Appendix — West v. Bell

(2) Supreme Court US.

\y2- 09-461 0CT 19 2009

No. 09-__QFFICE OF TH K

IN THE

Supreme Court of the Mnited Strtes

STEPHEN MICHAEL WEST,

Petitioner,

.

RICKY BELL, WARDEN,

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

STEPHEN A. FERRELL DAVID W. DEBRUIN

FEDERAL DEFENDER Counsel Of Record

SERVICES OF EASTERN ELAINE J. GOLDENBERG

TENNESSEE, INC. SARAH A. MAGUIRE

800 South Gay Street, JENNER & BLOCK LLP

Suite 2400 1099 New York Avenue, NW

Knoxville, TN 37929 Suite 900

(865) 637-7979 Washington, DC 20001

(202) 639-6000

October 19, 2009

OL

AAAI LL NEG EEE EME ESE AILITES (EN

INDEX

Appendix A

West v. Bell, 550 F.3d 542 (6th Cir. 2008)............ la

Appendix B :

West v. Bell, No. 3:01-cv-91, Memorandum

Opinion (E.D. Tenn. Sept. 30, 2004) .................. 59a

Appendix C

West v. Bell, No. 3:01-cv-91, Order and

Supplement To Memorandum Opinion &

Order, and Judgment (E.D. Tenn. Dec. 10,

SD visinninscincivncdivccsceneaaatouemanaenesta en 364a -

Appendix D

West v. Tennessee, No. 03C01-9708-CR-

00321, Opinion (Tenn. Crim. App. June 12,

BID vcinkscanccevéccceccevsisevenscncideawasnasarsaacaaaeeee 404a

Appendix E

West v. Bell, No. 05-5132, Order Denying

Rehearing (6th Cir. May 2008)..................000000 428a

la

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEPHEN MICHAEL WEST,

Petitioner-Appellant,

v.

RICKY BELL, Warden,

Respondent-Appellee.

Nos. 05-5132, 05-6219.

Argued: Feb. 7, 2008.

Decided and Filed: Dec. 18, 2008.

Rehearing and Rehearing en banc Denied

May 20, 2009° —

OPINION

BOGGS, Chief Judge.

Stephen Michael West appeals the district court’s

dismissal of his petition for habeas corpus filed

pursuant to 28 U.S.C. § 2254. West argues that the

state trial court erred by refusing to admit two

exculpatory pieces of evidence, that the trial was

prejudiced by prosecutorial misconduct, and that he

received ineffective assistance of counsel during the

* Judge Moore would grant rehearing for the reasons stated in

her dissent.

2a

sentencing phase of his trial. We reject these

arguments and affirm the district court.

I. BACKGROUND

A. Factual and Procedural History

1. The crime

We briefly summarize the facts of the two

murders that led to West’s arrest. On March 17,

1986, twenty-three year-old West and seventeen

year-old Ronnie Martin left their jobs at a

McDonald’s in Lake City, Tennessee. They had

known each other only about two weeks. After

driving around and drinking in Martin’s car for

several hours, Martin told West that he knew a girl

who would “give them some sex.” Martin was

referring to fifteen year-old Sheila Romines, a

classmate of Martin who had previously rebuffed his

advances and embarrassed him in front of other

students. Martin and West went to the Romineses’

house, but did not approach it. Instead the two laid

in wait until around 5:20 A.M., when Mr. Romines

left for work. They knocked on the door and Wanda

Romines, Sheila’s mother, let the two into the house.

Sometime between 6:00 A.M. and 8:30 A.M., Wanda

and Sheila were brutally murdered. Dr. Cleland

Blake, a forensic pathologist, testified that Sheila

had been raped prior to being stabbed seventeen

times in the abdomen. Fourteen of those wounds

were torture-type cuts. Wanda Romines had also

suffered a large number of deep stab wounds,

including torture-type wounds. West and Martin

were arrested the next day.

3a

2. The trial

Both West and Martin were charged with the

rape and double homicide, but the trials of the two

defendants were severed and the state prosecuted

West first. During West’s initial criminal trial in the

Criminal Court of Union County he was represented

by two attorneys: Richard McConnell, who was hired

by West’s family and was the lead counsel, and

Thomas K. McAlexander, a court appointed co-

counsel. . At trial, the defense argued that though

West was present during the murders, Martin was

the architect of the crime and that West participated

only because Martin threatened to kill him and his

then-pregnant wife. Dr. Blake, however, testified

that (1) two different knives were used; (2) two

people were involved in the infliction of the wounds.

Martin did not testify at West’s trial. On March 24,

1987, a jury convicted West of two counts of first-

degree murder, two counts of aggravated kidnaping,

one count of aggravated rape, and one count of

larceny.

During the sentencing phase, six people testified

on West’s behalf. Three of them were family friends

who had known West for three, twelve, and fourteen

years respectively. The sheriff testified that West

had not caused any problems during the year he was

incarcerated awaiting trial. West’s sister testified

that West was the baby in the family and had never

been in trouble, and that his mother could not come

to court because she had recently suffered a heart

attack. West's wife testified that they had a good

relationship and that West was a good father to their

eleven-month-old daughter. Finally, West himself

4a

testified. He admitted to being present during the

crimes but denied that he had participated in the

murders of the two victims. He also stated that he

had no prior criminal record, had been an honor

student in school, and had never had any

disciplinary problems. Despite West’s mitigating

evidence, the jury ultimately sentenced him to death.

West directly appealed his conviction and

sentence to the Tennessee Supreme Court. West

asserted numerous claims, including prosecutorial

misconduct and that the trial court erred in

excluding two pieces of evidence. West did not claim

ineffective assistance of counsel. On February 6,

1989, the Tennessee Supreme Court rejected all of

his arguments. State v. West, 767 S.W.2d 387

(Tenn.1989).

3. Post-conviction attack on

prosecutorial misconduct and

ineffective assistance of counsel

On October 23, 1990, West filed for post-

conviction relief in the Criminal Court of Union

County, Tennessee. West argued that he received

ineffective assistance of counsel during’ the

sentencing phase of his trial because his counsel

should have discovered existing mitigating evidence.

Judge John K. Byers held evidentiary hearings on

September 24 and October 22, 1996. The federal

district court and state court of criminal appeals

summarized the evidence introduced in the

evidentiary hearings, so we review it only briefly

here. West, No. 3:01-cv-91, slip op. at 17-36; West v.

Tennessee, 04C01-9708-CR-00321, slip op. at 3-14.

5a

Dr. Eric Engum, a clinical psychologist, conducted

a two-day comprehensive psychological and

neuropsychological evaluation of West. He testified

that the test results did not indicate any signs of

brain damage or cognitive compromise and that

West’s intelligence, memory, and other skills were

within normal limits. Dr. Engum also testified that

West suffered from chronic, significant depression

and that West had a severe mixed-personality

disorder with self-defeating, avoidant, dependant,

and schizoid features. According to Dr. Engum,

West’s test results indicated that he was somewhat

unstable, moody, changeable, and lacked a strong

sense of self. Dr. Engum also stated that West’s test

results demonstrated that he was withdrawn,

introverted, brooding, a loner, and stayed to himself,

and also that he had a lot of bottled-up anger. Dr.

Engum was asked whether there was any indication

that West had been abused as a child. He responded

that while there was no test that.could “specifically

tell what somebody experienced or what events

occurred in somebody’s life” West’s “personality

characteristics or behavioral oor emotional

characteristics” were “consistent with or reflected]

prior abuse.” West, No. 3:01-cv-91, slip op. at 18.

West’s oldest sister, Debbie West, testified that

West was born on September 16, 1962, in a mental

institution in Anderson, Indiana and that her mother

abused West. Jd. at 21. Debbie West described the

abuse as follows:

I can remember when Steve was a baby, and

he was kept in the back bedroom, and I would

get a whipping for going and giving him a

6a

bottle. If he cried, he was picked up by one

arm and one leg and slammed against the wall

to shut him up. If my other brother did

something wrong, Steve got beat for it. My

sister and I would try to get between them,

and we would get beat, and then his beating

was finished, and this was not just one or two

times. This was from the time I can remember

Steve coming home from the hospital.

Ibid. Debbie West also testified that West was

slapped in the head, hit with shoes, and received a

blow to the head which caused him to become cross-

eyed. Debbie West described her father as a violent

alcoholic who became more violent when he drank.

Finally, Debbie West claimed that prior to West’s

criminal trial she told West’s attorney, Mr.

McConnell, about the abuse; however, according to

Ms. West, he told her the information about the

alleged abuse was not relevant, and_ that,

furthermore, her parents were paying him and would

not admit to the abuse.

Two other family members, West’s older sister,

Patricia Depew, and his aunt Ruby West, also

testified as to the abuse West suffered. Patricia was

present at some of the meetings with the trial

attorneys, but she said that she was never asked

about the abuse, and she never offered any

information about the abuse. Ruby testified that she

was not contacted by the trial attorneys.

McAlexander, West’s court-appointed co-counsel,

testified that he: (1) did a tremendous amount of

research in preparing different motions which were

Ta

filed on Petitioner’s behalf; (2) met with West many

times to discuss all aspects of the case; (3) met with

West’s family on more than one occasion; (4) met at

least thirty-five times with McConnell in preparing

for trial; and (5) spent 547.4 hours on West’s case.

McAlexander also testified that to the best of his

recollection, West’s sister, did not tell him that West

had been abused and that there was nothing that

raised “any kind of red flag in my mind about that

being a factor that should have been inquired into.”

West, No. 3:01-cv-91, slip op. at 22. McAlexander also

explained that while they had hired a mental health

expert, Dr. Ben Bursten, to explore West's

competency and the possibility of an insanity

defense, the court had rejected the defense’s request

for funds to hire an expert to explore a duress

defense. The court ruled that way because the

parties had been battling over mental exams and

West had previously objected to the trial court’s sua

sponte ordering of a psychological examination to

determine competency. Jd. at 27. McAlexander

stated they talked about using the competency

expert’s testimony during the sentencing phase, but

ultimately decided against using such testimony

because Bursten told them that his evaluation could

not support the support the conclusion that West had

“untoward mental reactions at the time of the

offense.” West, 3:01-cv-91, slip op. at 31.

McConnell, West’s privately-retained counsel,

also testified. Mr. McConnell testified he was paid a

total of $10,000 by Petitioner’s family to represent

him. In addition, Petitioner’s family paid the bills of

8a

a private investigator! and the competency expert.

McConnell testified that while he did not think

$10,000 was a reasonable fee for the case because of

its magnitude, he agreed to that fee due to the

financial situation of Petitioner and his family. He

denied complaining about his fee, but acknowledgea

he and co-counsel joked about the fact that co-

counsel, who was court-appointed, would make more

money representing Petitioner than Mr. McConnell,

retained counsel. McConnell also admitted that he

had contacted the family requesting an additional

$5,500 in fees and expense money.

As for McConnell’s investigation of West's

background, he testified that he conducted a.

complete investigation into West’s life although he

had no recollection of obtaining any of West’s

employment records, birth records, or medical

records. The district court noted, however, that the

state post-conviction record indicates the defense did

file a subpoena requesting Petitioner’s school records

after the trial was in progress. McConnell also

explained that while he interviewed West’s family,

the only member who was cooperative was West’s

sister, Debbie. McConnell also denied that Debbie

West told him about West’s physical abuse and

denied that he told her that the abuse was not

relevant. He also stated that West, himself, did not

mention any physical or sexual abuse. As for the

military records, McConnell explained that the

! The investigator was hired to find evidence that Martin was a

member of a satanic cult and to prove that Martin had the mo-

. tive and mental capacity to torture the victims, whereas West

did not.

9a

defense team made a strategic decision not to

introduce them because the records indicated that

West had drug and alcohol problems during his

service in Germany.

Attorney Paul Morrow also testified at the state

post-conviction hearing as an expert on professional

standards. In Morrow’s opinion, the alcohol abuse

documented in Petitioner’s military records was a

“red flag or 1 would say a rocket going off saying that

you better look back into that person’s history.” In

addition, it was Mr. Morrow’s opinion that West’s

inability to remember his first ten years of life was a

red flag that should have made the trial counsel

investigate possible abuse.

The State called Dr. Bursten. Bursten testified

that West’s description of his father as an alcoholic

led him to ask West if he had been abused as a child. |

West denied any abuse. Dr. Bursten also testified

regarding Dr. Engum’s report. He agreed that West

had an adequate IQ, however, he disagreed, based on

the records, including Dr. Engum’s report, with the

conclusion that "Vest was abused as a child. With

regard to Dr. Engum’s diagnosis of West’s depression

and personality disorder, Dr. Bursten explained that

while West might suffer from those conditions, their

presence would not necessarily indicate that West, at

the time of the crimes, was actually under extreme

duress.

On April 14, 1997, the Criminal Court denied

West’s claim of ineffective assistance of counsel. West

v. Tennessee, No. 629 (Tenn.Crim. Ct. April 14,

1997).

10a

4. Further state appeals and West’s fed-

eral habeas petition

On May 2, 1996, West appealed the denial of his

post-conviction relief to the Tennessee Court of

Criminal Appeals. On June 12, 1998, the court

rejected his appeal. West v. Tennessee, 04C01-9708-

CR-00321 (Ct. Crim. App. June 12, 1998). West then

filed a petition for rehearing and, when that was

denied, an application for permission to appeal to the

Tennessee Supreme Court. The Tennessee Supreme

Court allowed West to appeal only the issue of

whether there was sufficient evidence to establish

the aggravating circumstance, but the court

ultimately affirmed the denial of post-conviction

relief. West then filed for a petition for rehearing,

which was denied on June 7, 2000.

On February 20, 2001, West filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2254 in the

United States District Court for the Middle District

of Tennessee. The case was subsequently

transferred to the Eastern District and assigned to

the Honorable Thomas A. Varlan. West asserted 22

grounds for granting his habeas petition. On

September 30, 2004, the district dismissed West’s

petition and denied a certificate of appealability

(“COA”). On August 18, 2006, after a series of

appeals, this court granted West a COA on four

issues:

1. Whether the state court was unreasonable

in its determination of the facts or its ap-

plication of the law when it dismissed peti-

tioner’s claim that his counsel rendered in-

lla

effective assistance during the sentencing

phase of trial.

2. Whether the trial court improperly ex-

cluded the proffered testimony of Libby

Wood during the guilt/innocence phase of

the trial?

3. Whether the trial court improperly ex-

cluded secretly taped conversations be-

tween Martin and his cellmate?

4. Whether the prosecutor engaged in various

instances of misconduct that prejudiced the

outcome of the trial?

II. DISCUSSION

Whether the district court properly dismissed

West’s § 2554 petition is a question of law that we

review de novo. Martin v. Overton, 391 F.3d 710, 712

(6th Cir. 2004). We review the court’s factual find-

ings for clear error, except where the factual findings

are based on the district court’s review of state court

trial transcripts or other court records, in which case

they are reviewed de novo. Dando v. Yukins, 461

F.3d 791, 796 (6th Cir. 2006).

This court’s review is governed by the Antiterror-

ism and Effective Death Penalty Act of 1996

(‘AEDPA”). We may grant West’s habeas petition

only if his constitutional rights were violated in the

underlying criminal proceedings, 28 U.S.C. § 2254(a),

and only if the original or subsequent state court

proceedings:

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

or involved an unreasonable application of,

12a

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.

28 U.S.C. § 2254(d).

A. Ineffective Assistance of Counsel

1. Procedural default, exhaustion, and

fair presentment

West claims that his trial counsel rendered inef-

fective assistance during the seutencing phase by

failing to investigate West’s abusive childhood and

its effects on his actions and state of mind during the

crime. Appellant’s Br. 17. West first raised this ar-

gument in his initial state post-conviction review.

West v. State of Tennessee, No. 629 (Crim. Ct. Union

County, Tenn. April 14, 1997), slip at 6-7. J.A. 1632-

33. Thus, there is no procedural default.

Nevertheless, West attached several pieces of evi-

dence to his federal habeas petition, which the dis-

trict court did not consider because West failed to

present it to the state courts.2 A writ of habeas cor-

2 (1) An affidavit of Dr. Keith Caruso, a psychiatrist who never

examined West, b:it who gave an evaluation of West’s compe-

tency based records and documents provided to him; (2) an affi-

davit of Debra West Harless, West’s sister; (3) a birth record

from Community Hospital; (4) an affidavit of Karen West Bry-

ant, West’s former wife; (5) an affidavit of Vestor West, West's

father; (6) West’s military discharge papers; (7) An affidavit of

Patty Rutherford, West’s manager at McDonald’s; (8) a case

13a

pus may not be granted unless the petitioner has ex-

hausted available state-court remedies. 28 U.S.C. §

2254(b)(1). In order to satisfy the exhaustion re-

quirement, “a petitioner’s claim must be ‘fairly pre-

sented’ to the state courts before seeking relief in the

federal courts.” Whiting v. Burt, 395 F.3d 602, 612

(6th Cir. 2005) (citing Baldwin v. Reese, 541 U.S. 27,

29, 124 S. Ct. 13847, 158 L. Ed. 2d 64 (2004)). In

other words, “the substance of a federal habeas cor-

pus claim must first be presented to the state

courts.” Picard v. Connor, 404 U.S. 270, 278, 92 S.

Ct. 509, 30 L. Ed. 2d 438 (1971).

Rule 7 of the Rules Governing Section 2254

Cases, however, provides:

(a) ... [T]he judge may direct the parties to ex-

pand the record by submitting additional

materials relating to the petition;

(b) ... The materials that may be required in-

clude letters predating the filing of the pe-

tition, documents, exhibits, and answers

under oath to written interrogatories pro-

pounded by the judge. Affidavits may also

be submitted and considered .as part of the

record.

U.S.C. Sec. 2254 Cases, R7.

report of Dr. Claudia Coleman, who conducted a clinical inter-

view with West, administered several psychological tests, and

reviewed West's case file; and (9) a case report of Dr. Richard

Dudley, a psychologist who evaluated West based on records

and other materials.

l4a

In Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct.

617, 88 L. Ed. 2d 598 (1986), the Supreme Court held

that courts may consider additional affidavits and

records so long as “the supplemental evidence pre-

sented by [the petitioner] d[oes] not fundamentally

alter the legal claim already considered by the state

courts....” Id. at 260, 106 S. Ct. 617; see also Richey

v. Bradshaw, 498 F.3d 344, 351 (6th Cir. 2007);

Satterlee v. Wolfenbarger, 453 F.3d 362, 366 (6th Cir.

2006).

The decision of whether to expand the record,

however, is within the sound discretion of the district

court. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.

1988). Because the district court did not abuse its

discretion in declining to expand the record, we will

consider only the evidence presented before the state

court during the post-conviction proceedings.

2. Supreme Court precedent governing

claims of ineffective assistance of

counsel: Strickland v. Washington

In Strickland v. Washington, the Supreme Court

delineated a two-prong test for determining whether

a defendant’s counsel was so ineffective as to consti-

tute a violation of the defendant’s constitutional

rights:

First, the defendant must show that counsel’s

performance was deficient. This requires that

counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth

Amendment. Second, the defendant must

show that the deficient performance preju-

diced the defense.

15a

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Deficiency requires a showing that “counsel’s

representation fell below an objective standard of

reasonableness.” Jd. at 688, 104 S. Ct. 2052. This

court should “indulge a strong presumption that

counsel’s conduct falls within the wide range of rea-

sonable professional assistance....” Id. at 689, 104 S.

Ct. 2052. To establish prejudice, West must show

that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the pro-

ceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Jd. at 694, 104 S. Ct.

2052.

The Supreme Court has held that a failure to in-

vestigate a defendant’s background or present miti-

gating evidence can constitute ineffective assistance

of counsel. See Rompilla v. Beard, 545 U.S. 374, 125

S. Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v.

Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d

471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S.

Ct. 1495, 146 L. Ed. 2d 389 (2000).3

3 Though AEDPA constrains the court to look to the law as

clearly established at the time of the time the state conviction

became final, Williams v. Taylor, 529 U.S. 362, 380, 120 S. Ct.

1495, 146 L. Ed. 2d 389 (2000), this court may rely on any later

decisions analyzing or explaining the law (as opposed to creat-

ing new law). Strickland was clearly established well before

West’s criminal trial concluded in 1987. We can rely on

Rompilla, Wiggins, and Williams because they merely explain

Strickland.

16a

3. The state courts’ determinations of the

facts and application of the law

The Criminal Court for Union County, Tennessee

was the first state court to review West’s petition for

post-conviction relief. After holding two evidentiary

hearings, the court denied West’s petition. In its or-

der, the court explicitly delineated the Strickland

test for assessing claims of ineffective assistance of

counsel, but it also stated an incorrect burden of

proof. The court wrote:

The petitioner contends that he was denied his

Sixth Amendment right to the effective assis-

tance of counsel. In order to be granted relief

on the grounds of ineffective assistance of

counsel, the petitioner must establish that the

advice given or the services rendered were not

within the range of competence demanded of

attorneys in criminal cases and that “there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the pro-

ceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 693,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If the

petitioner fails to prove by a preponderance of

the evidence that the result would have been

different had counsel acted differently, i.e., the

prejudice prong, it is unnecessary to address

the competency of counsel prong.

West, No. 629, slip at 6-7. J.A. 1632-33 (emphasis

added). The correct burden of proof under

Strickland, however, is “reasonable probability,” not

preponderance of the evidence. This is a point we

17a

will return to in the discussion below as to whether

the state court’s decision was contrary to Strickland.

In dismissing West’s claim, the court pointed out

that there was conflicting evidence regarding the

possible mitigation evidence that trial counsel failed

to present. The court concluded, “after a thorough

review of the overwhelming evidence presented,”

that West had “failed to meet his burden of proof

with respect to the allegations. In particular, [West]

has failed to show how he was prejudiced by any of

counsel's acts or omissions.” Jd. at 7 (emphasis

added).

The Court of Criminal Appeals of Tennessee, the

second state court to review West’s post-conviction

began by reviewing the evidence presented at the

September 24, 1996, evidentiary hearing held in the

court below. It then addressed the authority pre-

-sented by West in support of his claim of ineffective

assistance. In doing so, the court did cite Strickland,

but not for the particular part of the opinion that de-

lineates the two-part test for evaluating ineffective-

assistance claims. The court then adopted the state’s

argument, including the state’s citation to Lockhart

v. Fretwell, that: _

[A]Jn analysis focusing solely on mere outcome

determination, without attention to whether

the result of the proceeding was fundamen-

tally unfair or unreliable, is defective. To set

aside a conviction or sentence solely because

the outcome would have been different but for

counsel’s error may grant the defendant a

windfall to which the law does not entitle him.

18a

West v. State, 1998 WL 309090, *&, 1998 Tenn.

Crim. App. LEXIS 636, *22 (Tenn. Crim. App. 1998)

(citing Lockhart v. Fretwell, 506 U.S. 364, 369-70,

113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)).

After reviewing the arguments of both West and

the State, the court held:

We agree with the post-conviction court’s as-

sessment that “there existed conflicting testi-

mony regarding mitigation evidence that trial

counsel failed to present.” We also agree with

the court that Dr. Engum’s testimony reflected

that the petitioner’s evaluation showed no

signs of trauma or organic brain damage. We

agree with the post-conviction court that in

light of this conflicting evidence, the petitioner

did not meet his burden with respect to the al-

legation of ineffective counsel at the sentenc-

ing phase. Regarding all of the ancillary and

subissues, after a thorough review, we con-

clude that the petitioner has failed to meet his

burden of proof as to these allegations. We

agree with the post-conviction hearing court

that the petitioner has failed to show how he

was prejudiced by any acts or omissions of

counsel.

West v. State, 1998 WL 309090, *9, 1998 Tenn. Crim.

App. LEXIS 636, *23-24 (Tenn. Crim. App. 1998).

4. West’s habeas claims

West argues that the state courts’ rejections of his

ineffective assistance claim were contrary to and in-

volved an unreasonable application of Strickland be-

cause the criminal court: relied on the wrong stan-

19a

dard of proof and because the court of criminal ap-

peals erroneously relied on Lockhart.

a. AEDPA and the state court’s error

concerning the burden of proof

Clearly, the Criminal Court for Union County

stated the wrong standard for proving prejudice in a

claim of ineffective assistance. Moreover, the Su-

preme Court has used this exact mistake as an ex-

ample of when a decision would be “contrary to”

Strickland:

Take, for example, our decision in Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). If a state court were

to reject a prisoner’s claim of ineffective assis-

tance of counsel on the grounds that the pris-

oner had not established by a preponderance of

the evidence that the result of his criminal pro-

ceeding would have been different, that deci-

sion would be “diametrically different,” “oppo-

site in character or nature,” and “mutually op-

posed” to our clearly established precedent be-

cause we held in Strickland that the prisoner

need only demonstrate a “reasonable probabil-

ity that ... the result of the proceeding would

have been different.” Jd. at 694, 104 S. Ct.

2052.

Williams, 529 U.S. at 405-06, 120 S. Ct. 1495 (em-

phasis added).

While West is correct that his situation satisfies

requirements of 28 U.S.C. § 2254(e), we cannot grant

habeas unless West is “in custody in violation of the

Constitution or laws or treaties of the United

20a

States.” 28 U.S.C. § 2254(a). As Justice Stevens put

it: “We all agree that state-court judgments must be

upheld unless, after the closest examination of the

state-court judgment, a federal court is firmly con-

vinced that a federal constitutional right has been

violated.” Williams, 529 U.S. at 389, 120 S. Ct. 1495

(Stevens, J., concurring). Though the state court

clearly applied an incorrect standard, it reached the

correct outcome. A careful review of the record dem-

onstrates that West’s counsel was not so ineffective

as to constitute a denial of his constitutional rights.

For this reason, we must deny West’s petition for a

grant of habeas corpus even though the state court

decision was an unreasonable application of clearly

established federal law.

b. West’s representation was constitu-

tionally sufficient

On appeal to this court, West emphasizes the fol-

lowing facts as evidence that his attorneys were inef-

fective:

(1) Defense counsel interviewed only West, his

parents and one sister and that they opted not

to conduct separate interviews of the other sib-

lings outside of the presence of West’s parents.

(2) While defense counsel hired Dr. Bursten to

conduct a mental examination of West to de-

termine his competency and any bases for an

insanity-type defense, counsel did not hire a

second expert to testify during the mitigation

phase.

21a

(3) Counsel failed to investigate West’s em-

ployment records or interview West’s employ-

. ers.

(4) Counsel failed to introduce West’s school

records, though apparently they did subpoena

them. West v. Bell, No. 3:01-cv-91, slip op. at

24 (E.D. Tenn. Sept. 30, 2004).

(5) Counsel did not introduce West’s military

records.

(6) Defense counsel also failed to subpoena or

examine West’s medical records.

We are not convinced, however, that all of these

are actually errors, let alone errors that rise to the

level of ineffective assistance of counsel.

Under Strickland, we must give a high level of

deference to the defense counsel’s decisions; there is

also a presumption that counsel was competent:

Judicial scrutiny of counsel’s performance

must be highly deferential. It is all too tempt-

ing for a defendant to second-guess counsel’s

assistance after conviction or adverse sen-

tence, and it is all too easy for a court, examin-

ing counsel’s defense after it has proved un-

successful, to conclude that a particular act or

omission of counsel was unreasonable. A fair

assessment of attorney performance requires

that every effort be made to eliminate the dis-

torting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s

perspective at the time. Because of the diffi-

22a

culties inherent in making the evaluation, a

court must indulge a strong presumption that

counsel’s conduct falls within the wide range

of reasonable professional assistance; that is,

the defendant must overcome the presumption

that, under the circumstances, the challenged

action might be considered sound trial strat-

egy.

Strickland, 466 U.S. at 689, 1048S. Ct. 2052 (internal

citations omitted).

This high level of deference means that we “we

address not what is prudent or appropriate, but only

what is constitutionally compelled.” United States v.

Cronic, 466 U.S. 648, 665, n.38, 104 S. Ct. 2039, 80

L. Ed. 2d 657 (1984) (emphasis added). In Burger v.

Kemp, the trial counsel had interviewed “all poten-

tial witnesses who had been called to his attention,”

and, on that basis, decided that “an explanation of

petitioner's history would not have minimized the

risk of the death penalty.” 483 U.S. 776, 794-95, 107

S. Ct. 3114, 97 L. Ed. 2d 638 (1987). The Court held

that the trial counsel’s decision “not to mount an all-

out investigation into petitioner’s background in

search of mitigating circumstances was supported by

reasonable professional judgment.” Jd. at 794, 107 S.

Ct. 3114.

We came to a similar conclusion in Scott uv.

Mitchell, 209 F.3d 854, 881-82 (6th Cir. 2000).

Though we noted that Scott’s attorneys “would cer-

tainly have been well-advised to conduct more re-

search into mitigating factors than they did.... [T]he

decision of Scott’s attorneys to pursue a residual-

23a

doubt strategy in this case was not objectively unrea-

sonable, because it was adequately (if not ideally) in-

formed and was quite arguably the best course of ac-

tion available.” Ibid.

In the case at hand, the most significant alleged

error-the failure to adequately investigate West’s

past abuse-is also the most contested. Debbie West

claims she informed McAlexander and McConnell

about the abuse, but the attorneys strongly deny

that. The two psychologists, Engum and Bursten,

disagree over whether West’s evaluations contain

evidence of abuse; and Bursten testified that West

specifically denied being abused.

As for West’s other objections, the record demon-

strates that West’s counsel, in fact, did a fair amount

of investigation in preparation for the mitigation

phase. West’s defense counsel interviewed West's

family multiple times. They met individually with

West’s sister, Debbie, multiple times. They exam-

ined numerous historical records. Even if they could

not remember doing so (which is understandable

considering that ten years had elapsed between

West’s criminal trial and the post-conviction hear-

ing), the record demonstrates that they subpoenaed

West’s school records. West v. Bell, No. 3:01-cv-91,

slip op. at 24 n.10 (E.D. Tenn. Sept. 30, 2004). In-

deed, West testified that he had been on the honor

roll and in the Beta Club. Jd. at 15. They also exam-

ined West’s military record but made a decision not

to put it into evidence as the record noted that West

had a “pattern of misconduct,” though it did not

elaborate on what that misconduct consisted of. Jd.

at 27.

24a

The attorneys also investigated West’s mental

state. Originally, West had been evaluated on mo-

tion of the state by a psychologist, Dr. Ford. Not be-

ing satisfied with the results, the defense hired Dr.

Bursten to determine competency and sanity. As

mentioned above, Dr. Bursten’s evaluation was not

used for the purpose of mitigation. Nevertheless, Dr.

Bursten’s evaluation did not lead counsel to suspect

anything along the lines of the “long-term personal-

ity disorder” diagnosed by Dr. Engum nine and a half

years after West's trial and conviction. As Mr.

McConnell explained, “I had had Mr. West examined

by a very competent psychiatrist, Dr. Bursten, who

obviously did a thorough history, et cetera, and none

of that ever came out.” Jd. at 26. They also re-

quested from the trial court additional funds to hire

a second psychologist in order to pursue a possible

duress defense to at least the rape (duress is never a

defense to murder). The court refused the request on

the grounds that West had objected to the trial

court’s sua sponte ordering of a psychological exami-

nation to determine competency. Id. at 27. Our cir-

cuit addressed a similar situation in Fautenberry uv.

Mitchell, 515 F.3d 614 (6th Cir. 2008). There, the

defense counsel had hired an expert for the express

purpose of conducting a neuropsychological examina-

tion, but the defendant refused to be examined. Our

court held that the counsel’s “inability to discover or

establish organic brain damage is directly attribut-

able to [the defendant’s] refusal to cooperate, rather

than any insufficiency in the investigation.” 515

F.3d at 625. We declined to “find counsel deficient

simply because they did not succeed in discovering

[the defendant’s] brain damage or pursue unspeci-

25a

fied, alternate avenues (which may or may not have

revealed the brain damage).” Jbid. In this case,

West’s earlier refusal to submit to examination was

the reason the court blocked his request for another

examination. Like the defendant in Fautenberry,

West’s lack of cooperation is part of the reason why

his counsel did not discover some potentially mitigat-

ing evidence.

Finally, we note that even if West could prove

that his counsel was ineffective for all of the reasons

he cited, he has not shown that “there is a reasonable

probability that, but for counsel’s unprofessicnal er-

rors, the result of the proceeding would have been

different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. 2052. West’s

trial counsel attempted to appeal to the jury’s sym-

pathy, decency, and common sense. They attempted

to show that West had been a good and decent citi-

zen: that he had never before been in trouble with

the law, that he was a veteran who served his coun-

try, and that he was a loving husband and a soon-to-

be father. The jury was not persuaded. We are not

convinced that the school, military, and employment

records that West now argues should have been

submitted would have affected the jury’s verdict.

As for the evidence of the past abuse, it is possible

that had West’s attorneys discovered it, they might

have taken the alternative approach of portraying

West as the product of an unstable and abusive

home. The jury might have believed that the abuse

made West the kind of person who was

psychologically unable to confront or disobey strong,

26a

threatening people such as Martin. The jury might

have pitied West and chosen to spare his life.

However, the very same evidence may have had the

opposite effect on the jury. They might have believed

that violence begets violence and that West’s past

abuse made him the kind of person who could have

raped and tortured a fifteen year-old girl. They

might have despised West and sentenced him to

death with greater zeal.

It is not enough for this court to speculate that

the jury would have chosen the former path. There

must be “a reasonable probability” that the

proceeding would have been different. Given the

strength of the evidence against West presented at

trial and the weakness of the mitigating evidence

that West presented during the post-conviction

proceedings, we cannot conclude that there was

reasonable probability that the jury would have

chosen to spare West’s life.

B. The Exclusion of Libby Woods’s Testi-

mony and the Martin-Hunley Tapes

1. The proffered evidence

West’s theory of the case was that it was Ronnie

Martin and not West who actually killed Wanda

Romines and her daughter, Sheila. In order to

demonstrate this, West sought to introduce two

pieces of evidence: (1) the testimony of Libby Woods,

an acquaintance of both Martin and Sheila; and (2)

two taped conversations between Martin and his

cellmate, Steve Hunley.

According to West:

27a

Woods was prepared to testify that Martin

said he would kill Sheila Romines; that he was

upset with her for embarrassing him on one

occasion where Sheila actually struck him in

front of other students at school; that he

wanted to date her and he wanted to have sex

with her and she resisted his advances; and,

that Martin said that he owed her, and that is

why he would kill her.

Appellant’s Br. 6-7.

The two taped jailhouse conversations supposedly

demonstrated that Martin was the main perpetrator

and that West did not take part in the killings. The

first conversation proceeded as follows:

Hunley: Hey, Ronnie

Martin: Yeah?

Hunley: One more time before I go to bed to

ease my mind, Steve [West] do that shit?

Martin: No.

Hunley: Huh?

Martin: No

Hunley: O.K. Thank you.

Hunley: These guys back here don’t believe me

that you said Steve didn’t kill them women.

Will you tell them you did?

Unknown: Who’s back there?

Hunley: All of us.

Martin: Yeah, I did it.

28a

Hunley: You killed both them women?

Martin: Yeah.

Hunley: Why?

Martin: I don’t know. I don’t want to talk

about it.

In the second conversation, Martin discussed his

plan to falsely take an insanity plea. During the

conversation he tacitly agreed that he, and not Steve,

had killed the Romineses.

Hunley: Yea, but you said Steve didn’t kill those

women, you did. Don’t you think that’s crazy?

Hunley: Huh

‘Martin: Huh

Hunley: You told me Steve didn’t do that but you

did, don’t you think that’s crazy?

Martin: I don’t think it’s crazy, no.

West argues that the state court violated his

Sixth, Eighth, and Fourteenth Amendment rights

under Chambers v. Mississippi, 410 U.S. 284, 93 S.

Ct. 1038, 35 L. Ed. 2d 297 (1973), and Green v. Geor-

gia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738

(1979), by excluding these pieces of evidence.

2. Procedural default

The State argues that West procedurally de-

faulted on his claims because he raised them solely

as issues of state law before the state courts. We do

not agree. While West failed to cite either the

United States Constitution or federal case law in his

argument concerning Woods's testimony, he did cite

29a

federal law in his argument concerning the taped re-

cordings. Specifically, he cited the Constitution and

Chambers for the general proposition that, “[t]he

right of an accused in a criminal trial is, in essence,

‘the right to fair opportunity to defend against the

state’s accusations.” 410 U.S. at 294, 93 S. Ct. 1038.

Furthermore, West concluded the section dealing

with both Woods’s testimony and the Martin-Hunley

tapes by arguing that:

[West] attempted to introduce several pieces of

evidence.... The failure of the trial judge to

permit this resulted in a denial of [West’s] Due

Process rights as guaranteed by the Sixth and

Fourteenth Amendments to the United States

Constitution as well as Article I, Sections 7, 8,

and 9 of the Tennessee State Constitution.

“A litigant wishing to raise a federal issue can

easily indicate the federal law basis for his claim in a

state court ... by citing in conjunction with the claim

the federal source of law ... or a case deciding such a

claim on federal grounds, or by simply labeling the

claim ‘federal.” Baldwin, 541 U.S. at 32, 124 S. Ct.

1347. Thus, even though West did not raise a

constitutional issue in his main discussion of the

exclusion of Woods’s testimony, he did preserve his

federal claim in regard to the exclusion of Woods’s

testimony by referring to the United States

Constitution in the summary of his argument.

. The fact that the Tennessee Supreme Court

analyzed his claim in regards to Woods’s testimony

only under state law is irrelevant. A state Supreme

Court’s failure to analyze a petitioner’s federal claim,

30a

“does not deprive this court of jurisdiction.” Newton

v. Million, 349 F.3d 873, 877 (6th Cir.2003); see also

Smith v. Digmon, 434 U.S. 332, 333, 98 S. Ct. 597, 54

L. Ed. 2d 582 (1978) (per curiam) (“[W]hether the

exhaustion requirement of 28 U.S.C. § 2254(b) has

been satisfied cannot turn upon whether a state

appellate court chooses to ignore in its opinion a

federal constitutional claim squarely raised in

petitioner’s brief in the state court....”).

3. State-court analysis

In rejecting West’s claims in regard to Woods’s

testimony, the Tennessee Supreme Court reasoned

that testimony of Libby Woods was distinguishable

from the excluded evidence at issue in Green v. State,

154 Tenn. 26, 285 S.W. 554 (1926), and Hensley v.

State, 28 Tenn. 243 (1848)-the two state court

decisions on which West based his arguments. The

state court reasoned that (1) the testimony at issue

in West’s case would be attributed to a co-defendant

so that any such proof would be cumulative where

the State concedes the co-defendant’s guilt and (2)

West’s defense that “his participation was

commanded at gun point by Martin would not have

been corroborated by the excluded evidence.” West,

767 S.W.2d at 396.

The state court also rejected West’s argument as

to exclusion of the Martin-Hunley tapes. Ibid. In

Chambers, the Court reasoned that because the facts

of the underlying crime tended to prove that there

was only one perpetrator, any confession that

implicated another party tended to also exculpate

the defendant. In West’s case, however, the evidence

. 3la

was consistent with there being two perpetrators.

Thus, any evidence implicating Martin did not

necessarily exculpate West.

The state court also raised concerns about

corroboration and reliability. Ibid. The tapes were

not recorded by jailhouse personnel. Rather they

were made by an unknown inmate or inmates,

without Martin’s knowledge. West acquired the tapes

through Ken Holt, a private investigator. Holt swore

in an affidavit that he had acquired the tapes from

Byron Bryan, Steve-Hunley’s attorney.

The court concluded that the tapes were properly

excluded because: (1) unlike the defendant in

Chambers, Martin was unavailable to the State or

the defendant because he would have invoked the

privilege against self-incrimination (a statement

confirmed by West’s attorney, who had spoken with

Martin’s attorney);. (2) the record was completely

silent as to whether the tape recordings. were

corroborated; and (3) Chambers does not require the

admission of uncorroborated hearsay statements

against penal interest. See West, 767 S.W.2d at 395-

96.

4. West’s habeas claims

In order for West to succeed on his claim he must

demonstrate that the state court decision “(1) ... was

contrary to, or involved an unreasonable application

of, clearly established Federal Law, as determined by

the Supreme Court of the United States; or (2) ... was

based on an unreasonable determination of the

facts....” 28 U.S.C. § 2254(d). The relevant federal

32a

law was articulated by the Supreme Court in

Chambers

In Chambers, the issue was whether the trial

court erred in preventing the defendant from

introducing three witnesses, each of whom would

have testified that another person had confessed to

being the actual shooter of the victim. The trial

court excluded proffered testimony as inadmissible

under Mississippi's hearsay rule, which totally

excluded hearsay statements against penal interest.

Because the state’s theory was that there was only a

single shooter, the proffered testimony would have

directly contradicted the state’s argument that

Chambers was that shooter. 410 U.S. at 298, 93 S.

Ct. 1038. It also would have directly exculpated him

by pointing to another suspect as the shooter. In

holding that Chambers’s due process rights were

violated the Court wrote:

Few rights are more fundamental than that of

an accused to present witnesses in his own de-

fense. In the exercise of this right, the ac-

cused, as is required of the State, must comply

with established rules of procedure and evi-

dence designed to assure both fairness and re-

liability in the ascertainment of guilt and in-

nocence. Although perhaps no rule of evidence

has been more respected or more frequently

applied in jury trials than that applicable to

the exclusion of hearsay, exceptions tailored to

allow the introduction of evidence which in

fact is likely to be trustworthy have long ex-

isted. The testimony rejected by the trial

court here bore persuasive assurances of

33a |

trustworthiness and thus was well within the

basic rationale of the exception for declara-

tions against interest. That testimony also

was critical to Chambers’ defense. In these

circumstances, where constitutional rights di-

rectly affecting the ascertainment of guilt are

implicated, the hearsay rule may not be ap-

plied mechanistically to defeat the ends of jus-

tice.

Id. at 302, 93 S. Ct. 1038 (internal citations omitted).

i. Libby Woods’s testimony

As noted above, the state court did not analyze

the exclusion of Woods’s testimony under federal

law. Thus, the state cannot defend the decision as a

reasonable application of federal law. Nevertheless,

the decision might still be contrary to federal law if

“the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law .... [or] if the state court confronts facts that are

materially indistinguishable from a relevant Su-

preme Court precedent and arrives at a result oppo-

site to” that of the Supreme Court. Williams, 529

U.S. 362, 405-06, 120 S. Ct. 2495.

The state trial court, as with the trial court in

Chambers, excluded Woods’s testimony as inadmis-

sible hearsay. Both parties agreed that the state-

ment was actually hearsay and if it were to come in,

it would have to be admitted under one of the hear-

say exceptions. The trial judge asked West’s attor-

ney if he was offering the statement to prove the

truth of the matter asserted. West’s attorney did not

address that question, but stated that he “would of-

34a

fer those statements against penal interest for the

jury’s deliberations as to whether or not my client is

guilty of this particular murder.”

The Tennessee Supreme Court, in reviewing the

trial court’s decision to exclude Woods’s testimony,

emphasized the cumulative nature of the evidence-

that is, because the state had conceded that Martin

was also a participant in the murders, Woods’s tes-

timony that Martin intended to kill Sheila Romines

did not refute the State’s theory nor did it exculpate

West. Furthermore, the testimony shed no light on

West’s theory that he was either under duress or was

being dominated and forced by Martin to commit the

murders. Though the state court did not consider

Chambers, had it done so, there would have been

more than adequate ground to distinguish Woods's

testimony from the type of testimony at issue in

Chambers. Thus, the Tennessee Supreme Court’s

decision in regard to Woods’s testimony was not con-

trary to Chambers.

ii. Martin-Hunley tapes

In reviewing the trial court’s decision to exclude

the Martin-Hunley tapes from the guilt/innocence

phase of the trial,* the Tennessee Supreme Court ex-

4 The trial judge ruled that West could introduce the Martin-

Hunley tapes at the sentencing phase (in accordance with Green

v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979)).

However, the trial judge cautioned that if West admitted those

tapes, he would also allow the State to introduce recordings of

Martin’s statements to the police, which implicated West. West

subsequently chose not to introduce the tapes during the sen-

tencing phase.

35a

_plicitly applied Chambers. Thus, the question is

whether it unreasonably applied Chambers or ar-

rived at a conclusion contrary to Chambers.

The state court again focused on the fact that the

Martin-Hunley tapes were cumulative evidence and

did “not exonerate [West], who was present, partici-

pating, aiding and abetting and his defense that his

participation was commanded at gun point by Martin

would not have been corroborated by the excluded

evidence.” West, 767 S.W.2d at 396. The court also

noted that in Chambers, the would-be declarant,

McDonald, was available for cross examination,

whereas the would-be declarant in West’s case, Mar-

tin, was unavailable to the State or to West because

Martin invoked his Fifth Amendment rights. Thus,

the Tennessee Supreme Court had adequate grounds

to distinguish the Martin-Hunley tapes from the evi-

dence in Chambers. The decision, therefore, was nei-

ther ‘contrary to or an unreasonable application of

Chambers.

C. Prosecutorial Misconduct

West alleged several instances of prosecutorial

misconduct grouped into four categories: (1) the

prosecutor deliberately misinformed the jury that the

law was “self-executing” and that choosing or not

choosing the death penalty was not their responsibil-

ity; (2) the prosecutor claimed that defense counsel

was attempting to deceive or mislead the jury; (3) the

prosecutor called West a liar and expressed his per-

sonal belief that West was a liar; and (4) the prosecu-

tor asserted inflammatory facts not supported by the

36a

evidence. We address the first category of alleged

misconduct separately, and the last three jointly.

1. The role of the jury in determining a

capital sentence

a. The alleged misconduct

West objected to the following statements made by

the prosecutor during closing argument:

The decision you are going to be called upon to

make obviously is very serious, it is one of the

most serious you will ever make. But, on the

other hand, if you will listen to what the Judge

tells you the law is, you will see that it is not

necessarily a difficult decision in that sense.

In the application of the law. Because the law

provides certain guidelines, certain perimeters

within which you are to consider the verdict,

your secondary verdict in this case.

See, the law in Tennessee, and the law of the

land, in this sense, is self-executing, in the

sense that the law mandates, requires a death

sentence in certain situations, unless it is

outweighed by other factors.

The law is clear. Your responsibility once

again is to weigh proof, to make a finding of

fact, apply the applicable law to those facts

and the law provides the punishment, not you,

mot you. You do not set punishment in this

case, per se. You make decisions based upon

fact and the law, self-executing, based upon

your weighing the facts.

37a

Was [the mitigating evidence] enough to out-

weigh torture, the depravity, the atrocious-

ness, and all of the other things the State con-

tends it has shown? See. You have to weigh

them. That is your function. And if the State

tips the scales and proves those things to you

beyond a reasonable doubt, and what you

heard for the defendant today doesn’t out-

weigh this ... then the penalty is death. That

is the law. That is the law.

As the law states, and the Judge will tell you

this, once the State proves aggravating cir-

cumstances, one or more, beyond a reasonable

doubt, if they are not outweighed by mitigat-

ing circumstances the defendant shows you,

the punishment shall be death. That is a mat-

ter of law. It is a matter of law.

I am not going to stand here and tell you that

_ that is an easy application of the law, because

it is not. It is a difficult application. But, just

keep in mind, you don’t impose the sentence,

the law provides the sentence, you are merely

finders of fact.

In this case, the State feels like justice in its

purest form, once again, would be best served

by the administration of the law.

West argues that these comments were constitu-

tionally impermissibly under Caldwell v. Mississippi,

38a

472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231

(1985).

b. State-court analysis

In Caldwell, the Supreme Court held that “it is

constitutionally impermissible to rest a death sen-

tence on a determination made by a sentencer who

has been led to believe that the responsibility for de-

termining the appropriateness of the defendant’s

death rests elsewhere.” Id. at 328-29, 105 S. Ct.

2633. On direct appeal, the Tennessee Supreme

Court addressed West’s claims and agreed that the

statements were inappropriate:

We agree that the district attorney’s state-

ments that “the law is self-executing”, that the

law “provides the punishment, not you”, and

the concluding statement that “you don’t im-

pose the sentence, the law provides the sen-

tence, you are merely finders of fact”, violate

Caldwell. Such statements minimize the

jury's role and allows [sic] them to feel that

the responsibility for a death sentence rests

elsewhere.

West 767 S.W.2d at 399. The court then analyzed

whether the violations were harmless, and deter-

mined that they were:

We are of the opinion that the three or four

brief erroneous characterizations of the jury’s

role in determining the appropriateness of a

death sentence were sufficiently corrected by

the trial judge and the accurate portions of the

district attorney’s and the defendant’s argu-

ments stressing the proper responsibility of

39a :

the jury. These clarifying measures contrast

sharply with the situation in Caldwell ...

where the trial judge endorsed the prosecu-

tor’s remarks. Thus we find that the errors

were harmless beyond a reasonable doubt.

Id. at 399-400.

c. West’s habeas claims

Because the Tennessee Supreme Court concluded

that the prosecutor’s statements during closing ar-

guments did violate Caldwell, but were nevertheless

harmless, the relevant “clearly established federal

law” is both Caldwell and the harmless error rule of

Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710,

123 L. Ed. 2d 353 (1993). See Fry v. Pliler, 551 U.S.

112, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007); Wilson

uv. Mitchell, 498 F.3d 491, 503 (6th Cir. 2007). Brecht

requires a court to ask “whether the error had sub-

stantial and injurious effect or influence in determin-

ing the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.

Ct. 1710 (quoting Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)).

The comment made by the prosecutor here is dis-

tinguishable from the comments at issue in Caldwell.

In Caldwell, the prosecutor told the jury that the re-

sponsibility for determining the appropriateness of a

death sentence did not rest with them but rather

with the appellate court which would later review

the case. See 472 U.S. at 325, 105 S. Ct. 2633. Addi-

tionally, the judge also told the jury that its decision

would automatically be reviewed by the State Su-

preme Court. Jbid. By contrast, the prosecutor in

this case clearly told the jury that it was the prosecu-

40a

tor’s duty to prove aggravating factors and the jury’s

duty to weigh the evidence and then decide if there

were aggravating factors and if those factors were

outweighed by any mitigating circumstances. The

judge also instructed the jurors that it was their duty

to fix West’s punishment as either death or life im-

prisonment and that each one must decide whether

any mitigating circumstances were sufficiently sub-

stantial to outweigh the aggravating circumstances.

The Tenth Circuit reviewed a set of comments

similar to the ones chalienged here in Parks uv.

Brown, 860 F.2d 1545 (10th Cir. 1988) (en banc),

reu'd on other grounds sub nom. Saffle v. Parks, 494

U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990).

There, the prosecutor told the jury:

But, you know, as you as jurors, you really, in

assessing the death penalty, you’re not your-

self putting Robyn Parks to death. You just

have become a part of the criminal-justice sys-

tem that says when anyone does this, that he

must suffer death. So all you are doing is

you're just following the law, and what the law

says, and on your verdict-once your verdict

comes back in, the law takes over. The law

does all of these things, so it’s not on your con-

science. Youre just part of the criminal-

justice system that says that when this type of

thing happens, that whoever does such a hor-

rible, atrocious thing must suffer death.

Now that’s man’s law. But God’s law is the

very same. God’s law says that the murderer

4la

shall suffer death. So don’t let it bother your

conscience, you know.

Parks, 860 F.2d at 1549. The Tenth Circuit con-

cluded “that Caldwell is inapplicable here because

‘none of the [prosecutor’s] comments could have had

the effect of misleading the jury into thinking that it

had a reduced role in the sentencing process.”

Parks, 860 F.2d at 1550 (quoting Darden v. Wain-

wright, 477 U.S. 168, 184 n.15, 106 S. Ct. 2464, 91 L.

Ed. 2d 144 (1986)).

The prosecutor’s comments in Parks were more

akin to the comments in this case than were the

comments at issue in Caldwell. In Parks, as here,

there was no erroneous statement that appellate re-

view relieves the jury of its obligations. Indeed, the

prosecutor’s comment in Parks that the decision to

sentence a man to death is “not on your conscience”

may be more troubling than the prosecutor’s com-

‘ments at issue here. Furthermore, as both the state

court and the district court noted, the trial judge cor-

rected the statements that allegedly minimized the

jury’s role. West, 767 S.W.2d at 399-400; West, No.

3:01-cv-91, slip op. at 78. For these reasons we hold

that it was not unreasonable, under Caldwell and

Brecht, for the Tennessee Supreme Court to conclude

that the prosecutorial error in regard to minimizing

the role of the jury did not have a “substantial and

injurious effect or influence in determining the

jury’s” imposition of West’s capital sentence.

42a

2. The prosecutor: claimed that defense

counsel was attempting to deceive or

mislead the jury; called West a liar;

and made inflammatory remarks not

supported by the evidence

a. The alleged misconduct

West alleges that during his closing argument,

the prosecutor told the jury that the defense counsel

was attempting to mislead or confuse the jury on

eleven separate occasions. Of those eleven instances,

ten involved variations of the phrase “[t}hat is an at-

tempt to blow a little smoke in your eyes,” or

“[aJnother attempt to throw a little sand in your

eyes.” In the eleventh instance the prosecutor re-

ferred to one of defense counsel’s arguments as an

“attempt that defense counsel has made in this case,

in order to confuse you....”

West also objected to statements made during the

prosecution’s closing in which the prosecutor called

West a har. “Now you are a gifted liar, Mr. West.

You are not just a liar....” West also objects to sev-

eral other statements made during closing argu-

ments:

* Can you believe that he had the audacity to

say that Sheila Romines consented to have sex

with him ... the most ludicrous, cruel lie that

has ever been told in Union County history.

* I guess the truth is not important, at least to

Mr. West.

43a

* He said that Ronnie [Martin] took the knife

and killed both women. We know that that is

a lie. We know that that is a lie.

Finally, West argues that the prosecutor made

the following inflammatory comments not supported

by the evidence:

* [I don’t] know whether West or Martin, or

both, had taken anything other than alcohol.

* Are we going to turn Stephen West loose, let

him escape from responsibility for the crimes

that he has committed, because he and Mr.

Martin were able to successful dispose of the

murder weapons or successfully wash the

blood off the murder weapons.

* [A]fter the butchery, [West and Martin] go in

and clean themselves up before they leave.

West objects to several comments in which the

prosecutor speculated as to Martin and West’s ac-

tions during the commission and cover-up of the

crime, arguing that they were not supported by the

record. We do not repeat them all here as they are

explored in detail in the district court opinion. West,

No. 3:01-cv-91, slip op. at 117-20.

b. Procedural default and fair pre-

sentment

The State argues that West procedurally de-

faulted in challenging the first and third sets of

statements by failing to raise them in the state court

proceedings as “federal constitution violations.” Ap-

pellee’s Br. 43. While it is true that West cited only

state law in those arguments, there are other ways

44a

in which he could have fairly presented his constitu-

tional claim to the state courts. See Baldwin, 541

U.S. at 32, 124 S. Ct. 1347. As we stated in

McMeans v. Brigano, 228 F.3d 674 (6th Cir. 2000):

This court has noted four actions a defendant

can take which are significant to the determi-

nation whether a claim has been “fairly pre-

sented”: (1) reliance upon federal cases em-

ploying constitutional analysis; (2) reliance

upon state cases employing federal constitu-

tional analysis; (3) phrasing the claim in terms

of constitutional law or in terms sufficiently

particular to allege a denial of a specific con-

stitutional right; or (4) alleging facts well

within the mainstream of constitutional law.

Id. at 681.

West’s allegations in regard to the first set of

statements were sufficiently particular and well

within the mainstream of constitutional law. West

specifically stated that the prosecutor’s comments

about defense counsel attempting to mislead the jury

were “highly prejudicial and improper.” He used the

same phrase in objecting to the prosecutor’s state-

ments that were allegedly unsupported by the re-

cord. Though this statement was not close to an in-

vocation of the Supreme Court’s standard for judging

prosecutorial misconduct, it was evocative of lan-

guage that we articulated in United States v. Leon,

534 F.2d 667 (6th Cir. 1976). As we stated in Leon,

we evaluate claims of prosecutorial misconduct using

four factors, including “whether the remarks tended

45a

to mislead the jury or to prejudice the accused.” Id.

at 679. See United States v. Carroll, 26 F.3d 1380,

1384 (6th Cir. 1994) (explaining Leon). Indeed, in

Leon, the court found that the remarks at issue were

“improper and highly prejudicial,” Leon, 534 F.2d at

678, the very same phrase used by West. As for

West’s arguments about the second set of state-

ments, West quoted from State v. Smith, 456 A.2d 16

(Me. 1983), explicitly noting that the state case was

citing a federal case, United States v. Gonzalez Var-

gas, 558 F.2d 631 (1st Cir. 1977). West also cited

United States v. Bess, 593 F.2d 749 (6th Cir. 1979).

We accordingly hold that West fairly presented his

federal claims to the state court and that he is not

procedurally barred from pursuing those claims here.

c. State-court analysis

The state court analyzed West’s claim under state

law, relying on State v. Buck, 670 S.W.2d 600, 609

(Tenn. 1984) and State v. Beasley, 536 S.W.2d 328

(Tenn. 1976), which held that a prosecutor’s argu-

ment should be supported by evidence introduced at

trial and the reasonable inferences to be drawn from

that evidence and that a lawyer’s personal opinion as

to the credibility of a witnesses should not be in-

jected into argument. However, as the state court

noted, Beasley cited with approval a number of cases

in which the courts refused to find misconduct when

the prosecutor’s reference to a “lying” defendant or

defense witnesses was supported by evidence in the

record. West, 767 S.W.2d at 394.

The court ultimately found that some of the

prosecutor’s references had “borderline support” and

46a

could “through reasonable inference [| ] be drawn

from evidence” and that some were not based upon

evidence or proper inferences therefrom. For exam-

ple, the comment that he didn’t “know whether Mr.

West or Mr. Martin, or both, had taken anything

other than alcohol,” was unsupported. Id. at 394-95.

The state court also acknowledged that, under state

law, it was “improper for the district attorney to tell

the jury that defense counsel was ‘trying to throw

sand in the eyes of the jury’ and ‘blowing smoke in

the face of the jury.” West, 767 S.W.2d at 395. The

court dismissed the weight of the improper com-

ments, however, holding that “viewed in the context

in which the improper remarks occurred and in light

of the overwhelming evidence of defendant’s guilt the

instances of prosecutorial misconduct were harmless

beyond a reasonable doubt.” Ibid.

d. West’s habeas claims

Again, the issue is whether the state court deci-

sion was contrary to or an unreasonable application

of clearly established federal law. Under the rele-

vant Supreme Court precedent, prosecutorial mis-

conduct is grounds for reversal if that conduct “ so

infected the trial with unfairness as to make the re-

sulting conviction a denial of due process.” Darden,

477 U.S. at 181, 106 S. Ct. 2464 (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40

L. Ed. 2d 431 (1974)). The appropriate standard for

review on a claim of prosecutorial misconduct alleged

in a petition for a writ of habeas corpus is “the nar-

row one of due process, and not the broad exercise of

supervisory power.” Donnelly, 416 U.S. at 642, 94 S.

Ct. 1868. “We do not possess supervisory powers

47a

over state court trials.” Byrd v. Collins, 209 F.3d

486, 529 (6th Cir. 2000) (citing Cook v. Borden-

kircher, 602 F.2d 117, 119 n.5 (6th Cir. 1979), for the

proposition that “it is the responsibility of the [state

courts] to police their prosecutors; we have no such

authority.”). As we explained in Byrd:

In making this determination, we must bear

in mind that the touchstone of due process

analysis ... is the fairness of the trial, not the

culpability of the prosecutor. Therefore, even

if the prosecutor’s conduct was undesirable or

even universally condemned, it does not con-

stitute a due process violation unless the con-

duct was ‘so egregious so as to render the en-

tire trial fundamentally unfair.’ Indeed, our

- case law demonstrates the extreme nature of

prosecutorial misconduct required for a federal

court to issue the writ.

209: F.3d at 529 (internal citations and quotation

marks omitted).

It is improper to personally attack defense coun-

sel or argue that counsel is attempting to mislead the

jury. Broom v. Mitchell, 441 F.3d 392, 412-13 (6th

Cir. 2006). A prosecutor should not give his own

opinion as to the credibility of witness. Hodge v. Hur-

ley, 426 F.3d 368, 378-79 (6th Cir. 2005); see also

Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999)

(“Ordinarily, a prosecutor may not express a per-

sonal opinion concerning the guilt of the defendant or

the credibility of trial witnesses, because such per-

sonal assurances of guilt or vouching for the veracity

of witnesses by the state’s representative exceeds the

48a

legitimate advocate’s role by improperly inviting the

jurors to convict the defendant on a basis other than

a neutral independent assessment of the record

proof.”); United States v. Carroll, 26 F.3d 1380, 1387-

89 (6th Cir. 1994); United States v. Dandy, 998 F.2d

1344, 1353 (6th Cir. 1993).

Nevertheless, this does not mean that the prose-

cution cannot attack the defendant’s credibility or

even assert that the defendant is lying. As we ex-

plained in United States v. Francis, 170 F.3d 546

(6th Cir. 1999):

This Court has held that a prosecutor may as-

sert that a defendant is lying during her clos-

ing argument when emphasizing discrepancies

between the evidence and that defendant's

testimony. To avoid impropriety, however,

such comments must reflect reasonable infer-

ences from the evidence adduced at trial.

Again, misconduct occurs when a jury could

reasonably believe that the prosecutor was, in-

stead, expressing a personal opinion as to the

witness's credibility.

Id. at 551 (internal citations and quotation marks

omitted).

Assessing West’s claims therefore is a two-step

process. First, the court must determine whether a

prosecutor’s conduct and remarks were improper.

Second, the court must determine whether the con-

duct warrants habeas relief. The four factors consid-

ered when evaluating whether relief is warranted

are:

49a

(1) “the degree to which the remarks com-

plained of have a tendency to mislead the jury

and to prejudice the accused;”

(2) “whether they are isolated or extensive;” .

(3) “whether they were deliberately or acciden-

tally placed before the jury;” and

(4) “the strength of the competent proof to es-

tablish the guilt of the accused.”

Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).

The Tennessee Supreme Court used a similar set

of factors from Buck in assessing West’s claims on

direct appeal. The Buck factors are:

(1) “the conduct complained of viewed in con-

text and in light of the facts and circumstances

of the case;”

(2) “the curative measures undertaken by the

Court and the prosecution;”

(3) “the intent of the prosecutor in making the

improper statement;”

(4) “the cumulative effect of the improper con-

duct and any other errors in the record;” and

(5) “the relative strength or weakness of the

case.”

670 S.W.2d at 609.

Though the Tennessee Supreme Court did not

walk through each of the factors, it clearly applied

them. The district court gave a more detailed

analysis of the alleged misconduct. Both courts came

50a

to the conclusion that the misconduct did not amount

to reversible error. We agree.

While it is true that the prosecutor asserted his

personal opinion as to West’s credibility, the error

was harmless given the evidence submitted to the

jury that West had contradicted himself on

numerous occasions and had given varying accounts

of crimes. The same is true for the prosecutor's

comments that defense counsel was intentionally

misleading the jury. As the district court pointed

out, the state’s closing argument took up thirty pages

of trial transcript. While there were eleven instances

of inappropriate comments, none were lengthy; they

were all short asides.

As for the comments allegedly not supported by

the record, many of them were actually supported.

For example, West complains of the prosecutor’s

speculation about West and Martin cleaning the

murder weapon. However, one of West’s statements

to the police was read to the jury by Agent Scott. In

that statement West had stated, “I wiped off the

guns and took them to the mother’s bedroom.” J.A.

1732. The district court opinion explores more of the

allegedly-unsupported statements, demonstrating

that many of the inferences were based on testimony

and evidence in the record and we need to repeat the

analysis here.

Moreover, even if every statement was not fully

supported, the comments at issue could hardly be

said to have “so infected the trial with unfairness as

to make the resulting conviction a denial of due

process.” Darden, 477 U.S. at 181, 106 S. Ct. 2464.

5la

Accordingly, we affirm the district court’s denial of

relief on prosecutorial misconduct.

Ill, CONCLUSION

The district court’s denial of West’s petition for

habeas corpus is AFFIRMED.

52a

KAREN NELSON MOORE, Circuit Judge,

dissenting in part and concurring in the judgment

only in part.

After paying mere lip-service to recent Supreme

Court precedent, the majority in this case applies a

pre- Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527,

156 L. Ed. 2d 471 (2008), and Rompilla v. Beard, 545

U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005),

interpretation of the Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

standard for ineffective-assistance-of-counsel claims.

Because I conclude that, under the Strickland

standard as explained in Wiggins and Rompilla,!

West has met his burden of proof for his claim of

ineffective assistance of counsel at the penalty phase,

I respectfully dissent.

The majority correctly states that, to prove

ineffective assistance of counsel, a defendant must

show that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced the

defendant. The majority then correctly: concludes

that the state courts’ applications of Strickland and

Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838,

122 L. Ed. 2d 180 (1993), were contrary to or

involved an unreasonable application of established

Federal law. However, the majority then cites

1 Because Rompilla and Wiggins merely explain the Strickland

standard and do not establish new law, it is appropriate to rely

on those cases when deciding West’s ineffective-assistance-of-

counsel claim “even though those cases were decided after

[West's] convictions became final.” Jells v. Mitchell, 538 F.3d

478, 491 n.2 (6th Cir. 2008); see also Hamblin v. Mitcheil, 354

F.3d 482, 487 (6th Cir. 2003)

53a

Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L.

Ed. 2d 638 (1987), for the proposition that counsel

need not “mount an all-out investigation into

petitioner's background in search of mitigating

circumstances [if the decision] was supported by

reasonable professional judgment.” Majority Op. at

555 (quoting Burger, 483 U.S. at 794, 107 S. Ct.

3114). Applying this law, the majority holds that

“West’s counsel, in fact, did a fair amount of

investigation in preparation for the mitigation

phase,” and thus West has not shown ineffective

assistance of counsel. Majority Op. at 555-57.

The majority’s opinion ignores both recent

Supreme Court cases that have explained the

standard applied to claims of ineffective assistance of

counsel! under Strickland and Sixth Circuit

precedent. Under Strickland, failure reasonably to

investigate a defendant’s background and to present

mitigating evidence at sentencing can amount to

ineffective assistance of counsel. Wiggins, 539 U.S. at

522, 123 S. Ct. 2527 (noting counsel has an

“obligation to conduct a thorough investigation of the

defendant’s background” before making tactical

decisions regarding what mitigating evidence to

present) (quoting Williams v. Taylor, 529 U.S. 362,

396, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)). The

court must consider whether a reasonable attorney,

given the same evidence as the counsel in question,

would have investigated something further. Wiggins,

539 U.S. at 527, 123 S.. Ct. 2527 (“In assessing the

reasonableness of an attorney's investigation,

however, a court must consider not only the quantum

of evidence already known to counsel, but also

54a

whether the known evidence would lead a reasonable

attorney to investigate further.”) (emphases added).

Further, counsel cannot simply rely upon

information the defendant and his family provided.

See Rompilla, 545 U.S. at 389, 125 S. Ct. 2456

(requiring counsel to review a prior-conviction file

rather than rely solely on statements made by the

defendant and his family). As this circuit has

repeatedly held, counsel has an independent duty to

investigate mitigating evidence, even if the

defendant is reluctant. Harries v. Bell, 417 F.3d 631,

638 (6th Cir. 2005); Hamblin v. Mitchell, 354 F.3d

482, 492 (6th Cir. 2003); Coleman v. Mitchell, 268

F.3d 417, 449-50 (6th Cir. 2001); Carter v. Beil, 218

F.3d 581, 596-97 (6th Cir. 2000).2

Applying the Strickland standard, I conclude that

it is clear that West has met his burden. Several

pieces of evidence demonstrate that West’s counsel

was deficient. First, Jerry Summers (“Summers”)

and Paul Morrow (“Morrow”), two seasoned

attorneys who had tried several capital cases,

testified during the post-conviction hearing that

counsel was deficient in this case. J.A. at 1674, 1677

(Tenn. Ct. Crim. App. Op. at 10, 13). Second, West’s

sister testified at the post-conviction hearing that

she informed counsel of West’s childhood abuse and

that counsel told her that it was not relevant. Third,

Summers testified that two facts should have raised

red flags to counsel that West may have suffered

abuse: (1) the fact that West was born in a mental

2 The majority does not cite any of these binding Sixth Circuit

cases in its opinion.

55a

hospital and (2) West’s statement that he had no

memories before the age of ten. J.A. at 1673-74

(Tenn. Ct. Crim. App. Op. at 9). West’s counsel

ignored these key pieces of evidence that would have

led a reasonable attorney to investigate further.

Thus, I conclude that West’s counsel was deficient.

I further conclude that West was prejudiced by

this deficiency. To prove prejudice, a defendant must

show that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland,

466 U.S. at 694, 104 S. Ct. 2052. In this case, had

counsel presented evidence of abuse and its effects on

West, it is extremely likely that at least one juror

would have determined that West’s explanation for

what happened to him while the crime took place-

essentially that he froze-was plausible, making the

death penalty unwarranted. As summarized by the

Tennessee Court of Criminal Appeals, Morrow

“testified that the prejudice that was shown in this

case was that the jury did not hear the ‘psychological

or lay witnesses that would have made somewhat

comprehensible his actions on that day [day of the

murders].” J.A. at 1677 (Tenn. Ct. Crim. App. Op. at

13) (alteration in original). Further, if money had

been available originally for doctors, Dr. Coleman’s

and Dr. Dudley’s evidence of West’s psychological

makeup would have been provided, in addition to the

various witnesses who could have spoken about

West’s childhood abuse.?

3 The majority contends that West’s objection “to the trial

court’s sua sponte ordering of a psychological examination to

56a

Finally, though Dr. Bursten testified at the post-

conviction hearing that West stated during their

interview that he had not been abused, the relevance

of such evidence is questionable for two reasons.

First, Morrow testified during the post-conviction

hearing that West’s statement to Dr. Bursten was

not necessarily reliable because often defendants

who have truly been abused are “the worst person to

talk to” about the abuse “because he or she is usually

embarrassed or does not understand its significance.”

J.A. at 1676 (Tenn. Ct. Crim. App. Op. at 12).

Second, the fact that West stated that he was not

abused is not dispositive when a wealth of evidence

points to the conclusion that he was abused. See,

e.g., Coleman, 268 F.3d at 450 (“The sole source of

mitigating factors cannot properly be _ that

information which defendant may volunteer; counsel

must make some effort at independent investigation

in order to make a reasoned, informed decision as to

their utility.’ ”) (quoting Carter v. Bell, 218 F.3d 581,

596 (6th Cir. 2000)).

determine competency” resulted in the trial court later denying

West’s counsel funds for experts and led to counsel’s failure to

discover mitigating evidence. Majority Op. at 555. The majority

cites Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008), for

the proposition that West’s “lack of cooperation” in some way

hinders his current claim of ineffective assistance of counsel.

Majority Op. at 555-56. Fautenberry is distinguishable from

this case. There, the defendant refused to be examined by the

expert charged with discovering brain impairments relevant to

mitigation. Fauienberry, 515 F.3d at 625. In this case, West did

not object to any examination aimed at discovering ailments

pertinent to mitigation, only to an examination focused on the

issue of competency.

57a

Counsel’s failure to present this evidence of abuse

was prejudicial because it would have served to

mitigate the prosecution’s theory that West stabbed

the victims, allowing the jury to believe both (1) Dr.

Evans’s interpretation that only one person made the

stab wounds instead of Dr. Blake’s interpretation

that two people stabbed the victims, State v. West,

767 S.W.2d 387, 392 (Tenn. 1989), and (2) that, even

though West was physically larger than Martin, he

was mentally unable to stop Martin from stabbing

the victims. This evidence would have changed

West’s mitigation case from one about West’s

character as “a good and decent citizen,” “never

before ... in trouble with the law,” “a veteran,” and “a

loving husband and a soon-to-be father,” Majority

Op. at 556, to one that actually explained why West

behaved the way that he behaved. As in Rompilla,

“[t]his evidence adds up to a mitigation case that

bears no relation” to the mitigation case actually

presented by counsel. Rompilla, 545 U.S. at 393, 125

S. Ct. 2456.

The majority claims that, although the jury may

have believed West’s evidence and “chosen to spare

his life,” the jury may also have been unswayed by

the evidence. The majority concludes that “fijt is not

enough for this court to speculate that the jury would

have chosen the former path.” Majority Op. at 556.

This statement flies in the face of Supreme Court

precedent:

[A]lthough we suppose it is possible that a jury

could have heard [all the evidence] and still

have decided on the death penalty, that is not

the test. It goes without saying that the

58a

undiscovered mitigating evidence, taken as a

whole, might well have influenced the jury’s

appraisal of [the defendant’s] culpability, and

the likelihood of a different result if the

evidence had gone in is_ sufficient to

undermine confidence in the outcome actually

reached at sentencing.

Rompilla, 545 U.S. at 393, 125 S. Ct. 2456 (emphasis

added) (internal quotation marks and citations

omitted); see also Harries, 417 F.3d at 640.

Therefore, I conclude that, taken as a whole, West’s

evidence provides “a reasonable probability” that the

result of the proceeding would have been different.

Thus, I would hold that West has proven ineffective

assistance of counsel at the penalty phase of his trial,

and I would REVERSE the judgment of the district

court regarding the penalty phase. With respect to

the guilt phase issues addressed by the majority, I

concur in the judgment only. Thus, I would GRANT

a conditional writ of habeas corpus with respect to

the penalty phase.

59a

Appendix B

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF TENNESSEE

at KNOXVILLE

STEPHEN MICHAEL )

WEST, )

Petitioner, ) No.: 3:01-cv-91

v. ) (Varlan/Shirley)

RICKY BELL, WARDEN, )

Riverbend Maximum )

Security Institution, )

Respondent. ) September 30, 2004

Memorandum Opinion

Stephen Michael West (“West” or “Petitioner”), a

-death-sentenced inmate at the Riverbend Maximum

Security Institution in Nashville, Tennessee, brings

this petition for writ of habeas corpus against the

Warden, Ricky Bell (“Respondent” or “State”),

pursuant to 28 U.S.C. § 2254 [Doc. 40, p. 111].! West

is petitioning this Court “for a writ of habeas corpus

declaring unconstitutional and _ invalid his

convictions for first degree murder and his resulting

death sentences” [Doc. 111, p. 1]. Before the Court is

Respondent’s motion and memorandum for summary

1 Petitioner has filed both a petition and an “amended petition.”

The “amended petition” appears to incorporate the claims in the

original petition. Hence, the Court will refer to the issues as

they appear in the amended petition.

60a

judgment [Doc. 124 & 125]? and Petitioner’s response

to the motion for summary judgment of the amended

petition [Doc. 144]. After carefully considering

arguments of counsel and the applicable law, the

Court will GRANT Respondent’s motions for

summary judgment.

I. FACTUAL BACKGROUND

On March 24, 1987, Petitioner Stephen Michael

West was convicted by a jury in the Criminal Court

of Union County on two counts of first degree

murder, two counts of aggravated kidnaping, one

count of aggravated rape, and one count of larceny;

all of which were committed on March 17, 1986. On

March 24, 1987, at the conclusion of the sentencing

hearing, the jury found the following’ three

aggravating circumstances supported the imposition

of the death penalty for each premeditated murder:

(1) the murder was especially heinous, atrocious,

or cruel in that it involved torture or

depravity of mind;

(2) the murder was committed for the purpose of

avoiding, interfering with, or preventing a

lawful arrest or prosecution of the defendant

or another;

2 Respondent filed both a motion and memorandum of law for

suminary judgment [Doc. 656 & 66] to dismiss Petitioner’s

original petition and a motion and memorandum of law for

summary judgment to dismiss the amended petition [Doc. 124

& 125]. Since Petitioner’s amended petition incorporated the

claims which were in the original petition, the Court will refer

to the motion to dismiss the amended petition [Doc. 124 & 125].

6la

(3) the murder was committed while the

defendant was engaged in committing ... first

degree murder, ... rape, ... [or] kidnapping.

The jury determined that death should be the

punishment for West on the two counts of first

degree murder; and on appeal, the Tennessee

Supreme Court affirmed the convictions and

sentences. The following is a summary of the

evidence.

A. Facts Introduced During Trial

In summary, the State’s proof was that on March

17, 1986, Jack Romines left home at approximately

5:20 a.m. to go to work [Addendum 8, p. 52]. His wife

was awake and his daughter was still in bed when he

left for work. At some time between 6:00 am. and

8:30 a.m. on that date, his wife, Mrs. Wanda

Romines (hereinafter “Mrs. Romines”), and their

fifteen year old daughter (hereinafter “Miss

Romines”), were brutally murdered in their home in

the Big Ridge Community of Union County after the

women admitted Petitioner and an acquaintance of

his, Ronnie Martin (“Martin” or “co-defendant”), into

their home.’ Miss Romines was raped prior to being

murdered. Mr. Romines discovered the brutal scene,

as described below, upon his return from work and

had his neighbor contact law enforcement

[Addendum No. 11, pp: 61-69].

3 Petitioner apparently had no prior acquaintance with the

Romines family but his co-defendant, Martin, knew the victims

and had apparently dated the fifteen year old daughter in the

past [Addendum 3 (2 of 4), pp. 543-46].

62a

Mrs. Romines was found dead in her bedroom

which was in total disarray. There were clothes lying

all over the floor and a big box of clothes that had

been sitting on a table was turned upside down. A

large five foot tall plant had numerous limbs cut off

and most of them were in the floor. The window

shades on the two windows in the room were closed.

Mrs. Romines was found lying in the bed, face down

into a pillow with a pair of brown pants wadded over

her face, and the only clothing she had on was a red

and black checked flannel shirt. A high-powered rifle

and a shotgun were hanging in the gun rack on the

opposite wall. Ammunition for the weapons was

located in the drawer of the gun rack. Mrs. Romines

had numerous stab wounds to her back, sides, and

waist area in addition to two gaping wounds on

either side of her waistline. Her hands had been

bound at the wrists but the drawstring that had

restrained her wrists had been _ separated

[Addendum No. 10, pp. 113-115].

In Miss Romines’s room a drawer was missing

from the center of her dresser and other drawers

were pulled out. There was a toothbrush on her chest

of drawers which appeared to have toothpaste on it

as if someone had been brushing their teeth and had

just laid it duwn. Miss Romines’s bedroom had two

windows. One shade was completely drawn closed,

and the other shade was only drawn halfway. There

was a large blood stain on the top quilt of the bed

and some blood drippings or smears from Miss

Romines on the edge. Miss Romines was lying dead

on her left side and was wearing a sweater and a

pair of panties that were badly blood-stained. There

63a

was blood on her thighs and hands and holes in the

front of her sweater. Underneath Miss Romines’s

body was a blood soaked gown and newspaper, and

next to her head was a pillow without a pillow case

[Addendum No 10, pp. 115-117]. Mr. Romines’s

pistol, which was kept in his daughter’s room in the

bottom drawer of a cabinet wrapped in an old sock,

was missing [Addendum No. 11, pp. 61-69].

Other physical evidence at the scene included a

towel lying between the table and front door. Near

the stove there was a vacuum cleaner, and the cord,

had been cut at the plug end. There was a small pan

between the eyes of the stove which contained two

eggs and some water, in addition to a blender

containing milk and an instant breakfast [Addendum

No. 10, pp. 111-113]. A bank envelope and piece of

paper were found in the kitchen sink, and a couple of

drawers on the side of the sink were left opened. Mr.

Romines_ testified that some knives and

approximately $200.00 were missing from his house

after this crime.

Coming out of the kitchen into the hallway

toward the bedrooms, a live .22 shell was found to

the left of the door frame going into the bathroom.

Inside the bathroom was a lady’s hair curler which

was on, and a hairbrush, toothpaste, towel, and what

appeared to be blood diluted with water were on the

edge of the sink [Addendum No.10, p. 1193].

Down the hallway, past the bathroom, was a

little foyer-type area going into Mrs. Romines’s

bedroom. Miss Romines’s bedroom was located

nearby and to the rear of her bedroom was a room

64a

which appeared to be used as a storage area. There

was a table with a telephone on it, but the wire had

been broken in two where phone calls could not be

received nor could calls be made [Addendum No.10,

p. 114].4

Authorities received information through a

confidential informant that led them to John Allen

(“Allen”). As a result of information that Allen

provided, authorities recovered an unloaded gun® a

gym bag, some knives, a white glove, and a pillow

case which were identified as being taken from the

Romines residence [Addendum No. 10, pp. 121-124].

As a result of the information and evidence obtained

from Allen, authorities obtained a warrant for

Martin, and he was arrested during the early

morning hours of March 28, 1986 [Addendum No. 10,

p. 124]. After speaking with Martin, authorities

obtained a warrant for Petitioner and arrested him

[Addendum No. 10, p. 127].

Petitioner gave several different versions of the

sequence of the events which transpired prior to the

commission of these murders. The discrepancies in

the statements are important to the extent they

demonstrate why the jury did not find Petitioner

credible when testifying that Martin forced him at

gunpoint to participate in these crimes [Addendum

4 The phone company was called during the initial investigation

to come out and patch the telephone so the Union County

Sheriffs Department could be called [Addendum No. 10, p. 114].

5 The .3 8 caliber revolver was identified as belonging to Jack

Romines [Addendum No. 10, p. 122].

65a

No. 11]. The facts discussed below are taken from

Petitioner's statements and testimony.

Petitioner supervised Martin at McDonald’s in

Lake City, Tennessee where they were both

employed. The two had known each other for a

couple of weeks prior to committing these crimes. In

addition to working together, they had smoked

marijuana together on a least one occasion prior to

March 17, 1986 [Addendum No. 10, p. 81]. Petitioner

had no prior acquaintance with the victims in this

case, but Martin knew the victims and had

apparently dated the fifteen year old victim in the

past [Addendum No. 3 (2 of 4), pp. 543-46].

Consequently, according to Petitioner, Martin knew

where the Romines family lived, what “their habits

were, when they would getup, when the young lady’s

light would go on, and where her bedroom was

flocated]” [Addendum No. 11, p. 31].

On March 17, 1986, Petitioner and Martin left

work together during the early hours. Martin drove

them around in his mother’s vehicle while they

drank beer and talked [Addendum No. 10, pp. 79-81].

As they drove around, Martin told Petitioner he

knew a girl who would have sex with them

[Addendum No. 10, pp. 82-83].

After driving around and drinking for a few

hours, Petitioner and Martin went to Petitioner’s

house. Petitioner changed clothes out of his

McDonald’s uniform and took three bottles of beer

out of his refrigerator. As he was leaving his wife

woke up and he told her he was going fishing

[Addendum No. 11, p. 10]. Then Martin drove them

66a

to the house of John Allen, a friend of Martin’s,

where Martin obtained a butcher knife [Addendum

No. 11, pp. 28-38]. This occurred at approximately

4:00 a.m., and Petitioner said he stayed in the car

and was not aware that Martin obtained a butcher

knife from Allen [Addendum No. 11, p. 30].

During this time, Petitioner and Martin drove by

the Romines house several times waiting, according

to Petitioner, for the lights to come on [Addendum

No. 11, p. 83]. On one occasion, they were turning

around in the driveway of a neighbor and Martin

backed into a ditch. According to Petitioner, before

they eventually got the vehicle out of the ditch the

neighbor came out cussing at Petitioner about using

the fence post to pry the car out of the ditch

[Addendum No. 11, pp. 11-12].

Petitioner and Martin continued to drive by the

Romines house and its vicinity until they noticed the

lights were on in the house [Addendum No. 11, pp.

12, 86]. They stopped at the house after Mr. Romines

had departed for work [Addendum No. 11, pp. 86-67],

and Petitioner testified they parked at the corner

house near the victims’ residence [Addendum No. 11,

p. 86].

In his first statement, Petitioner claimed Martin

introduced him to Miss Romines, and Martin sat on

the “couch with her for abcut fifteen to twenty

minutes talking and feeling of her and whispering

something to her. The girl just got me [West] by the

hand and asked me if I wanted to go in the back with

her. We went into the bedroom, back one on the left,

she started playing with me. She wore braces and

67a

was having her period. We had sex then went back to

the living room. Ronnie and the girl went back for a

couple of minutes and came back out. Ronnie and the

girl and myself talked for a while, she got - she gave

me a kiss goodbye. We left and got out of the house.”

[Addendum No. 10, p. 82]. Petitioner stated Martin

went back in the house to get some money and

stayed for about a half hour and returned with a

small gray bag. Petitioner stated he and Martin then

drove to Martin’s house, and to explain their

tardiness, Martin told his mom the car had broken

down. Martin gave his mother $5.00 for gas, and she

dropped them off at McDonald’s at about 9:00 a.m.

[Addendum No. 10, pp. 81-83].

Petitioner later had his mother contact Agent

Pressnell and tell him that Petitioner wanted to talk

to Pressnell again to tell his side of the story. On this

occasion, Petitioner made his second statement to

Agent Pressnell. Petitioner told Agent Pressnell he

was afraid that Martin’s friend would kill his wife

and mother, and that Petitioner had seen the part of

the video where Martin was putting all of the blame

on him. Petitioner then proceeded to tell Agent

Pressnell that Martin had held a gun on him and

forced him to have sex with the young victim.

Petitioner stated Martin held a knife and gun on all

three of them. According to Petitioner, Martin made

the young victim have sex with Petitioner by making

her sit on top of him and the mother was forced to

have oral sex with him. Petitioner said he enjoyed

the sex. Petitioner further stated that Martin killed

both women with a knife. According to Petitioner,

when they were leaving the crime scene Martin told

68a

Petitioner to go and get the car and if he ran, Martin

would kill Petitioner’s wife before he could get home.

Martin showed Petitioner that he had knives, a gun,

a pillow case, and shells in the bag he carried out of

the Romines house [Addendum No. 10, pp. 101-02].

At some time after 4:00 p.m. on March 18, 1986,

after Petitioner had given Agent Pressnell a second

statement, Agent Scott also talked with West a

second time. The second statement Petitioner made

to Agent Scott was similar to the second version he

gave to Agent Pressnell but also included some

additional facts. For example, Petitioner said Martin

knocked on the Romines’s door and after the door

was opened Martin pulled a knife and asked where

the money was and made all the parties go into the

back room. Petitioner claimed Martin made him lie

on his back on the bed in the mother’s bedroom, and

Martin made Miss Romines pull Petitioner’s pants

down and perfurm fellatio on him. He achieved an

erection and Martin made Miss Romines get on top

of him; while they were having sexual intercourse

Martin attempted to have anal intercourse with Miss

Romines. Petitioner said Miss Romines screamed out

and Martin said he could feel Petitioner’s penis

inside Miss Romines while Martin was having anal

intercourse with her.® Petitioner claims Martin had

6 Dr. Blake, the Union County Coronor who performed the

autopsy on the victims, testified there was no penile

penetration of the young victim’s anus. He supported. his

opinion with the fact that there was no smearing of feces or

material in the rectum and no dilatation of the anal ring, in

addition to the fact that there was no stretching of the anal ring

69a

anal intercourse with Miss Romines for several

minutes, and then told Miss Romines to get off

Petitioner and perform fellation on him and forced

her mother to lick his scrotum. Petitioner said he

knew Miss Romines was having her period because

of the blood on him after they had intercourse.

Petitioner revealed that during part of this time

Martin would leave the room and go into other parts

of the house hunting for things. Martin returned

with a gray bag with items in it and two more

knives. Petitioner said he was forced to participate in

these crimes because he was afraid of Martin who

was armed with knives and a gun [Addendum No.

10, pp. 134-36].

Petitioner also revealed that he and Miss

Romines went into the living room while Martin

remained with Mrs. Romines in her bedroom.

Petitioner heard Mrs. Romines cry out and Martin

hollered at Petitioner and Miss Romines to come

back to the bedroom. Petitioner and Miss Romines

went into the bedroom and Miss Romines started

crying. Martin was stabbing Mrs. Romines while her

hands were tied behind her. Petitioner claimed Mrs.

Romines, Miss Romines, and he were all crying and

Martin threatened Petitioner with a gun at different

times during the ordeal. Martin took Miss Romines

out of the room and left Petitioner in the bedroom

with Mrs. Romines. Petitioner said he could not find

a pulse but he kept hearing noises from her

[Addendum No. 10, pp. 128-138].

and no hemorrhage or deposits to indicate there had been a

sexual assault on the anus [Addendum No. 9, p. 57].

70a

Martin called out for Petitioner to come to him

and he found Miss Romines and Martin in her

bedroom. Miss Romines was lying on her back and

her hands were “joined behind her” and Martin was

stabbing her [Addendum No. 10, p. 138]. Miss

Romines was screaming, and Petitioner said he faced

down the hallway so he would not have to watch the

murder. Miss Romines started kicking Martin and

rolled off the end of the bed. Petitioner said Martin

handed him the knife to stab Miss Romines telling

him since Martin had killed the mother, Petitioner

had to kill Miss Romines. However, Petitioner

claimed he kept throwing the knife down on the bed

or on the floor refusing to do so. According to

Petitioner, Martin got down on his knees and started

stabbing Miss Romines as she was begging him and

asking him why. Petitioner stated that Martin

continued stabbing her in the stomach area and was

pushing the handle back and forth like he was trying

to torture her or hurt her real bad and make her feel

a lot of pain. Petitioner stated he did get blood on his

hands, and his prints might be on the knives.

Petitioner further stated that Martin had

gathered up some rifles and shotguns and laid them

on the couch in the living room but decided not to

take them, so Martin gave Petitioner a pair of cotton

gloves with blood stains on them and told Petitioner

to put the gloves on, wipe the guns off, and put the

weapons back in the gun rack. Petitioner explained

that he had put two guns in the rack, and when he

started to put the third one in, Martin stopped him

and told him that one belonged behind the door.

Petitioner told the agent that they both left through

Tla

the back door, Petitioner went to the vehicle, Martin

walked through the woods, and Petitioner then

picked Martin up. They drove to Martin’s house

where he gave his mother $5.00 for gas, and she then

drove them to the McDonald’s in Lake City,

Tennessee. Petitioner claims Martin left McDonald’s

and came back with a person Martin said would kill

Petitioner’s wife and mother if Petitioner told anyone

about this incident [Addendum No. 10, pp. 138-141].

A third statement was provided by Petitioner

wherein he provided more facts and details. In this

statement, Petitioner disclosed that Martin had

obtained the gun from somewhere in the Romines

house and that Martin also possessed a Kouton

knife. In addition, Petitioner claimed that Martin put

a-.gun between his eyes and threatened him.

Petitioner also added that as Martin stabbed Miss

-Romines he told her “he owed her” [Addendum No.

11, pp. 12-17].

There were also variances between Petitioner’s

statements and his trial testimony. During his trial,

Petitioner testified he and Miss Romines were sitting

on the couch talking when she gasped after seeing

Martin walk out of the back of the house with his

arm around her mother’s neck leading her at

knifepoint to the living room. Petitioner claimed he

asked Martin if he was crazy and what he was doing,

but he testified he did not try to stop Martin because

Martin could have stabbed Mrs. Romines at that

time. :

In this version of the facts, Petitioner said

Martin told them all they were going to the back to

72a

have some fun. Martin allegedly pushed the mother,

they all fell on each other, and once they all sat up on

the bed, Martin was not there. Petitioner claimed he

went looking for Martin and found him coming

toward him carrying a pistol and two knives. Martin

ask Petitioner if Petitioner was looking for him and

told Petitioner to follow him to the back room.

Martin told Miss Romines to take her clothes off and

pull Petitioner’s pants down. Petitioner testified as

in his previous statement about the sex act, but

added that Martin was cutting the tree in the room,

calling Miss Romines names, and saying she liked it

and other things. Martin told them to go to the living

room, and they all followed him in there. According

to Petitioner, Martin told Petitioner and Miss

Romines to sit on the couch but when Miss Romines

complained she was on her period, Martin allowed

her to put her panties and gown on. Martin had his

arm around the mother’s waist, the gun in his hand,

and talked about the situation being fun. Martin

made them all watch Miss Romines go to the

bathroom and then took the mother back to her room

and bound her hands. Martin told Petitioner and

Miss Romines if they did anything or called anyone,

he would kill them.

Petitioner stated Miss Romines was talking like

nothing else was going to happen; then Martin came

back and took Miss Romines, saying he was going to

tie her up, and if Petitioner did anything or called

anyone he would kill them. Petitioner testified he sat

on the couch in a daze for awhile, then he walked

back and saw that Mrs. Romines was dying or dead.

Martin came in and took Petitioner to Miss

73a

Romines’s room where she was on the bed with her

hands tied behind her. Miss Romines got up on her

knees and looked at Petitioner and asked him to

please not let Martin do this. Petitioner thought

Martin punched her, she fell back on the bed, and

blood was coming out of her stomach. Petitioner

stated he fell to his knees and prayed.

Petitioner claims Martin told him to go back to

the mother’s room. While in Mrs. Romines’s

bedroom, Martin cut the rope and handed Petitioner

the knife telling Petitioner to cut-up Mrs. Romines.

Petitioner claimed he could not do it. His testimony

about the killing of Miss Romines was basically the

same as previous statements, except Petitioner

added that Martin was tasting the parts coming out

of her stomach. When asked why he did not try to

stop Martin, Petitioner stated he could not do

anything. Petitioner claimed that when he was on

the floor in Miss Romines’s room, Martin put the gun

between Petitioner’s eyes and said, “I ought to just

kill you.” Later, while Petitioner was working at

McDonald’s, Martin allegedly came in and told

Petitioner if he had any bright ideas that there was a

person standing in the front of McDonald's that

would kill Petitioner’s wife. Petitioner testified he

later learned the individual was John Allen.

Petitioner claimed that he had planned to talk to

the police the next day, but the police came to him

before he had the chance. Petitioner was arrested

approximately twenty-four hours after these crimes

were committed [Addendum No. 11, pp. 92-113].

Petitioner admitted that when he was arrested he

lied and said Miss Romines voluntarily had sexual

T4a

relations with him. When the prosecutor questioned

Petitioner at trial about telling a story which in

effect assassinated the character of Miss Romines,

Petitioner responded that he did not mind taking

part of the blame for what he had done, but there

was no way he was going to tell them about Martin.

However, when the prosecutor reminded Petitioner

that he had implicated Martin when he stated that

Martin went back inside to get some money and

stayed about a half hour, Petitioner denied saying it

[Addendum No. 11, pp. 124-25}.?

B. Facts Introduced During the Sentencing

Phase

The jury returned a verdict finding Petitioner

guilty of two counts of first degree murder, one count

of aggravated rape, two counts of aggravated

kidnapping, and one count of grand larceny

[Addendum No. 13, pp. 53-55]. The State relied upon

the evidence already presented in its case in chief

during the guilt/innocence phase to support the

imposition of the death penalty [Addendum No. 13,

pp. 56]. Petitioner presented character witnesses on

his behalf during the penalty phase of his trial.

7 Petitioner testified about other things such as the fact that he

completed basic training and had training in firearms during

the three years he served in the army as a combat engineer

[Addendum No. 11, pp. 126-130]. Petitioner denied making the

first statement to Agent Scott, but admitted that part of the

second statement Agent Scott testified about was correct, but

he claimed he was forced to sign the statement without being

allowed to read it first [Addendum No. 11, pp. 137-39].

75a

Ms. Harmon, a friend of Petitioner’s, testified he

was quiet, trustworthy, a role model to her fourteen

year old son, and was like one of the family

[Addendum No. 13, p. 94]. Petitioner had lived at Ms.

Harmon’s house after he was discharged from the

service for two or three months. Ms. Harmon

testified she never saw him angry and that he must

have been a good student because he was a good

person [Addendum No. 13, pp. 93-96].

Petitioner’s next witness was Mary Ruth Nelson,

who had known him for approximately twelve years.

Ms. Nelson, whose daughter had casually dated

Petitioner, testified Petitioner seemed like a quiet

sweet boy and that she had no knowledge of

Petitioner ever being violent or in any trouble

[Addendum No. 13, pp. 96-97]. Next, Amanda Lee

Hatmaker, a nineteen year old female who had

known Petitioner for approximately four years,

testified that Petitioner was a real nice, sincere, and

sensitive person. Ms. Hatmaker testified they were

very close friends and that she had no knowledge of

his ever being in trouble [Addendum No. 13, pp. 98-

99}.

Petitioner's oldest sister, Deborah Adams,

testified that Petitioner was the baby of the family

and was never in trouble. Mrs. Adams testified there

were no problems between Petitioner and the rest of

the family as far as discipline problems and that he

had earned good grades while in school. Petitioner

had lived with Mrs. Adams and her husband for

awhile during his high school years and for awhile

after he was discharged from the army. Petitioner’s

sister testified he was never in any trouble and never

76a

committed any acts of violence [Addendum No. 13,

pp. 100-103].

Sheriff Earl Loy testified Petitioner had not

given the jail personnel any major problems during

the year he was incarcerated awaiting trial Sheriff

Loy also testified that except for a few days when he

had a cellmate, Petitioner had been housed in a cell

by himself [Addendum No. 13, pp. 105-07}.

Petitioner’s wife, Karen West, testified she had

given birth to their daughter while Petitioner was

incarcerated awaiting trial. Mrs. West testified

Petitioner was a good husband and father. When

questioned by the prosecutor about a conversation

she previously had with Agent Pressnell in the

presence of the prosecutor, Mrs. West was vague

when asked whether she recalled stating she had

seriously considered leaving her husband and going

home to her parents in Ohio because they were

having problems. She apparently recalled saying she

was a good Christian person before she met

Petitioner but denied any recollection of stating that

her life had been a nightmare since she married him

[Addendum No. 13, pp. 113-114]. Mrs. West said

Petitioner was the best thing that had ever happened

to her, but her life had deteriorated since she quit

going to church. When asked about some letters that

were found when the house was being searched, Mrs.

West denied indicating that Petitioner might have

been seeing someone else. Mrs. West testified her

husband had not been seeing anyone, but was

writing to a friend of his. Mrs. West further testified

she did not recall any letters being found or any

: 77a |

discussion about any letters during the _ search

[Addendum No. 13, pp. 107-115].

The State presented rebuttal proof with the

testimony of TBI Agent Ray Pressnell. Agent

Pressnell testified about his conversation with Mrs.

West and his observations of letters Mrs. West

showed him which were either written by Petitioner

to another female, or to Petitioner from another

female. Agent Pressnell also testified that a small

lockbox was found under a bed. Mrs. West told

Pressnell that $30.00 was missing from the lockbox,

and she stated West was the only one who could have

taken it, or she thought Petitioner had taken it. Mrs.

West also told him that her life had gone downhill

since she had met and married Petitioner. Mrs. West

had mentioned getting a divorce and going back to

her parents in Ohio while talking with Agent

Pressnell [Addendum No 13, pp. 125-28].

Mrs. West was then recalled by Petitioner to

rebut Agent Pressnell’s rebuttal testimony. Mrs.

West testified she never said she was going to

divorce her husband. However, Mrs. West testified

her intentions were to leave Lake City with her

husband because it was a depressing town. Mrs.

West stated that at the time she was talking to

Agent Pressnell, she was close to having a nervous

breakdown, and that Mr. Sexton comforted her with

a discussion about the Bible and _ scriptures

[Addendum No. 13, pp. 133-36].

During his sentencing hearing, Petitioner

testified he had no prior criminal record and during

school he was on the honor roll, in the Beta Club,

78a

and never really had any problems. Petitioner

testified he joined the army and after basic training

was promoted to corporal and trained the next group

of men that came in for basic training. He was

stationed at Fort Lewis, Washington, and in

Germany. Petitioner testified he received letters of

commendation in addition to being on_ the

international Reagan march team. According to

Petitioner, he had a good relationship with his

family, and although he was incarcerated, they all

still loved each other [Addendum No. 13, pp. 115-

118].

On cross examination, Petitioner testified that he

had dropped out of high school to join the army.

Although Petitioner denied killing the victims, he

testified he exercised bad judgment and acted like a

coward [Addendum No. 13, pp. 118-121].

C. Facts Introduced During the State

Post-Conviction Hearing

Some additional facts not introduced during trial

or sentencing were introduced by Petitioner during

his state post-conviction hearing [Addendum No. 25

& 26).8 Petitioner also introduced documents

allegedly constituting material exculpatory and

mitigating evidence, which he claimed the State

illegally suppressed in violation of Brady ov.

Maryland, 373 U.S. 83 (1963).

8 Additional facts were introduced by Petitioner to support his

claim that his trial counsel were ineffective for failing to fully

inform the jury of his complete mental health history.

79a

Dr. Engum, a clinical psychologist, testified on

Petitioner’s behalf during his state post-conviction

hearing. Dr. Engum visited Petitioner at River Bend

on December 12 and 13, 1995, and conducted a two-

day comprehensive psychological ~ and

neuropsychological evaluation [Addendum No. 25,

pp. 73-74]. Dr. Engum testified the test results did

not indicate any signs of brain damage or cognitive

compromise and that Petitioner’s 1.Q. was within

normal limits. Petitioner’s memory was in normal

limits and his other skills were intact. Dr. Engum

testified about two diagnostic impressions. First, he

testified Petitioner suffered from a long-standing

fairly significant depression. Second, he testified

Petitioner had a_ long-standing severe mixed

personality disorder and that the mixed personality

disorder included self-defeating, avoidant,

dependant, and schizoid features [Addendum No. 25,

pp. 90-92]. |

According to Dr. Engum, Petitioner’s tests

results indicated a person who was somewhat

unstable, moody, and changeable. The term used was

“ego dysfunction,” which means he did not have a

strong sense of self. The person is not authoritative,

not secure in himself, not focused toward life goals;

and generally, people who have significant ego

dysfunction have been in less than optimal home

environments. The test results demonstrated

Petitioner was not particularly sociable; outgoing, or

socially sophisticated. According to Dr. Engum’s

interpretation of the test results, Petitioner was

withdrawn, introverted, brooding, a loner, and

stayed to himself.

80a

In addition, the test indicated Petitioner had

bottled up anger. Although Dr. Engum testified he

could not state the following with a reasonable

degree of psychological certainty because he did not

have other corroborating test results, Dr. Engum

stated he did find evidence to indicate Petitioner’s

anger came from early childhood experiences

[Addendum No. 25, pp. 93-95]. Dr. Engum testified:

Instead of externalizing that anger, Mr.

West keeps it bottled up to himself. That

anger is somewhat threatening to him.

He keeps it under wraps, and that’s one

of the reasons why he is very remote and

withdrawn. Under particular extreme

levels of stress, that anger, the results

suggest, may do one of two things. It may

either explode, or it may cause, what we

call, depersonalization, dissociation, even

becoming more remote and withdrawn.

[Addendum No. 25, p. 95].

Dr. Engum testified these personality traits

indicate someone who would not have strong

leadership ability and who would be more submissive

and more easily controlled and more dominated to a

degree. Dr. Engum testified Petitioner would have

been functioning at no higher than a level of a fifteen

year old. According to Dr. Engum, Petitioner scored

very low on the dominance scale which assesses

whether a person is assertive, resourceful, and has

poise. Dr. Engum also testified Petitioner scored low

when measured for his capacity for dominance

[Addendum No. 25, pp. 96-97]. Dr. Engum testified

8la

Petitioner could be easily dominated [Addendum No.

25, p. 98).

Dr. Engum was asked whether there was any

indication in the tests he administered that

Petitioner was subject to any abuse as a child. Dr.

Engum responded to the questions regarding

whether Petitioner was subject to any child abuse as

follows:

I have to answer that question in two

ways. I have to tell you that there’s no

test which can specifically tell what

somebody experienced or what events

occurred in somebody’s life. Testing just

can’t do that.

What the test can do is reflect whether

their personality characteristics or

behavioral or emotional characteristics

[sic] which may be consistent with or

reflect prior abuse, and the answer to

that question is yes.

There are two very significant elevations

on the MMPI on the hypochondriasis and

hysteria scales. Both of those scales

measure one’s sense of bodily integrity.

When you see elevation in those two

scales together, what you see is people

who are having a history of being scared

— they are threat sensitive. They have a

history of either physical malady, pain or

abuse, something which causes physical

pain, and they are constantly searching

their environment seeking to mitigate or

82a

disrupt anything that can pause pain.

These are people who — I think that’s

the best way to say it.

[T]he elevations on the hypochondriasis

and hysteria scales where there is this

great deal of threat, this fear of loss of

physical functioning, and it can come

from one of three hypothesized sources.

And we know that he has no active

medical conditions. We know that he has

no past physical disabilities or injuries so

it increases the likelihood of him having

been subjected to physical abuse.

Obviously that would have to be

corroborated by other sources.

Mr. West was defined as suffering a

depressive disorder, not otherwise

specified, very succinctly it means there

are a number of elements of depression,

but not of sufficient quantity or severity

to warrant a _ diagnosis of major

depression. In other words, you may see

some of the criteria, but you don’t see all

of them.

... Axis two basically deals with what we

talked about, the medium in which the

pathology grows, and that’s this mixed

personality disorder, and again, Mr. West

has a number of _ personality

characteristics. There’s no one that is

dominant, but you will see elements of

83a

schizoid, avoidant, self-defeating, and

dependent characteristics.... !

Axis three is basically history provided

by him. You will note that I use the word

potential history. Again, Mr. West can

provide no definitive information of his

childhood experiences before age ten, so

it’s potential. I don’t have independent

corroboration.

Axis four’ essentially deals with

psychosocial stressors. It’s those stresses

that are actively impinging upon the

patient at the time of the evaluation, and

I have listed them there as incarceration,

his estrangement from his family, his

high levels of social isolation, some of it

self imposed, and his involvement in the

appeal process. All of those are active

stressors in his life.

[Addendum No. 25, pp. 100-14}.

According to Dr. Engum, Petitioner suffered from

an extreme emotional disturbance because he “is not

put together very well psychologically. You have

somebody who is remote, withdrawn, ... socially

isolated, who does not perform or operate very well

under extreme levels of stress or distress.”

[Addendum No. 25, p. 114]. Dr. Engum testified

Petitioner was likely to become dysfunctional, almost

depersonalized during -high levels of stress and

threat. Dr. Engum opined that based on his

understanding of the events of the double homicide,

Petitioner was in an extreme situation and that he

84a

became essentially dysfunctional during that time

[Addendum No. 25, p. 114].

On cross examination Dr. Engum testified that

the actual psychological testing identified the

personality, behavioral, or emotional characteristics

that allow one at least to say there is the possibility

that Petitioner suffered from early childhood abuse.

However, the testing cannot specifically identify that

a particular event happened; the allegations of early

childhood abuse need to be corroborated by other

sources [Addendum No. 25, pp. 131-32]. A

Competency Evaluation Dr. Engum considered when

preparing his report indicated Petitioner alleged that

his mother, who died in 1987, told him he was

abused as a young child. Dr. Engum stated

Petitioner had no recollection of events before the

age of ten. Additionally, Petitioner never said he was

abused as a child [Addendum No. 25, pp. 133-38].

The following colloquy took place between the

state post-conviction court and Dr. Engum:

COURT: Now, since I have interrupted, [’m

going to ask one more question, is

it unusual for a person not to be

able to recall the first ten years of

their life?

DR.: That is unusual. You typically

don’t remember the first three to

four years of your life, maybe up to

age five, but after that, you do

remember events. There’s

controversy. If you read my report,

understand that repressed

85a

memory is a very controversial

issue in my field, okay? I’m just

recounting the general position of

psychologists in my field that

when you see that, you have to

question the presence of past

physical, mental or sexual abuse.

COURT: In _ other words, it’s your

professional opinion that when a

person cannot recall from an age

where they should be normally

able to recall that it makes you

consider whether there was abuse

during that time?

DR.: Yes, sir. ...It does not confirm it.

[Addendum No. 25, pp. 138-155].

When the state post conviction court told Dr.

Engum the court’s understanding was that Dr.

Engum was not saying Martin, the co-defendant,

dominated Petitioner during the commission of the

crimes, Dr. Engum responded that he was saying

there is a likelihood that could have happened, but

he was not making that statement [Addendum No.

25, pp. 155-56]. Dr. Engum admitted it would be

important to know the co-defendant’s psychological

makeup to determine whether Petitioner was

dominated by Martin. Dr. Engum also conceded that

if Martin had a similar type of psychological makeup

as Petitioner and both of them were subject to being

dominated, then his opinion would be undermined

[Addendum No. 25, p. 156].

86a

Petitioner’s oldest sister, Debbie West, testified

that Petitioner was born on September 16, 1962, in a

mental institution in Anderson, Indiana.? Ms. West

testified “Steve was thrown against the wall from the

time he was born” [Addendum No. 25, p. 164] In

addition, according to Ms. West, Petitioner was

slapped in the head, hit with shoes, and received a

blow to the head which caused him to become cross-

eyed [Addendum No. 25, pp. 159-164]. Ms. West

described the abuse as follows:

I can remember when Steve was a baby,

and he was kept in the back bedroom,

and I would get a whipping for going and

giving him a bottle. If he cried, he was

picked up by one arm and one leg and

slammed against the wall to shut him up.

If my other brother did something wrong,

Steve got beat for it. My sister and I

would try to get between them, and we

would get beat, and then his beating was

finished, and this was not just one or two

times. This was from the time I can

remember Steve coming home from the

hospital.

[Addendum No. 25, p. 166].

Ms. West described her father as a violent man

who became more violent when he drank. He was an

9 In March of 1987 when she testified during the sentencing

hearing, Ms. West, who was born in December of 1957,

_ identified herself as Deborah Adams [Addendum No. 13, p.

100].

87a :

alcoholic who began drinking at the age of ten.

According to Ms. West, when Petitioner was young

he would flinch when anybody came toward him, and

when one of his parents raised a hand, he would

duck or act scared. Ms. West had no contact with

Petitioner for ten years prior to the time she testified

at the state post-conviction hearing. Ms. West

claimed that prior to trial she told Petitioner’s

counsel, Mr. McConnell, about the abuse; however,

according to Ms. West, he told her the information

about the alleged abuse was not relevant, and that,

furthermore, her parents were paying him and would

not admit to the abuse [Addendum No. 25, pp. 166-

68]. |

On cross examination Ms. West testified she did

not know the year Petitioner was knocked cross-eyed

because she was a small child, but she assumed it

was around 1964. Petitioner allegedly had surgery to

correct his crossed eyes in 1969 in Cleveland, Ohio.

She could not remember the treating physician or

any details, but she testified she did remember

putting medicine in his eyes after the surgery. When

the court asked her if Petitioner stayed cross-eyed for

five years, her response was not responsive to the

question [Addendum No. 25, pp. 158-180].

Thomas K. McAlexander, Petitioner’s trial court-

appointed co-counsel, testified that he did a

tremendous amount of research in preparing

different motions which were filed on Petitioner’s

behalf. According to Mr. McAlexander, he met with

Petitioner on numerous occasions to discuss the

motions filings and various other aspects of the case.

Mr. McAlexander met with Petitioner’s family on

88a

more than one occasion. Mr. McAlexander handled

the suppression motion, motion for new trial, and the

appeal. Mr. McAlexander and co-counsel Richard

McConnell met at least thirty-five times preparing

for Petitioner’s trial, and Mr. McAlexander spent

547.4 hours on Petitioner’s case [Addendum No. 25,

pp. 192-97].

Mr. McAlexander testified that to the best of his

recollection Petitioner’s sister, Ms. West, did not tell

him Petitioner had been sexually abused and if

anything was mentioned about physical abuse,

“there was nothing that created any kind of red flag

in my mind about that being a factor that should

have been inquired into” [Addendum No. 25, pp. 198-

99]. Mr. McAlexander had no recollection of

Petitioner ever complaining of child abuse or abuse

affecting his eyesight and requiring surgery.

According to Mr. McAlexander, Ms. West was the

most cooperative family member and gave him

information about Petitioner’s background. Mr.

McAlexander testified that neither he nor Mr.

McConnell had any prior experience trying a capital

murder case [Addendum No. 25 pp. 199-201], but he

was the one who determined duress was a possible

defense to the rape charge, and he determined they

should request a psychologist or psychiatrist to

explore, develop, and prove Petitioner was under the

duress of his co-defendant, Martin.

Petitioner had been evaluated by Dr. Bursten to

determine competency and sanity, but Dr. Bursten’s

evaluation was not for the purpose of mitigation or to

determine whether Petitioner was under duress of

the co-defendant during the time the crimes were

89a

committed. According to Mr. McAlexander, Ms. Ford,

a psychologist, examined Petitioner on motion of the

State. The parties were not satisfied with her report

so the defense hizved Dr. Bursten. However,

Petitioner’s trial counsel decided not to have Dr.

Bursten testify at trial. The State requested another

examination at Middle Tennessee Mental Health

Institution in Nashville, Tennessee, but the defense

was successful in their objection to another state-

requested evaluation. However, the defense then

decided they needed a psychiatrist to assist in

formulating the duress defense, but the trial court

denied funding. Mr. McAlexander stated they talked

about using psychiatric testimony during the

sentencing phase but ultimately decided against

using such testimony [Addendum No. 25, pp. 202-

220]. .

Petitioner’s lead retained trial counsel, Richard

McConnell, also testified at Petitioner’s state post-

conviction hearing. When questioned about his

representation of Petitioner and the fee he charged,

Mr. McConnell testified he was paid a total of

$10,000 by Petitioner’s family to represent him. In

addition, Petitioner's family paid the bills of a

private investigator and Dr. Bursten. Although Mr.

McConnell testified he did not think $10,000 was a

reasonable fee for the case because of its magnitude,

he agreed to that fee due to the financial situation of

Petitioner and his family. Mr. McConnell denied

complaining about his fee, but acknowledged he and

co-counsel joked about the fact that co-counsel, who

was court appointed, would make more money

representing Petitioner than Mr. McConnell,

90a

retained counsel. Mr. McAlexander testified that he

and Mr. McConnell had some discussion about the

fact that Mr. McAlexander would make more money

on Petitioner’s case than Mr. McConnell. Mr.

McConnell testified he contacted the family

requesting an additional $5,000 be paid in addition

to the original fee, and he remembered contacting

Petitioner in jail requesting an additional $500 in

expense money so he could rent a motel room

[Addendum. No. 26, pp. 233-252].

Mr. McConnell testified he conducted a complete

investigation into Petitioner’s life although he had no

recollection of obtaining any of Petitioner’s

employment records, birth records, military records,

or medical records.!° When asked if he conducted any

separate interviews of siblings to explore mitigating

issues, such as physical or emotional abuse, Mr.

McConnell responded:

I certainly wouldn’t have wasted time on

that. Mr. West never raised those issues

in my many, many discussions with him;

many, many hours. I did discuss Steve’s

background with the family, with Wanda

West, Vester West, although Mr. Vester

West was not too communicative.

Yes [Mr. Vester West is his father], and

with some of his siblings. They were all

— one sister particularly, your Honor,

10 The state post conviction record indicates the defense filed a

subpoena requesting Petitioner’s schosl records after the trial

was in progress [Addendum No, 26, pp. 263-265].

9la

was very interested in this case and she

was there. I don’t remember her name.

She came to the jail. We talked. She

came to my office many, many times I

don’t remember her name at this point.

Mr. West never raised any physical, I

guess if that’s what you’re talking about,

or sexual abuse or anything of this

nature. I would have been chasing down

blind alleys if I checked that out.

[Addendum No. 26, pp. 267 -68].

When the court inquired whether any other

person, including Petitioner's sister, raised the abuse

issue with him, Mr. McConnell was adamant that no

one had ever discussed any abuse claim with him.

Mr. McConnell testified Dr. Bursten was to conduct a

mental exam of Petitioner to determine his

competency and whether there were any bases for an

insanity-type defense. Dr. Bursten determined there

was no basis to allege Petitioner was incompetent or

insane at the time of the commission of the crime.

When discussing whether counsel questioned

Petitioner about abuse, Mr. McConnell testified:

No. What I said, sir, to refresh your

recollection, is that Mr. West never

raised any physical or sexual abuse. I

spent hours and hours discussing his

background with him, what possible

defenses, that he was in serious difficulty

here, serious trouble, that he faced the

death penalty, two counts, and went over

and over again anything that would be

92a

helpful to me in his defense and he never

raised either of those issues. Whether I

specifically asked him, “Steve, were you

ever sexually abused by anyone? Were

you ever physically abused,” at this point

after almost 10 years, Mr. Rogers, I don’t

recall.

[Addendum No. 26, p. 277].

Mr. McConnell testified that he did not find

Petitioner to be entirely credible on a number of

issues; thus, he did not rely totally on what

Petitioner told him. Mr. McConnell also testified that

once he got involved in the case, he was not able to

persuade Agent Scott to stop interviewing Petitioner,

so he sent a Western Union telegram to the District

Attorney General demanding that the questioning

stop, and Mr. McConnell immediately drove to the

Union County Jail. According to Mr. McConnell,

there was concern with Petitioner’s credibility since

he first denied any involvement with the murders,

but eventually admitted being present when the

murders occurred, but then denied any

responsibility. When questioned about the defense’s

theory during the penalty phase, Mr. McConnell

testified:

Yes. We attempted to show that Mr. West

was a veteran of military service in

Germany, U.S. Military, that he had a

wife and a new baby, that it would be an

extreme hardship on Karen West to lose

‘a husband since she had just had the new

baby. As I recall, she was almost due

93a

with child when this occurred. We had —

again, I stuck with the theory of pinning

this on Mr. Martin, who we had every

reason to believe was involved with a

satanic cult and had the motive to

commit these murders that Mr. West

didn’t. Mr. West never even knew these

people before is the indication and Mr.

Martin had dated the Romines girl,

Sheila Romines, and she had left him,

“jilted him,” and the theory was that Mr.

Martin had gotten Mr. West over there

and that although Mr. West had

voluntary!! sex with Sheila Romines, —

which he insisted upon, that he had

nothing to do with the murders and that

he was innocent of those heinous crimes.

And, of course, the Jury having found

that he was guilty of those crimes, that

wasn't particularly strong, but we really

— sympathy basically. We had a young

man, relatively young. I think he was 26

years old at the time, Mr. West. He hada

wife and child. He had no prior

convictions of any sort. And we tried to

appeal to the common sense and to the

decency and to the sympathy of the jury:

That’s basically it.

[Addendum No. 26, pp. 291-92].

11 Petitioner testified during trial that Martin forced Miss

Romines to have sex with him and he did these things because

he was afraid of Martin [Addendum No. 10, pp. 11-18].

94a

When asked by the court whether he agreed that

evidence of a long-term personality disorder, if one

existed, would have been important evidence to

present as mitigation during the sentencing phase,

Mr. McConnell responded:

Yes, but I'd like to qualify my response.

Yes, I certainly would have; however, I

had had Mr. West examined by a very

competent psychiatrist, Dr. Bursten, who

obviously did a thorough history, et

cetera, and none of that ever came out. It

would have been nice to have had the

psychological that we asked for and

maybe something would have been

developed there, but the Court felt in its

power that the psychological was not

warranted and I think Judge Asbury’s

reasoning was that we had gone up to the

Court of Criminal Appeals and objected

to the Court’s sua sponte ordering of a

psychological to determine competency.

And that I believe Judge Asbury told Mr.

McAlexander this, that, you know, “You

didn’t want it then and I’m not going to

give it to you now.” Basically that’s what

it amounted to and that was basically it.

We didn’t have anything that would

indicate that. It would have been nice,

sure, but we didn’t have it.

... There was absolutely no indication of

that. I had met with the family members.

They seemed like a very close group.

They all stood behind Steve and I went

‘ 95a

into — I met with them many, many

times to discuss any possible defenses

and it was never raised oither by Mr.

West or any of his siblings or his mother

or father.

[Addendum No. 26, pp. 292-95].

Mr. McConnell testified that Petitioner’s military

records indicated he had drug and alcohol problems

in Germany. Therefore, Mr. McConnell decided not

to introduce Petitioner’s military records because he

determined they would be prejudicial to Petitioner

and his defense [Addendum No. 26, pp. 300, 308].

Mr. McConnell recalled interviewing the family and

that Wanda West, Petitioner’s mother, was the best

source of information. Mr. McConnell met with

family members on numerous occasions, and

Petitioner’s sister, Ms. West, was particularly

interested in Petitioner and came to Mr. McConnell’s

office on numerous occasions and testified on

Petitioner’s behalf during the sentencing phase.

When Mr. McConnell was asked if Ms. West made

him aware that Petitioner suffered from extreme

physical abuse and that he told her it was not

relevant, Mr. McConnell testified:

Absolutely not and if she said that she

lied, because that never happened;

absolutely never happened. If it had

happened, sir, | would have done as Mr.

Rogers suggested and I would have

conducted a more in-depth investigation

into those allegations. But I can assure

96a e

you none of those charges or allegations

or statements of fact never happened.

No [no one ever alleged any abuse]. When

I first interviewed them I asked them if

he had a normal childhood and whatnot.

I do recall that much. And they said yes.

They seemed to be a happy family. They

were certainly all backing Steve, and

from my experience that’s rather unusual

when somebody gets involved in a

heinous crime like this.

[Addendum No. 26, pp. 299-302].

According to Mr. McConnell, Mr. Holt, one of the

private investigators, conducted an investigation to

determine whether Petitioners co-defendant had

been involved in a satanic cult. There were several

allegations that Martin was involved in a devil

worship cult, and Mr. McConnell was trying to

determine Martin’s motive for committing these

crimes since Petitioner had not previously known the

victims and had no apparent motive for participating

in these murders.

He [West] had never even met either

Sheila Romines or her mother Wanda

prior to this night of the murders. And so

when we got information to the effect

that Martin was involved in this devil

worship cult, that it’s a far-out theory,

but I felt it should be checked out that

Sheila Romines had jilted him, had

written him off as a boyfriend and that

he in his own twisted mind, according to

97a

the rules of the cult, apparently was that

if a virgin, which apparently Ms.

Romines was, were to be violated, raped,

then the person that did that would be

with her in hell forever. And when I

heard this type of stuff I asked Mr. Holt

to check this out.

[Addendum No. 26, pp. 304-05].

Mr. McConnell testified Mr. Holt led him to

believe there were certain witnesses that would

corroborate the alleged cult, and Mr. Holt provided

affidavits from those witnesses. However, when Mr.

McConnell personally interviewed the witnesses,

they .did not corroborate the cult allegations

[Addendum No. 26, pp. 309].

Attorney Jerry Summers testified during the

state post-conviction hearing as an expert on

Petitioner’s behalf. He testified that trial counsel

should have obtained a psychological evaluation of

Petitioner for use at the sentencing phase. In

addition, Mr. Summers testified that trial counsel

should not have waived the second degree murder

jury instruction. Trial counsel should have requested

a second degree murder instruction and argued if

Petitioner was guilty, it was second degree murder.

In Mr. Simmer’s opinion, in light of the totality of the

circumstances, trial counsel performed below the

standard which is required for effective assistance of

counsel under the Sixth Amendment of the United

States Constitution [Addendum No. 26, pp. 312-347].

Petitioner’s older sister, Patricia Depew, testified

that although she could not recall much about her

98a

life prior to age nine, she and Petitioner endured a

substantial amount of physical and verbal abuse. Ms.

Depew testified her oldest sister, Debra West, lived

with their grandmother and that Petitioner’s older

brother was their mother’s favorite child. Ms. Depew

testified her mother would beat her and Petitioner

often by “[s]winging a belt so long and so hard that it

would wear her out[,]” resulting in “[b]ruises, black

eyes, busted lips, pulled hair, pinch marks, [and]

bruises” [Addendum No. 26, pp. 369-371]. Ms. Depew

described Petitioner as a small, quiet, passive, child

who cringed around his parents and cried often. Ms.

Depew attended some of the meetings with

Petitioner’s trial attorneys, but she was never asked

about the abuse, and she never offered any

information about the abuse. Additionally, according

to Ms. Depew, Vester West, Petitioner’s father, was

an alcoholic with a bad temper who physically

abused all of the children [Addendum No. 26, pp.

372-378].

Ruby West, Petitioner’s aunt, testified that she

lived upstairs from Petitioner when he lived in Ohio.

She testified that Petitioner’s father abused alcohol,

his mother abused prescription drugs, and that she

observed Petitioner being beat by his mother. Ms.

West described the abuse:

I'd go down there and I’d look after the

children. And if Steve came out of the

room or Patty she was swearing at them.

She’d take her fists and just beat them

‘and put them in this cold, cold room with

a mattress very wet from urine and that’s

where they stayed. Occasionally I would

99a

make bottles and there would be green in

these bottles and I would sneak the

bottles into them.

Steve was about three. Patty might have

been four. I’m not sure.

I came down. Patty came out to get some

food for Steve and she started swearing

at them and she ran in there and just

slung Steve up against the wall; grabbed

him by his feet. There was blood and he

started throwing up. And she said “I feel

like killing the little bastard.” She

walked out. I cleaned them up and took

_ them to the hospital. His nose was

bleeding and his mouth was bleeding.

She was constantly hitting him. He had

bruises on him; pinching him, slinging

him back in that room if he came out.

He was very timid. He never said

anything. He would just cry. If he saw

her coming towards him he’d scream out

and start crying and just stand there and

let her beat him. A few occasions I asked

her, “Please, why are you doing this?”

She said “If could kill him and get away

with it I would.”

I seen him [Mr. Vester West] beat

occasionally, but she would always go tell

him the kids had done something and he

needed to whip them.

[Addendum No. 26, pp. 380-84].

100a

Ms. Ruby West testified that she was never

contacted for the jury trial and that she had not seen

Petitioner since his mother’s death. Ms. West stated

she was asked to testify at the post-conviction

hearing after her husband was contacted and

informed that someone needed to testify about the

abuse of Petitioner. Ms. West testified that

Petitioner did not have a close loving relationship

with his parents. She stated that he “shiver[ed] up”

when he saw his parents coming [Addendum No. 26,

pp. 384-89].

Attorney Paul Morrow also testified at the state

post-conviction hearing as an expert. In Mr.

Morrow’s opinion, trial counsel was deficient during

the sentencing hearing because they failed to

adequately investigate Petitioner’s background. Mr.

Morrow agreed with attorney Summers that the

alcohol abuse documented in Petitioner’s military

records was “a red flag or I would say a rocket going

off saying that you better look back into that person’s

history” [Addendum No. 26, pp. 394-408]. In

addition, it was Mr. Morrow’s opinion that

Petitioner’s inability to remember his first ten years

of life was a red flag that should have been

investigated further [Addendum No. 26, pp. 409-

420].

The State called Dr. Ben Bursten, an Oak Ridge,

Tennessee psychiatrist who examined Petitioner

prior to his state trial. Petitioner’s trial counsel, Mr.

McConnell, had Dr. Bursten evaluate Petitioner on

July 26, 1986. Dr. Bursten met with Petitioner for a

couple of hours and performed a_ psychiatric

evaluation which included a brief test of intelligence,

101la

the Shipley Scale. Later that: day, Dr. Bursten also

met with Petitioner’s parents. Dr. Bursten

determined Petitioner was competent at the time of

the offense and competent to stand trial. Dr. Bursten

told Mr. McConnell that he was sorry, but he could

not support a conclusion that Petitioner had “any

untoward mental reactions at the time of the offense”

[Addendum No. 26, pp. 421-27].

Dr. Bursten asked Petitioner about abuse

because Petitioner had claimed his father was an

alcoholic. Petitioner did not tell Dr. Bursten that he

did not remember whether there was any abuse, but

rather, Petitioner told him there was no abuse. When

asked if he confirmed that there was no abuse with -

family members, specifically his mother and father,

Dr. Bursten testified:

I didn’t confirm that directly. I did not

ask them if there was abuse, and the

reason for that was that I had a nice

discussion with them and they told me

that he was the most lovable of all their

children, that he got along very well, that

he always wanted to emulate his father,

they are very close, he got into no

trouble, it was another child, Teddy - -

they compared him to Teddy and he said

not like Teddy who got into kind of

trouble. He had never been suspended, et

cetera. They created such a picture of a

close family. You have to be a little

sensitive about the people you are talking

to. I thought it would just be outrageous

102a

to say, “Well, tell me the truth. Did you

abuse him?” So I did not do that.

[Addendum No. 26, pp. 427-29}.

Dr. Bursten agreed with Dr. Engum’s report that

Petitioner had an adequate IQ, if not above average.

However, he disagreed, based on the _ records,

including Dr. Engum’s report, with the conclusion

that Petitioner was abused as a child. Dr. Bursten

disagreed with Dr. Engum’s statement that people

who cannot remember their childhood are often

victims of child abuse, but agreed with Dr. Engum’s

statement that this is a controversial area. Dr.

Bursten testified:

... it’s so controversial that the American

Psychiatric Association has put out a

track warning people, warning

practitioners, not to make this kind of

conclusion, this kind of backward

conclusion; that the fact that a person

can’t remember, has repressed memories

or whatever, does not mean anything one

way or the another. You cannot - - there

is no data. And it seemed to me that Dr.

Engum despite his disclaimer was

bringing this up as - - you know, if you

can’t use it why put it in your report.

Just leave it at that.

[There was one other thing that

concerned me now that you’ve asked me

that. To support the fact of what he

called potential abuse, although I don’t

know what that term means, but to

103a

support that effect he looked at two

scales of. the MMPI, the Minnesota

personality test. He looked at the

Hysteria Test and he looked at the

Hypochondriasis Test and he said when

these two scales are elevated it often,

again the word often, it often is an

indication that this person fears bodily

harm and is very protective of his body,

his or her body, because that person is

afraid of being injured in some way. And

then he ruled out that this was because

of physical - - of illnesses and things like

that, leaving at least the strong

implication, which he then uses in his

conclusion, that this then is another

indication of possible abuse.

That is incorrect and the reason it is

incorrect is severalfold. If you look at Dr.

Engum’s report you will find not only

those two but, I forget, maybe three, four,

maybe five of the scales, many scales, are

elevated; not just those two scales. And

the F Scale is elevated. The F Scale

shows is a tendency to elevate your

responses in the direction of illness. And

you can see that in the report because so

many scales were elevated.

I want to make something clear. This

sometimes is found, the F Scale, in

malingerers. I am not saying - -

sometimes. I am not saying Mr. West was

malingering. I have no indication other

104a

than the typical self-defensiveness that

people use in these kinds of situations

that he was malingering. But, there are

many other things that can cause

elevation of the F Scale. Confusion can

cause it. Distress can cause it.

Particularly if you are feeling pressured -

- sometimes they have what you call the

cry for help and that means that you will

tend to elevate your other scales, all your

scales, and your F Scale as an

unconscious exaggeration. You don’t

mean to fool anybody but you tend to

magnify the things that you feel.

So that just on the basis of the F Scale

and the other elevations I don’t see how

he could conclude that those two scales

had any relevance at all as far as

wanting to protect his body. He had no

direct evidence. I heard nothing that the

patient - - that the, I’m sorry, defendant

said: oh, he’s afraid that somebody is

going to attack me. So there’s no direct

_ evidence. I think this indirect evidence is

a leap that’s unwarranted.

Also if we went by what he said we would

have to wonder then, you mean

everybody who is a hypochondriac has

been abused because they all get high

scales. You know, on the face of it it

doesn’t make sense. :

' [Addendum No. 26, pp. 431-351).

105a

When asked if there was enough objective

criteria given the results to make a call one way or

the other regarding the abuse, Dr. Bursten testified

the only hard data that he could find was his data

that there was no abuse. Dr. Bursten was asked to

assume for the sake of argument that there was

abuse and asked if he would agree with Dr. Engum’s

conclusions about the effect of the abuse, i.e., that it

caused extreme emotional disturbance. Dr. Bursten

testified:

No, I would not. In other words, the

subsequent conclusions drawn from that

I can’t support either.

There’s a whole series of leaps. I think I

mentioned the first one, which is the leap

to what’s called potential abuse. And

starting from this so-called potential

abuse we begin to build a house; Dr.

Engum begins to build a house. He says

people like this who have undergone this

thing tend to be very compliant and the

reason for that is they are dependent,

they are afraid, they almost live in fear of

being abandoned by friends, so they tend

to be very dependent and this causes

compliance.

And then from there he makes another

leap, which I don’t have any information

about. He says this man was not the

active participant and this goes along

with the compliance. I have no data as to

whether he was or was not the active

106a

participant, but at least I don’t recall Dr.

Engum presenting any data in that way

either.

Going on from that he then reaches the

conclusion, another leap, that people like

this often feel - - because they have to

comply with people they come under the

domination of other people. Not always.

Not always even granted the child abuse.

Some of these people do become

submissive and compliant and fearful.

Some of these people become abusers. It’s

well-known that some people who have

been abused as a child are anything but

submissive and compliant. They beat up

on their wives. They beat up on their

children and so on. They dominate their

wives. Assuming the abuse, you can't

come to one conclusion or another

without any data as to which category

this person was.

Then he goes on to the question of

extreme emotional distress, disturbance I

guess is the term, and again I don’t see

the data. He says because - - in essence,

as I understand it, he says and the test

results support this, because he’s under

the domination of Mr. Martin he was - -

and he also brings in the fact that he has

had a long-standing personality disorder

and he’s emotionally unstable, therefore,

in this instance - - because, that’s what

we are talking about, we are talking

107a

about the time of the offense - - therefore,

in this instance he was under emotional

distress.

[Addendum No. 26, pp. 431-38].

With regard to the business of unstable

personality and all the personality

problems, that in itself doesn’t mean that

at this particular junction he was under

extreme duress. For two or over two

years I was a psychiatrist at Brushy

Mountain and I was a psychiatrist at

Morgan County and I never found anyone

with what I would call a wonderful,

stable personality, but that doesn’t mean

that they were all under distress at the

time of the occurrence. So I think that’s

another leap.

So what we have here as far as I can see,

my conclusion, even if one is going to

grant the abuse is that what we have

here is a house built with very flimsy

board and is resting on a foundation of

sand.

[Addendum No. 26, pp. 438-39}.

On cross examination of Dr. Bursten, defense

counsel questioned the meaning of the following

information in his report which apparently was

reported to him by West:

When he went to Myrtle Beach he went

downhill from there, spent a lot of money,

he was drinking, having a good time....

108a

Steve drank a lot. He always had his beer

. . . he told me he had abused drugs.

...Ronnie comes back ‘come on’ Ronnie:

Kill them both. Don’t go over where blood

on where belly on bed. Cries on pants - - I

feel sick.... Dazed. Sick. He stabs her.... I

start crying ... I feel like throwing up...

She falls back. I feel like throwing up. I’m

confused. I hear squishing noise. Gun in

my back again. It’s crazy. No reason.

Why. He stabbed her. I was there but like

I can’t do a thing. I had tears in eyes.

Shaking. Like nothing I could do. He said

he and John Allen had killed Allen’s wife

or mother and if I turned him in Allen

would get Karen.

[Addendum No. 26, pp. 475-82].

When asked if that information “could help

support a leap to the conclusion that he was

compliant and susceptible to domination and control

of a much younger and less physically imposing

person than himself,” Dr. Bursten replied , “[t] aken

alone as it is out of context, yes, but taken in the

context of everything that he told me, there are

counterbalancing things which far outweigh that”

[Addendum No. 26, p. 478]. When asked if somebody

reading his notes could reach a different conclusion

than he did, Dr. Bursten responded, “[cjertainly

experts disagree all the time, or some of the time

let’s say. But, I would hope that the expert at least

would read the whole thing and consider it in context

and balance rather th

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