RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0198p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

EDWARD JEROME HARBISON,

Petitioner-Appellant,

v.

RICKY BELL, Warden,

Respondent-Appellee.

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No. 02-5392

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 97-00052—Curtis L. Collier, District Judge.

Argued: December 2, 2004

Decided and Filed: April 29, 2005 

Before: SILER, CLAY, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee,

for Appellant. Gordon W. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER

SERVICES, Knoxville, Tennessee, Rosemarie L. Bryan, SHUMACKER, WITT, GAITHER &

WHITAKER, Chattanooga, Tennessee, for Appellant. Gordon W. Smith, OFFICE OF THE

ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

SILER, J., delivered the opinion of the court, in which COOK, J., joined. CLAY, J. (pp. 13-

21), delivered a separate dissenting opinion.

_________________

OPINION _________________

SILER, Circuit Judge. Petitioner Edward Jerome Harbison was convicted of first-degree

murder, second-degree burglary, and grand larceny and was sentenced to death. After unsuccessful

direct appeal and state post-conviction proceedings, Harbison filed a petition for a writ of habeas

corpus in the United States District Court for the Eastern District of Tennessee. Harbison argues

that the district court erred in failing to issue the writ. Certificates of appealability were granted to

allow consideration of Harbison’s claims relating to an alleged Brady violation, ineffective

assistance of appellate counsel, and conflict of interest of appellate counsel. For reasons discussed

hereafter, the denial of Harbison’s petition is AFFIRMED. 

1
No. 02-5392 Harbison v. Bell Page 2

I. BACKGROUND

On January 15, 1983, Frank Russell returned home from work to discover that his wife,

Edith, had been murdered. The Russells rented an apartment at the back of their Chattanooga,

Tennessee, house to a tenant who, at that time, was away on vacation, and Mrs. Russell’s body was

found inside this apartment. Medical examiners determined that the cause of her death was

“massive multiple skull fractures with marked lacerations of the scalp and head, expelling brain

tissue and literally crushing the victim’s face and disfiguring her beyond recognition.” State v.

Harbison, 704 S.W.2d 314, 316 (Tenn. 1986). Mrs. Russell was last seen that afternoon at a

neighborhood market, where witnesses spoke with her between approximately 2:30 and 2:45 p.m.

Bags of groceries and ignition keys were found in Mrs. Russell’s car, which was parked in the

driveway, when her body was discovered near midnight. Nothing in the record indicates a precise

time of death. The logical inference is that Mrs. Russell was killed a short time after purchasing the

groceries in the middle of the afternoon, or else she would have taken them and her keys out of her

car. Moreover, the porch lights were off. Her husband said she always left the outside lights on for

protection. 

The Russells’ house and the rented apartment were burglarized. Missing items included “an

RCA XL-100 television, two cable television converters, a quartz heater, a Polaroid 210 camera, a

silver Cross pen and pencil set, a jeweler’s loop, a jewelry box, antique jewelry, a marble vase, and

Mrs. Russell’s purse.” Id. The police later found the quartz heater, the Polaroid camera, the pen and

pencil set, and the jeweler’s loop in the residence of Janice Duckett, who was Harbison’s girlfriend

and co-defendant David Schreane’s sister. The jeweler’s loop was found in Harbison’s shaving kit.

In an adjacent unoccupied apartment, the police found Mrs. Russell’s purse, a jewelry box, and two

large paper bags containing antique glassware and brassware. The stolen television was found in

the residence of Schreane’s girlfriend. 

Schreane was taken into custody and questioned on February 21, 1983, when he led police

to the missing marble vase. Chemical testing later revealed the presence of blood on the vase.

Furthermore, debris that was vacuumed from the carpet in Harbison’s car revealed crystalline calcite

fragments that were consistent with the marble vase.

Harbison also was arrested on February 21, 1983. In a taped statement, he confessed to

killing Mrs. Russell. Harbison stated that after he drove his girlfriend home from work, he and

Schreane went to the Russell home, determined that it was empty, and used a screwdriver to break

into the residence. While he and Schreane were carrying the stolen items from the house and the

apartment to their car, Mrs. Russell returned home. Harbison contended that he thought Mrs.

Russell was reaching for a gun, so he grabbed her. He stated that he hit her with the marble vase,

“at the most” two times. 

At his trial, Harbison testified that he had not killed Mrs. Russell and that he was not at the

Russell house on the day of the murder. He said that he was at his girlfriend’s home that afternoon

and evening. He asserted that his confession was coerced, and that the police had threatened to

arrest his girlfriend and take away her children if he did not confess. He further testified that the

police had told him what to say and that his taped confession, which was played to the jury, had been

altered. Finally, he testified that he had purchased the jeweler’s loop at a pawn shop. 

William Carter and Vaughn Miller represented Harbison at trial. Before the trial, they made

the following discovery requests for exculpatory evidence: a motion for discovery (4/13/1983), a

motion for exculpatory evidence (4/13/1983), and a motion to compel disclosure (10/21/1983). As

discussed below, they did not receive certain Chattanooga Police Department records, however.
No. 02-5392 Harbison v. Bell Page 3

Harbison was convicted and sentenced to death. At sentencing, his trial attorneys presented

little mitigation evidence. The only witness offered was Harbison’s mother, who briefly testified

that he was a good son, was regularly employed, and completed the eleventh grade of school. 

After Harbison’s trial attorneys filed a motion for new trial, Harbison requested new counsel,

and the court appointed Rodney Strong. Strong filed an amendment to the motion for new trial,

adding allegations of ineffective assistance of counsel. He asserted that Harbison’s trial attorneys

were ineffective because they failed to adequately investigate and present witnesses in support of

the defense. Strong argued on appeal that the trial attorneys had made no effort to locate witnesses

to pursue Harbison’s alibi defense. The conviction and sentence were affirmed by the Supreme

Court of Tennessee. Harbison, 704 S.W.2d at 319-20. 

Thereafter, Harbison filed a post-conviction petition in the trial court. Harbison argued, inter

alia, that Strong, his appellate counsel, was ineffective because he did not argue that Harbison’s trial

attorneys were ineffective for failing to investigate his family background for purposes of mitigation.

At the post-conviction hearing, Harbison presented evidence of a previously undisclosed

family tragedy. When he was a child, his fourteen-year-old sister shot and killed her two young

children. She was committed to a state hospital, where she committed suicide. Harbison, his

mother, and another sister testified that the family was affected by these events. Harbison stated that

he “couldn’t rightly say . . . what kind of impact it had on [him].” In addition, they testified that

Harbison’s trial attorneys had never asked about the family background. 

Carter, one of Harbison’s trial attorneys, also testified that he and Miller did not complete

a significant investigation into Harbison’s family background and only discussed in passing a

possible psychological examination for Harbison. Carter further acknowledged that they had only

briefly prepared Harbison’s mother for her sentencing testimony during a break at trial. 

The trial court dismissed Harbison’s post-conviction petition as being without merit. The

Tennessee Court of Criminal Appeals affirmed this decision, Harbison v. State, No. 03C01-9204-

CR-00125, 1996 WL 266114 (Tenn. Crim. App. May 20, 1996), and the Supreme Court of

Tennessee denied further review. 

In February 1997, Harbison moved in federal district court for appointment of counsel and

stay of execution. These motions were granted. The appointed counsel made a public-records

request for the Chattanooga Police Department’s records relating to the Russell murder. These

documents were received in October 1997, and it was determined that documents in the police file

were not in the district attorney’s file. 

The police files contained evidence regarding Ray Harrison, who initially was a suspect in

this case. Harrison previously was represented by Rodney Strong, who later was appointed to be

Harbison’s appellate counsel. Harrison, upon Strong’s advice, refused to take a polygraph

examination concerning Russell’s murder. Strong did not disclose to Harbison his prior

representation of Harrison, however. 

The police files indicate that Harrison’s wife told David Boss that Harrison had admitted to

her that he was at the Russell house at the time of the murder. According to Boss, she said, “He was

in the house, he didn’t kill her but . . . when the door opened they ran.” Boss told the police that

Harrison was shaky and “scared to death” the day after the murder. Another witness stated that

Harrison’s wife was concerned because she could not find the jacket Harrison was wearing the day

of the murder. These files also indicate that Harrison had a disagreement with Mrs. Russell the week

before her murder concerning a ring that he attempted to sell to her. Mrs. Russell took the ring to

an appraiser, who determined that the ring was fake. Harrison suspected Mrs. Russell switched the

real ring for a fake one. The file indicated that Harrison associated with men who lived in the Lynn
No. 02-5392 Harbison v. Bell Page 4

1

 This provision has been renumbered to § 40-30-117 (2003). 

house, which was across the street from the Russells. Schreane had previously admitted that he was

smoking marijuana with Linda Lynn in a parked car in front of the Lynn house on the day of the

murder, thus establishing a very tenuous connection between Harrison and Schreane. Finally, the

file indicated that Harrison previously was involved in a similar burglary, in which a home owner

returned and a struggle ensued. 

The police files also contained information about Schreane, who implicated Harbison in the

crime. Prior to Harbison’s detainment, Schreane told a witness that Harbison, who was dating

Schreane’s sister, had attempted to start a relationship with Schreane’s girlfriend when Schreane was

arrested on an unrelated offense. According to a witness, Schreane asserted that Harbison had killed

Mrs. Russell and that he would “be up there with him for that murder case.”

Harbison filed a petition for writ of habeas corpus in November 1997. He asserted twentysix claims as grounds for relief, including a Brady claim, a claim of conflict of interest of appellate

counsel who had previously represented a suspect in the case, and an ineffective-assistance-ofappellate-counsel claim for failure to raise on direct appeal the issue that trial counsel was

ineffective for failing to investigate Harbison’s background. At the time, the Brady and conflict-ofinterest claims had not yet been advanced to a state court. 

The district court dismissed Harbison’s petition as meritless in March 2001. It granted

Harbison a COA for the following issues: 1) whether the prosecution withheld material, exculpatory

evidence from Harbison in violation of Brady v. Maryland, 373 U.S. 83 (1963); and 2) whether

Harbison received ineffective assistance of appellate counsel because counsel did not argue on direct

appeal that his trial attorneys rendered ineffective assistance by failing to adequately investigate and

present evidence of his troubled family background. This court granted Harbison a COA for one

additional issue: whether appellate counsel labored under a conflict of interest. 

In June 2001, after the district court denied Harbison’s petition, he filed a motion to reopen

his state post-conviction proceeding. He later requested that the pleadings be treated as a petition

for a writ of error coram nobis. Claims involving the issues for which certificates of appealability

have been granted were considered in these state proceedings. In March 2004, after holding an

evidentiary hearing, the state court dismissed the motion to reopen, noting that the circumstances

in which a post-conviction proceeding could be reopened were strictly limited by Tenn. Code Ann.

§ 40-30-217.1

 The court also dismissed Harbison’s petition for writ of error coram nobis because

it was not timely filed and it determined that too much time had elapsed between Harbison’s

discovery of the evidence and his filing in state court. The court concluded that there was no due

process violation because Harbison had been afforded a reasonable amount of time to litigate these

issues. 

In May 2004, Harbison moved this court to supplement the record with the new stateproceeding evidence and/or to hold in abeyance pending the resolution of the state-court appeal.

These motions were denied, and the record before the district court is considered in this appeal. 

II. STANDARD OF REVIEW

Harbison filed the petition for writ of habeas corpus after the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Therefore, this court’s review is limited

by 28 U.S.C. § 2254(d), as amended by AEDPA. Under this provision, an application for writ of

habeas corpus may be granted only if the adjudication of the claim in the state-court proceeding

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
No. 02-5392 Harbison v. Bell Page 5

established Federal law, as determined by the Supreme Court of the United States,” or if the state

court adjudication “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). 

The Supreme Court has emphasized that the statutory phrase “clearly established Federal

law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), “refers to

the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000) (emphasis added).

Once the “clearly established Federal law” has been identified, this court considers whether the

state-court decision is “contrary to” such law. A state-court decision is contrary to clearly

established law if that court “arrive[d] at a conclusion opposite to that reached by [the Supreme

Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court]

has on a set of materially indistinguishable facts.” Id. at 413. The court also considers whether the

state court’s decision involved an unreasonable application of clearly established Federal law. This

occurs if the court “identifie[d] the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applie[d] that principle to the facts of the prisoner’s case.” Id. It is

important to note, however, that “an unreasonable application of federal law is different from an

incorrect or erroneous application of federal law.” Id. at 412. This court must determine “whether

the state court’s application of clearly established federal law was objectively unreasonable.” Id.

at 409. 

III. DISCUSSION

A. Ineffective Assistance of Appellate Counsel

Harbison asserts that Strong, who represented him in his motion for new trial and on direct

appeal, was ineffective because he failed to argue that Harbison’s trial attorneys were ineffective

for failing to investigate and present evidence of Harbison’s family background. This claim was

asserted in Harbison’s post-conviction petition. The Tennessee Court of Criminal Appeals affirmed

the trial court’s dismissal of this claim on the merits, and the Supreme Court of Tennessee denied

Harbison’s request for further review. 

The Tennessee Court of Criminal Appeals determined that the performance of Harbison’s

trial attorneys did not fall below an objective standard of competency. The court considered, inter

alia, the fact that the trial attorneys had no knowledge that Harbison or any of his family members

had a history of mental illness. The court also noted that the mental illness information provided

in the post-conviction hearing related solely to Harbison’s family and not directly to Harbison

himself. The court considered the analysis in Strickland v. Washington, 466 U.S. 668, 687 (1984),

and determined that the trial attorneys’ performance was not deficient; therefore, the court did not

discuss whether Harbison was prejudiced by the allegedly deficient performance of his trial

attorneys. The court concluded that, because the trial attorneys’ performance was not ineffective,

Strong’s performance also was not ineffective. Harbison was not prejudiced by an alleged failure

to raise the ineffective assistance claim on direct appeal. 

“A defendant is entitled to the effective assistance of counsel in his first appeal of right.”

Mapes v. Tate, 388 F.3d 187, 191 (6th Cir. 2004). The performance of an appellate counsel is

properly reviewed under the Strickland standard. “To establish ineffective assistance of counsel,

it must be shown that counsel’s performance was deficient and that the deficient performance

prejudiced the defense so as to render the trial unfair and the result unreliable.” Id. (citing

Strickland, 466 U.S. at 687). 

Although Harbison’s trial attorneys’ failure to investigate Harbison’s family background

arguably may have been deficient performance, the evidence presented in Harbison’s state court
No. 02-5392 Harbison v. Bell Page 6

2

 This provision has been renumbered to § 40-30-102 (2003). 

3

 This provision has been renumbered to § 40-30-117 (2003). 

post-conviction proceeding did not establish prejudice. Therefore, Harbison failed to establish

ineffective assistance of counsel. “[A]ny deficiencies in counsel’s performance must be prejudicial

to the defense in order to constitute ineffective assistance under the Constitution.” Strickland, 466

U.S. at 692. Harbison “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. At

Harbison’s post-conviction hearing, he, his mother, and his sister testified regarding another sister’s

murder of her children and her subsequent suicide. While they testified that Harbison was affected

by these events, their testimony was vague and did not address any manifestations of this impact.

Indeed, Harbison himself testified that he “couldn’t rightly say . . . what kind of impact it had on

[him].” Thus, this evidence was insufficient to create a reasonable probability that the result would

have been different had this information been presented at sentencing. Because Harbison did not

demonstrate that he was prejudiced by Strong’s actions, the state court’s determination that Harbison

had not established ineffective assistance of counsel was not an unreasonable application of clearly

established federal law. See Williams, 529 U.S. at 413. 

B. Brady Claim

To demonstrate that the withholding of police reports was a Brady violation, Harbison must

prove that (1) the evidence at issue is favorable to him; (2) the State, either willfully or

inadvertently, suppressed that evidence; and (3) prejudice ensued. Strickler v. Greene, 527 U.S.

263, 281-82 (1999). “[T]here is never a real ‘Brady violation’ unless the nondisclosure was so

serious that there is a reasonable probability that the suppressed evidence would have produced a

different verdict.” Id. at 281. To determine whether there is such probability, the withheld evidence

must be considered collectively. Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003) (citing

Kyles v. Whitley, 514 U.S. 419, 436 (1995)). 

The district court concluded that Harbison’s Brady claim was procedurally defaulted. As

discussed below, we agree. “Where a defendant has procedurally defaulted a claim by failing to

raise it on direct review, the claim may be raised in habeas only if the defendant can first

demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” Bousley v.

United States, 523 U.S. 614, 622 (1998) (internal citations omitted). 

Harbison first asserted this alleged Brady violation in proceedings before the district court

in November 1997. At that time, Tenn. Code Ann. § 40-30-202(c)2

 provided that “[i]n no event may

more than one (1) petition for post-conviction relief be filed attacking a single judgment.” Because

Harbison had previously filed one petition for post-conviction relief, he was not permitted to file a

second petition. Furthermore, because the circumstances in which a post-conviction proceeding

could be reopened were strictly limited by Tenn. Code Ann. § 40-30-217,3

 Harbison was unable to

reopen his post-conviction proceedings in 1997. See Harris v. State, 102 S.W.3d 587, 591 (Tenn.

2003) (“A claim that the State suppressed or failed to disclose exculpatory evidence in violation of

Brady simply is not one of the statutory grounds for reopening a post-conviction proceeding.”). 

Harbison also would not have been able to pursue a petition for a writ of error coram nobis

at the time he filed in the district court. “Coram nobis claims may be based upon any ‘newly

discovered evidence relating to matters litigated at the trial’ so long as the petitioner also establishes

that [he] was ‘without fault’ in failing to present the evidence at the proper time.” Id. at 592-93.

These claims must be filed within one year after a conviction becomes final. Tenn. Code Ann. § 27-
No. 02-5392 Harbison v. Bell Page 7

4

 Harbison argues that these files were not available to him until the published decision of Wooden v. State, 898 S.W.2d 752 (Tenn. Crim. App. 1994), in December 1994. The Wooden court merely asserted, however, that prior

to yet another unpublished opinion, Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802 (Tenn. Ct. App.

Aug. 30, 1991), “police routinely denied [defendants] access to the file.” Wooden, 898 S.W.2d at 754. The court noted

that Wooden had been able to obtain police records under the Tennessee Public Records Law pursuant to the decision

in Freeman.

7-103. The Tennessee courts have, at times, allowed exception to strict enforcement of statutes of

limitations, however. “[D]ue process requires that potential litigants be provided an opportunity for

the presentation of claims at a meaningful time and in a meaningful manner.” Burford v. State, 845

S.W.2d 204, 208 (Tenn. 1992). As noted by the Supreme Court of Tennessee, “due process may

prohibit strict application of the statute of limitations in a post-conviction case ‘when the grounds

for relief, whether legal or factual, arise after . . . the point at which the limitations period would

normally have begun to run.’” Sample v. State, 82 S.W.3d 267, 272 (Tenn. 2002) (quoting Sands

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

When such a case is evaluated, a “court must determine whether application of the

limitations period would deny the petitioner a reasonable opportunity to present the claim by

balancing the liberty interest in collaterally attacking constitutional violations occurring during the

conviction process . . . against the State’s interest in preventing the litigation of stale and fraudulent

claims.” Id. at 272-73 (quotations omitted). The Supreme Court of Tennessee has refused “to apply

a bright-line period of time in which to raise later-arising issues be it one year or three,” Wright v.

State, 987 S.W.2d 26, 30 (Tenn. 1999), but has instead instructed that the analysis be completed “in

light of the specific facts of the case.” Id. 

Although Harbison did not receive the police files that contained the evidence that is the

basis of this claim until October 1997, he could have requested and obtained those files more than

five years earlier. In January 1992, the Tennessee Court of Appeals held in an unpublished decision

that police investigation files were not exempt from disclosure under the Public Records Law.

Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01-A-019104CH00150, 1992 WL 12217

(Tenn. Ct. App. Jan. 29, 1992). Based upon the Woodall decision, the Supreme Court of Tennessee

has recognized January 29, 1992, as a date upon which police files became available to a postconviction petitioner.4

 Wright, 987 S.W.2d at 29. 

Harbison alleges in his brief that “counsel attempted post-trial to gain access to the police

records despite state law prohibiting their disclosure,” but “one of the investigating detectives and

the police chief testified post-trial that the police records could not be located.” A review of the

transcripts to which Harbison refers suggests the individuals were simply unaware of a particular

file’s location, not that these individuals had been charged with the task of locating that particular

file. At the post-conviction examination, Detective Wilhoit simply stated, “I don’t have any

knowledge as to [Detective Foster’s file’s] location. It’s an old case and normally we keep our old

files after the case is over with, so what he did with it I have no information.” The following

exchange occurred when Chief Detective Davis was questioned at a post-conviction evidentiary

hearing:

Q: Do you have access to any of the former files at the police department where

you could refer to these?

A: No.

Q: We’ve been told by C.L. Wilhoit that since Ed Foster’s death that they have

apparently lost his file on Harbison. Would there not be any other?

A: I don’t see how they could have lost it. Of course, I don’t know.
No. 02-5392 Harbison v. Bell Page 8

Q: That’s what he testified to is that they lost it because they couldn’t bring it

to court. Would you have any idea that they would have another one anywhere that

we might be able to get access to it?

A: They have it if they’d just find it.

Q: Okay. So you think they’ve misplaced it as opposed to losing it?

A: I know it was still there when I left.

Q: When did you leave?

A: ‘83.

Q: Okay. Of course, Detective Foster has died since then?

A: Yes, but there is no way for it to have got out of there unless somebody stole

it. It’s still there. 

If anything, the exchanges between Harbison’s attorney and Detective Wilhoit and Chief

Detective Davis would have indicated to the attorney that there was a very strong possibility that

the relevant files would be available if requested through the appropriate channels. 

Furthermore, because disclosure of the police files was prohibited in 1991, when Harbison

had last requested them, it is not unreasonable to expect that he again would request them within a

reasonable time after they could be released. The files became available in 1992, but Harbison

waited another five years to request them. As a result, by the time Harbison filed his petition in the

district court in 1997, Tennessee courts were no longer able to consider a petition for writ of error

coram nobis. The aforementioned statements from Detective Wilhoit and Chief Detective Davis are

insufficient to justify the five-year delay. It cannot be said that the basis of this claim was

“reasonably unknown” to petitioner’s lawyers. 

Harbison argues his Brady claim was not procedurally defaulted because this procedural

scheme is neither adequate nor independent. See, e.g., Hicks v. Collins, 384 F.3d 204, 211 (6th Cir.

2004) (“[T]he state procedural rule must have been an adequate and independent state procedural

ground upon which the state could rely to foreclose review of a federal constitutional claim.”). In

Hutchinson v. Bell, this court recognized that “Tennessee courts consistently enforce a procedural

scheme that encompasses both the one-year limitations period and a court-recognized procedure for

tolling that statute when specific due process grounds are presented.” 303 F.3d 720, 738 (6th Cir.

2002). Harbison asserts that these procedural rules do not represent adequate state procedural

grounds because the Burford principle may create inconsistent results. He further asserts that the

procedural grounds are not independent of federal law because application of Burford to a laterarising Brady claim requires consideration of the merits of the Brady claim. “In habeas, if the

decision of the last state court to which the petitioner presented his claim fairly appeared to rest

primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly

and expressly rely on an independent and adequate state ground, a federal court may address the

petition.” Coleman v. Thompson, 501 U.S. 722, 735 (1991). An evaluation of the adequacy and

independence of a hypothetical state court decision is unnecessary in this case, however:

[I]f the petitioner failed to exhaust state remedies and the court to which the

petitioner would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred . . . there is a procedural

default for purposes of federal habeas regardless of the decision of the last state

court to which the petitioner actually presented his claims. 

Id. at 735, n.1 (emphasis added). 

Because this claim has been procedurally defaulted, it may be considered on its merits only

if Harbison demonstrates cause and prejudice. Bousley, 523 U.S. at 622. Harbison argues that the

State’s failure to provide him with the police files demonstrates cause. He asserts that “[t]he cause
No. 02-5392 Harbison v. Bell Page 9

5 Similarly, the prosecution deliberately withheld material evidence in Freshwater v. State, No. W2003-01343-

CCA-R3-CO, 2004 WL 1944140, *9 (Tenn. Crim. App. Sept. 1, 2004). In Freshwater, the Tennessee Court of Criminal

Appeals determined that the “delay in obtaining the [Brady] evidence [was] not attributable to the fault of the petitioner

or her attorneys,” even though the claim was discovered far after Freshwater’s conviction. Id. Significantly, the Brady

material in this case was discovered only after Freshwater had escaped from prison and had remained at large for over

thirty years. The court noted:

Indeed, if the State’s position in this appeal were to prevail, criminal defendants, in order to protect

their rights to file a coram nobis petition, would be required in every case to examine every

prosecution file following their convictions in order to determine whether exculpatory evidence was

withheld. We cannot believe this is something the State really wants. “[T]he State’s finality interest

is seriously compromised when the prosecution has suppressed evidence in violation of its

constitutional duty and is directly responsible for causing the delay in finality.”

Id. (quoting Harris v. State, 102 S.W.3d 587, 602 (Tenn. 2003) (Anderson, J. dissenting)).

Again, we observe that Freshwater involved the intentional concealment of Brady material. As previously

discussed, there is no evidence of such prosecutorial concealment in Harbison’s case. 

6

 Prior to the 1995 amendments, petitioners were not limited to only one post-conviction petition.

inquiry . . . turns on events or circumstances external to the defense.” Banks v. Dretke, 540 U.S.

668, 696 (2004) (quotation omitted). In Banks, the Supreme Court rejected a state’s argument that

the cause inquiry should revolve around the petitioner’s conduct, which in that case included an

alleged lack of appropriate diligence in pursuing a Brady claim. Id. at 695. The Court noted that

“[a] rule . . declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system

constitutionally bound to accord defendants due process.” Id. at 696. Banks, however, addressed

a situation in which the prosecution had repeatedly asserted that all Brady material was disclosed,

but nevertheless continued to conceal such material. In particular, the Court noted that “[e]ach time

[a witness] misrepresented his dealings with the police, the prosecution allowed that testimony to

stand uncorrected.” Id. at 672. The Court concluded: “In short, because the State persisted in hiding

[the witness’s] informant status and misleadingly represented that it had complied in full with its

Brady disclosure obligations, Banks had cause for failing to investigate, in state post conviction

proceedings, [the witness’s] connections to [the police].” Id. at 693. There is no evidence of such

prosecutorial concealment and misrepresentation in Harbison’s case, however.5

 At the postconviction hearing, the police officers did not indicate that the files did not exist or that they would

refuse to provide them to Harbison, but rather that they did not know where the files were located.

There is no evidence in the record before the district court that those individuals were charged with

the task of locating that particular file. Nor has Harbison presented any evidence that would indicate

that the files were intentionally concealed. 

If Harbison had requested the police files within a reasonable time, he would have had

various options for state-court consideration of this claim. Because his post-conviction proceeding

was on appeal through 1996, he had the opportunity to move to remand for consideration of new

evidence. See Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992). In addition, had he requested the

files within a reasonable time, he could have filed a petition for writ of error coram nobis or, prior

to 1995, an additional post-conviction petition.6

 By the time Harbison filed the petition for writ of

habeas corpus in federal court, however, these opportunities were no longer available to him.

Because Harbison has failed to demonstrate cause for his failure to argue this claim before the state

courts, this claim may not be considered by this court. 

Although Harbison has not demonstrated cause for his failure to pursue these claims in state

court, we nevertheless here address the issue of prejudice to Harbison that may be attributed to the

withholding of this evidence. Harbison has not demonstrated such prejudice. While the relevant

evidence may raise some question about Harrison’s potential proximity to the Russell murder and

Schreane’s motivation in identifying Harbison as the murderer, this evidence is not sufficient to

create a reasonable probability that the result of the trial would have been different. The evidence
No. 02-5392 Harbison v. Bell Page 10

7

 The dissent suggests that this put Harrison “in close proximity to the Russell home at the time of Edith

Russell’s murder, which took place at some point before midnight.” That depends entirely upon whether Mrs. Russell

was killed near midnight, which is not a logical conclusion from the record. More likely, she was killed in the afternoon,

sometime after 2:45 p.m. Two witnesses testified that they had tried to call Mrs. Russell at 5:30 p.m., 6:30 p.m. and 8:30

p.m. without an answer on the day of the murder. 

concerning Harrison reveals that he was initially a suspect in the Russell murder, and this evidence

could have been used by Harbison’s counsel in an attempt to shift culpability to another individual.

However, this evidence, even when considered in combination with allegations regarding Schreane’s

reasons for identifying Harbison, does not create a reasonable doubt that the trial would have ended

differently. The district court meticulously analyzed this evidence and found that it was not a Brady

violation and it was not material to the defense. We agree. Harbison’s confession to the murder is

strong evidence of his guilt, which this new evidence was unlikely to overcome. 

Although the claim has been procedurally defaulted, and we therefore do not directly reach

the merits of this case, the above cause and prejudice discussion parallels requirements for the Brady

analysis. Because Harbison has not demonstrated such cause and prejudice, he has not established

a Brady violation. 

While we decide the case on procedural default, as did the district court, it makes little sense

to discuss in detail the Brady issue. Nevertheless, certain explanations may be in order. First, the

district court found that even if the alleged claim was not procedurally defaulted, there was no Brady

violation. Second, the district court found that evidence involving the victim’s nefarious activities

of buying and selling stolen merchandise was not relevant to the case. Third, on the evidence

involving Schreane, the court found that either most of the evidence was admitted at trial, was not

material, or was not wholly in the control of the prosecution. As the dissent observes, the district

court found that the statement by Schreane that he was angry at Harbison for making romantic

overtures to Schreane’s girlfriend could not have altered the judgment of the jury, because Schreane

did not testify at trial. Finally, concerning the evidence which involved Harrison, it was not

material, because Harbison raised an alibi defense and testified that his confession to the crime was

false.

We agree with the district court on the merits, but we will further discuss some of these

details in our explanation of this ruling. Several assertions in the dissent need to be clarified. First,

the dissent states that Charlene Harrison told Detective Foster that her husband was with the Lynns,

who lived across the street from the victim, on the day of the murder. That is correct in part, but the

full statement was that “she knew Ray did not kill Ms. Russell because he spent all evening with

Tommy and Larry Lynn in Ft. Oglethorpe and they returned Saturday night at between 10:30 and

11:00 P.M. on 1-15.”7

 Thus, no one put Harrison at the Lynn house on the day of the murder, unlike

the admission of Schreane that he smoked marijuana with Linda Lynn in front of the house on the

afternoon of the murder.

Second, although Charlene Harrison placed Ray Harrison at the scene of the crime, she said

that he was there with at least one other person. This did not help Harbison’s alibi, for Harbison and

Schreane both could have been with Harrison at the time. She never did identify who the other

person or persons were. Moreover, after Boss had told the officers of his conversation with

Charlene Harrison on January 19, 1983, the officers sent an unnamed informant with a “tape” to get

Charlene Harrison to admit what she had allegedly told Boss, but she did not convey the same

information and would not confirm the information previously received. Third, the dissent says that

Boss asserted that Harrison was “scared” the morning after the murder. However, there are several

reasons why Harrison might be concerned by the interest from the police in searching his residence

with a search warrant, because he was involved in drug trafficking and was wanted by the authorities

in Florida, where he was eventually arrested. In fact, Harrison allegedly told Boss that when he
No. 02-5392 Harbison v. Bell Page 11

found the police were coming with a search warrant, he went over to his mother’s apartment and got

rid of “some pills.” 

Finally, the dissent suggests that Harbison could have used Schreane’s jailhouse statement

on cross examination of Detective Foster, as to whether the police pursued an investigation of

Harrison in light of Schreane’s motive to falsely implicate Harbison. There is a question as to the

admissibility of that statement, but even if admissible, there was some detailed investigation in the

Harrison files between January 16-31, 1983. Apparently, it was not until February 17, 1983, when

the detectives first learned that Schreane had told Omenys West that Harbison had killed Russell.

Later that day, Schreane admitted that he had been at the Russell house with Harbison on the day

of the murder. Thereafter, the police found some of the stolen items in the custody of Harbison’s

girlfriend, Schreane led police to the stolen TV set and to the murder weapon, and Harbison finally

confessed to hitting Mrs. Russell twice with the vase. 

C. Appellate Counsel’s Conflict of Interest

Harbison claims that Strong, his appellate counsel, suffered from a conflict of interest

because he had previously represented Harrison, who was initially a suspect in the Russell murder.

As a result, Harbison argues, Strong was unable to make arguments that would support Harbison’s

assertions that he had not committed the crime. He alleges that, had Strong not been burdened by

this conflict and had he been aware of the evidence concerning Harrison in the police files, Strong

would have been able to make the argument that Harrison had opportunity and motive to commit

the crime. This claim also was not introduced before the state courts until after the district court

denied Harbison’s petition. As a result, much of the above procedural default analysis is relevant

to this claim. Harbison has failed to demonstrate cause for his failure to assert this claim until his

petition to the district court. 

Again, although Harbison has not demonstrated cause for his failure to pursue these claims

in state court, we nevertheless address the issue of prejudice to Harbison that may be attributable

to his counsel’s alleged conflict. Harbison has not demonstrated such prejudice. A possibility of

conflict is insufficient to establish a violation of Harbison’s Sixth Amendment rights, and no

violation occurs where the conflict is irrelevant or merely hypothetical. See Moss v. United States, 323 F.3d 445, 463-64 (6th Cir. 2003). Harbison argues that Strong rendered ineffective assistance

by not raising certain issues involving Harrison’s potential involvement in Russell’s death. Relying

on the new evidence discussed in his Brady claim, Harbison asserts that Strong failed to pursue and

present evidence concerning Harrison that could have created doubt about Harbison’s guilt.

However, as noted above, the new evidence presented concerning Harrison was unlikely to change

the result of Harbison’s trial. Furthermore, Harbison has presented no facts to demonstrate that

Strong was aware of the additional evidence concerning Harrison and that he decided not to present

the additional evidence due to his representation of Harrison. Finally, the fact that Strong

represented Harbison during his motion for a new trial and on direct appeal, rather than during the

trial, would reduce the danger posed by any conflict. Harbison has not cited any specific instances

in the record where his interests were impaired by Strong’s prior representation of Harrison. 

IV. MATTERS OUTSIDE THE RECORD

The dissent has referenced matters which are not part of the record on review, as they are

records from the second state post-conviction review held subsequent to the judgment by the district

court herein. Inasmuch as we denied Harbison leave to supplement the record to provide the second

post-convictions materials, it would not be appropriate for us to comment about those matters. This

case is on appeal from the district court, which did not have any of those subsequent materials before

it. “We cannot consider a report that is not part of the record.” United States v. Bonds, 12 F.3d 540,

552 (6th Cir. 1993). But see Thompson v. Bell, 373 F.3d 688, 691 (6th Cir. 2004) (allowing record
No. 02-5392 Harbison v. Bell Page 12

on appeal to be supplemented under “our equitable power”), cert. granted on other grounds, 125

S.Ct. 823 (2005). 

Similarly, the dissent quotes from a subpoena directed to Wilhoit to bring with him to the

post-conviction hearing “[a]ny and all records, files or documents in his possession or in the

possession of the Chattanooga Police Department relative to the case of State of Tennessee v.

Edward Jerome Harbison, Jr.” That also is not in the record from the district court, nor was it

mentioned in Harbison’s briefs to this court. Additionally, Harbison did not ask to supplement the

record with that document under Federal Rule of Appellate Procedure 10(e). Therefore, it would

also not be appropriate to comment about that subpoena. 

V. CONCLUSION 

For the foregoing reasons, the judgment of the district court denying the writ is AFFIRMED.
No. 02-5392 Harbison v. Bell Page 13

_________________

DISSENT _________________

CLAY, Circuit Judge, dissenting. I dissent because the district court should have granted

Harbison’s petition for a writ of habeas corpus on the ground that the prosecution violated Brady

v. Maryland, 373 U.S. 83 (1963). Harbison has shown cause and actual prejudice for his failure to

raise his Brady claim in state court prior to seeking habeas relief in federal court.

I.

Brady Violation

Harbison’s trial counsel filed several pre-trial motions for discovery, requesting exculpatory

information and witness statements. See J.A. 24 (motion for discovery of documents “which are

material to the preparation of the defense”); J.A. 26 (motion for order compelling “the State to

furnish [Harbison] with any and all exculpatory evidence of which the State, its agents, employees,

attorney generals and law enforcement officials have knowledge that may tend to exonerate

defendant of the charge or may mitigate any punishment for him”); J.A. 28 (motion to compel

disclosure of Brady materials relevant to sentencing). Despite several court orders compelling

disclosure of these materials, the State did not produce evidence contained in Chattanooga Police

Department records favorable to the defense. 

Excerpts from the undisclosed files of Detective Larry Foster, the officer principally

responsible for investigating Edith Russell’s murder, indicate that Ray Harrison had a motive to

burglarize and/or murder Edith Russell. Ray Harrison told Detective Foster that he had tried to sell

Russell a ring the previous week, but that she did not buy it. (J.A. 918.) Harrison’s cousin, Benny

Goins, confirmed that he had given a ring to Ray Harrison a week before Russell’s death and that

Harrison was supposed to sell the ring for him. (J.A. 961-62.) Ray Harrison’s wife, Charlene, told

Detective Foster that Russell had taken the ring to a jeweler for an appraisal and purportedly

determined that it contained a fake diamond. (J.A. 1077.) Detective Foster’s interview with Ray

Harrison’s brother-in-law indicated that “Ray Harrison and Benny Goins were mad at Edith Russell

because they believed that she had ‘switched rings on Ray.’” (J.A. 978.) 

Other entries in Detective Foster’s file suggest that Ray Harrison and David Schreane (who

participated in the robbery of Russell’s home) were together on the day of the murder and in close

proximity to the Russell residence. Charlene Harrison told Detective Foster that her husband was

with the Lynns, Russell’s across-the-street neighbors, on the day of the murder. (J.A. 1077.) In

addition, David Schreane admitted that he smoked marijuana with Linda Lynn in front of the Lynns’

house during the afternoon of the murder. (J.A. 976.) 

The majority discounts this evidence because “no one put Harrison at the Lynn house on the

day of the murder.” Slip Op. at 10. As support, the majority quotes Charlene Harrison’s statement

to Detective Foster that Harrison had “‘spent all evening with Tommy and Larry Lynn in Ft.

Oglethorpe and they returned Saturday night at between 10:30 and 11:00 P.M. on 1-15.’” Id.

(quoting J.A. 1077). It is true that Charlene Harrison’s statement does not necessarily place her

husband at the Lynns’ house, but the jury could have inferred this fact from her statement.

Significantly, she did not tell Detective Foster that her husband “returned to her house” between

10:30 and 11:00 p.m., only that her husband and the Lynns “returned” between those times.

Charlene Harrison could have meant that they returned to the Lynns’ house by 10:30 or 11:00 p.m.

According to the Tennessee Supreme Court, Edith Russell’s husband discovered her dead body at

midnight. State v. Harbison, 704 S.W.2d 314, 315 (Tenn. 1986). Therefore, the undisclosed Brady
No. 02-5392 Harbison v. Bell Page 14

material reasonably could suggest that Harrison was in close proximity to the Russell home at the

time of Edith Russell’s murder, which took place at some point before midnight. 

In asserting that the possibility that Russell was murdered near midnight “is not a logical

conclusion from the record,” Slip Op. at 10 n.7, the majority inappropriately assumes the role of

factfinder and denies that the jury which actually convicted Harbison and sentenced him to death

would have been permitted to find to the contrary. Because, as the majority notes, there is nothing

in the record that indicates a precise time of death, Maj. Op. at 2, Harbison was entitled to present

the undisclosed evidence to a jury in a light most favorable to him.

Ultimately, the majority’s view about Russell’s time of death is irrelevant because other

undisclosed evidence actually places Harrison at the scene of her murder. David Boss told

Detective Foster that Charlene Harrison had told him that Ray Harrison was actually inside Edith

Russell’s house on the night of the murder with another person. (J.A. 921-23.) She also told Boss

that Ray Harrison did not kill Russell, but that when Russell entered her house, “they” (including

Harrison) ran away. Id. Boss’s statement certainly would support a defense theory that Harrison

not only had the motive and opportunity to murder Russell, but actually participated in that crime,

thereby potentially shifting blame away from Harbison.

The majority argues that this evidence would not have assisted Harbison’s alibi defense

because Charlene Harrison’s reference to “they” is consistent with the possibility that both Schreane

and Harbison were with Harrison at the time of the murder. Slip Op. at 10. Although the majority’s

characterization of this statement is plausible, Harbison should have been afforded the opportunity

to present an equally plausible and reasonable alternative to the jury that supported his alibi defense:

that only Harrison and Schreane were present at Edith Russell’s murder.

Boss also told Detective Foster that he saw Ray Harrison on the morning after the murder

and observed him to be “a little scared and shaky” and “scared to death.” (J.A. 926.) Harrison

asked Boss “if the polices [sic] had been there” and said “that they were comin’ back with a search

warrant.” Id. Moreover, Harrison’s brother-in-law told Detective Foster that Charlene Harrison was

concerned because she could not locate the jacket Ray Harrison had been wearing on the night of

the murder. (J.A. 978-79.) 

True to form, the majority discounts this Brady material by insisting that there is only one

plausible view of the evidence. The majority speculates as to “several reasons why Harrison might

be concerned by the interest from the police in searching his residence with a search warrant.” Slip

Op. at 10-11. Although the majority’s explanations are plausible, it is equally plausible that

Harrison was scared to death because he had murdered Edith Russell the night before and was

deeply concerned about the police apprehending him. 

Finally, an undisclosed excerpt from Detective Foster’s file suggests that David Schreane

falsely implicated Harbison in Russell’s murder. A witness named Omenys West told Detective

Foster that he knew David Schreane because he used to commit burglaries with him in the St. Elmo

area, where Edith Russell lived. (J.A. 1010.) Subsequent to the murder, West and Schreane

happened to be in the same courthouse cell with regard to their respective burglary charges. (J.A.

1011.) At that time, Schreane told West that he had been committing burglaries in the St. Elmo area.

(J.A. 1011-12.) Later, Schreane told West that he was upset that his brother-in-law (Harbison) “had

been tryin’ to talk to his old lady, and that his brother-in-law was the one that killed the woman out

there on, in St. Elmo.” (J.A. 1012.) West reiterated to Detective Foster that Schreane had told him

that Harbison had killed “that bitch in St. Elmo,” namely Edith Russell. (J.A. 1016-17.) In a

summary of his interview of West, however, Detective Foster stated that Schreane had told West

that Schreane’s “brother-in-law [Harbison] was messing with his girlfriend and if he did not stop

Schreane said he would put the murder in St. Elmo on him.” (J.A. 1082.) 
No. 02-5392 Harbison v. Bell Page 15

The district court discounted Schreane’s jailhouse statement because Schreane did not testify

at Harbison’s trial and, therefore, Schreane’s statement could not have been used to impeach him.

It is conceivable, however, that Harbison could have used Schreane’s statement on crossexamination of Detective Foster, who was principally responsible for investigating Russell’s murder.

Harbison could have asked the detective whether and to what extent the police pursued an

investigation of Ray Harrison in light of Schreane’s motive to falsely implicate Harbison in the

murder. Such cross-examination had the potential of undermining the prosecutor’s argument that

the police had conducted a thorough investigation for all possible suspects in the murder. See J.A.

1676-77. Armed with knowledge that Harrison was a legitimate suspect in the murder, Harbison

likely would have altered his trial strategy. In addition to attempting to establish an alibi defense

and arguing that his confession had been coerced by police threats to take away his girlfriend’s

children, he could have introduced additional evidence shifting blame for the murder to Harrison.

This possibility undermines confidence in Harbison’s guilty verdict. 

According to Brady v. Maryland, “the suppression by the prosecution of evidence favorable

to an accused ...violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87; see also Strickler v.

Greene, 527 U.S. 263, 288 (1999) (“[U]nder Brady an inadvertent nondisclosure has the same

impact on the fairness of the proceedings as deliberate concealment.”). Favorable evidence is

material “‘if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’” Id. at 280 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). However, “[t]he question is not whether the defendant would

more likely than not have received a different verdict with the evidence, but whether in its absence

he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995). 

The Brady rule “encompasses evidence ‘known only to police investigators and not to the

prosecutor.’” Strickler, 527 U.S. at 280-81 (quoting Kyles, 514 U.S. at 438). The rule applies only

to evidence discovered after trial that was unknown to the defense at the time of trial. United States

v. Mullins, 22 F.3d 1365, 1371 (6th Cir .1994) (citing United States v. Agurs, 427 U.S. 97, 103

(1976)). The prosecutor has a duty to disclose Brady material even when the accused does not

specifically request it, United States v. Agurs, 427 U.S. 97, 107 (1976), and the duty encompasses

impeachment evidence as well as exculpatory evidence, Bagley, 473 U.S. at 676. “In order to

comply with Brady, ... ‘the individual prosecutor has a duty to learn of any favorable evidence

known to the others acting on the government’s behalf in this case, including the police.’” Strickler, 527 U.S. at 281 (quoting Kyles, 514 U.S. at 437).

Based on these principles, I would hold that the non-disclosure of the above-referenced

portions of Detective Foster’s file undermines confidence in Harbison’s guilty verdict because,

viewed in its entirety, this evidence could have formed the foundation of a colorable defense that

Ray Harrison, not Harbison, murdered Edith Russell and that Schreane falsely implicated Harbison

out of jealousy. See Kyles, 514 U.S. at 436 (holding that the determination of whether undisclosed

evidence is “material” requires the reviewing court to determine the suppressed evidence

“collectively, not item by item”). Ray Harrison’s wife placed Harrison at the scene of the crime,

thereby buttressing Harbison’s alibi defense to the murder charge. The fact that a witness told police

that Harrison was “scared to death,” apparently because he expected the police to search his house,

lends significant support to the theory that Harrison was involved in Russell’s murder. The

additional fact that Schreane had a motive to falsely link Harbison to Russell’s murder solidifies the

conclusion that there is a reasonable probability that Harbison would have been able to shift blame

for the murder from himself had the police records been disclosed to him. 

Harbison might have been found guilty even if he had been able to present this suppressed

evidence to the jury. But it is not his burden to demonstrate that presentation of the suppressed
No. 02-5392 Harbison v. Bell Page 16

evidence would have led to his acquittal. See Id. at 434-35 (“A defendant need not demonstrate that

after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have

been enough left to convict.”). Harbison need only show “that the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the

verdict.” Id. at 435. Here, Harbison reasonably could have used the suppressed evidence to shift

blame for the murder to Harrison. Although, as the majority points out, the prosecution would have

been able to marshal plausible responses to such evidence, Harbison at least had the right to present

his best possible defense to the jury. The prosecution’s Brady violation denied Harbison that right.

II.

Cause and Prejudice Excuses Any Procedural Default

The majority holds that Harbison procedurally defaulted his Brady claim. Harbison may

avoid any procedural default, however, “by showing that there was cause for the default and

prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the

procedural default in the petitioner’s case.” Lancaster v. Adams, 324 F.3d 423, 436 (6th Cir. 2003)

(internal quotation marks and citation omitted). “Cause is shown when the factual basis of the claim

was ‘reasonably unknown’ to the defendant’s counsel.” Jamison v. Collins, 291 F.3d 380, 388 (6th

Cir. 2002) (quoting Amadeo v. Zant, 486 U.S. 214, 222 (1988)). Harbison has made just such a

showing. 

A. Cause

Harbison’s trial counsel made at least three separate requests for exculpatory information,

which the trial court granted, but the prosecutor did not produce the portions of Detective Foster’s

file discussed above. Harbison’s trial counsel could not have obtained the file records directly from

the Chattanooga Police Department because, at the time of trial in 1983, the documents were exempt

from disclosure under state public records law. Tenn. Code Ann. §§ 10-7-101 et seq. At Harbison’s

state post-conviction hearing in 1991, it was established that Harbison’s post-conviction counsel had

subpoenaed Detective Foster’s file from the Chattanooga Police Department. The transcript of the

hearing further indicates that, in response to the request, Detective Clyde L. Wilhoit had attempted

to locate Detective Foster’s file, but that Wilhoit had no information regarding its location and,

therefore, did not bring it to court. (J.A. 1778-79.)

The majority dismisses Wilhoit’s testimony, concluding that Wilhoit stated only that he was

unaware of the location of Detective Foster’s file, not that any individual at the police department

had been charged with the task of locating that particular file. See Slip Op. at 9. This is patently

untrue. Because Detective Foster was deceased by the time of Harbison’s post-conviction hearing

in 1991, Harbison subpoenaed Wilhoit, who had assisted Foster in the investigation of Edith

Russell’s murder. The subpoena commanded Wilhoit to bring with him to the post-conviction

hearing “[a]ny and all records, files or documents in his possession or in the possession of the

Chattanooga Police Department relative to the cause of State of Tennessee v. Edward Jerome

Harbison, Jr.” Thus, on pain of contempt, Wilhoit was charged with the task of making a diligent

search of the Chattanooga Police Department’s records for that file. The clear import of Wilhoit’s

sworn testimony that he could not locate Detective Foster’s file was that, as far as the Chattanooga

Police Department was concerned, Detective Foster’s file on the Edith Russell murder was lost. 

The post-conviction testimony of former Chief Detective James M. Davis from 1991 does

not prove otherwise. Although Davis insisted that Detective Foster’s file was still at the police

department, he further testified that he had left the department in 1983, eight years before he testified

at Harbison’s post-conviction hearing. Accordingly, his bald assertion that Detective Foster’s file

still existed in 1991 was utterly without foundation. Nevertheless, the majority credits Davis’s

speculations over that of a current employee of the police department (Wilhoit), who was charged
No. 02-5392 Harbison v. Bell Page 17

with the task of locating the file in 1991 but could not locate it at that time, and reaches the

remarkable conclusion that Wilhoit’s and Davis’s testimony shows that “there was a very strong

possibility that the relevant files would be available if requested through the appropriate channels.”

Slip Op. at 8. I cannot fathom how the majority reaches this conclusion when Harbison’s subpoena

ducus tecum (clearly an “appropriate channel[]”) failed to yield these files.

The majority dismisses the significance of the Wilhoit subpoena because it “is not in the

record from the district court, nor was it mentioned in Harbison’s brief to this court.” Slip Op. at

12. It is the majority, however, who has made the Wilhoit subpoena an issue in this case. The

majority asserts that there is no evidence in the district court record that any individuals at the

Chattanooga Police Department “were charged with the task of locating” Detective Foster’s file.

Id. at 9. Warden Bell, however, never advanced this position in support of his procedural default

argument in the district court, nor has he presented it to this Court. See Respondent’s Br. at 32-22,

40 (arguing that Harbison procedurally defaulted his Brady claim because he could have made a

public records request for Detective Foster’s file). The majority’s assertion is a new argument,

raised for the first time today. Harbison had no way of knowing that the Wilhoit subpoena would

be relevant and that he therefore should have introduced it in the district court or included it in the

Joint Appendix.

 “Because this court sits to decide real cases, not abstract questions of law, and because an

adequate understanding of a case is essential to our decision,” Rodic v. Thistledown Racing Club,

Inc., 615 F.2d 736, 738 (6th Cir. 1980), the Court should fully examine the record in Harbison’s

state post-conviction proceeding and take judicial notice of the Wilhoit subpoena. See id. (“‘Federal

courts may take judicial notice of proceedings in other courts of record.’”) (quoting Granader v.

Pub. Bank, 417 F.2d 75, 82-83 (6th Cir. 1969)). Alternatively, this Court can and should supplement

the record under our equitable power, even though the district court apparently did not consider the

Wilhoit subpoena. See Thompson v. Bell, 373 F.3d 688, 690-91 (6th Cir. 2004) (invoking the

Court’s “inherent equitable powers to expand the record on appeal” even though the evidence was

not made part of the district court record), cert. granted on other grounds, __ U.S. __, 125 S. Ct. 823

(2005). The interests of justice require this Court to consider the Wilhoit subpoena in order to assess

the merits of the majority’s argument that Harbison has failed to present evidence that anyone at the

Chattanooga Police Department was ever charged with the task of locating Detective Foster’s file.

A fair reading of the available record in this case demonstrates that Harbison did not

procedurally default his Brady claim. The Supreme Court’s decision in Strickler is instructive.

There, the State gave the petitioner access to all of the evidence in the prosecutor’s files, such that

petitioner’s counsel did not file a pretrial motion for discovery of possible exculpatory evidence.

Strickler, 527 U.S. at 276. The prosecutor (probably unintentionally) failed to disclose notes taken

by a detective during interviews with an eyewitness as well as letters written by the eyewitness to

the detective. Id. at 273-75. After the defendant was convicted and his conviction was affirmed in

the state courts, he filed a federal habeas action wherein he was granted the right to examine and

copy all of the police and prosecution files in the case. Id. at 278. When the petitioner discovered

the undisclosed notes and letters, he raised a Brady claim for the first time. Id. 

The Supreme Court held there was cause for the petitioner’s failure to raise his Brady claim

in state court because it was reasonable for both trial and post-conviction counsel “to rely on, not

just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory

materials, but also the implicit representation that such materials would be included in the open files

tendered to defense counsel for examination.” Id. at 284. The respondent argued that the fact that

the district court entered an order allowing discovery of the undisclosed police files indicated that

“diligent counsel could have obtained a similar order from the state court.” Id. at 284-85. The Court

rejected this argument because petitioner’s counsel had every reason to believe that the State had

discharged its Brady obligations at trial through its open file policy. Id. at 288. Mere speculation
No. 02-5392 Harbison v. Bell Page 18

that some exculpatory material may have been withheld did not “suffice to impose a duty on counsel

to advance a claim for which they ha[d] no evidentiary support.” Id. at 286. As the Court

elaborated:

Proper respect for state procedures counsels against a requirement that all possible

claims be raised in state collateral proceedings, even when no known facts support

them. The presumption, well established by “‘tradition and experience,’” that

prosecutors have fully “‘discharged their official duties,’” United States v.

Mezzanatto, 513 U.S. 196, 210, 115 S. Ct. 797, 130 L. Ed.2d 697 (1995), is

inconsistent with the novel suggestion that conscientious defense counsel have a

procedural obligation to assert constitutional error on the basis of mere suspicion that

some prosecutorial misstep may have occurred.

Id. at 286-87. 

As in Strickler, Harbison filed numerous discovery motions for Brady materials, all of which

were granted. Harbison’s counsel was entitled to rely on not only the presumption that the

prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit

representation that such materials (including Detective Foster’s complete file) would be included

in the evidence actually tendered to defense counsel for examination. The State violated Brady

when the prosecutor failed to disclose all of Detective Foster’s files to Harbison in 1983. 

Warden Bell appears to concede as much, but argues that, as of January 29, 1992, Harbison

had an alternative means of obtaining Detective Foster’s file. While Harbison’s case was on appeal

from the denial of state post-conviction relief, the Tennessee Court of Appeals held that police

records become public records that are open for disclosure upon conclusion of the direct appeal, and

convicted felons (although prohibited from obtaining public records themselves) can obtain them

through counsel. See Capital Case Resource Ctr. of Tenn., Inc. v. Woodall, No. 01-A019104CH00150, 1992 WL 12217 (Tenn. Ct. App. Jan. 29, 1992) (holding that the District

Attorney General could not deny a request for access to the prosecution and police files on a

rape/murder case by attorneys representing the person convicted of the crimes in a pending habeas

corpus proceeding in federal court because such files were not exempt from disclosure under the

Tennessee Public Records Act, TENN.CODE ANN. §§ 10-7-101, et seq.); Wright v. State, 987 S.W.2d

26, 29 (Tenn. 1999) (agreeing that the date of the decision in Woodall was the relevant date for

purposes of determining when the petitioner should have first become aware of his right to access

public records that previously had been exempt from disclosure). Warden Bell argues (and the

majority agrees) that by waiting until his federal habeas action in 1997 to make a public records

request to the Chattanooga Police Department, Harbison simply waited too long (five years) to

obtain the evidence that underpins his Brady claim.

Warden Bell’s reasoning is flawed for the same reasons advanced by the respondent in

Strickler. Warden Bell assumes that Harbison had a factual basis to make a public records request

for Detective Foster’s files during that five-year period. He clearly did not. First, Harbison’s trial

and post-trial counsel were entitled to rely on the presumption that the prosecutor had produced all

Brady material in response to Harbison’s pre-trial discovery requests. Second, as discussed above,

Harbison’s postconviction counsel made a request for Brady material, and Detective Foster’s file

in particular, in 1991, but was told by the officer purportedly in charge of the file (and testifying

under oath) that it could not be located. Thus, Harbison had no basis to make a further public

records request after 1991. Cf. Strickler, 527 U.S. at 286 (holding that mere speculation that the files

could now be located did not “suffice to impose a duty on counsel to advance a claim for which they

ha[d] no evidentiary support”). 
No. 02-5392 Harbison v. Bell Page 19

1

By order of August 6, 2004, this panel (with Clay, J., dissenting) unjustifiably denied Harbison leave to

supplement the record in order to provide additional information regarding the exhaustion of his Brady claim in state

court. Harbison v. Bell, No. 02-5392 (6th Cir. Aug. 6, 2004). It is clear from the attachments to that motion that

Harbison did eventually present his Brady claim to the Tennessee courts. On June 26, 2001, Harbison filed a motion

to re-open his petition for post-conviction relief and a writ for error coram nobis with the Criminal Court of Hamilton

County and requested a stay of the appeal pending the state court’s decision. The motion/petition raised seven issues,

including the Brady issue. The Criminal Court held an evidentiary hearing on Harbison’s claims on October 13, 2003.

See Attachment “C” to Harbison’s May 11, 2004 Mot. to Supplement the Record. On March 30, 2004, the state court

dismissed Harbison’s motion to re-open pursuant to Harris v. State, 102 S.W.3d 587 (Tenn. 2003) (holding that a petition

for a writ of error coram nobis, and not a motion to reopen, is the proper proceeding through which to seek review of

newly discovered evidence), and dismissed his petition for a writ of error coram nobis as time-barred. See Attachment

“A”. 

In any event, although not technically part of the record on review,1 it is undisputed that in

1995 Harbison’s counsel directed a second public records request for Brady materials to both the

Chattanooga Police Department Police Chief and the Chief’s second in command. See Attachment

“C” to Harbison’s May 11, 2004 Mot. to Supplement the Record at 104-05. No records were

produced in response. Id. at 106. Moreover, Harbison’s counsel followed up the record requests

with a telephone call to Stanley Lanzo of the District Attorney’s Office, who informed counsel that

there were no records other than what had already been produced. Id. The reality-based facts

therefore show that there was at most a two-year delay between Harbison’s last request for the Brady

material and the request he made after filing his habeas action in federal court. And, given that the

State had told Harbison (a) implicitly in 1983 that he had all Brady material, (b) explicitly in 1991

that potential Brady material could not be located, and (c) explicitly in 1995 there was no other

Brady material, there clearly is cause for Harbison’s failure to discover the factual basis of his Brady

claim until 1997. 

In holding that Harbison failed to demonstrate cause for his procedural default, the majority

ignores the similarity between this case and the facts in Strickler and instead relies upon the

Supreme Court’s decision in Banks v. Dretke, 540 U.S. 668 (2004). Although the majority correctly

notes that Banks involved instances of egregious prosecutorial concealment of Brady evidence and

intentional misrepresentation, the merits of Harbison’s Brady claim do not hinge on whether his

prosecutors intentionally or deliberately withheld Brady evidence. See Strickler, 527 U.S. at 282

(holding that one component of a Brady violation is that the evidence was “suppressed by the State,

either willfully or inadvertently”) (emphasis added); id. at 288 (“[U]nder Brady an inadvertent

nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment.”).

“‘If the suppression of the evidence results in constitutional error, it is because of the character of

the evidence, not the character of the prosecutor.” Id. (quoting Agurs, 427 U.S. at 110).

Consistently, the “cause” inquiry in Brady cases “turns on events or circumstances ‘external to the

defense.’” Banks, 540 U.S. at 696 (quoting Amadeo v. Zant, 486 U.S. 214, 222 (1988) (quoting

Murray v. Carrier, 477 U.S. 478, 488 (1986))). A State’s inadvertent suppression of Brady material

is no less external to the defense than a willful one. Indeed, in Strickler, the fact that the

prosecutor’s failure to disclose Brady material was inadvertent, see Strickler, 527 U.S. at 275 n.12,

did not preclude the Court from finding cause for the procedural default, see id. at 289. Here,

Harbison’s counsel reasonably relied on the State’s implicit and explicit representations that there

was either no other Brady evidence to discover or that requesting further discovery of such material

would be futile. Accordingly, there was cause for his procedural default, notwithstanding the

purported lack of evidence of deliberate prosecutorial concealment.

The majority makes the same fundamental error in attempting to distinguish Freshwater v.

State, No. W2003-01343-CCA-R3-CO, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App.

Sep. 1, 2004). There, the petitioner, Margo Freshwater, had been tried and convicted of first degree

murder in 1969. Id. at *1. At trial, Freshwater’s attorney requested the written statement of any

informer, but the prosecution produced only portions of these statements. Id. at *7. Less than a
No. 02-5392 Harbison v. Bell Page 20

year after her conviction was affirmed on direct appeal, Freshwater escaped from prison and

remained at large until 2002. Id. at *6. In September 2002, Freshwater’s counsel discovered the

informer’s complete statement during a review of the District Attorney’s case file. Id. at *8, *19.

In 2003, Freshwater filed a petition for a writ of error coram nobis, alleging that new evidence

existed that proved her innocence, as well as complaining of a Brady violation. Id. at *1. The State

moved to dismiss based on the one-year statute of limitations. Id. at *9. The State argued that the

petitioner was at fault for failing to bring the Brady claim sooner because she had been a fugitive

for 33 years. Id. at *25.

The court disagreed with the State’s argument and held that the delay in obtaining the

evidence was not attributable to the fault of the petitioner or her attorneys. Id. at *26. The court

explained:

Despite the fact that the petitioner escaped from prison and remained at large for

over thirty years, the petitioner’s trial counsel specifically requested the written

statement of “any informer once held in the DeSoto County [Mississippi] Jail” as

part of a discovery request. That information was not provided to the petitioner at

trial. The fact that the petitioner escaped from jail and remained a fugitive for many

years does not change the fact that the evidence was withheld by the State. Even if

the petitioner had not escaped we have no reason to believe this evidence would have

been disclosed voluntarily. Indeed, if the State’s position in this appeal were to

prevail, criminal defendants, in order to protect their rights to file a coram nobis

petition, would be required in every case to examine every prosecution file following

their convictions in order to determine whether exculpatory evidence was withheld.

We cannot believe this is something the State really wants.

Id. The court therefore held that due process precluded the dismissal of Freshwater’s Brady claim

based upon a statutory time bar. Id. at *27.

As was the case in Freshwater, Harbison’s trial attorneys requested the exculpatory

information contained in the police records, but the State did not produce them for another 14 years.

The State’s nondisclosure was just as deliberate as the nondisclosure in Freshwater. In fact, the

non-disclosure was more deliberate in Harbison’s case; for when post-conviction counsel requested

the police records in 1991, he was told that the records could not be located, and after his request

in 1995, was informed that nothing was available beyond what already had been produced. If

Freshwater, who waited 32 years before making a postconviction request for Brady information

because she was a fugitive, had cause for her procedural default, then it follows, a fortiori, that

Harbison, who made at least two additional requests for Brady material and was told that no such

information could be located or existed, did not have to make what reasonably would have appeared

to be a third futile request in order to establish cause. 

B. Prejudice from Non-Disclosure of Police Records

For the reasons discussed in Part I, supra, I would hold that the evidence contained in

Detective Foster’s file denied Harbison a fair trial and demonstrates that his guilty verdict is

unworthy of confidence. Accordingly, I would hold that Harbison satisfied the prejudice prong of

the procedural default analysis and that the district court should have granted Harbison a writ of

habeas corpus on his Brady claim.

III.

Conclusion

For all the foregoing reasons, I dissent.