# Appendix — West v. Bell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1130%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 970

## Text

(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 togeth

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1130%3A2. Public record. Not legal advice.