Supreme Court. Accord-

ingly, sub-part six of Claim 22 is without merit and will be

DISMISSED.

Sub-part seven is an allegation that counsel failed to

properly prepare the defense witnesses and failed to

properly cross-examine the state’s witnesses. Specifically,

Thompson claims trial counsel’s failure to properly exam-

ine Dr. Watson, Arlene Cajulao, and Nora Jean was due to

lack of resources and due to defense counsel being unin-

formed. Thompson does not set forth the facts to support

this claim nor does he specify what trial counsel should

have done to remedy the alleged inadequacy. This Court is

unable to determine what Thompson’s specific complaint

is.

During his state post-conviction proceedings Thomp-

son claimed trial counsel failed to properly prepare Arlene

Cajulao to testify. The state contends only the claim as to

Ms. Cajulao is properly before this Court and Thompson

procedurally defaulted on the remainder of the claim

because he failed to present it to the Tennessee Supreme

Court. The Court agrees the issue of inadequate prepara-

tion as to other witnesses was not presented to the state

courts. The Court presumes Thompson is alleging that if

trial counsel had spent more time with the witness, his

negative military history could have been avoided as he

alleged in his state post-conviction proceeding. The Ten-

nessee Court of Criminal Appeals found that trial counsel

realized cross-examination of Ms. Cajulao might be risky

but they also realized their only other option would have

been to present no mitigating evidence at all.

App. 275

The Court has reviewed the transcripts and finds that

defense counsel was aware of the possible dangers inher-

ent in the cross-examination of Ms. Cajulao when they

made the tactical decision to present her positive testi-

mony anyway. The strategy was based on adequate prepa-

rations and Thompson has not overcome the presumption

of sound trial strategy. This Court agrees with the Tennes-

see Court of Criminal Appeals finding that “trial counsel

had little choice but to present as much mitigating evi-

dence as possible even though there were risks inherent in

that strategy.” Thompson v. State, 958 S.W.2d at 165.

Thompson does not allege nor does the record show that

additional preparation time with the witness would have

prevented the state from effectively cross-examining her

about Thompson’s military background. Thompson has not

shown that trial counsel was ineffective for failing to

properly prepare Ms. Cajulao.

Thompson claims that trial counsel failed to properly

examine other witnesses. He fails to set forth the facts

supporting this claim as required by Rule 2 of the RULES

GOVERNING SECTION 2254 CASES IN THE UNITED STATES

DisTRICT CouRTS, and this Court does not find the remain-

ing part of this issue addressed by any of the state courts.

Accordingly, the remaining portion of this claim will be

DISMISSED.

In sub-part eight, Thompson claims counsel failed to

research and discover the alleged devastating conse-

quences of counsel's agreement with the prosecution to

read a deposition into the record and to forsake his con-

frontation clause rights as to psychiatric expert testimony.

Thompson has failed to allege prejudice or provide facts

supporting this claim. On his appeal of his state post-

conviction petition to the Tennessee Court of Criminal

App. 276

Appeals, Thompson claimed counsel was ineffective by

allowing a deposition to be used rather than requiring the

state witness, Dr. Robert Glenn Watson, to appear at the

penalty phase of the trial. However, when he filed his

Application for Permission to appeal to the Tennessee

Supreme Court he failed to appeal this issue. The state

contends Thompson procedurally defaulted this issue and

this Court agrees. Thompson has not submitted any

evidence to show cause and prejudice to excuse this

default. Accordingly, subpart 8 will be DISMISSED due to

Thompson’s failure to raise it in the highest Tennessee

court.

In subpart nine, Thompson claims “|c]ounsel failed to

research and discover the effect of offering the testimony

of Dr. Copple on the scope of the State’s rebuttal.” (Court

File No. 17, p. 25). When Thompson appealed the denial of

his state post-conviction petition to the Tennessee Court of

Criminal Appeals he claimed trial counsel was ineffective

when they opened the door to devastating evidence by

asking Dr. Copple about Thompson’s good qualities. When

Thompson appealed to the Tennessee Supreme Court he

claimed trial counsel did not make an informed tactical

decision to use or not use their own psychological testi-

mony because trial counsel did not know that the records

of the psychological exam at Middle Tennessee Mental

Health Center could be used against Thompson at the

penalty phase to rebut their psychological testimony.

(Addendum No. 18, p. 13). The state contends the peti-

tioner has failed to demonstrate that the state courts

decision was an unreasonable application of established

federal law as determined by the United States Supreme

Court, or that it involved an unreasonable determination

of the facts in light of the state court evidence.

App. 277

Thompson claims trial counsel failed to research and

discover that by offering the testimony of Dr. Copple they

opened the door which allowed the state to present damag-

ing evidence in rebuttal but he does not show any preju-

dice. This issue was raised in Thompson’s state post-

conviction petition and presented to the Tennessee Court

of Criminal Appeals and his Rule 11 Application for

Permission to Appeal to the Tennessee Supreme Court.

Thompson does not claim the state court’s decision

was an ‘unreasonable application of established federal

law as determined by the United States Supreme Court, or

that it involved an unreasonable determination of the facts

in light of the state court evidence. A review of the record

shows neither attorney expected the state to be able to use

the information acquired by MTMHI. However, Mr. Par-

sons acknowledged he knew that positive testimony by Dr,

Copple would open the door for the state to present nega-

tive information. It was trial counsel’s strategy to empha-

size positive attributes of the petitioner and that he could

lead a productive life in prison. If any witness testified

about the petitioner’s good character, the state would have

been entitled to rebuttal. The only other option would have

been to present no proof at all. Trial counsel chose a

strategy and based on the test results and Thompson’s

history this Court cannot find that trial counsel’s decision

to pursue this strategy was_ ineffective assistance of

counsel. Moreover, the jury found three aggravating

factors, and this Court cannot conclude that the outcome

would have been different if the jury tad not heard the

evidence regarding Thompson’s testing at MTMHI.

Thompson has not shown that the state court’s deci-

sion was an unreasonable application of established

federal law as determined by the United States Supreme

App. 278

Court, or that it involved an unreasonable determination

of the facts in light of the state court evidence. Accordingly,

subpart nine will be DISMISSED as meritless.

In subpart ten, Thompson claims trial counsel failed

to consult with him at crucial stages during all prior

proceedings. Thompson has failed to identify the crucial

stages when counsel failed to consult with him. Thompson

has done nothing more than make a boilerplate complaint

with no supporting cases or relevant facts giving rise to

this claim. The state claims petitioner failed to present

this [sic] claims to the state appellate courts. Not only has

Thompson failed to set forth the facts supporting this

claim as required by Rule 2 of the RULES GOVERNING

SECTION 2254 CASES IN THE UNITED STATES DISTRICT

CouRTSs, Thompson has failed to identify the crucial stages

when counsel failed to consult with him. Moreover,

Thompson has procedurally default [sic] this claim be-

cause he failed to raise the issue in state court or show

cause and prejudice for his procedural default. Accordingly,

subpart ten will be DISMISSED for failing to set forth

facts supporting this claim and on the grounds of proce-

dural default.

In subpart eleven, Thompson claims “[c]ounsel failed

to adequately object to the prosecutor’s improper, inflam-

matory, prejudicial, inappropriate and misleading or

inaccurate statements concerning the law, the evidence or

the petitioner during voir dire, opening, direct examina-

tion, cross examination, closing, and rebuttal closing at

the guilt phase of petitioner’s trial, and during opening,

direct examination, cross examination, closing and rebut-

tal closing at the penalty phase of petitioner’s trial, as well

as during out of court communications between counsel.”

The state claims subpart eleven is not sufficiently pled

App. 279

because Thompson failed to set forth the facts supporting

this claim as required by Rule 2 of the RULES GOVERNING

SECTION 2254 CASES IN THE UNITED STATES DISTRICT

Courts. Petitioner fails to offer anything more than

boilerplate language alleging ineffective assistance of trial

counsel for failing to object to prosecutor’s statements.

There is not a discussion of the relevant facts giving rise to

this claim, nor are there any citations to federal or state

cases, much less an explanation of their respective hold-

ings. Furthermore, Thompson failed to present this issue

to the Tennessee state courts. Thompson has procedurally

defaulted this claim because he failed to raive the issue in

state court, or he has failed to show cause and prejudice

for his procedural default. Accordingly, subpart eleven will

be DISMISSED for failing to set forth facts supporting

this claim and on the grounds of procedural default.

Thompson next claims, in subpart twelve, counsel was

ineffective for failing to immediately advise the court of a

racist comment made by Assistant District Attorney

General Luna. The state claims Thompson procedurally

defaulted on this claim. Although, the Tennessee Court of

Criminal Appeals addressed the issue of whether counsel

was ineffective for failing to question the assistant district

attorney at the motion for new trial about racist remarks,

Thompson did not raise this issue in the Tennessee Su-

preme Court. The result is procedural default. Addition-

ally, Thompson has not shown any prejudice due to this

alleged failure. Accordingly, subpart twelve will be DIS-

MISSED due to Thompson’s procedural default and

failure to show cause and prejudice for his default.

Subpart thirteen consists of a claim that counsel

failed to prepare adequately for either the guilt phase or

the penalty phase of trial and to develop and present to

App. 280

the jury a coherent theory of defense at either phase.

Thompson claims trial counsel failed to understand the

significance of the “negative” information about his behav-

ior and failed to make a reasonable strategic decision

because counsel was not fully informed of Thompson’s

mental health. The state contends Thompson procedurally

defaulted on this issue and failed to show cause and

prejudice. Thompson failed to fairly present this claim in

state court. In his post conviction appeal to the Tennessee

Supreme Court, Thompson claimed trial counsel did not

make informed strategic decisions regarding introduction

of certain testimony because counsel did not know the law.

In the claim before this Court, Thompson claims trial

counsel failed to understand the significance of certain

testimony because they were not fully informed about

Thompson’s mental health. Thompson failed to fairly

present this issue to the Tennessee Supreme Court.

Thompson procedurally defaulted on this issue and has

failed to show cause and prejudice for his procedural

default. Accordingly, subpart thirteen will be DIS-

MISSED.

In subpart fourteen, Thompson contends trial counsel

lacked the experience and knowledge to effectively repre-

sent him in a death penalty case. The state contends

petitioner has failed to show that the state court's decision

involved an unreasonable application of established

federal law as determined by the United States Supreme

Court, or that it involved an unreasonable determination

of the facts in light of the state court evidence. Thompson

must show that counsel’s lack of death penalty experience

prejudiced him. Thompson does not contend and the Court

does not find any statute or case which requires that

counsel who represent defendants subject to the death

App. 281

penalty be represented by counsel who have any special-

ized death penalty experience.

The Court has read the record and notes that trial

counsel filed numerous motions and vigorously defended

Thompson at trial. Mr. Richardson and Mr. Parsons had

each actively practiced law for twenty or more years and

both had trial experience with serious felony cases. They

made strategic choices to represent Thompson in the most

positive light possible.

The fact that Mr. Parsons had never been involved in

a murder case prior to Thompson’s does not rendered [sic]

his assistance ineffective. Mr. Parsons testified in prepara-

tion of Thompson’s trial, he traveled to Thompson’s home-

town of Molena, Georgia, and to another little town,

Zebulon, Georgia, and interviewed family and others who

knew Thompson (Addendum 12B, p. 37). Mr. Parsons

asked the witnesses if they knew anyone else who might

know something about Mr. Thompson. (Addendum 12 B,

p. 149). Mr. Parsons testified he was aware of two alleged

head injuries and believes he wrote for the medical records

but never received them. Mr. Parsons further testified he

obtained all of Thompson’s military records he was able to

get. Mr. Parsons felt in order to make the head injuries

significant or relevant, they would have needed some

expert proof and they did attempt to develop that proof by

having Thompson tested. They also hired their own expert

Dr. Copple. Mr. Parsons testified he went to an “absolutely

— Capital Resource Seminar which lasted several

ays.

Mr. Doyle Richardson, Thompson’s other trial attor-

ney, testified that about ten percent of the cases he han-

dled were criminal. Mr. Richardson had been involved in

App. 282

three or four first-degree murder cases. Mr. Richardson

testified they filed every motion they could think of to file.

He testified they thoroughly investigated the facts of the

case to the best of their ability and in accordance with

their strategy. (Addendum 12 B, p. 189). He testified they

did everything they knew how to do and thought their

defense was as thorough as it should have been other than

not thoroughly investigating the head injury. (Addendum

12 B, p. 192).

The Tennessee Court of Criminal Appeals did not find

any prejudice due to trial counsel’s lack of experience in

capital cases. Thompson has not shown that trial counsel

were ineffective or that Thompson was prejudiced in any

way. Thompson does not show that the state court’s

decision involved an unreasonable application of estab-

lished federal law as determined by the United States

Supreme Court, or that it involved an unreasonable

determination of the facts in light of the state court

evidence. Accordingly, subpart fourteen will be DIS-

MISSED as meritless.

Subpart fifteen consists of a claim that counsel failed

to challenge for cause jurors whose opinions would lead

them to impose the death penalty in every case or those

jurors whose views would prevent or substantially impair

the performance of their duties as a juror. The state

contends Thompson procedurally defaulted on this issue

and failed to show cause and prejudice.

Thompson failed to set forth the facts supporting this

claim as required by Rule 2 of the RULES GOVERNING

SECTION 2254 CASES IN THE UNITED STATES DISTRICT

Courts. Petitioner fails to offer anything more than

boilerplate language alleging ineffective assistance of trial

App. 283

counsel for failure to challenge jurors. Thompson does not

identify which jurors counsel failed to challenge. There is

no discussion of the relevant facts giving rise to this claim.

There are no citations to federal cases, much less an

analysis of their respective holdings. Furthermore, Thomp-

son failed to present this issue to the Tennessee state

courts. Thompson has procedurally defaulted this claim

because he failed to raise the issue in state court or show

cause and prejudice for his procedural deiault. Accordingly,

subpart fifteen will be DISMISSED for faili:g to set forth

facts supporting this claim and on the grounds of proce-

dural default.

Subpart sixteen claims trial counsel failed to ade-

quately challenge for cause those jurors who by their

answers showed some type of bias against the petitioner,

his case, and/or class to which the petitioner belongs. The

state contends Thompson procedurally defaulted on this

issue and failed to show cause and prejudice. Additionally,

the state claims Thompson failed to sufficiently plead this

claim with the specificity required by Rule 2 of the RULES

GOVERNING SECTION 2254 CASES IN THE UNITED STATES

DISTRICT COURTS.

Thompson failed to set forth the facts supporting this

claim as required by Rule 2 of the RULES GOVERNING

SECTION 2254 CASES IN THE UNITED STATES DISTRICT

Courts. Petitioner fails to offer anything more than

boilerplate language alleging ineffective assistance of trial

counsel for failure to challenge jurors. Again, Thompson

fails to identify the jurors who were not adequately chal-

lenged. There is no discussion of the relevant facts giving

rise to this claim; and there are no citations to federal

cases, much less an analysis of their respective holdings.

Furthermore, Thompson failed to present this issue to the

App. 284

Tennessee state courts. Thompson has _ procedurally

defaulted this claim because he failed to raise the issue in

state court or show cause and prejudice for his procedural

default. Accordingly, subpart sixteen will be DISMISSED

for failing to set forth facts supporting this claim and on

the grounds of procedural default.

In subpart seventeen, petitioner claims trial counsel

failed to file or adequately argue necessary motions before,

during, and after trial, on direct appeal or on post-

conviction. The state contends petitioner has procedurally

defaulted on this claim and failed to show cause and

prejudice. The state also claims Thompson has failed to

sufficiently plead this claim with the specificity required

by Rule 2 of the RULES GOVERNING SECTION 2254 CASES IN

THE UNITED STATES DISTRICT COURTS.

Thompson has failed to set forth the facts supporting

this claim as required by Rule 2 of the RULES GOVERNING

SECTION 2254 CASES IN THE UNITED STATES DISTRICT

Courts. Petitioner fails to offer anything more than

boilerplate language alleging ineffective assistance of trial

counsel.

Thompson fails to identify the motions at issue and

discuss the relevant facts giving rise to his claim. There

are no citations to federal cases, much less an analysis of

their respective holdings. Furthermore, Thompson did not

present this issue to the Tennessee state courts. Thompson

has procedurally default [sic] this claim because he failed

to raise the issue in state court or show cause and preju-

dice for his procedural default. Accordingly, subpart

seventeen will hx DISMISSED for failing to set forth facts

supporting this claim and on the grounds of procedural

default.

App. 285

In subpart eighteen, Thompson claims trial “[c]ounsel

failed to object to jury instructions at the penalty phase

which shifted the burden of proof to petitioner to show the

existence of mitigating circumstances and comments in

closing on the Defendant’s failure to provide a defense.”

The state contends petitioner has procedurally defaulted

on this claim and failed to show cause and prejudice.

Thompson did not present this issue to the Tennessee

state courts. Thompson has procedurally default [sic] this

claim because he failed-to raise the issue in the highest state

court or show cause and prejudice for his procedural default.

Accordingly, subpart eighteen will be DISMISSED on the

grounds of procedural default.

Thompson contends in subpart nineteen that trial

counsel were ineffective because they failed to object to the

jury’s consideration of the impact of the crime on the

victim, the victim’s family, society and/or the victim’s

social, moral, or religious worth. The state contends

petitioner has procedurally defaulted on this claim and

failed to show cause and prejudice.

Thompson did not present this issue to the Tennessee

state courts. Thompson has procedurally default [sic] this

claim because he failed to raise the issue in the highest

state court or show cause and prejudice for his procedural

default. Accordingly, subpart nineteen will be DIS-

MISSED on the grounds of procedural default.

In subpart twenty, Thompson claims trial counsel

were ineffective for failing to have the court instruct the

jury on the effect of their inability to agree on a sentence

of death and/or the meaning of a life sentence or the

petitioner’s eligibility for any release. The state contends

App. 286

petitioner has procedurally defaulted on this claim and

failed to show cause and prejudice.

The United States Supreme Court recently held in

Jones v. United States, 119 S.Ct. 2090, 2098-2100 (1999),

that a defendant is not entitled to a jury instruction that

the jury’s failure to reach a unanimous sentencing recom-

mendation automatically would result in a court-imposed

sentence of life imprisonment without the possibility or

release. Although the sentencing structure for death

penalty cases was slightly different in 1985, in that life

imprisonment without parole was not one of the possible

sentences, the fact that the Eighth Amendment does not

require the jury be instructed as to the consequences of

their inability to agree renders this issue meritless.

Moreover, Thompson failed to present this issue to the

highest Tennessee state court. Thompson has procedurally

default [sic] this claim because he failed to raise the issue

in the highest state court or show cause and prejudice for

his procedural default. Accordingly, subpart twenty will be

DISMISSED on the grounds of procedural default.

Subpart twenty-one claims trial counsel failed to

present evidence that Thompson could live a meaningful

and productive life in prison. The state contends petitioner

has procedurally defaulted on this claim and failed to

show cause and prejudice.

The Court notes that Thompson earlier claimed

ineffective assistance of counsel because Dr. Copple

testified about positive attributes of Thompson to assist

their strategy of presenting Thompson in a favorable light

with worthiness and abilities to be productive in jail

instead of being executed. Now Thompson claims there

App. 287

was no evidence introduced to show he could live a mean-

ingful and productive life in prison. However, this Court

will not address these inaccurate allegations because

Thompson failed to present this issue to the highest

Tennessee Court and has failed to show cause and preju-

dice for his procedural default. Accordingly, subpart

twenty-one will be DISMISSED on the grounds of proce-

dural default.

The last claim under ineffective assistance of counsel

is subpart twenty-two alleging counsel failed to properly

and fully raise any or all of the claims in this petition

either at trial, on direct appeal, or in post-conviction

proceedings. During oral argument on the motion for

summary judgment, Thompson’s counsel stated “[c]laim 22

is simply a cumulative error claim, not necessarily an

independent claim ... ” (Motion Transcript, p. 89). The

state claims petitioner procedurally defaulted on this issue

and has failed to show cause and prejudice.

Thompson failed to present this issue to the highest

Tennessee Court and has failed to show cause and preju-

dice for his procedural default. Accordingly, subpart

twenty-two will be DISMISSED on the grounds of proce-

dural default.

Claim 23: STATE PROCEDURES

VIOLATING EQUAL PROTECTION

Thompson claims the State of Tennessee violated his

equal protection rights under the Fifth and Fourteenth

Amendments to the United States Constitution in two

ways. His first claim is that his rights were violated when

the Tennessee courts removed the Honorable Buddy D.

Perry who had been duly appointed and was removed

without appropriate cause. The state contends this claim

App. 288

fails to state a claim for habeas relief because it is a

matter that addresses state post-conviction procedure and

has nothing to do with the petitioner's conviction or

sentence. ,

As the Court previously stated, the writ of habeas

corpus is not the proper means by which a prisoner should

challenge errors or deficiencies in state post-conviction

proceedings because these claims address collateral

matters and not the underlying state conviction giving rise

to the prisoner’s incarceration. Kirby v. Dutton, 794 F.2d

245, 247 (6th Cir. 1986). “Even where there may be some

error in state post-conviction proceedings, this would not

entitle appellant to federal habeas corpus relief since

appellants claim here represents an attack on a proceed-

ing collateral to detention of appellant and not on the

detention itself ... Infirmities in state habeas corpus

proceedings do not constitute grounds for federal habeas

relief.” Vail v. Procunier, 747 F.2d 277 (5th Cir. 1984).

Accordingly, subpart a of Claim 23 will be DISMISSED

for failure to state a federal constitutional claim cogniza-

ble in a federal habeas proceeding.

In subpart b of Claim 23, Thompson claims the trial

court erroneously appointed the foreman of the grand jury,

in violation of mandatory state law, where there had been

no election of the presiding judge in the 14th Judicial

Circuit. The state contends the claim is procedurally

defaulted because the issue was presented to the highest

state court as a violation of a state statute and not as a

federal constitutional issue.

Petitioner raised this issue in the Tennessee Supreme

Court as an issue of state law not constitutional law. He

claimed the trial court erred in failing to grant the motion

App. 289

to dismiss his indictment for all the reasons set out in the

pretrial motion they filed and because the statute, TENN.

CODE ANN. § 16-2-509, is mandatory. (Addendum No. 2, p.

71-74). The reasons stated in the pre-trial motion were

based on Tennessee statutes. “(T]he habeas petitioner

must present his claim to the state courts as a federal

constitutional issue — not merely as an issue arising under

state law.” Prather v. Rees, 822 F.2d 1418, 1420 (6th Cir.

1987), quoting Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.

1984). Thompson raised this claim in state court as a state

law question and therefore, the federal constitutional

violation allegedly caused by the state court’s disposition

of this question was not exhausted. See Id. at 1420; Dou-

gan v. Ponte, 727 F.2d 199 (1st Cir. 1984). Thompson has

procedurally defaulted on this issue and he has failed to

show cause and prejudice for his default. Accordingly, this

claim will be DISMISSED on the ground of procedural

default.

Claim 24: UNCONSTITUTIONAL GUILT

PHASE JURY INSTRUCTIONS

Thompson claims the jury instructions at the guilt

phase violated his rights under the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States Consti-

tution. Thompson claims the unconstitutional jury instruc-

tions include, but are not limited to, subpart a and b. The

state contends Thompson raised the issue as an issue of

state law and it was never raised to highest state court as

a constitutional violation.

“To warrant habeas relief, the jury instructions must

have been so infirm that they rendered the entire trial

fundamentally unfair. An ambiguous, potentially errone-

ous instruction violates the Constitution only if there is a

App. 290

reasonable likelihood that the jury has applied the in-

struction improperly.” Coe v. Bell, 161 F.3d 320 (6th Cir.

1998), cert. denied, 120 S. Ct. 110 (1999), citing Estelle v.

McGuire, 502 U.S. 62 (1991); Austin v. Bell, 126 F.3d 843,

846 (6th Cir. 1997), cert. denied, 118 S. Ct. 1526 (1998).

To the extent Thompson is attempting to attack jury

instructions other than the two specified charges, the

claim is DISMISSED for failure to set forth the facts

supporting this claim as required by Rule 2 of the RULES

GOVERNING SECTION 2254 CASES IN THE UNITED STATES

DIsTRICT COURTS.

Subpart (a) claims the jury instruction on first degree

murder and lesser included offenses failed to make suffi-

cient distinctions between first and second degree murder

and voluntary manslaughter and omitted many of the

defenses of second degree murder. The Tennessee Supreme

Court was unable to address this issue because it was

presented without argument. However, the Court stated

some of the issues, including this issue had no obvious

merit. The Court finds Thompson did not raise this alleged

constitutional violation in state court. Accordingly, this

claim will be DISMISSED on the ground of procedural

default.

Thompson claims in subpart (b) that the trial court

gave an unconstitutional jury instruction when it in-

structed, in violation of state law, that deliberation can be

formed in an instant. The state claims Thompson has

failed to raise this claim as a constitutional claim to the

highest Tennessee court and therefore, has procedurally

defaulted. Thompson claims it was raised on state post-

conviction as a federal constitutional claim and was

presented to all courts. However, this Court does not find

App. 291

that petitioner raised it as a federal constitutional claim

state court. Even his application for permission to appeal

to the Supreme Court on post-conviction addresses it in

terms of state law and fails to cite any federal constitu-

tional violation or cite any federal case law.

The petitioner failed to cite to the record directing the

Court to the specific jury instruction he is challenging. The

Court presumes petitioner is challenging the jury instruc-

tion requiring the state to prove beyond a reasonable

doubt that “the killing was deliberate; that is, with cool

purpose[.}” (Addendum 1H, p. 103); and the instruction

that “(premeditation means that the intent to kill must

have been formed prior to the act itself. Such intent or

design to kill may be conceived and deliberately formed in

an instant. It is not necessary that the purpose to kill

preexists in the mind of the accused for any definite period

or time. It is sufficient that it preceded the act, however,

short the interval. (Addendum 1H. p.105).

This attempt to create a constitutional claim, is based

on a misrepresentation of the text of the instruction. As

can be seen, this instruction did not specifically state that

“deliberation can be formed in an instant.” Accordingly,

petitioner is attacking an instruction that was not given.

Furthermore, even if the Court construes the claim as

a coherent attack on the constitutionality of this instruc-

tion, the claim suffers from at least four defects. Although

Thompson raised the jury instruction in the state court, he

relied purely on State v. Brown, 836 S.W.2d 530 (Tenn.

1992), and raised it only as an issue of state law. In

Thompson, 958 S.W.2d at 173, the Tennessee Court of

Criminal Appeals discussed the case of State v. Brown, 836

S.W.2d 530 (Tenn.1992), when it addressed Thompson’s

App. 292

claim that the erroneous jury instructions defining delib-

eration and premeditation required reversal. In State v.

Brown, 836 S.W.2d 530, the court held that trial courts

should no longer instruct juries that the premeditation

required to sustain a conviction for first degree murder

can be “formed in an instant.” Brown did not address the

constitutionality of instructions regarding a murder’s

instantaneous deliberation or premeditation. Brown

reaffirms that “no specific period of time need elapse

between the defendant's formulation of the decision to kill

and the execution of that plan.” In Brown, the Tennessee

Supreme Court merely disapproved specific instructions

that “premeditation may be formed in an instant” as part

of its requiring Tennessee courts to observe the distinction

between the elements of premeditation and deliberation.

Id. at 543. By citing to this state law analysis, however,

petitioner did not raise a federal claim of a due process

violation. Any attempt to raise one now is barred by this

procedural default. Moreover, reliance on Brown simply

does not raise a cognizable federal claim, but merely a

claim under state substantive law. In order to exhaust this

issue, Thompson was required to raise the claim as a

constitutional claim, not as an issue of state law to the

highest state court. Prather v. Rees, 822 F.2d at 1420; see

also Koontz v. Glossa, 731 F.2d at 368; United States v.

Fairman, 707 F.2d 936, 940-41 (7th Cir. 1983). Thompson

failed to raise this alleged violation as a constitutional

issue in state court, and he has failed to show any cause

and prejudice for this procedural default.

Furthermore, the Tennessee Court of Criminal.

Appeals noted in Thompson, that Brown was decided after

petitioner was convicted in this case; and the Tennessee

Supreme Court has repeatedly held that Brown did not

App. 293

announce a new constitutional principle. Accordingly,

retroactive application is not permissible. See, e.g., Lofton

v. State, 898 S.W. 2d 246, 250 (Tenn. Crim. App. 1994)

(citing ‘hree unpublished cases holding Brown does not

apply retroactively). Accordingly, petitioner’s attempt to

craft a federal procedural right out of this state court

decision also runs afoul of Teague’s” prohibition on non-

retroactive application of new constitutional rules of

criminal procedure.

Finally, any error is obviously harmless under Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993). The evidence at

trial clearly demonstrated that petitioner took far longer

than “an instant” to prepare for and carry out the murder.

On direct appeal the Tennessee Supreme Court found the

proof showed a particularly senseless killing based on the

following facts which show it took longer than “an instant”

to prepare for and carry out the murder:

The victim was driven some distance into rural

Tennessee, stabbed multiple times and left alive,

conscious, and alone to die on a winter night. It

is highly probable she knew her fate in advance.

There is evidence she was crying, and Defendant

stated they circled a church off the rural road on

the way to the scene of the stabbing. Although

the physical evidence does not show the victim

was struck by the wheels of the car, Defendant’s

statement that he drove the car over her body

because she was still alive, and presumably to

ensure her death, especially indicates a callous

disregard for life. .. .

State v. Thompson, 768 S.W.2d 239 (Tenn. 1989).

Teague v. Lane, 489 U.S. 288, 297-99 (1989).

App. 294

The preparation here distinguishes this case from

Brown, in which the only evidence of these elements in

Brown was repeated blows. Brown reversed the conviction

on the basis of the lack of evidence of premeditation and

deliberation, not because of a faulty jury instruction. The

discussion of jury instructions was simply administrative

guidance for future trials in the Tennesvee courts. Accord-

ingly, Brown does not support a constitutional attack on

this instruction. Petitioner has failed to show that the

instruction had a “substantial and injurious effect” on the

jury’s decision.

Accordingly, this claim will be DISMISSED.

Claim 25: UNCONSTITUTIONAL PENALTY

PHASE JURY INSTRUCTIONS

Thompson claims the jury instructions at the penalty

phase violated his rights under the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United State [sic]

Constitution. Thompson claims the unconstitutional jury

instructions include, but are not limited to, the six he

listed. To the extent he challenges jury instructions that

he failed to list, the claim will be DISMISSED for failure

to set forth the facts supporting this claim as required by

Ru

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