### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 8, 200 8 S es sio n
AN DR E BLA ND v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. P-20147 W. Fr ed Axley, Judge

No. W2007-00020-C CA-R 3-PD - Filed April 3, 2009

Capital Petiti oner, A ndre B land, appe als as of r ight the judg ment o f t h e S h el by County Criminal Court denying his pe tition for post-conviction relief

. On Fe bruar

y 12, 1994, the Petitioner was convicted of

first deg ree murder, attempted agg ravated robbery , espec ially ag g ravated robbe ry , and attempted first de g ree murder. The Petitioner was se ntence d to death for the first deg ree murder. The trial court imposed an ef fec tive fifty -y ear

sentenc e for

the convictions of attempted ag g ravated robber y , espec i al l y agg ravated robbe ry , and attempted f irst deg ree murder. T he Petitioner’s conviction for f

irst deg ree murder and the acc ompanying sentenc e of death wer e aff irmed on direc t appea l. State v. Bland , 958 S.W .2d 651 (Tenn. 1997) , cert. de nied , 523 U.S. 1083, 118 S. Ct. 1536 (1998). On J uly 16, 1998, the P etitioner filed a petiti on for post-c onviction relief. T he trial c ourt
a pp oin te d pri vate c ouns e l; how e ve r, the Of fi c e of the Pos t- Con vic tio n D e fe nd e r u nd e rt oo k e ff

or ts to g ain appointment as counsel of rec ord. This c ourt, in an orde r filed Septembe r 14, 1998, direc ted that the trial court appoint the Off ice of the Post-Conviction Defende r as c ounsel of re cord f or the Pe tit ion e r. Th e tr ia l c ourt e nte re d a pr e lim ina

ry or de r, c on c lud ing that the pe tit ion state d a c olo ra ble claim and dire cted that a

n amende d petition be filed. B efor e an a mended petition was filed, the trial court re moved the Of

fice of the Post-Conviction Defe nder a s counsel of r ecor d due to counse l’s failure to appea

r on sche duled cour

t dates. The tr ial court a

ppointed new p ri vate c ounsel, and a n amende d petition was filed o n Fe bruar y 17, 2006. A hea

ring was c onducted on F ebrua ry 20-24, 20 06 , a nd Ap ri l 17 -1 8, 20 06 . B y

or de r e nte re d N ov e mbe r 2 8, 20 06 , th e tr ia l c ourt de nie d th e po stconviction petition. On appea l to this court, the Petitioner pr esents a numbe r of c laims that can be char acte rized as challeng es t o the effec tive repr esentation of t rial counsel. Following a thoroug h and
e xha us ti ve revi ew of

the re c or d a

nd the a pp lic a ble law, we a ff

ir m th e jud g me nt o f t

he po stc on vic tio n c ourt

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which N OR MA M C G EE O GLE and J. C. M C L IN , JJ., joined.

Michae l E. Scholl and Marty McAf ee, f or the a ppellant, Andre Bland.-2-

Robert E. Cooper, Jr., Attorney Gene ral & Re porter; Michae l Moor e, Solicitor Ge nera l; J o h n H. Bledsoe, Assistant Attorney Ge nera l; Wi l l iam L. Gibbons, District Attorney Gene ral; and John Campbell, Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F ac tu al B ac kgr ound

T h e p ro o f, as s et fo rt h i no u r s u p re m e c o u rt ’s d ec i s i o n , es t ab l i s h edt h e f o l l o wi n g:

The e vidence prese nted at the guilt phase of the tria l established that on the eve ning
o f O c t o b e r 9 , 1 9 9 2 , t h e [ P e t i t i o n e r ] , t h e nn i n e t e e nye ar s o l d , a l o n g w i t h D ar r yl B a ile y , M art e ll Po lla

rd , Ca rl os Sand e rs , a

nd tw o me n kno wn

on ly a s Ste ve and

Yo g i, attended a

cra p g ame at the apa rt ment of Charle s Sanders in the Southbrook Ap ar t m ent Complex in Memphis. W hen the c rap g ame e nded ar ound 10:00 p.m., these y oung men wande red outside a nd, at some point betwee n 10:30 and 11:30 p.m., decide d to rob two strang ers, Ea rnest Nor man and Ma

rce l Nug ent, whom they

had
se e n a rr ivi nga t th e c omp le x earl ie r. Nu g e nt h a d c ome a lon g to t he c omp le x with Norman to visit a friend. N orman a nd Nug ent both testified that when the y arr ived, four to six men wer e standing ar ound in the parkinglot, and as they wer e nea ring No rm an’ s c ar t o le a ve a

bo ut thi rt y min ute s late r, the g ro up of

me n a pp ro a c he d th e m, a s k e d w h o t h e y w e r e , w h e r e t h e y w e r e f r o m , an d w h e t h e r t h e y h a d an y m o n e y. Whe n N or

man a nd Nu g e nt i g no re d th e g ro up of me n, on e of the [Pet iti on e r’ s] pa rt y struck Nor

man in the back of

the hea d as he w as about to g et into his car. Nor man fled. As he ran, N orman re al i z ed he wa s being pursued by one of the men, and he hear d someone urg ing a

nother pe rson to shoot, and then hear d a g un fire. N orman esca ped unhurt to a ne arby

service station and ca lled 911.

I n the meantime, Nugent , wh o had locke d himself inside Norman’ s car , found himself trappe d and surr ounded by the g roup of men a s they

tried to forc e him out of t h e c ar

. Ab o u t t h i s t i m e , t h e v i c t i m o f t h e m u r d e r , t w e n t y- ye ar
- o l d O n t r a i n( T e r

r y) Sanders, dro v e i n t o t h e parking lot, got out of his ca r, and a pproac hed the men surrounding Nug ent. Acc ording to Nug ent, t he men said something to Sander s, who turned a nd heade d back to his car without r eplying. The [Petiti oner] then fire d a g un, hittin g Sand e rs in h is rig ht l e g . B le e din g pr of us e ly , Sa nd e rs fl e d s ome 27 3 f

e e t, almost 100 y ards, throug h the ap a r tm e nt complex. The [ Petitioner] and Dar ryl Ba iley jogg ed af ter Sande rs who wa s limpi ng from the leg injury

. When, during the cha se, the [P etitioner] shot S ander s in the leg agai n , Sanders attempted to hide under a pic ku p tr uc k. Ho we ve r, Sa

nd e rs wa s d isc ov e re d a

nd the [Pet iti on e r] sh ot him a t le a st two or three more times while he la y u n d er n ea th the truck. The [P etitioner] and Dar ryl Ba iley then left Sande rs, under the truck, ple ading for he lp, and r an back around the apar

tment complex t o the ca

r whe re Nug ent was tra

pped.-3-

Upon hea ring g unfire, H enry Adams, who lived in an upst airs apartment, looked out his back door a

nd saw a man with a lar g e shiny

g un knee l i n g d o wn as i f shooting under the truck. Ada

ms heard thr ee shots fire d, then saw the man with the g un turn and run. H ear ing a

man s cr eaming , “Oh God, ple ase he lp me,” Adams called 911 just after mid n i gh t

. When Adams retur ned to his back door

to look out int o the parkinglot, he saw someone trying to c raw l out from underne ath the pickup truc k, and hea rd the pe rson y elling a

nd pleadingfor he lp for a shor t while longe r. Floy d P. Johnson owne d the g ree n pickup truck under which Sanders h ad t aken ref uge, an d J ohnson’s upstairs apa rtment also over looked the ar ea in whic h the shooting oc curr ed. J ohnson testified that afte r hea ring three g unshots, he looked out his window and saw a

man ly ing pa

rtially under his truc k with his upper body exposed a nd cover ed in blood. J ohnson testified that the man wa s calling out, “Oh G o d , h e l p m e ! ” B e c a

u s e h e f e ar e d f o r h i s o w ns a f

e t y, J o h n s o ns t aye d

o nh i s b a l c o n y, bu t a tte mpt e d to c a lm S and ers down by ta lki ngto h im a

nd e nc oura g inghim

to
rema in stil l. J ohnson said he talked with Sande rs for ten or fiftee n minutes until the ambulance arr ived.

Whil e Sander s foug ht for his life under the t ruck, the [P etitioner] and Darry l Ba iley returne d to Norman’ s car . Ba iley helped the g roup of men br eak thr oug h the passeng er w indow and pull Nug ent from the a utomobile. Nuge nt scuffle d with the men bef ore br eakin g fr ee

. As Nug ent fled, his jac ket was pulled of f his back. Acc ording to Martell Pollard when someone shouted, “he has a gun,” the [Petiti oner] sh ot N ug e nt i n th e le g . T he me n th e n to ok hi s wat ch and his mon e y , k ic ke d h im, beat him, and f

inally , the [P etitioner] ag ain shot Nug ent i n t h e leg . The g roup of men then disbande d, leavingNug ent ly ing in the parking lot. Nug ent made it upstairs to the apar

tment of Norman’ s friend, w here he wa ited until an ambulance arr ived.

The fir st ambulance on the sce ne tra nsported Sander s to the hos p i t al

. On e of the par am ed ics testified that the unit arr ived nine minutes afte r re ceivingthe ca ll, but Sanders’ con d i t i o n was ve ry g rave at the time of their a rrival. Sande rs died in the
a mbu lanc e on

the wa y to t he ho sp ita l. Two day s later, at the urging of hi s mother and g randmother and af ter lea rning that the po lic e we re looki ngfo r h im, the [Pet iti on e r] t ur ne d h ims e lf

int o th e Me mph is P o l i c e D e p art m e n to nt h e a f t e r n o o n o f O c t o b e r

1 2 , 1 9 9 2 , a

p p r o x i m a t e l y t w o d ays afte r the killing. A t that time, the [ Petitioner] gave a stateme nt in which he conf essed to shooting Nug ent and Sande rs with a chrome 9-millimeter pistol. The following is the defe ndant’s ac count of the c rime:
Me, L ittle Da

rryl, Ca rlos’ daddy , Carlos, and a g uy named Pat we re shooting dice . We were inside Carlos Sanders’ house inside the Southbrook Apartments. L ittle St eve knoc ked on t h e door a nd he-4- came out and g ot the 9-millim eter pistol that I had. B y that time Ig ot
u p an d ca m e o u t d o o rs an d

go tt h e gu nfr o m L i t t l e S t ev e. An d Yo gi approa ched me saying he was fixing to rob dude that was up in the house. Carlos, Mar

tell, Yog i, D arr

y l, Steve and me we re standingout there , and Yog i was telling us he wa s g oing to r ob the dude. I g ave him the gun, the 9-millim eter

. By that time the dudes had c ome out the apa rtment. Yog i approa ched him say ing s o m ething to him, and then they g ot into phy sical conta ct. Then he hit the dude and the dude br ok e loo se and

ra n. Th e oth e r d

ud e g ot in the c ar a

nd loc ke d h ims e lf in. Steve and Da

rryl gr abbed obje cts from the g round and star ted hitting the ca

r window. Da

rry l pulled t h e dude up out of the c ar. S t e v e , Y o g i , D ar

r y l , C ar l o s , M art e l l , t h e y

w a s h i t t i n g t h e d

u d e wi th objects they

picked up. I g ot the g un back f rom Yog i, and the dude in the Cadillac [the victim] drove up an d jumped out and started towards us. And the n Ishot him in his leg . Then he went ar ound the building and I went around the bui lding and shot him in his leg ag ain. And then he ha d tried cr aw l up under a truck a nd Ishot him aga in. Then he continued up under the truck. I went back a round the c orner , and they was c ontinuing to beat the dude that g ot out of the ca r. Then Iwalked up a

nd shot in both hi s leg s. Iwasn’t shooting to kill, that’s why I shot them in their l eg

. I turned a round, threw

the g un and ra

n to t he Ki ng s G a te Ap art men ts ov e r t o my g ir lf ri e nd ho us e , T e re sa Wigg s . . . and then we went to sleep. When asked by

the police why he shot Sanders the first time, the [P etitioner] replied, “B eca use whe n they

was be ating on the dude, he jumped out and appr oache d us and said, ‘What’s up? ’ And I turned around and I shot him in his leg.” The [Petiti oner] said that he shot Nug ent “so he couldn’ t ge t away .” The [P etitioner] denied g etting any money or valua bles from e ither Sander s or Nuge n t o r being involved in the robber y

. He knew the other me n “we nt in the dude pocke ts” but did not know if they g ot any thing. Nug ent, howeve r, testified that he wa s ro b b ed

. I n addition, police found an une mploy

ment chec k, a bloody dollar bill and a ssorted cha ng e, key s, and
a bla c k c a p ne ar the pic ku

p tr uc k wh e re Sand e rs wa s kil le d. Sand e rs ’ wa lle t wa s a lso missing and ne ver f

ound.

Dr

. Sand ra El kin s, a

fo re ns ic patho log ist

wh o h a d p e rf

or me d th e a uto ps y on Sand e rs , testified that the ca

use of his death was multiple gunshot wounds, one of whi ch lace rate d his femora l arter y and ca used him to bleed to de ath. Dr. Elkins found nine separ ate gunshot wounds to the vi ctim’s rig ht leg , extending fr om the g roin are a of the up pe r t

hig h to jus t a

bo ve the kn ee, whichinc lud e d b oth e ntr anc e and

e xit wounds. Fr om the combination of entra nce a nd exit wounds, Dr. Elkins deduc ed that the victim had ac tually

been shot f

o ur or f ive times. A person w ith the victim’s injuries, Dr. Elkins testified, could live fr om two to fiftee n minutes and be c onscious-5-

four to five minutes after

suffe ring such a w ound.

B a se d u po n th e pr oo f sum mari zed a bo ve , the jur

y fo un d the [Pet iti on e r] guil ty of fi rs t deg ree p reme ditated murder , espec ially ag g ravated robbe ry , attempted first de g ree m u r d e r , an d

a t t e mp t e d

a g g r a v a t e d

r o b b e r y.
The trial proce eded to the sentenc ing phase on the conviction for f irst deg ree murder. The State pre sented two witnesses. Dr. Elkins a g ain testified that someone with the vic tim ’s inj ur

y c ou ld l ive fr om tw o to fi ft e e n mi nu te s and be c on sc iou s u

p to fo ur to five minutes. Since the victim’s fe mor al n er ve had only been br uised and not
se ve re d, and

be c a us e the mus c le s and ne rv e s o f h is r ig ht t hig h h a d b e e n c omp le te ly destroy ed, Dr. Elkins testified that the victim would have experienc ed pain f rom the
wo un ds in h is l e g duri ngthe tim e he re ma ine d c on sc iou s.
The sec ond State witness was the vic tim’s mother, Vivian L ewis, a deaf mute who testi fi ed t h ro u gh an interpr eter . She testified that her son was swe et and g ood and had never been in any

trouble. She said that the victim’s two small daug hters, twoy ea rs-old and four-y ear s-old at the time of trial, we re “ very , very worrie d” and
wa nte d to se e the ir

fath er. L e wi s a lso te sti fi e d th a t he r s on ’s mur de r h a d le ft his family “ver y , very hurt.”

Th e de fe ns e pr e se nte d thr e e wi tne sse s: the [Pet iti on e r’ s] mot he r, Ma ri ly n B oyd; h is materna l g randmother , Virg inia Bla nd; and the [Petit ioner] himself. The [Petit ioner] ha d n e ve r k

no wn his fa the r a nd wa s r a ise d b y

his mot he r a nd g ra ndmot he r, wh o b oth testified that he had tur

ned himself into the police at their urg ing. T he [Petit ioner] had droppe d out of hig h school in the eleve n t h grade, when he was suspende d for being “disrespe ctful to a teacher .” He had a juvenile rec ord beginning at the ag e of eleve n, consisting of multipl e assaults and batteries, car t hefts, and at least one dr ug conviction. The [Petitioner] t estified that he shot the vic tim because the victim ran back to his car as if he was “fixing to g et his gun or something;” that he did not know wh y he and Da rr y l ha d fo llo we d the vic tim ; that he ha d b e e n d ri nk ingand

the c ri me was a spur of the m o m en t d ecision; and that the vic tim was shot severa l times beca use the a utomatic g un “kept on repe ating shots.” He e x presse d remorse and repe ated that he was not try ing to kill the vi ctim: “[t] hat’s why I shot him in the leg.” The [Petiti oner] also admitted that he c arr ied a gu n b eca use he sold drug s and that he ha d b e e n s e lli ngdr

ug s o n th e nig ht o f t

he k il li ng . D ur ingc los ingargume nt, counsel for

the [P etitioner] stressed his y outh, lack of e ducation, and sing le par ent
u p b ri n gi n g.

Ba sed on the proof, the jury deter mined that the State had pr oven the e x istence of one a g g ra vatin g c ir c ums tanc e be y on d a re a so na ble do ub t: “ [t]he mur de r w a s e sp e c ia lly heinous, atroc ious or crue l in that it involved torture or serious phy sical abuse bey ond that n e c e s s ar

y to p r o d u c e d e a th

. ” [T

. C. A

. ] § 3 9

- 1 3

- 2 0 4 ( i) ( 5 ) ( 1 9 9 1 Re p l. & 1996-6-

Supp.). I n addition, the j ury found t hat t he agg ravating circumstance outweig hed the mitigating circ umstances be y ond a re asonable doubt, and as a result, s entenc ed the [Pet iti on e r] t o d e a th b y

e le c tr oc uti on

. Th e tr ia l c ourt e nte re d a

jud g me nt i n acc ordanc e with the jury ’s ver dict and the Court of Criminal Appe als aff irmed. After revie wing the re cord a

nd consideringthe er

rors a ssigne d by

the [P et i t i o n er], we
a ff ir m th e jud g me nt o f t

he tr ia l c ourt

and Court of Cr imi na l App e a ls.

Bland , 958 S.W .2d at 656-59.

P r oo f atP os t- Co nvi c ti on H e ar ing

At the po st- c on vic tio n e vid e nti ary hea ri ng , th e fo llo wi ngpr oo f w a s p re se nte d a nd is
su mma ri zed a s f oll ow s. Serg eant Debr a L y

nn Oliver-H ammons testified that she is the supervisor of the keeper of the re cords for the jail. Serg eant Oliver-H ammons related that she wa s asked to compile the r ecor ds of the Petitioner fr om October 12, 1992, throug h Marc h 3 1 , 1 9 94. During this period, there wer e no rec ords that either

of the Petitioner’s tria l attorney s had visited him in the jail. The jail rec ords did, however , ref

lect seve ral visits. Specifically , the Petitioner had visitors on October 24, 1992, at 9:55 a .m. a

nd on November 3, 1992, at 7:39 p.m. She added that they do not spe cifi ca l l y log attorney visits, but , rathe r, they

just log visits. S he clarified that it is only afte r t he eve nt that they would g o back a

nd put their own documentation within t he history . Serg eant Oliver -Hammons further testified that, during this ti me per iod, the Petitioner had five disc iplinary rec ords. She adde d that, to her knowle dg e, none of these infr actions we re f

or major f ights or violent e ncounter s.
Robert D. Da

venport testified that he is an inmate in the Te nnessee Depa rt m en t of Correc tion, where he is servinga for ty -s i x y ear sentenc e for

espec ially

ag g ravated robbe ry . Mr. Dave nport explained that the Petitioner was his co- defe ndant and that he testi fied at the Petitioner’s trial.

Reca lling the e vents leading to the crime, Mr. Davenport related that he and the Petitioner
we nt t o th e a

pa rtme nt o f C ha

rl e s “ Wink

y ” Sand e rs . M any

oth e r pe op le we re a t Win ky ’s a pa rtme nt, including a

man named Steve , a man named L arr y , a man named Martia, a man named Carlos, and
a man n a me d D arr

y l. C arl os wa s Win ky ’s so n. Th e me n we re sh oo tin g c ra ps , and the re wa s so me discussion about a robbe ry

. Mr. Dave nport stated that the Petitioner was not involved in the robbe ry dis c us sio n. At

so me po int , “ [t]wo y oung du de s pull up in a ca r, Carl os , St e ve and

the re st o f t

he m, they jumped on dude and the man ran. At that point in time another ma n pulled up in a Cadillac.” Mr. Dave nport identified the pe rson in t his Cadillac as the pe rson who wa s shot and killed. Mr. Da ve np or t sta te d tha t the Pe tit ion e r wa s n ot a mon g the me n w ho jum

pe d o n th e tw o guy s in

the fi rs t
c ar. Ho we ve r, he state d th a t th e Pe tit ion e r did c on fr on t the man in the Ca dil la c , an d th e y ha d w or ds

. He state d that “a shot [was] fired . . . eve ry body started r unning.”

Mr. Dave nport testified that he ne ver talked with the Petitioner’s attorney s. He averr ed that-7-

he told his attorney

the same sc enar io of eve nts prior to his own trial.

Da rr y l B a ile y , a

no the r o f t

he Pe tit ion e r’ s c o- de fe nd ants , s ta te d th a t he was c ur re ntl y incar cer ated on a d ru g possession conviction. Reg ardingthe cr imes for whic h the Petitioner was
c on vic te d, Mr . B a ile y

state d th a t he wa s in iti a lly fo un d guil ty

and se nte nc e d to lif

e imp ri so nme nt. Howeve r, th e c a s e w a s r e ma n d e d f o r a n e w tr ia l b y th e Co u rt o f Cr im in a l A p p e a ls , an d , upon rema nd, Mr. B ailey

was found not guilty

.
Mr. B ailey

related that the al l eged c rimes took place at the Southbrook Apar tments on Winc he ste r. On

the date of

the mur de r, a

bu nch of men had

c on g re g a te d at Ca

rl os Sand e rs ’ apar tment and were “shooting dice.” There was some discussion of a robbe ry . Mr. B ailey stated that the Petitioner was not involved in this discussion. He explained that, after the robbe ry

was planne d, two “dudes c o me o v e r g o in g to s e e s o me la dy ” an d “ th e r o b b e r y w e n t o n

. . . . ” H e s tate d th at, as the y we re fi g hti ng wi th the se tw o men , a Cad ill a c pu lle d up an d the Pe tit ion e r b e c a me inv olv e d in a conf rontation with the driver

of the Cadillac. Steve went to him and told him well, y ou need to ge t back in y our ca r. So when he
– w he n h e g ot o ut of the c ar he c los e d th e do or , s o b y that ti me Ste ve wa s li ke we ll, y ou need to g et bac k in y our ca r and le ave, you know.

An d s o w he n h e g o o pe n th e do or we did n’ t kn ow if he wa s g oin g to pull a pistol or wa s he fixing to leave or what, y ou know what I ’m saying, a nd, y ou know–

. . . Wel l, at th a t time a ft e r [the Pe tit ion e r] ha d co me ou t the ho us e he sh ot h im in t he le g , s o a

nd the y loo ke d – the y we nt o n a

ro un d th e c or

ne r, the y lim pe d w ith dude that g ot shot in t he leghe limped on ar ound the cor ner, he went – y ou know, went ar ound the cor

ner w ith him. That’s all Ihad see n.
Acc ording to Mr. B ailey , the Petitioner followed the ma n around the corne r. Mr. B ailey then hea rd more gunshots. Mr. Ba iley denied that the Petitioner had any involvement in the initial dis cussion reg ardingt h e ro b b ery

and denie d that the Petitioner was pr esent whe n the first two men we re attacke d

. M r

. B a il e y

a d mi tt e d th a t h e h a d

in it ia ll y a tt e mp te d

to “ c o v e r

u p f o r [th e Pe ti ti o ner],” explaining that the Petitioner is his best friend. He added that the Petitioner’s attorney never talked with him. He also said that, had someone attempted to speak with him, he probably would not have talked with them.

Jana nn Mc I nn is, an inve sti g a tor and do c ume nt s pe c ia lis t w iththe Office of the Po stConvict i o n De fe n d er , testified that she ha s been involved in this line of work sinc e 1989. She explained that rec ords ar e important to deve loping a mitigation t heory in capital cases and that one should locate a

ny rec ords on a de fenda

nt and his famil y . The g oal is to go ba ck at lea st three g e ne ratio ns to s ho w a

patte rn of fa mil y his tor y . T he re c or ds so ug ht a

re us ua lly me dic a l r e c or ds ,-8-

psy cholog ical re cords, a

nd school rec ords. She added that there would also be a need to g et any police re cords, military

rec ords, forme r prison re cords, and any rec ord t hat has ever been g ener ated
a bo ut a de fe nd ant or

his fa mil y . M s. Mc I nn is r e ite rate d th a t f a mil y re c or ds are imp or

tant b e c a us e the y c ou ld sh ow a his tor

y of me nta l ill ne ss, inc arc e ratio n, or le arn ing dis a bil iti es. Ms . M c I nn is stated that, in order

to obtain these re cords, one would first reque st them by letter. The infor

mation
a s t o w h e r e t o l o o k f

o r r e c o r d s w o u l d b e d e r i v e d f r o m c o n v e r s a t i o n s w i t h a d e f e n d an tan d

h i s f a m i l y. School rec ords will reve al what ty pe of student a defe ndant was. Absentee ism is another indicator of problems. School re cords a re also cruc ial in de termining mental defic iencies. Ms. Mc I nnis stated that, i n T e nn e sse e , she ha s n e ve r h a d a pr ob le m ob ta ini ngre qu e ste d r e c or ds by le tte r a nd re le a se s.

Ms. Mc I nn is r e c og nize d th a t th e Of fi c e of the Pos t- Con vic tio n D e fe nd e r w a s in iti a lly
a pp oin te d to re pr e se nt t

he Pe tit ion e r i n h is p os t- c on vic tio n e ff or ts. I n th is r e g ard , M s. Mc I nn is started r esea

rchingand re questing rec ords in May 1998. At this point, she rec alled that some of the pu bli c re c or ds ha d a lr e a dy

be e n r e qu e ste d b y th e Di str ic t A tto rn e y ’s Of fi c e and the po lic e . M s. McInnis met with the Petit ioner’s f amily , including his mother a nd his gr andmother, a

nd g arne red a pre liminary

social history

from the Petitioner.

Ms. Mc I nn is a lso g a the re d th e Pe tit ion e r’ s so c ia l f ile fr om j uv e nil e c ourt

. Th e fi le ba sic a lly
c on ta ine d th e le g a l char ges fi led ag a ins t th e Pe tit ion e r a nd his sib lin g s. She state d th a t sh e a lso reque sted the re cords of

Mitchell Boyd, Sr., the Petitioner’s stepfather.

Ms. Mc I nn is t e sti fi e d th a t sh e c omp ile d a fi le wi th ph oto g ra

ph s of the Pe tit ion e r a s a

c hil d
and a te e nag er. S he st a te d th a t th e purp os e of su c h a fi le wa s to sh owtha

t th e Pe tit ion e r w a s a normal child who we nt to school. The file was also to show whethe r the Petitioner had a problem with birth defec ts or feta l alcohol sy ndrom e. F inally , Ms. McI nnis stated that such a f ile was important beca

use the photog raphs tend to humanize a de fenda nt.

Ms. Mc I nnis a lso ha d possession of the school file and rec ords of the Petitioner’s halfbrother. T he re cords of

a sibling a

re important be cause they can e stablish a pattern, suc h as a ne ed for spe cial educ ation. S h e h ad a fi le on the Petitioner’s mother, c ontaining he r birth ce rtificate , a l et t er fr o m t h e M et ro p o l i t an P o l i ce De p ar t m e n t re gar d i n g h er h u s b an d , M i t ch el l , an d

a m arri age license. Ms. McI

nnis explained that the P etitioner’s stepfather, Mitchell Boyd, Sr., was murde red in Wa sh ing ton , D .C. Th e mur de r o c c ur re d a ft e r h e had be e n r e le a se d f ro m f e de ra l pr iso n. Ms. McInnis also had the ac ademic r ecor d of the Petitioner’s mate rnal unc les, R o d ney Bla nd; Ricky Bla nd; L arr y Bla nd; Terr y Bla nd; and Travis Bl an d . Ms. McI nnis had obtained school r ecor ds of the Petitioner and his brother s, Mitchell and Perinta. She a lso ha d t h e s chool records of the Petitioner’s materna l aunt, Sandra B land.

Medica l rec ords on the Petitioner fr om Methodist Hospital date d October 3, 1991, indicated that the Petitioner rec eived injuries requiring medical attention. The Petitioner was e ighte en y ear s old at the time of the injuries. The Petitioner was nineteen y ear s old at the time of the cr imes. The injuries sustained in October 1991 wer e gunshot wounds to the pos terior thigh. Another rec ord fr om Dec ember

26, 1989, ref

lected that the Petitioner was hospitalized for multiple facia l frac tures.-9-

Ms. McI nnis obtained information on Charles Edwar d Robertson, the Petitioner’s biolog ical fathe r. After o btaining a ll of this information, she was able to develop a mitig ation theme for the Pe tit ion e r. Spe c if

ic a lly , s he state d:
[Th e Pe tit ion e r] w a s a

c hil d th a t li ve d w ith hi s mo the r s ome tim e s, wi th h is g r an d mo th e r

s o me ti me s

. [H e ] l iv e d

in a f a mi ly th a t h is s te p f

a th e r h a d a c r im ina l his tor y . H is f a the r, e arl y on , wa s ve ry a c tiv e in h is l if e un til he re a c he d .

. . mid

e arl y ag e he w ould see his natura l father

.
Ms. McI nnis describe d “mid ear ly ag e” a s ten or ele ven. She explained that Mitchell Boyd, Sr., the Petitioner’s stepfather, wa s the fore most male role model in the Petitioner’s life. Mitche ll Boy d, Sr.,
was a drug deale r, a member of a Memphis dr ug car tel. Mitchell Boyd, Sr., was a loc al distributor
o f d ru gs fo r t h e c ar t el , as wa s h i s m o t h er , P eggy Bo y d

. T h ey

d i s t r i b u t edco ca i n e o na “ v ery l ar ge scale .”

Ms. Mc I nnis te stified that she was unable to ha ve the Petitioner’s mental heal t h or intelligenc e quotient tested. How ever , based on his g rade s from the school r ecor ds, she believe d that there possibly was a problem and that he may have ha d a minor mental de ficienc y . She added that there was some testing by the juvenile court, which indicated a very limit ed mental abi l i t y

. S he opined that the evide nce she discovere d indicated that f urther inve stigation was nee ded.
Reg ardingschool rec ords, Ms. McInnis ex plained that the Me mphis Ci ty School sy stem had a division of Disciplinary and S uspension Ex pulsion Prog ram. She explained that these re cords a re destroy ed whe n a student re ache s the ag e of twe nty -one y ear s. She further explained that, since the Pe tit ion e r w a s n ine te e n y e ars old a t the tim e of the c ri me s, the se re c or ds wo uld have be e n ava ila ble had they been reque sted. The rec ords would have inc luded expulsi onary repor ts, which may

have led to something e lse.

The Petitioner’s school rec ords further indicated that the Petitioner had attende d numerous
sc ho ols and that he ha d move d sev e ra l time s. Ms. Mc I nn is re la te d tha t th is w a s si g nif ic ant b e c a us e

“ [g ]oin g int o a

ne w s c ho ol i s d if

fi c ult [in] any c ir c ums tanc e , a nd Ibe lie ve that he pr ob a

bly ha d h is most difficult tim e whe n he we nt to Shelby County Schools beca

use h e l i v ed i n an ar ea that was predominate ly

white; and eve n some of the tea cher s were . . . they just weren’ t h appy

that may be there wer e blac k students living there .” She explained that the family was living in Ger mantown and that they “we re about the only Afric an-A merica n people living there .” The Petitioner’s family was supportive of him, and Ms. McInnis found them to be ver y cooper ative.

Richard Da

vid Roleson, a retir ed Memphis Poli ce O ffice r, testified that he serve d on the police for ce for thirty -three y ear s. He e x plained that off icer s were trained w here to shoot a person; sp e c if ic a lly , th e y

we re ta ug ht t o s ho ot t

wo bu lle ts to the c he st a

nd on e to t he he a d. I n o the r w or ds , the ce nter mass of a person was the proper place to shoot a person beca use a w ounded per son can still kill y ou. A person shot in the leg was more likely to be wounded tha

n to suffer

a fatal wound. Mr. Roleson explained, however , that by sho o t ing a

person in the leg , the fe moral ar tery could be-10-

damag ed and r esult in death. Virg inia Bla

nd, the Petitioner ’s grandmother, moved to Memphis, Tennesse e, fr om Senatobia, Mississ ippi, in 1953. Ms. B land lived in the L eMoy ne Gar dens ar ea of

Memphis. She d e s c r ib e d th e n e ig hb o r

h o o d a s g r e a t; “ [n ]o b o dy b o th e r e d u s o r d id n o th in g

. A n d [i nth e e ig h ti e s ], it started g etting violent.” She explained that people then be g an to sell drug s in the neig hborhood and that she started hear ing g unshots. Virg inia Bla nd stated that this wa s the neig hborhood in which the Petitioner lived when he was born. She explained that, at t he age of seve n, the Petitioner moved from the ne ighb o rhood to a house in Whitehaven. T he B oy d family then moved to Ger

mantown. The Petitioner continued to visit Virg inia Bla nd in L emoy

ne Ga rdens. Virg inia Bla

nd stated that the Petitioner was “doing g reat” while they lived in Germa ntown. The fa mily had plenty

of money , and the Petitioner wa s doing w ell in school and s t aying out of trouble. At some point, Mitchell Boyd, Sr., was ar rested a nd sent to federa l p ri son. When the Petitioner was appr ox imately fiftee n y ear s old, he moved in with Virg inia Bla nd. L eMoy

ne Ga rdens
wa s n o lo ng e r a

nic e ne ig hb or

ho od . T he Pe tit ion e r’ s mo ther had an a pa rtme nt i n th e B ri ars g a te Ap artme nts . V ir g ini a

B land de sc ri be d th e a

pa rtme nt c omp le x as a

locatio n f

or dr ugsa le s, prostitution, burglar ies, and shooting s. Virg inia Bla nd observe d that, when the family moved bac k into this are a, the Petitioner be g an g etting into more and more trouble. She desc ribed a n incident in which t h e P et i t i o n er “was actua lly assaulted, pistol whipped. . . .” H e wa s badly hurt and wa s taken to the hospital. On a nother oc casion, the Petitioner wa s sh o t i n b o t h of his leg s and wa s hospitaliz ed. The Petitioner told Ms. Bland that this “made him fe el bad.

. . .” She opined that the Petitioner was fr ighte ned by these incide nts. Another time, the Petitioner discovere d a dea d body in the apar

tments and repor

ted this incide nt to the police. The Petitioner was initially arr ested for this murder, but the cha

rg es we re dr opped.
Reg ardingthe pre sent ca se, Virg inia Bla n d s t at ed that she first learne d of the Petitioner’s involvement when police knocked on her door one night as they slept. The police w ere looking f or the Petitioner, who wa s not at home at t hat time. He turne d himself in three da y s later. B efor e turning himself in, the P etitioner returned to his g randmother ’s hom e, and she m ade him something to e a t. Th e Pe tit ion e r r e la te d th a t he wa s so rr y fo r w hat he ha d d on e to t he vic timand

that he “ did not mean to do that.” Ms. B land re lated that the Petitioner realized that he wa s g oing to be punished for what had done. Virg inia Bla

nd stated that she visited the Petitioner betwe en for ty and fifty times before he went to tr ial and that she met the Petitioner’s’s attorney , Wil liam Johnson. She stated that Wi lliam J ohnson never

visited he r at her house, but she did me et with him at his office on one occ asion. The only other times she saw Mr. J ohnson wer e in the courtroom. Virg inia Bla nd stated that only

s he
and the Pe tit ion e r’ s mot

he r, Mari ly

n, ta lke d w ithMr . Joh ns on a t hi s o ff ic e . Sh e re c a lle d M s. Pa tr ic ia Odell, w h o w a s a ls o th e Pe ti ti o n e r ’ s a tt o r n e y , te ll in g th e m t

h a t s h e h a d

n e v e r tr ie d a c a p it a l c ase. She rec alled that Mr. Johnson i n fo rm ed t h em that there was a n offe r for

a plea ag ree ment on the ta ble fo r l if e in p ri so n, plu s th ir

ty y e ars , b ut s he e xpla ine d th a t John so n di d no t expla in w hat th is meant. She wa s not asked to discuss this proposal with the Petitioner. Notwithstanding, Ms. B land-11-

did discuss the plea offe r with the Petitioner during the trial, and he ag ree d to take the of fer of life plus thirty

y ear s. Howeve r, the attorney s said that it was too late to ac cept the ple a off er. Virg inia Bla

nd testified that the Petitioner had dated Ter esa Wig g s for three y ear s befor e the crimes, but she did not know that Ms. Wig g s was preg nant with the Petitioner’s child at the time of his arre st. Ms. W igg s had the c hild before the Petitioner’s trial. Virg inia Bla nd would have be en able to locate Ms. Wigg s for the tria l. Virg inia Bla

nd stated that Mr. Johnson di d contac t her a nd ask her

to testify

at the Petitioner’s trial. However, Mr. J ohnson did not meet with her be fore she testified. She stated that neither Mr . J ohnson nor an investig ator made inquiry into the Petiti oner’ s life. Virg inia Bla

nd stated t hat, at the t ime of the Petitioner’s a rre st, he was living with her in her apar tment. Virg inia Bla

nd descr ibed the neig hborhood as low income. The apar tment consisted of three bedrooms, two bathr ooms, a hall, a kitchen, a dining r oom, and a livingroom. Virg inia Bla nd resided in the a

partment with her eig ht c hildren and three of her g randc hildren. She was not aw are that the Petitioner ca

rried a wea pon or that he sold drug s. Marily n Boyd, the Petitioner’s mother, testified that the Petitioner’s fathe r was Edwa rd Cha rl e s Ro bin so n. Ed

wa rd Rob ins on , w ho wa s in vo lve d in the Pe tit ion e r’ s li fe whe n he wa s a y oung child, died i n 2003 of cirrhosis. Marily n Boyd testified that Edwa rd Robinson sold marijuana and had a

n alcohol proble m. She stated th at , b ef o re h is death, Edwa

rd Robinson visit ed the Petitioner in jail. Marily n Boyd g rewup in L emoy ne Ga rdens. Dur i n g h er childhood, it was a nice neig hborhood. She left L eMoy ne Gar dens in 1983, when the Petitioner was ten y ear s old, and the family moved to the W hitehaven are a. At that time, Marily n Boyd was mar

ried to Mitchell B oy d, Sr. Marily

n Boyd stat ed t h at M i tchell B oy d Sr. was a suc cessf ul drug deale r in Memphis and provided for

his family

very well. I n 1985, the family moved into a two-story home in Ger mantown, Te nn e sse e . T he ho me c os t $2 00 ,0 00 in 19 85

. Th e Ge rm anto wn ne ig hb or ho od wa s v e ry nic e wi th
no drug s, no crimes, a

nd no prostitutes. The family lived in the Ger

mantown neig hborhood for three and one- half y ear s. The P etitioner di d not attend Germantown schools but remained at Whitehaven Elementar

y . Marily n Boyd explained that her c hildren did not want to cha ng e schools. Marily n Boyd stated that their family did not fit in well in t heir Ge rmantown ne ighbor hood. S h e e x p l a i n e d t h a t o n e n e i g hb o r d i d n o tw an tt h e P e t i t i o n e r t o r i d e h i s m o p e d

o nt h e s t r e e t

. M a r i l yn Boyd stated t hat s he did not know if this was base d upon prejudice . Howeve r, the Petitioner later helped that same neig hbor g et out of a ditch. Marily n Boyd stated that the Petitioner play ed with the children living next door.

I n 1987, the Petitioner’s Unc le Travis was shot. I n that same y ear , Mitchell Boyd, Sr., was
arr ested, a

nd the family

had to leave their Ge rmantown house. T he fa mily reloc ated to a sma ller house in the Hickor

y Hill a rea , lived there for four y ear s, and then moved back to Whi tehave n. The-12-

Petitioner was fifte en y ear s old w hen the family returne d to Whi tehave n. The fa mily lost every thing they had whe n Mitchell Boyd, Sr., was ar re s t ed . After moving ba ck into the Whitehaven
ne ig hb or ho od , th e Pe tit ion e r b e g an to g e t in to t ro ub le , h is g ra de s b e g an to fal l, and he b e g a n to strug g le in school. Marily n Boyd stated that she ha d hear d that the Petitioner was selling drug s. The Br iarsg ate Apa

rtments in Whitehave n wer e not ideal. Marily n Boyd descr ibed “shooting [s] , selling drug s, burg laries, stea ling c ars, a ll those ty pes of thing s, [and] . . . [p] rostitutes, of course .”

Mari ly n B oyd a dmi tte d th a t he r b ro the rs , T ra vis and Ric ky , w e re “ hu stl ing , se lli ngdr ug s” in the neig hborhood at this time. She stated that her husba n d , Mitchell Boyd, Sr., went to fede ral pr iso n f or se lli ng dru gs on a

“ bigtim e sc a le .” Mit c he ll B oyd, Sr ., wa s la te r m ur de re d in Washington, D.C. The murde r wa s relate d to someone he me t while he wa s incarc erated.

Mari ly n B oyd s ta te d th a t T e re sa

Wig g s wa s the Pe tit ion e r’ s g ir lf ri e nd and the mot he r o f h is
c hil d. She state d tha t she c ou ld h a ve e a sil y loc a te d M s. Wig g s if

a sk e d b y the Pe tit ion e r’ s atto rn e y s. Marily n Boyd stated that she only met with the Petitioner’s counsel t wi ce , once at Mr. J ohnson’s
o f f ic e an d th e n in th e c o u rtr o o m. M ar il y n B o y d , h e r mo th e r , an d M ar il y n ’ s b r o th e r , T r a v is, went to M r. John so n’ s o ff

ic e . M ari ly

n B oyd s ta te d th a t she vis ite d the Pe tit ion e r be tw e e n thir ty and fo rt y times w hile he was in ja il. The Petitioner maintained that he did not mean to kill the victim and that he wa s so rr

y . Sh e a dd e d tha t the Pe tit ion e r did no t ge t into tr ou ble wh ile in ja il; he ha d le arn e d to adapt to jail life.

Mari ly n B oyd s ta te d th a t th e Pe tit ion e r’ s c ouns e l ne ve r a sk e d h e r w hat sh e wo uld te sti fy to at trial. She was never questioned about her backg round. Marily n Boyd stated t hat she would have asked the jury

to spare the Petitioner’s life.

Mari ly n B oyd a dmi tte d th a t th e Pe tit ion e r’ s pis tol wh ipp ing and la te r gun sh ot w ound s d id not d e te r h im f r o m s e ll in g dr

u g s

. M ar il y

nB o y d s tate d th a t s h e w a s n o t a

w ar e th a t t

h e Pe ti ti o ner c arr ie d a g un

. She a lso a dmi tte d that the re we re thr e e da y s be tw e e n the tim e the po lic e fi rs t c a me t o t h e h o u s e a f

t e r t h e c r i m e an d

t h e d a t e t h e P e t i t i o n e r

tu r n e d h i m s e l f i nt o t h e p o l i c e

. M ar i l yn B o yd stated that she discusse d the situation with the Petit ioner e very day

.
I rish Rutherford g rew up with Ma rily n Boyd. She testified that she ha d known the Petitioner since he w a s b o r

n

. Sh e d e s c r ib e d

L e M o y n e G ar d e n s d

u r in g h e r c h il dh o o d

a s “ a tr ib e ” w h ere ever y body looked af ter one another . Ms. Rutherford late r m oved back t o L eMoy ne Gardens a s an a du lt. She re c a lle d th a t th e neig hb or ho od be g an to c ha

ng e fo r t he wo rs e duri ngthe 19 70 ’s

. Specifica lly , more c rime wa s occur ring in the neig hborhood. Ms. Rutherfor d stated that she visited the Petitioner numerous times in jail. She descr ibed t he P etitioner as “a nice y oung boy .” S he adde d that he wa s sorry

for what he had done

. On c ro ss- e xami natio n, I ri shRuthe rf or d e xpla ine d that se lli ngdr ug s w a s a me ans of surv iva l. She stated that she wa s not awar e that the Petitioner wa s selling dr ug s and ca

rry ing a wea pon. Rose Tatum, the P etitioner’s aunt, stated t hat t he family was very close. She e x plained that-13-

she did not see him ve ry often when he moved to Ger mantown. She maintained, howe ver, that the Petitioner remaine d respe ctful to her. Rose Tatum stated that she loved the Petitioner and that she missed him. She stated that the Petitioner fee ls that he has bee n reha bilitated. Ms. Tatum testified that the Petitioner’s attorney s never contac ted her prior to tr ial and that she would have been w illing to testify in front of a

jury

.
Te re sa Wig g s, the mot

he r o f t he Pe tit ion e r’ s c hil d, was his g ir lf ri e nd a t ti me of

his a rr e st. At the time of his arr est, she wa s not awar e that she w as pre g nant. She stated t hat t he baby was born
on Au gus t 26 , 1 99 3, and

the Pe tit ion e r’ s tr ia l w a s in F e br ua ry 19 94 . M s. Wig g s te sti fi e d th a t th e ir son, DeAndr e, had visited his father in prison.

Ms. Wig g s r e c a lle d th a t, o n th e date of th e mu rder, s he wa s at he r h ome a t th e Ki ng sg a te Ap artme nts . Sh e state d th a t sh e re c e ive d a te le ph on e c a ll f ro m a pe rs on kn ow n a s G a ma ll. Ga

ma ll informed M s. Wi g g s that law enf orce ment office rs wer e at the Petitioner’ s g randmother ’s house. Ms. Wi g g s stated t hat t he P etitioner was not with her at the time and that she did not know whe re he wa s. She pag ed the Petiti o n er, and he immediately came to her home. Ms. Wigg s asked the Petitioner what happe ned, and he told her he ha d killed someone. She desc ribed the Petit ioner a s “act i n g l i k e som ething was re ally , rea lly wrongwith him.” The Petitioner stated that he was not trying to kill any one. He added that he shot the m an in the l eg

. Ms. Wi g g s stated that the Petitioner crie d and kept repe ating that “he didn’t try to hur t a ny body .” She related that the Petitioner turned himself in three day s later. Ms. Wigg s stated that she wa s cer tain that the Petitioner did not mean to kill t he man.

Ms. Wi g g s stated that she ha d never known the Petitioner to c arr y a wea pon. She testified that the Petitioner was “ nice” to her, “ we were alway s cool,” and that he wa s never violent toward her.

Tere sa Wigg s testified that neither Patr icia Ode ll nor Anthony J ohnson ever talked with her prior to the Petitioner’s trial. She state d that she sent the Petitioner photog raphs of their son. She added that the Petitioner expressed intere st in his s on. Rickey Bla nd, the Petitio n er’s uncle, stated that he was only seven y ear s older than the Petitioner. He de scribed the ir relationship as m ore like siblings, rather than uncle and nephew . Mr. Bla nd and the Petitioner lived tog ether in an apa rtment in L eMoy

ne Ga rdens f or a pe riod of time. Mr. B land moved wi t h t he Petitioner’s fa mily to their Ger

mantown home. He descr ibed Ger mantown as “ crime f

ree ” and stated that eve ry one wa s friendly . Mr. B land stated that the Petitioner’s stepfather, Mitchell B oy d, Sr., “made a lot of money ” by

selling dr ug s. Mr. Bla

nd was
awa re that Mitchell Boy d, Sr., paid for the hous e and ever y thing else with money

obtained fr om drug sales. While living at the Ger mantown house, Mitchell Boyd, Sr., owned a Merc edes, a

BMW, and
a Por sc he . Ri c ke y B land de sc ri be d all of the se ve hic le s a s b e ing“ c us tom .” He de sc ri be d M itc he ll Boyd, Sr., as one of the bigg est drugdeale rs in Memphis. He stated that when Mitchell B oy d, Sr.,
wa s c on vic te d a

nd se nte nc e d to fe de ra l pr iso n, the fa mil y we nt f ro m “ ri c he s to ra g s. ” Th e fa mil y mov e d f ro m G e rm anto wn to the H ic ko ry Hi ll a re a bu t e ve ntu a lly

ha d to mov e int o th e B ri ars g a te-14-

Apar tments on Winchester. Rickey Bla nd descr ibed t he area as “roug h.” He stated that people of ten sold drug s on the stree t corne rs or “ smoked wee d” openly . Ricky Bla nd stated that y ou alway s had to be on g uard a s people we re r obbed, shots wer e ofte n fired near by , homes wer e burg larized, and other thing s of this nature. Rickey Bla nd stated that he w as the y oung est of eig ht children. He testified that he had f our brothers. H e stated tha t h i s brother T ravis, who wa s a drugdeale r, wa s para ly zed as the re sult of b ei n g s h o ti nt h e b ac k

. An o t h e r b r o t h e r , R o dn ey , wh o wa s al s o a d ru g d ea l er , wa s s h o td u ri n g a car jacking . His brother, Te rry , was a lso a drug deale r. He was shot bef ore the Petitioner’s trial. The
rema ining br other, L arr

y , did not sell drugs. Rickey Bla nd s t at ed that he started selling drug s after the family

moved bac k into the B ri ars g a te Ap artme nts . H e state d tha t, at thi s ti me , th e Pe tit ion e r n e ith e r c a rr ie d a we a po n n or so ld drug s. The Petitioner wa s involved in an incident during which he was “ pistol whipped[ ,]” and the incident sca

red him. Howe ver, the Petitioner continued to sta y around Rickey Bla

nd when he wa s selling dr ug s. The Petitioner was later shot in the le g . After this incident, the Petiti oner r ealized that he nee ded to def

end himself, and he bega

n car rying a weapon. Rickey Bla nd explained that ever

y one car ried a wea pon. Moreove r, he explained the differ ence in the people who c arr ied g uns, killers and
no n- kil le rs . H e state d th a t “ [a] n on -k ill e r i s a per so n tha t will sh oo t y ou , but his int e nti on is n ot t o shoot y ou, meaning. . . he will shoot y ou from y our wa ist down.” “[A] ki ller . . . he’s shooting at y our wa ist and up. He mea n to . . . he mean busine ss and he mea n to let y ou know t hat he mea n business.” Rickey Bla nd stated t hat, after being shot in the leg , the Petitioner beg an selling drug s. The Petitioner’s stepfather a

nd four of

his uncles sold drug s. Rickey Bla nd explained that none of the women in the fa

mily knew that the me n in the family sold drug s.

Reca lling the day of the murder, Rickey Bla nd said that he was with the Petitioner the entire day until thi rty

minutes before the incident. He talked with the Petitioner af ter the inc ident and descr ibed the P etitioner as hear tbroken. The P etitioner was cry ing and ups et over what he ha d done and wa nted to turn himself in to make thing s rig ht. Ricke y Bla nd stated that he loved the Petitioner with all his heart.

Ric ke y B land state d th a t he ne ve r s po ke wi th t he Pe tit ion e r’ s a tto rn e y s and ne ve r m e t w ith the ir inv e sti g a tor . Ri c ke y

B land wa s p re se nt d

ur ingtr ia l and was a va ila ble to t e sti fy . O n c ro ssex am i n at i o n , R i c k e y Bl an d ex p l ai n edt h at h e n ev er

d i s co u ra gedt h e P et i t i o n er fr o m s el l i n g dru gs because i t w a s a

v e r y p r o f it a b le b u s in e s s , b u t h e a d mi tt e d th a t i t w a s n o t w o rth

it in th e lo n g r

un beca use “you” could “ g et locked up.”

Pe ri nta B land , th e Pe tit ion e r’ s b ro the r, state d th a t he re me mbe re d h is s tepf a the r, Mit c he ll Boyd, Sr., g oing a

way but did not understand his stepfathe r’s re ason for leaving until he wa s older. As others be fore him, he descr ibed the are a of the B riarsg ate Apa rtments as violent and stated that there wer e drugsales in the ar ea. Per inta Bla nd stated that he was t en y ear s old when the Petiti oner-15-

was a rre sted. He a lso testified t h at t h e P et i t i oner trie d to discourag e him from the dr ug trade

. Perinta B land testified that the Petitioner ha d expressed re morse over the murder . He state d that the Petitioner had bee n trying to ke ep him awa y from cr ime.

T h e Petitioner’s uncle, Tr avis Bla nd, testified that he wa s very close to the Petitioner. He descr ibed himself as the Petitioner’ s favor ite uncle. Tr avis Bla nd stated that he sold dr

ug s until he was shot. Travis Bland state d that he wa s p re s en t at the Petitioner’s trial, but the Petitioner’s
a tto rn e y s n e ve r t a lke d with him

. He state d tha t he wo uld have lik e d to hav e ha d th e op po rt un ity to ask the jury

to spare the Petitioner’s life and to tell them how much t he P etitioner wa s loved. Neither of the Petitioner’s attorney s asked him a ny questions nor did they

offe r him the opportunity to speak on behalf of the Petitioner.

Caro ly n Jac ks on , a

c los e fa mil y fr ie nd of t he Pe tit ion e r, te sti fi e d th a t sh e too liv e d in L eMoy ne Ga rdens. She de scribed L eMoy ne Ga rdens a s a ver

y roug h are a. S h e ex p l ained “ y ou either ha d to stay

there or g o to jail. Bec ause it was li ke bad on ever y corne r.” She stated that there
wer e drug s on ever

y corne r. Ms. J ackson te stified that she loved the Petitioner.

Ms. Jackson visited the Boyd family home in G erma ntown. She descr ibed the house a s “a nice bighouse” a

nd the neig hborhood as ve ry nice. She state d that the neigh b o rh o od was “somewhe re a big time lawy er w ould live, may be like Mar

vin Ba llin or somebody

like that.” She stated the Petitioner wa s not a bad kid. The family had nice clothes, nice car s, and plenty of food. Ms. J ackson de scribed Mitche ll Boy d, Sr., as a “ hustler.” She e x plained that he “sold a little drug s.” After Mitchell Boyd, Sr., w as ar re s ted and inca rce rate d, the family

could no long er make the pay men t s o n the Ger

mantown house so they

moved into another house in the Hickory Hill area

. Ev e ntu a lly , th e fa

mil y ha d to mov e back in w iththe Pe tit ion e r’ s g ra ndmot he r i n th e Ki ng sg a te Ap artme nts

. Ms. Jac ks on state d that thi s ne ig hb or ho od wa s ro ug h. Pe op le so ld dr ug s, br ok e int o homes, and ha d fig hts, or, as Ms. J ackson state d, things “ the ave rag e tee nag er w ould do.”

Ms. J ackson stated that the Petitioner’s biologica l fathe r, Edwar d Charles Robinson, was an alcoholic a

nd eventua lly

died of c irrhosis. Ms. J ackson state d that it was Mitchell Boyd, Sr., who was the f ather fig ure to the Petitioner.

Ms. J ackson te stified that, in he r opinion, the Petitioner should not be on death row. She wa s ne ve r c on ta c te d b y

the Pe tit ion e r’ s atto rn e y s and state d tha t she wo uld have do ne any thi ngto “ he lp Marily n with her son Andr e.” She w ould have a sked the jury to spare the Petitioner’s life.

Kevin Smith st ated that th e P et i tioner wa s his best friend. The two men had be en fr iends sin c e the y

we re fo ur

te e n y e ars old , me e tin g e a c h o the r w hil e the Pe tit ion e r l ive d wi th his g randmother

at the B riarsg ate Apa

rtments. He visited the Petitioner at the G erma ntown house. He testified there was no c rime in Ger mantown and no dr

ug deale rs. He stated that he liked to visit the Petitioner’s home bec ause the y had g ames a

nd things that tee nager s l iked. He stated that the Ger mantown house wa s beautiful. He did not know how the family aff orded such a house. When the fa mil y mov e d b a c k to the B ri ars g a te Ap artme nts , Ke vin Smit h and the Pe tit ion e r w e re a

ble to-16-

spend more time tog ether

. This a rea was crime- ridden, and one could commonly s ee wom en prostituting themselves.

Kevin Smit h was prese nt w hen the Petitioner was pistol whipped. He stated that he a nd the Petitioner were at the home of the Petitioner’s g irlfriend. The Pe t i t i o n er was sitting on the c ouch wh e n “ a g uy c a me thr ou g h th e do or

and

. . . ju st h it h im w ith the pis tol .” Th e Pe tit ion e r t old Ke vin Smit h, “That was the last time something like that was g oing to ha ppen.” Kevin Smith also reca lled the time when the Petitioner was shot in the leg

. Kevin Smit h saw the man cha sing the Petitioner and shooting at him. Kevin S mith did not visit the P etitioner whil e he was in jail pending trial. He stated that, if aske d, he would have testified at the Petitioner’s tria l.

Sandra B land, one of

the Petitioner’s aunts, testified that she wa s approximately twelve y ear s older than the Petitioner. She stated that the Petitioner’s stepf ather , Mitchell Boyd, Sr., was a dr ug deale r. The f

amily had a nice home, nic e ca rs, and nice clothes. Mitchell B oy d, Sr., went to prison for dr ug convictions and wa s murdere d afte r he w as re lease d from prison. Sandra Bla nd stated that the Petitioner’s primar

y influence was Mitchell B oy d, Sr., rather than his biologica l father

. The Peti ti o n e r to ld Sa

n dr a B la n d th a t h e w a s s o r

r y a b o u t th e mu

r d e r an d th a t h e d id not intend to kill any one. The Petitioner’s attorney s n ev er ta lked with Sandra B land about the Petitioner’s life or how she felt about him. No investigator ever came to speak with her . She stated that she loved the Petitioner a nd that she wa s willing to testify befor e a jur

y

. Toni Bland, the Petitioner’s cousin, stated that she w as eig ht y ear s y oung er tha n the Petitioner. She rec alled whe n the Petitioner lived in Germa ntown. She said that the Petitioner and his imm ediate f

amily had “nic e thing s.” She knew that the P etitioner’s stepfather was a drug deale r. Toni Bland stated that the Petitioner wa s “a ve ry nice, kind, loving person.” She descr ibed him as the jok e r i n th e fa

mil y . Sh e state d th a t, h a d s he be e n a sk e d, sh e wo uld have te sti fi e d at tr ia l.

L arr y B land , a no the r u nc le of the Pe tit ion e r, te sti fi e d th a t the Pe tit ion e r e xpre sse d h is
remorse over the murder be fore he turned himself in to police. The Petitioner told L arr y Bla nd that he did not intend to kill the man. L arr y Bla nd stated that he loved his nephe w. He te stified that the Petitioner’s attorney s never talked with him but that he was willing to ta lk w ith them had they asked. He a lso would have testified on the Petitioner’s beha lf.

J essie L ee Moody , the Petitioner’s g reat aunt, stated that she wa s awa re that the Petitioner’s stepfathe r wa s a “dope de aler .” Ms. Moody stated that the Petitioner wa s a ver y respe ctful child who loved her . Ms. Moody

also said that she loved the Petit i o n er

. S h e s t ated that she was neve r contac ted by

the Petitioner’s attorne y s but would have c ooperated with defe nse counse l.

Ke vin Willi a ms g re w u

p w iththe Pe tit ion e r. Mr . Wil liams t e sti fi e d th a t he ha d g ott e n in to an alter cation with the Petitioner at the B riarsg ate Apa rtment. He state d t h at, as a result of the alterc ation, he cha sed the Petitioner and shot him in the l eg

. After the incident, Mr. Williams asked the Pe tit ion e r t o f

or g ive him , a

nd the Pe tit ion e r d id. Th e tw o me n r e ma ine d fri ends a ft e r t his-17-

incident. Will iams stated that he loves the P etitioner as a brother. Kevin W illiams told the Petiti oner that he did not intend to kill t he Petitioner whe n he shot him.

Mr. Will iams stated that the Petitioner’s attorney s n ev er c ontacted him prior to the Petitioner’s trial. He stated that he would have been w illing to ask the jury to spare the Petitioner’s life.

Wil liam J ohnson stated that he repre sented the Petitioner at the trial level. Mr. Johnson had tr ie d c a pit a l c a se s p ri or

to r e pr e se nti ngthe Pe tit ion e r. He state d th a t Pa tr ic ia Od e ll w a s f

ir st c ha ir counsel. He stated t hat, although he and Ms. Odell were paid throug h the court for their trial work, neither of them submitt ed a bill fo r ap p el l at e wor k. Mr. J ohnson stated that he wa s appointed October 13, 1993, to repre sent the Petitioner. He rec alled that, at this point , Ms. Odell had alr eady been a ppointed to the case for some time.

Mr. J ohnson stated that they had g ather ed “a

n extensive juvenile history ” on the Petitioner, including sc hool rec ords, mental eva luations, and an I .Q. t est. These rec ords were c ompiled before Mr. J ohnson was appointed and included the Petitioner’s juvenile rec ords as we ll as the rec ords of the entire family . Mr. J ohnson rec alled both an a dult I .Q. score and a juvenile I .Q. score

. He r elated that the juvenile eva luation of the Petitioner indicated a n I .Q. of 63 a

nd a non-ve rbal I .Q. of 64.

Mr . Joh ns on

state d th a t he did

do mit ig a tio n wor

k on th e pr e se nt c a se , e xpla ini ngthat bo th he and Ms. Ode ll did mos t of the work the mselves. A psy cholog ical eva luation by Wade Smith on Fe bruar y 27, 1991, indicated a

standard te st score of

64. Mr. J ohnson stated t hat this score indicated that the Petitioner was in the mild mental re tardation r ang e of functioning

. He state d, howeve r, that the V is u a l- M o to r

G e s ta lt T e s t d id n o t r e v e a l a

n y s ig n if ic an t o r g an ic b r a in

s y n dr o me an d

th a t t he persona lity

assessment did not reve al sig nificant psy chopatholog y

. M r. Johns on stated that the Petitioner functioned in the l ower rang e of low aver ag e int ellige nce. Mr. J ohnson conce ded that the Petitioner’s I .Q. score s raised a red f lag for him. He e x plained, howe ver, that t h e Petitioner “w as not mentally

reta rded. H e did not fit the definition.” Mr. Johnson was under the f alse impression that the I .Q. nee ded to be 60 for a leg al finding of mental re tardation. W hen pre sented with the fa ct that the I .Q. nee d only

be 70, Mr. Johnson stated that his opinion would chang e. He added that there
was a nother I .Q. s core of 82. Mr. J ohnson stated t hat t he P etitioner “w as not reta rded a s far

as I was conce rned.” Notwithstanding the conce rns reg arding the Petitioner’s I .Q., Mr. Johnson s tated that no further evaluations were or dere d. He qualified this by stating that Ms. Odell had the Petitioner evaluated prior to his appoi ntment. Mr. J ohnson added that the Petitioner was literate and kne w what he w as doing

.
Mr. J ohnson stated t hat he was aware of a theory of di minished capa city

. He stated that the Petitioner’s mental state would play a role in the P etitioner’s case. He concede d that sever al low I .Q.
s co re s p ri o r t o t h e age o f ei gh t ee nwo u l d b e m i t i gat i o ni na c ap i t al ca s e. He al s o s t at edt h at , al t h o u gh the Petitioner’s “ve rsion of what actu al l y t ra n s p ired a ctually flip flopped more times . . . ,” he consistently

maintained that he did not intend to kill the victim.-18-

Mr . J o h n s o n s t a t e d t h a t M s

. O d e l l w a s i n c h ar g e o f t h e c a s e

. M r

. Jo h n s o n an d M s. Od e ll went to talk to the witnesses, but he c ould not reca ll the names of the persons they talked to or the
numbe r of pe op le the y int e rv ie we d. Mr . J oh ns on state d tha t th e y did no t hi re a

pe rs on to a ssi st i n mitigation. He stated that they talked with f amily members to de velop mitigation themes. They had the Petitioner’s juvenile re cords a nd school rec ords. They

knew that the Petitioner’ s stepfathe r wa s a dr ugde a le r, and

he re c a lle d that on e un c le wa s in a wh e e lc ha ir

a s th e re su lt o f a

sh oo tin g fr om a robber y

. Mr. J ohnson stated t hat t he P etitioner’s g randmother was the pr imary

support person in the fa mil y . M r. John so n c ou ld n ot r e c a ll an y thi ng sig nif

ic ant r e g ard ingthe Pe tit ion e r’ s li fe no r c ou ld he re call whe ther the Petitioner ha d any children. H e did re call that the Petitioner ha d a “te rri b le, ho rr e nd ou s, juv e nil e c ourt – juve nil e his tor y .” He re c a lle d s e ve nte e n o r e ig hte e n c on ta c ts i n juve nil e court.

Mr . Joh ns on

did no t r e c a ll that th e Pe tit ion e r ha d liv e d in L e Mo y ne Ga rd e ns . H e did

state that a pe rs on ’s e nv ir on me nt wa s a fa c tor to c on sid e r in mit ig a tio n in a c a pit a l c a se . H e a g re e d th a t, in a c a pit a l c a se , c ouns e l sh ou ld t ry to p re se nt t o th e jur

y e ve ry po ssi ble va

ri a ble that mi gh t a ssi st t he defe nse. Mr. J ohnson vag uely rec alled that the Petitioner had previously been shot in the l eg. He did not re call that the Petitioner ha d been pistol whipped a s a juvenile.

Re g ard inghis re la tio ns hip wi th t he Pe tit ion e r, Mr . J oh ns on e xpla ine d th a t th e ir re la tio ns hip was “ kind of on and off on occa sion.” He stated that sometimes the Petitioner would talk to him and other times he would not; sometimes the Petitioner would bec ome very ang ry

. Mr. J ohnson rec alled
a t le a st s ix or

se ve n o c c a sio ns wh e n h e me t w iththe Pe tit ion e r, in add it io n to te le ph on e c a lls betwee n them. Mr. J ohnson estimated that eac h meeting with the Petitioner lasted thirty to forty -five minutes.

Mr. J ohnson rec alled that, at the beg inning, he discussed the case with the Petitioner. The Petitioner told him that the shooting a rose from an alterc ation about a g irl, a love tria ng le. L ater , the Pe tit ion e r s ta te d th a t he did no t in te nd

to k ill the vic tim

. Mr . J oh ns on re c a lle d “ [f]r om t he ou tse t, once [the Petitioner] realized that the story or t he ver sion about the g irlfriend w asn’t g oing to f ly and it ha d no va lid ity to it[,]” the y a dd re sse d the iss ue of

wh e the r o r n ot t

he Pe tit ion e r i nte nd e d to kil l the victim. The Petitioner was stea dfast in his position t hat he did not intend to kill the victim.

Mr. J ohnson handled the suppr ession hear ing a nd rec alled pre paringthe Petitioner to testify at the hea ring

. Mr. J ohnson did not rec all that no questions w ere asked r eg ardingopinions about the death pe nalty

during voir dire. He could not provide a n answe r as to why

such questions wer e not asked nor could he provide an answ er a s to why no challeng es we re ma de to the constitutionality of t h e d ea t h p en al t y

o nd i re ct ap p ea l

. M r. J o h n s o nco u l d n o tp ro v i d e a nan s we r a s t o wh y n o ch al l en ge was made to the denial of the motion to s uppress on a ppeal.

Mr. J ohnson ag ree d that the testimony of the medical examiner was important in this case. He a cknowledg ed that the medic al examiner’s testimon y wa s t he main evide nce r eg ardingthe he ino us , atr oc iou s, and c ru e l ag g ra vator

. Th e ma in iss ue wa s how lon g the vic timwa s c on sc iou s. The testimony

at trial indicate d that the vi ct i m could have survived two to fiftee n minutes. The-19-

me dic a l exam ine r furt

he r ind ic a te d tha t th e vic timwa s c on sc iou s f or on ly a bo ut f our t o f ive min ute s. Reg ardingthe time fra

me of the vic tim’s death, Mr. Johnson s tated:

. . . we kne w that the g uy had lived for

some period of

time after

he wa s shot.

. . . This is where the i n d i v i d u al was shot several times under the truck. . . . H e wa s laying the re – he was dying f or some period of time. I t w asn’t whe re he was just shot and died instantly . There was nothing like that at all. Multipl e witnesses state d that the victim was moaning for f ifteen to twe nty

minutes.

Mr. J ohnson stated that the Petitioner did not testify at t he g uilt phase; howeve r, he did testify at the sente ncing phase. Mr. J ohnson stated that he did not think that they had re cords of

the Petitioner’s stepfather, Mitchell B oy d, Sr. Reg ardingthe Petiti oner’ s perf ormanc e at sc hool, Mr. J ohnson stated that he r eca lled that the P etitioner was a “lower avera g e achiever .” He also rec alled
re vie wi ngthe Pe tit ion e r’ s h os pit a l r e c or ds fr om Me tho dis t Hos pit a l. Ho we ve r, he c ou ld n ot a c tua lly
rec all that the P etitioner had previously been shot. Mr. Johnson stated that, in his opi nion, the fac t that the Petitioner had pre viously been shot in the legwas not an important f actor in miti g ation.

Mr. J ohnson rec alled the e vents of the c rime: When they

came into the apar

tment complex, t hey

wer e g etting r eady t o rob them then. They

went up and visited the g irls. When the y came back dow n, that’s when the robbe ry

ensued. [The Petitioner] took part in the robbery

. He stood there . When the other guy

drove up, O ntrain Sander s drove up. Ontr ain walke d up t o s ee w hat
was h ap p en i n g. [The Petiti oner] shot at him and hit him and cha sed him. And I
re me mbe r t

he tw o hun dr e d a

nd se ve nty -t

hr e e y ard s .

. . it wa s nine ty y ard s. Al mos t the leng th of a football field that [t he Petitioner] cha sed this man around throug h the apar tment complex, down through it, went u n d er – the man under the truck. [The Pe tit ion e r] g e ts dow n on his hand s and kn e e s and sh oo ts und e r the tr uc k a nd sh oo ts the g uy . H e c ome s b a c k a ro un d f ro m th e a pa rtme nt c omp le x, c ov e rs the same nin e ty y ard s, g oe s b a c k u

p w he re the ro bb e ry

is s til l takin g pla c e , w he re on e guy is s til l there . This guy

g ets up to run, and [the Petitioner] shoot s him twice. And then he g oes hom e a n d

g o e s to s le e p w it

h h is g ir lf

r ie n d

. Ir e me mb e r

. Si n c e Ir e a d the opinion. W e had a

lot to deal with as far

as the pre meditation and the deliber ation
was c oncer

ned. B eca

use of the longperiod of time that the inc ident took place.

Mr . Joh ns on

state d th a t Ms . O de ll t a lke d w ithTe re sa Wig g s. He state d tha t the re wa s no r e a so n to call her as a witness at trial. He rec alled that the Petitioner told them that afte r the murder, he we nt home and we nt to bed.

Mr. J ohnson stated t hat, at the s uppression hearing , the defense team raised the issue that one of the police office rs promised the Petitioner that the charg e was g oing to be voluntary manslaug hter. Mr. J ohnson rec alled telling the Petitioner that it made no differ ence wher e the victim was shot; the-20-

Pe tit ion e r m a int a ine d th a t it wa s o nly vo lun tary

mans la ug hte r b e c a

us e he sh ot h im b e low

the wa ist

. Mr. J ohnson stated that the Petitioner’s re liance upon the office r’s infor mation that shooting below the waist wa s only

voluntary

manslaug hter wa s the basis of the Petitioner’s co n fe s s ion and,
su bs e qu e ntl y , th e mot ion

to s up pr e ss.

Mr. J ohnson stated that he did not spec ifically rec all the testimony

of Ter ranc e Poland. He did re c a ll the Pe tit ion e r s ta tin g tha t th e vic timwe nt b a c k to wa rd his ve hic le , b ut h e ne ve r m a de it and ra n past his car . There was infor mation that Poland was just a s culpable as the Petitioner. Mr. John so n s ta te d th a t th e Pe tit ion e r wa s no t pr e se nt duri ng the ro bb e ry ; ra the r, he wa s c ha sin g On tr a in Sand e rs aro un d th e ba c k o f t he a pa rtme nt c omp le x. He state d th a t bo th t he Pe tit ion e r a

nd “ L itt le Dar ryl” cha sed Sander s and that “[t] he other g uy s were still trying to ge t the guy out of the ca

r to rob him .” Mr . Joh ns on

re c a lle d th a t: When [ the Petitioner] and the other guy came back f

rom ar o u n d the apa

rtment complex,

. . . one of the guy s had an automatic .

. . he had emptied his automatic, the slide was struck ba ck, he came back – they came back a

nd reloa ded. And whe n he
c a me ba c k a

nd re loa de d, that’ s w he n th e y wer e sta nd ingthe re watc hin g the m st ill trying to dr ag the one g uy out of the ca

r. They g et him out of the ca

r, take the g uy ’s jacke t off. The g uy

g ets up and tries to run, a

nd [t he Petitioner] shoots the g uy twice. Shoots hi m onc e in e ach leg

. So, no. He was not pr esent. I mean the robbe ry was s ti ll g o in g o n w h il e h e w a s c h a s in g O n tr a in Sa n d e r s b a c k o f

th e a p artm e n t c o mp le x.
Mr. J ohnson stated that, althoug h the Petitioner may have be en inside whe n the robbe ry started, the Petitioner came out and took part in the robbe ry . He a dmitted that it would have made a diffe renc e if the Petitioner had a

ppear ed at the sce ne at the sa me time as the man in the Cadillac . Mr. J ohnson stated that, at the time Ontrain Sanders a rrived, the robber

y had alr eady

taken plac e. Mr. Johnson sta te d t h a ti tw a s s h o w nt h a t , i f t h e P e t i t i o n e r

ar r i v e d a tt h e s c e n e a tt h e s a m e t i m e a s O n t r a in Sanders, it would have shown that the Petitioner was not involved in the robbe ry

.
Mr. J ohnson aff

irmed t hat t he P etitioner di d not rec eive any proce eds from the robbe ry , but he stated that the Petitioner “par ticipated in the robbery

of the guy

out of the ca

r, the g ray car , when he sh ot t he g uy in fu

rt he ra nc e of the ro bb e ry .” Mr . Joh ns on state d th a t th e de fe ns e te a m “ g a ve him the be st w e c ou ld d o b a se d u po n w hat w e ha d.

. . . [Th e Pe tit ion e r] sh ot t he man, On tr a in S and e rs , for no r eason. Per iod.” Mr. Johnson added:
[The Petiti oner] told me that there was a n alterc ation about a g irlfriend. That’s how he ha d – ha d the a lte rc a tio n wi th the tw o g uy s in the c ar a bo ut a g ir l. T hat w a s h is version about wha

t actually transpire d. No. [ The P etitioner] was not truthful in the beg inning. He ’s not tr

uthful now. And he probably won’t be truthf

ul twenty y ear s fr o m n o w, i f i nfa ct t h i s ca s e i s s t i l l go i n g o nt h at l o n g.

Mr. J ohnson stated that no witnesses testified f or t he P etitioner at the guilt phase. Howe ver, the Petitioner testified at the penalty phase. Mr. J ohnson rec alled that there wa s a for ty - or f ifty -y ear-21-

offe r on the table from the State a nd that the def

ense te am “ne g otiated re ally hard.” He testified that they informed the Petitioner’ s g randmother o f the off er, a nd she wa s to discuss the offer with the Petitioner. The Petitioner reje cted the offe r. Mr. J ohnson stated that “it wasn’t rea lly as much [the Pe tit ion e r] r e

je c tin g it a s it

wa s h is unc le re

je c tin g it. ” He c ou ld n ot r e c a ll a n o ff e r o f l if e plu s th ir ty y ear s. He did re call a thr ee- way conver sation with the Petitioner and the Petitioner’s unc le af ter the sentenc e of de ath was imposed. The Petitioner’s uncle a sked if the Petitioner could now ac cept the fifty -y ear offe r, and Mr . J ohnson told him it was to late to ac cept the of fer

.
Mr. J ohnson stated t hat Teresa W igg s’ account of the P etitioner’s behavior on the nig ht of the murder , that is, the fac t that he was “ extremely upset and wa s cry

ing,” would have be en important to show his remorse. He stated that this was not what a ctually transpire d. Mr. J ohnson test if ie d th a t th e Pe ti ti o n e r s a id h e w e n t to T e r e s a Wi g g s ’ a p a rtm e n t an d s le p t. Mr. J ohnson ack n o w le d g e d th a t th e f

a c t th a t th e Pe ti ti o n e r b e c a me a f a th e r p r io r to h is tr ia l w o u ld h a v e bee n important.

Mr. J ohnson summarized the defe nse i n the P etitioner’s case as essentially no defe nse. He acknow ledg ed that the ope ning statement of Ms. O dell did not set forth any theory of defe nse or the fact th at th e P etiti on e r d id n ot i nte nd to k ill any

bo dy . H e state d th a t no t me nti on ingany fa c ts i n opening statement wa s a tac tical dec ision. He explained that “if the f acts a re a g ainst y ou, y ou try

not to argue fa cts befor e the jury or tell the j ury what y ou are g oing to do, if y ou can’ t prove them.” Mr. John so n e xpla ine d th a t th e Pe tit ion e r n e ve r d e nie d s ho oti ngthe vic tim ; ra the r, he state d that he on ly int e nd e d to sh oo t hi m in

the le g s. I n o the r w or ds , the Pe tit ion e r f e lt that be c a

us e he sh ot t

he vic tim below the wa ist, the victim was not supposed to die. Mr. J ohnson stated t hat the Petitioner intended to shoot the victim and that the victim’s death wa s a natura l conseque nce of being shot.

Mr. J ohnson rec alled that Carlos Sande rs testified at the Pet i t ioner’s tria l. Carlos Sanders te sti fi e d th a t hi s f

a the r t oo k h is gun

awa y . M r. J oh ns on cou ld no t r e c a ll why the y de c ide d n ot t o cross-e x amine Carlos Sanders. He stated that he did not know why Carlos Sanders wa s not charg ed
as an a ccomplice . Mr. J ohnson rec alled that, althoug h there was not a lot of information reg arding intox ication, they

had knowledg e that the men at the S ander s’ apartment had been drinking whiskey and bee r. He stated that no witness t es t i fi ed re g ardingthe Petitioner’s leve l of intox ication. He
aver red that there w as no indication t hat any body was “intox icated, inebriated, dr unk, talking out of their hea ds, stumbli ng , falling , nothing to that ef fec t was eve r broug ht out.” Mr. J ohnson stated that the def ense te am did not ask question s re gar d ing le vels of intox ication bec ause the re w as no information that any

body was drinkingor that any

body was drunk. I n fac t, Mr. J ohnson testified that “[t] here was nothing in the rec ord that even indicated that [t he Petitioner] had any thing to drink at all.”
Reg ardingthe pena lty phase, the defe nse team i ntr o d u c ed the Petitioner’s f

amily history . Mr. J ohnson rec alled that the Petitioner’s mother testified. He stated that there was some c oncer n over the Petitioner’s mental c ondition. However , beca use the Petitioner had a

I .Q. of 60 on one test and an I .Q. of 85 on a

nother, he was unsure as to whethe r the Petitioner ac tually had a me ntal impairment. He ex plained that the P etitioner was able to conver se, the Petitioner wa s articulate , and-22-

the Petitioner understood what was g oing on. B ased on the se fa ctors, the defense team re lied upon the hig her I .Q. score . Mr. J ohnson conce ded that the Petit ioner ha d two I .Q. score s as a juvenile, one
a t 60 and on e a t 64 . T his inf

or ma tio n w a s n ot p re se nte d to the jur y . Wh e n con fro nt ed with information that the Petitioner’s t es t ed I .Q. of 82 wa s also indicative of low f unctioning, Mr

. J ohnson stated that he wa s unawa re that this was not extremely below avera g e. He c oncede d that it was a fa ctor to consider in expl aining the Petitioner’s statement that he did not intend to kill t he victim. L ater , Mr. J ohnson conce ded that the I .Q. of 82 was the Petitioner’s verba l I .Q. score from a test whe n he wa s seventee n y ear s old.

Mr. J ohnson stated that “[t] he sente ncing phase kind of w ent awr y .” He explained that the Petitioner “interjec ted i nto the record things that should have not been there.” Mr. J ohnson testified that they did prepa re the Petitioner to testify

. Specifica lly , he stated that they had “pr epped him long enoug h . . . for him to u nderstand that he was not to be me ntioning any drug s or any

thing.” Mr. J ohnson stated that the only time that dr ug s wer e mentioned was during the Petitioner’s testimony when he stated that “he was just out t here selling dr ug s.” Mr. Johnson st ated that he was not aw are that “all the male fig ures [in the Petiti oner’ s life] on a daily basis sold drug s.” He was a war e that the Petitioner’s stepfather a nd uncle sold drug s. Mr. J ohnson ag ree d that thes e factors could be considere d as mitigation evidenc e, but he did not ag ree that this information ex plained the Petitioner’s own involvement in selling illeg al drug s.

Mr. J o h n s o n explained miti g ation proof a s “an e x cuse f or why I did what I

did.” He continued:

These a re things t hat happened in my life t hat caused m e to do what I did. So if y ou look at this, I g rewup in a home without a father. . . . My g randmother

raised me

. Ididn’t have shoe s on my fee t. . . . I

. . . couldn’t rea d as we ll as Icould. Ther efor e, Ican g o out, Ican c ommit m urder , there fore , y ou should ex cuse me for killing . . . beca use I didn’t have the same advantag es eve ry body else ha d. These a

re f actor s that g o into the rea son why

I did w hat I did. So that’ s on base le vel . . . is what mitigation is a ll a bo ut.

Mr. J ohnson could not expl ain why they did not offe r i nformation re g ardingthe Petitioner’s mental status at the pena lty

phase. H e stated that, even c onsidering the Petitioner’s low I .Q., the Petitioner “wa s not mentally

incompetent .

. . he was not reta rded .

. . [h] e was just a li ttle slow.” Mr. Johns on could not explain why

more infor

mation reg ardingthe Petitioner’s life wa s not introduced as mitigation proof, including information that the family had to move from Ger mantown into low income housing , the fa ct that all the male f igur es in the P etitioner’s li fe sold drug s, the fact that the Petitioner started carr

y ing a weapon when he was sevente en, the fac t that the Petitioner had a son, and the f act that the Petitioner ha d been pistol whipped a nd shot in the leg

. M r. Johns on testified that he spoke w ith the Petiti oner’ s Uncle Tr avis. He did not re call spea king wi t h L arr

y Bla nd or Sandra B land. He also did not rec all speaking with Kevin S mith, Dorothy Smit h, I rish Rutherford, Kar en J ackson, Tamar a J ackson, or Perinta Bla nd. Simi larly , Mr. J ohnson could not rec all speaking with Toni Bland, Jessie Mooney , or Ke vin Wi lliams. He stated that they interviewe d the Petitioner’s-23-

mother and g randmother . Mr. J ohnson ag ree d that, during the penalty phase, the State foc used on the Petitioner’s lac k of re morse.

Mr. J ohnson confirme d that th e jury found the pre sence of the he inous, atrocious, or c ruel ag gra v at i ng circ umstance. When pre sented with the ve rdict for m, he stated that the ve rdict listed two ag g ravators: (1) cr

uel and ( 2) torture . He a g ree d that the wordingon the ver dict form wa s unclea r. M r. Johns on explained that he did not see the ve rdict for m, and this fact pr eclude d an objection there to.

Mr. J ohnson did not reque st an institut ional history or jail rec ord of the Petitioner w hile he was inca rce rate d pretria l

. He wa s awa re that the Petitioner did not ge t into any trouble. He was uncer tain as to the mitigation value of this ty pe of e vidence . Mr. J ohnson did not reca ll raising a ny objection to the victim impact evidenc e. He rec alled that the victim impact testimony offe red “ didn’t g o above a

nd bey ond.”

Mr. J o h n s o n testified that the def ense te am ra ised some objections re g ardingthe jury ins tr uc tio ns , b ut h e could n ot r e c a ll the sp e c if ic ob je c tio ns . H e a g re e d th a t, o n d ir e c t a pp e a l, t his court de termined that a

ny err or in the jury

instructions was har

mle ss. Mr. J ohnson stated that he could not rec all the re ason for not challeng ing the Petitioner’s non-ca pital conviction s on direc t appea l. He explained that they “foc used in on what we thought we could win with.” He ag ree d that the y did no t r a ise any

of the c on sti tut ion a l cha lle ng e s ag a ins t th e de a th p e na lty on a pp e a l. H e a lso
conce ded that the de fense team did not challeng e the jury instructions on appea l. Mr. J ohnson stated that they wer e of the opinion that they would be succ essful in their challeng e to the sufficie ncy of the evidenc e issue on appe al. He expl ained that, in his opinion, the State did not prove its case. The sufficie ncy

of the e vidence was a lso the main argument befor e the Te nnessee Supreme Court.

Patricia Ode ll testified that she repr esente d the Petitioner. Specifica lly , she stated that she
was appointed to r epre sent the Petitioner in June 1993. I n 1993, approximately half of Ms. Ode ll’s prac ti c e w a s c r im in a l la

w

. Sh e a d mi tt e d th a t, a t th e ti me o f h e r a p p o in tm e n t, s h e h a d n o t tr ied a homicide ca se alone . She stated that her formal training in c riminal work was limit ed to “law sc hool and attendingvarious continuing lega l ed ucation seminar s and workingwith Chancellor Pee te. . . .” Ms. Odell admitted that, re g ardingdeath pe nalty work, she ha d no other tra ining other than “law school . . . and wor

king w i t h Chance llor Peete a nd that was ve ry

limit ed on death penalty

case s.” Ms. Odell s tated that she “did a sk the [trial court] t o appoint a more experience d attorney .” This led to the appointment of Will iam J ohnson. Ms. Odell stated t hat, after Mr. Johnson’s appointment, he did the majority

of the trial wor

k. She explained that M r. J o h n s o n was the pe rson with the experience . She further

explained that no one was e ver na med lead c ounsel.

B e tw e e n th e tim e of he r ap po intme nt an d M r. John so n’ s a pp oin tme nt i n O c tob e r, Ms. Od e ll did no t ha ve the Pe tit ion e r e va luate d b y a ps y c ho log ist

and did no t ob ta in t

he se rv ic e s o f a

n e xpe rt

. Ms. Odell did not subpoena any rec ords on the Petitioner. She said that she see med to rec all that the Pe tit ion e r’ s juve nil e re c or ds we re ob ta ine d a s p art of dis c ov e ry

re c e ive d f

ro m th e State

. Ms. Od e ll
rec alled that, eve n afte r Mr. Johnson was appointed, neither of them had the Petitioner evaluated by-24-

a psy cholog ist nor did they have a n independe nt expert review the Petitioner’s juve n il e court “ psy che
rec ords.” Ms. Odell stated that she and Mr. J ohnson conducte d the investig ation themselves. The y never hired a mitigation spec ialist. S he stated that Mr. J ohnson develope d the mitigation proof

. Reg ardingthe P etitioner’s I .Q., Ms Odell re called that a 1988 psy cholog ical re port ref lected that th e Pe tit ion e r h a d a

ve rb a l I .Q . o f 6 3 a

nd a no n- ve rb a l I .Q . o f 6 4. She e xpla ine d th a t th e se score s did not cause much c oncer n beca use she discusse d the re port with the Petitioner. Another psy cholog ical re port dated F ebru ar y 1 9 9 1 , p roduce d a standa rd scor e of 64. Ms. Ode ll could not
rec all this document. She rec alled discussing the Petitioner’s I .Q. but could not rec all any specific s or the outcome of the discussion. She could not rec all what other fac tors they

wer e conside ring at the time. Neither

could Ms. Odell re call what was discussed a s being important for mitigation.

M s

. O d e l l t e s t i f

i e d t h a tt h e P e t i t i o n e r

s a i d t h a th e d i d

n o ti n t e n d

t o k i l l t h e v i c t i m

. In prepa ring for tria l, Mr. J ohnson and Ms. Odell worke d toge ther, visited the Petitioner toge ther, went throug h witness testimony toge ther, a

nd visited the crime scene toge ther. Howeve r, Ms. O dell stated that Mr. J ohnson actua lly handled the tr ial. Ms. Odell stated that the Petitioner did not g ive them the name s o f any wi tne ss. Ho we ve r, the y sp ok e wi th t he Pe tit ion e r’ s f

a mil y me mbe rs , in c lud inghis mother, his g randmother , and his Uncle Travis.

Ms. Od e ll t e sti fi e d th a t th e ple a of fe r w a s c omm

un ic a te d to the Peti ti one r, bu t hi s unc le
a dv ise d h im n ot t o ac c e pt it. She state d tha t the of fe r wa s for fo rt

y y e ars . M s. Od e ll r e c a lle d th a t, afte r the de ath pena lty

was imposed, the Petitioner’s unc le wante d to acc ept t he offer. She stated that
ever y conver sation with the Pe t i t i o n er wa s in prepar ation for the tr ial. Ms. Odell stated that the Petitioner had admitted on more tha n one occ asion that he ha d committed the crime. She state d that he would not g ive them names of a ny witnesses to assist in his defense, not e ven in the mitigation stag e, other

than his family

members. She c oncede d that they rea lly did n o t h ave a def

ense. She stated that they

argued that the Petitioner did not i n t en d t o kill the victim. M s. Odell rec alled
rec eiving information reg arding the Petitioner’s neig hborhood. She could not re member a ny thing about the P etitioner’s stepfather. She could not reme mber a ny incident in which the Petitioner wa s hit in the head with a gun. She could not r eca ll that the Petitioner had previously been shot in the le g . Sh e c ou ld n ot re c a ll inv e sti g a tin g the Pe tit ion e r’ s be havio r duri ng his inc arc e ra tio n pr ior to t ri a l. She could not rec all the Petitioner’s g irlfriend nor d i d s h e reca ll whether the Petitioner had any
c hil dr e n. Ms. Od e ll c ou ld n ot r e c a ll sp eaking wi th t he fo llo wi ngpe rs on s: Sa nd ra B land , K e vin Smi th , Dorothy

Smith, I ri shRuthe rf

or d, Caro ly

n Jac ks on , T a mara

Jac ks on , Ro se Tatum , T e re sa Wig g s, or Pe ri nta B land . M s. Od e ll d id n ot m e e t w iththe c or on e r p ri or to t ri a l; h ow e ve r, sh e did revie w the autopsy

repor t. Reg ardingthe Petitioner’s appe al, Ms. Odell conce ded that the defe nse team had omitted an issue reg ardingan err oneous jury instruction. She could not rec all why they elec ted not to include the issue on appe al. Ms. Odell could not re call why the def ense te am opted not to challeng e the Petitioner’s non-ca

pital offense s.
On cr oss-examination, Ms. Odell stated that she had rec eived an off er f rom the State bef

ore-25-

Mr. J ohnson was appoin ted. B ased upon the advice of his uncle, the Petitioner r ejec ted the off er. She stated that the Petitioner did not want to testify during the g uilt phase of the trial. She also stated that, whi le s h e w a s aw ar e th a t th e Pe ti ti o n e r w a s in v o lv e d in th e s a le o f il le g a l dr u g s , s he wa s uncer tain as to the businesses of the Petitioner’s fa m i l y m em b ers. Ms. Ode ll stated that they at t em p t ed to keep knowle dg e of the Petitioner’s drug -dea ling f rom the jury . Howeve r, whe n he testified at the pe nalty

phase, the Petitioner’s involvement was revea led. I n fac t, the Petitioner stated that he wa s armed be cause he wa s dealing drug s. Ms. Odell rec alled that whe n the prosec utor asked the Petitioner why

he shot the victim so many times, the Petiti oner r esponded that he was mad. The Petitioner added that “[h] e was out there selling dope and thi s person came up and so he said he was mad [was] t he re ason he shot him.”

Ms. Odell acknow ledg ed that the Petitioner shot the victim more than one time. She rec alled that testimony

indicated that the vic tim’s leg “ looked like g round hamburg er meat.” She stated that
a re port by

Dr. P ar r i n d i cate d that the Petitioner had a verba l I .Q. of 82. More over, the repor t indicated “ a ver

y s t ro n g antisocial orientation.” I t further ref lected that the Petitioner was “ve ry narc i ssisti c in orientation and ty pically utilit aria n and manipulative in his relationships wit h other people.” The re port additionally indicated:
[H] is social skills are ser iously impaired, a

nd his relationships with others tend to be highly conflicte d and g ener ally very s h o rt lived. There is also evidence of
c on sid e ra ble ang e r, and

ov e rt e xpressi on s of ho sti lity

are pr ob a

bly no t un us ua l. Fur ther, his impulse control is se riously impaired and shows a ve ry high pote ntial for actingout and using poor judg ment.

Al tho ug h s he did

re vie w the a

uto ps y re po rt , M s. Od e ll d id not me e t withthe c or on e r p ri or to t ri a l. Ms. Odell stated that they talked with two witnesses, a man who lived on the se cond floor of the a partments and c ame out to observe the incident and a nother man who owned the t ruck. The man who owne d the truck told them “howthe per son was lay ing unde r the truc k . . . [t he victim] ran under the truck a

nd [t he Petitioner] g ot dow n on his - - he kne eled down a nd shot under the truc k.” The Petitioner told Ms. Odell that “[h] e wa s out there se lling his dr ug s and this person came up and g ot in his way .” She could not re call any theory about a robber

y taking place . Ms. Odell stated that the Petitioner did not give them the names of any witnesses. She explained that they only lear ned about t he Petitioner’s unc le bec ause he came to court one da y . She testified that they told the Petitioner’s family

members to come to court and to bringother fa mily members with them.
Reg ard in g in f

o r mati o nth a t t

h e Pe ti ti o n e r

h a d li v e d in a h o u s e in G e r ma n to w np a id

f o r by his ste pf a the r’ s d rug d e a lin g , M s. Od e ll s ta te d th a t sh e wo uld have wa nte d to e va luate thi s information more c are fully

. She explained that she would not w ant to ha ve appe are d to have be en g lorifying the drug life.

D r

. A n g e l i l l o fi rs tm et t h e P et i t i o n er i nJ u n e 2 0 0 3 , fo r t h e p u rp o s e o f p er fo rm i n g a psy cholog ica l ev aluation as to the Petitioner’s menta l status and intellectual func tioning. Dr

.-26-

Ang elillo reviewe d psy cholog ical eva luations of the Petitioner conduc ted i n 1 9 8 8 and 1991. He stated that he a lso reviewe d the Petitioner’s juvenile c ourt rec ords.
Dr. Ang elillo stated that the evaluation by Dr. Allen Battle indicated that the Petitioner ha d
a ve rb a l I .Q . o f 6 3 a

nd a no nv e rb a l I .Q . o f 6 4. An e va luatio n o f the P eti tione r b y Dr . Pa rr in Jul y 1991, indicated a

verbal I

. Q. of 82. Dr . Parr a lso administered the Rorscha ch test and the Be nder test. Howeve r, Dr. Par

r’s testing , which indicate d an I .Q. of 8 2 , wa s n o t a full-sca le I .Q. Dr. Ang elillo surmised from revie w of these prior tests that “two th i rds of these score s show a seve re impairment cog nitively

at that t ime.” Dr. Ange lillo s tated that Dr . Parr’ s repor t noted that neither the Petitioner’s insight nor judgme nt appea

red to be lacking . Howeve r, Dr. B attle’s re port indicated signs of stress, so there wer e diffe ring finding s. Dr. Ang elillo evaluated the Petitioner and determined t hat t he Petitioner’s I .Q. was 85. H e stated that t his score was “well below avera g e.” Dr. Ang elillo determined that the Petitioner’ s verba l I .Q. was 89. D r. P arr score d the Petitioner’s ver bal I .Q. at 82. Dr . Ang elillo stated that an I .Q. score can be improved “in a

n intellectually enric hed environment” by extensive readingand ac quiring new information. Dr. Ang elillo noted that the Petitioner had bee n rea ding “ a g reat deal.” H e adde d that there was no wa

y to determine at the prese nt what the Petitioner’s I .Q. was te n y ear s ag o. Dr. Ang elillo stated that parts of Dr . Parr’ s repor t were somewhat ambiguous.

Dr . A ng e lil lo a lso pe rf

or me d tw o ob

je c tiv e ps y c ho log ic a l te sts , the Minne so ta Mu lti -P ha sic Personality

I nventory

and the Millon Clini cal Mult iaxi al I nventory

. These tests indicated that the Pe tit ion e r w a s e xpe ri e nc ingdif fi c ult ie s w ith me mor

y , co nc e ntr a tio n, and

thi nk ing . Ind ivi du a ls w ith elevations, such as the Petition er, are e x tremely vulnera ble and a pt to panic when the y

fee l such
vu lne ra bil ity ari sin g

. Dr . Ang e lil lo al so de te rm ine d th a t th e Pe tit ion e r w ou ld p e rf or m bi zar re a c ts,
so me tim e s a s a c ts o f s e lf

-p ro te c tio n and oth e r tim e s in re ta liatio n fo r wh a t he pe rc e ive d a s th re a ts to his safety . Dr. Ang elillo’s testing also reve aled the Petitioner as a pe rson in an ele vated r ang e of b e in g dr iv e n b y s tr o n g a mb it io n s an d a n e e d to p r o v e h im s e lf an d mo v in g in to a c tion whe n thr e a te ne d. An oth e r e le vate d a re a in the P etiti on e r’ s te st i s c a lle d p sy c ha sth e nia , w hic h is a re fl e c tio n o f an xiety

. I n summ ary , Dr . A ng e lil lo’ s e va luatio n o f t he Pe tit ion e r i nd ic a te d th a t it c ou ld be dete rmined that the Petitioner was sociopathic or somebody who would take a dvantag e of othe r people to ac hieve his own e nds.

D r

. A n g e li ll o in te r

v ie w e d th e Pe ti ti o n e r a t Ri v e r b e n d an d a t th e Sh e lb y Co u n ty Ja il

. He descr ibed the intervie w at the jail. He observe d that the Petitioner appe are d stressed. The Petitioner told him that he was exhausted. Dr. Ang elillo obse rved that the Petitioner’s ability to think and plan was sig nificantly

impaired. He stated that the Petitioner was not psychotic. The Petitioner, howe ver, had diffic ulty

in perc eiving threats from the environment. Dr. Ang elillo state d that, in his opinion, the Petitioner should have be en re-eva luated. W hen questioned a s to the Petiti oner’ s psy cholog ical functioning , Dr. Ang elillo responded:

These tests pic k up two differ ent things. They pick up long- term kind of traits and the y a lso pic k u

p h is c ur re nt func tio nin g

. Som e of the se thi ng s w e re qu ite sim ila r t o-27-

what wa s written ab o u t many y ear s ag o. Imight think for most people those a re traits, those are things a

bout our persona lity

that may not chang e. . .

. Ibelieve that [t he Petitioner’s] tendency may be to per ceive threat where other pe ople might not would also think wouldn’t have a whole lot of cha

nce to c hang e see ing a s how wher e he is a re sident at this tim e.

He a dded that the Petitioner’s psycholog ical impairments would have impacted the Petitioner’s ability to maturely

contemplate w hat he wa s doing, the g ravity of what he wa s doing be cause of the perc eption of a thre at.

On cr o s s -e x am i n at i o n , Dr

. An gel i l l o ac kn o wl ed gedt h at p s y ch o l o gi ca l t es t i n g co u l d n o tgo back in time. In other wor ds, the testing of the Petitioner established his condition at the time of the te sti ng . A t th e tim e of his te sti ng , the Pe tit ion e r ha d be e n on d e a th r ow a t Riv e rb e nd

fo r t e n y e a rs

. Ger ald Skahan, a

n attorney in private practice in Shelby County , testified that his main are a of pr a c tic e wa s c ri min a l def e ns e wo rk . Sp e c if

ic a lly , M r. Ska

ha n te sti fi e d th a t he wa s in vo lve d in more fir st deg ree murder tr ials than any other ty pe of c riminal defe nse work. I n revie wing the Pe tit ion e r’ s c a se , M r. Ska ha n sta te d th a t th e fa ilure of

the de fe ns e te a m to hir e a

mit ig a tio n s pe c ia lis t fell below the minimal st andar ds for c ompetent counsel in a capital case . Mr. Skahan f urther stated that, in e very capital case , it wa s important to a sk questions a bout the death penalty

during voir dire. He a lso stated that, under the fac ts of the pre sent ca se, an attorney could make a

rational a rg ument that, beca use t he P etitioner had previously been shot in t he legand survived, the Petitioner’s intent was to inca

pacitate the victim rather

than ki ll him. Mr. S kahan added that sometimes the fac t that
a c a pit a l def e nd ant ha s a chi ld is the g re a te st miti g a tor of a ll. I n re vie wi ng the tr ans c ri pt of the tr ia l, Mr. Skahan c oncluded that defense counsel put forth no defe nse at all. Mr. S kahan f urther c riticized t h e v e r d i c tf

o r m a s t h e r e w a s n o s t a tu t o r y a g g r a v a t i n g c i r c u m s t an c e f o u n d b y t h e j u r

y.

F ind ings of

P ost-Conviction Court

On Novembe r 28, 2006 , t h e post-conviction cour t entere d an orde r deny

ing the Petitioner relief . The post-c onviction court’s findi n gs o f fa ct and conclusions of law a re summar ized as fo llo ws : The [P] etitioner conte nds trial counsel’s r epre sentati on was inef fec tive. [The] Petitioner lists seventy -six specific alleg ations of er ror. . . .

. . . .
I . Counsel’s Working Relationship with [t he] Petit ioner
[T h e ] P e ti ti o n e r

c o n te n d s c o un s e l f

a il e d to e s ta b li s h a p r o p e r w orking relationship wit h him. . . . Pos t-convicti o n counsel a rg ues that had c ounsel develope d a better

relationship wit h [t he P]etit ioner, then [the P] etitioner would have-28-

been a ble to provide trial c ounsel with valuable inve stigative assistance , including the names of

witnesses whose te stimony would support defe nse theorie s and ser ve as proof as mi t i gat ion. Post -convic tion counsel furthe r ar g ues that had suc h a
re la tio ns hip be e n e sta

bli sh e d [th e P]et iti on e r c ou ld h a ve pr ov ide d c ouns e l w ith valuable inf

ormation reg ardinghis medical backg round, including mental hea lth, as
we ll a s f a mil y and juv e nil e re c or ds

. This court finds this argument to be without merit. There is nothing in the
rec ord either

at trial or on post-c onviction t o i n d i ca t e that the [ P] etitioner did not have a g oo d w or kin g re la tio ns hip wi th c ouns e l. Ms. Od e ll d e sc ri be d h e r r e la tio ns hip wi th [the P]et iti on e r a s g oo d a nd ind ic a te d s he sp e nt a

c on sid e ra

ble a mou nt o f t ime with [the P] etitioner explaining the cha rg es ag ainst him; preparinghim to testi fy and discussing his ca se. While Mr. J ohnson admitted th at h i s relationship wit h [t he P] etitioner wa s “on and of f,” he also indicated this was due to [ the P] etitioner’s behavior . . . . Both c ounsel testified that [the P] eti tioner could be difficult and ref used to provide them with the names of witnesses, inc luding f amily members, who might assist him in his defense or testify at mitigation. .

. . [B]ot h testified that they spent a c onsiderable amount of time prepa ring [t he P ]etit ioner to testify only to have [t he P]etit ioner proc eed on a tang ent during his sentencingphase te stimony resulting in t he a dmi ssi on

of e vid e nc e the y

ha d w or ke d d ili g e ntl y

to e xclu de duri ngthe g uil t ph a se of tr ial. . . . [A ]ny

la c k o f c omm

un ic a tio n o r b re a k d ow n in the re la tio ns hip betwee n counsel a

nd [t he P ]etit ioner wa s the result of [the P] etitioner’s be havior not that of counse l. There fore , this c ourt finds counsel’s pe rfor mance was not def

icient in this reg ard.

I I . I dentifying, L ocatingand Interview ing Witnesses
[The] Pe titioner contends counse l failed to ade quately prepa re f or [the P]et iti on e r’ s r e pr e se ntatio n b y fa ili ngto p ro pe rl y inv e sti g a te , ide nti fy and pr e pa re a ll rele vant witnesses, including but not lim ited to: persons who were in contac t with the [t he P]etit ioner a

round the ti me of the crime; persons who wer e in contac t with key State’s witnesses at or near the time of the crime, the [S ]t ate’ s witnesses ag ainst the [P ]etit ioner; law e nforc ement office rs involved in e very stag e of the investigation of this offense; witnesse s famil i ar wi t h aspec ts of the [P ]etit ioner’s life history and members of

the victim’s family . [The] Petitioner contends that had counse l
a de qu a te ly

pr e pa re d f or this case, the n th e y

wo uld have dis c ov e re d le g iti ma te theories of

defe nse; evidenc e tendingto impeach the te stimony and credibility

of the [S ]t ate’ s witnesses; and compr ehensive and compe lling mitigation evidence

. . . .

. . . . Al tho ug h [the P]et iti on e r intro du c e d te sti mony fr om t wo of the pa rt ic ipa nts in the robber

y , neither of these witnesses testified t hat t he [ P] etitioner di d not shoot-29-

the victim. I n fac t, eac h in d i ca t ed that they saw the [P] etitioner shoot the victim. . . . Dar ryl Ba iley testified that he would not have spoken with [the P] eti tioner’s
co u n s el ev en i f h e’ d

b ee nap p ro ac h edb y

t h em

. . . . R o b er tDa v en p o rt

. . . al t h o u gh he now c laims he would have spoken with . . . trial counsel, this court doe s not find his assertion cr edible. . .

. [H] e li kely would not have be en willing to testify on [t he P] etitione r’ s b eh alf. Thus, thi s court finds [the P] etitioner’s a ssertion that counsel was somehow r emiss in failing to identify these two men as potential witnesses to be wi tho ut m e ri t. This court also finds that [the P] etitioner has f ailed to demonstrate that counsel wa s deficie nt in failing to interview a nd investigate the [S] tate’s witnesse s and all law enfor ceme nt involved in the investigation of the murder. [The] Petiti oner has fa iled to establish that counsel did not perf orm such an i n v est iga

tion and has fa ile d to pr e se nt t e sti mony fr om a ny of tho se witnes se s w hic h w ou ld d e mon str a te that the alleg ed fa ilure of counsel to investigate such witnesse s cause d him prejudice. Finally , this court finds counsel did in fac t interview c ert ai n of [the P] etitioner’s fa

mily members in an e ffor

t to develop a more complete history of [the P] etitioner’s life a

nd backg round. .

. . [I ]t does appe ar both [the P] etitioner’s mother and g randmother

testified at sente ncing portion of [the P] etition er ’s trial. [The] Petitioner’s mother testified r eg arding[t he P] etitioner’s dropping out of school and juveni l e ar rests. She also testified r eg arding [t he P]etit ioner’s de cision to turn him se lf int o p oli c e

. . . . [T]hi s c ourt is no t c on vin c e d that c ouns e l wa s d e fi c ie nt i n failing to present each and every witness at trial. Counsel prese nted testimony from those persons who e ither helpe d raise the [P ]etit ioner or ha d a sig nificant impac t on his life. Whil e other

witnesses may

have b een a

vailable to trial c ounsel, this court does not find their dec ision not [ to] call additional fa mily members to fa ll below the
rea sonable standa

rd of r epre sentation requir ed. . . .

I I I . Deve loping a

nd Prepar ing Mitig ation
[The] Petitioner contends counse l failed to ade quately develop a

nd pre pare mit ig a tio n e vid e nc e

. . . . He c on te nd s th a t, h a d c ouns e l sp ok e n w iththe se wi tne sse s, they would have developed additional information for mitigation, would have g ained information that w o u ld

s u p p o r t [the Petitioner’s] claim of diminished mental abilities and neg ated intent; and would have been able to pr esent va luable testimony that would have c orrobor ated [the P] etitioner’s testimony reg ardinghis remorse. . . .
. . . [P ]etit ioner contends counsel was defic ient in failing to reque st and revie w [the P] etitioner’s juvenile, sc hool and jail rec ords of [the P] etitioner. Post-con v i ct i on c ouns e l c on te nd s th a t, i f t ri a l c ouns e l ha d o bta ine d th e se re c or ds , th e n th e y wo uld have kn ow n th e y

sh ou ld h a ve ha d [th e P]et iti on e r e va luate d p ri or to t ri a l and c ou ld have pr esente d expert testimony that would have be en valua ble to mitigation. . . .-30- Th is cou rt f

ind s [th e P]et iti on e r’ s c on te nti on tha t c ouns e l w a s d e fi c ie nt i n failing to inter

view additional members of [t he P] etitioner’s family to be w i t h o ut merit. . . . [I ]t appea

rs to this court that the remainder of the witnesses would have provi d ed s imilar information. This court does not find c ounsel was de ficient for failing to present this redu n d an t proof. More over, this cour t finds [ the P] etitioner be ars so me re sp on sib ili ty in c a lli ngpo te nti a l w itn e sse s to th e atte nti on of c ouns e l. He wa s in the best position to let counsel know that cer tain family

members mig ht be ava ilable t o t es t i fy . Both trial c ounsel testified that they repe atedly

asked [the P] etitioner for

this information and [the P] etitioner fa iled to provide it. . . .
Next, thi s court finds that , d espite [the P] etitioner’s c ontentions, it appears
c ouns e l di d h a ve a t le a st a po rt ion of [the P]et iti on e r’ s juve nil e and sc ho ol r e c or ds

. Moreove r, this court finds that g iven the fa ct that [the P] etitioner does . . . [have] an I .Q. well above the mentally reta rded rang e and nothing in the r ecor ds indicated that [t he P ]etit ioner suffere d from a mental di sorder or def ect, c ounsel was not def

icient in failing to obtain a mental health expert to a ssist them during the trial and wa s not defic ient in failing to present e vidence of low intellectua l functioning to the jury during mitigation. Finally , this c ourt finds counsel was not de ficient in f ailing to hire a mitigation specialist. . . .

I V. Motions Practice
[The] Petitioner contends trial counsel failed to e ng ag e in t h e m otions prac tice nec essar

y to protect his constitutional rights. . . .
[The] Petit i o n er’s contentions are without merit. [ Severa l] of the . . .
asser tions . . . have pr ev iously been de termined to be w ithout merit by numerous a pp e llate de c isi on s. Al tho ug h [the P]et iti on e r lis ts ov e r tw e nty sp e c if ic a lle g a tio ns , which he c laims renders Tenne ssee’ s statutory scheme unconstitutional, the Tenne ssee a

ppellate courts have continuously addre ssed t hese c laims and have found
eac h to be without merit.

. . . Moreove r, it appea rs to this court upon revie w of the tr ia l tr ans c ri pt t

hat c ouns e l di d in

fa c t r a ise thi s is su e pr e -t

ri a l.

L ike wi se , w ith regar d to [the P]et iti on e r’ s argume nt t hat th e de a th p e na lty
v i olates international law, this court . . . finds that this identical argument has . . . bee nr e je c te d b y th e T e n n e s s e e a

p p e ll a te c o u rts

. . . . A d d it io n a ll y , th e T e n n e s see Appellate C o u rt s h av e a l s o ad dre s s edal l ega t i o n s t h at t h e h ei n o u s , at ro ci o u s an d crue l
a g g ra vatin g c ir c ums tanc e is f

a c ia lly un c on sti tutiona l and

fo un d s uc h a

rgume nts to be without merit. . . .

Withre g ard

to [the P]et iti on e r’ s c on te nti on tha t tr ia l c ouns e l wa s d e fi c ie nt i n failing to file a motion for bill of particulars . . . this court finds . . . contentions are without merit. [ The] Petiti oner is not entitled to g ener al discovery via a motion for-31-

bill of particular s. . . . Neve rtheless, a fter r eviewingthe trial t ransc ripts and technic al
rec ord, it does appe ar that trial counsel filed a motion for bill of particular s. . . .
Th us , the o n l y

r e m a i n i n g i s s u e i s w h e t h e r t r i a l c o u n s e l [ ] w a s d e f

i c i e n tin filing a motion to s uppress [the P] etitioner’s stateme nt and whethe r the suppression motion was hear d in a tim el y fa s h i on. I t appea rs from the tr ial rec ord that the
su pp re ssi on mot ion wa s su ff ic ie ntl y su bmi tte d a nd argue d b y

c ouns e l. Wh ile , th is court doe s fin d counsel remiss in failing to have the motion heard until the day of trial, this court does not find counse l’s acti o n s p rejudice d the [P ]etit ioner. [The] P e t i t i o n e r w a s g i v e na

f a i r [ ] an d f

u l l h e ar i n g

. . . an d

e v e nt o o k

t h e s t an d t o t e s t i f y.

. . . [T]his c ourt fi nd s tha t e ve n if c ouns e l w e re de fi c ie nt i n b ri ng ingthe mot ion in a timely manner , [t he P]etit ioner wa s not prejudiced by the delay in any way

. . . .
V. I nspection and Te sting of Phy sical Evidenc e [Th e ] Pet iti on e r c on te nd s tr ial couns e l w a s d e fi c ie nt i n f a ili ngto i ns pe c t, analy ze and test the phy sical evide nce a vailable throug h discovery in this matter. . . . [T he ] Pet iti on e r do e s no t po int to any sp e c if ic do c ume nt or ob

je c t wh ic h he c la ims counsel should have revie wed. . . . [I ]t appea rs to this court that counsel did make a prope r discover

y reque st . . . and such re quest was g rante d. . . . [T] his alleg ation is w ith ou t me ri t.

VI . Cross-examination of State’s Wit nesses a nd Challeng ing State’ s Proof
[The] Petitioner contends that af ter rec eiving autopsy

repor ts indicating that the [P]et iti on e r’ s sh ots to the vic tim ’s le g s ca us e d the vic tim ’s de a th, c ouns e l sh ou ld have me t with the medical ex am i ner to discuss his potential testimony . [The] Petitioner also argues that counse l should have obtained a medical e x pert to conf ront
and re bu t th e me dic a l e xami ne r’ s te sti mony a t tr ia l.

Both trial counsel testified t hat t hey had the repor ts prepa red by the medica l examiner upon which his t es timony was ba sed. . . . [T] his court does not find that their fa ilure to perf

orm such an inter

view results in [d] efe ctive re prese ntation. The
m ed i ca l ex am i n er b as i ca l l y t es t i fi ed t h at t h e gun s h o t wo u n d s t o t h e vi ct i m ’s l egs sever ed his femor al ar

tery and ca used the victim to bleed to death. . . . [ T]his court finds c o u n s e l d id

n o t r e n d e r

in e f f e c ti v e r e p r e s e n tati o nb y

f a il in g to in te r

v ie w the
me dic a l e xami ne r p ri or

to t ri a l and e ve n if they di d, [ th e P]et iti on e r h a s f a ile d to demonstrate pr ejudice.

. . . [P]e tit ion e r c on te nd s c ouns e l’ s p e rf or manc e wa s def

ic ie nt in that th e y

fa ile d to demand or

rec eive the [S] tate’s witness list prior.

. . . [A] revie w of the tria l rec ord indicates trial c ounsel did in fact re q u es t a li st of the [S ]t ate’ s witnesses and testimony prese nted by

trial counsel at the hearing on this matter indi cate s that trial-32-

counsel did in fac t interview c erta in potential witnesses prior to trial.
. . . [P ]etit ioner c ontends that trial counse l was ineffec tive in failing to cross-e x amine Carlos Sanders . . . .
At trial, Carlos Sander s g ave a bri ef state ment in which he indicated [the P] etitioner was pre sent for some por tion of the planning of the robbe ry . Howeve r, he wa s una

ble to g ive an y

de ta ils re g ard ingwh a t w a s d isc us se d d ur ingthe se conver sations and provided no a dditional testim ony other than this bare asser tion. .

. . [ T ] h i s co u rt d ec l i n es t o s ec o n d gu es s t ri al co u n s el ’s t ac t i ca l d ec i s i o nt o f o r e go cross-e x amination of t h is witness. Si nce this cour t finds counsel’s de cision was ba se d on a de qu a te pr e pa

ratio n, thi s c ourt

wi ll n ot f ind c ouns e l w a s in e ff

e c tiv e sim ply beca use their de cision may

have hur t [ the P] etitioner’s c ase. . . .

VI I . Request for Pre -Tria l Morg an He aring
[Th e ] Pet iti on e r c on te nd s c ouns e l’ s p e rf or manc e wa s de fi c ie nt fo r fa ili ngto reque st the trial court c onduct a he aringout of the pre sence of the jury to determine wh a t, i f a ny , o f h is p ri or

c on vic tio ns c ou ld b e us e d to imp e a c h his te sti mony a t tr ia l.

. . . [A ]ft e r l oo kin g to t

he tr ia l r e c or d in

thi s ma tte r, it a pp e ars tr ia l c ouns e l di d in fac t file a motion [for] a pr e- t ri al Morg an hea ring ; however , such motion was withdrawn on the day of t rial. Whil e thi s court will not speculate , it is obvi ous that at that point c ounsel may have deter mined that their client would likely no t t est ify and thus, s u ch a h ea ri n g was not nec essar y . . . . [I ]t is not necessa

ry to speculate , beca use the c ourt finds that the dec ision to forg o this mot ion was neither ineffe ctive nor pre judicial. . . .

VI I I . Retention of Mental He alth Ex pert [Th e ] Pet iti on e r c on te nd s c ouns e l f a ile d to ob ta in a me nta l he a lthe xpe rt to evaluate his mental hea lth, intelli g ence and socia l backg round. He claims an e x pert
was ne eded in or der to support a n argument for lesse r included of fense s and diminis hed ca

pacity at t he guilt phase and to bolster mitigation evide nce pr esente d
a t the se nte nc ing ph a se

. He c on te nd s ha d c ouns e l re ta ine d su c h an e xpe rt the y wo uld have disc overe d th at he [had a] below ave rag e mental f unctioning a

nd an I .Q. that [was] far below the avera g e I .Q. of male s his ag e. This court finds this alleg ation is without m erit. [The] P eti tioner’s own e x pert te sti fi e d at th e he ari ng

. . . th a t [ the P]et iti on e r h a s a fu ll s c a le I .Q . o f 8 5.

. . . [T ]his level of f unctioning is we ll a

bove mental reta

rdation. [The] Petitioner’s mother and g ra n d m o t h e r t e s t i f i e d t h a tt h e [P ]e t i t i o n e r

h a d t r o u b l e i ns c h o o l an d

e v e n tua lly dropped out of sc hool. Thus, a portion of this information was plac ed befor e the jury during mitigation. . . . [T] his court is not convince d

. . . that a defense of diminis hed-33-

capa city could b e s ustained. . . . Dr. A ng elillo admitted that the sy mptoms he de sc ri be d c ou ld j us t a s li ke ly fi t a[ ] so c iop a th pa tho log y . Su c h in fo rm a tio n w ou ld just as likely

have be en dama g ing to mit iga tion as helpful.

. . . [T] his court does not find [the P] etitioner wa s prejudice d by their inac tion. . . .

I X. Plea Ne g otiations
[The] Petitioner contends counse l failed to neg ot i at e with the [S ]t ate a nd fa i l e d t o e xp l a i n t h e n e g o t i a t i o n s p r o c e s s t o h i m u n t i l t h e e v e o f t r i a l

. . . . T his alleg ation has no merit. Both trial c ounsel testified that the [P] etitioner wa s offe red forty y ear s and both testified that they urg ed [ t h e P ] et i tioner to take the offe r. . . . [P]et iti on e r’ s un c le a dv ise d him no t to t a ke the of fe r a nd [the P]et iti on e r e ve ntu a lly de c lin e d th e of

fe r.

. . . [T]hi s c ourt fi nd s c ouns e l ne g oti a te d a ve ry fa vo ra ble de a l .

. . wh ic h [th e P]et iti on e r c ho se to r e je c t.

X. Counsel’s influenc e on [the P ] et i t i o ner’ s rig ht to testify and pre paration for testimony
[Th e ] Pet iti on e r c on te nd s c ouns e l f a ile d to a llo w him to tes tif y in h is d e fe ns e at the g uilt phase of the t rial. [ The] Petitioner contends counse l continually ignor ed his cli ent’s de sir e to t e ll the jur y that he did

no t in te nd

to k ill the vic tim

. Additionally , he ar g ues counse l failed to ade quately pre p ar e him to testify

in the
se nte nc ingpo rt ion

of the tr ia l.

. . . [The Petitioner] was not pre judiced bec ause he was a lso ex amined by the cour t
re g ard inghis de c isi on

no t to te sti fy

and c le arl y ind ic a te d that he wi sh e d to wa ive his ri g ht.

Wit h reg ard to his testimony at the sente ncing portion of the trial, this court finds trial counsels’ te stimony persua s i v e. Both counsel testified that they spent
se ve ra l ho ur s p re pa

ri ng[the P]et iti on e r t o tes tif y and dis c us se d in det a il how the y did
n o t w an t [ th e P] e ti ti o n e r to d is c u s s h is p r io r c r im in a l a c ti v it y an d dr u g u s e

. . . . [I ]t appea rs [the P]etitioner ignor ed their advice to his own detriment. Thus, this court fi nd s th e se a lle g a tio ns are wi tho ut m e ri t.

XI . J ury Questionnaire and Jury

Voir Dire
[The] Petitioner contends counse l was ineff ective in failing to reque st a jury questionnaire; f

ailed to prope rly

voir dire juror s reg ardingthe appropr iate we ighing
a pp ro a c h to be us e d b y

the jur y in e va luatin g mi tig a tin g and a g g ra vatin g fa c tor s; fa ile d to pr op e rl y vo ir dir e jur or s r e g ard ingthe burd e n o f p ro of bo th w ithre g ard

to g uilt and with reg ard to a g g ravating a nd mitigatin g fa ctors; failed to ask potential jurors about their views reg arding the death penalty ; failed to inquire as to whether-34-

juror Rozell Ros s had the abilit y to be fair given that Ross had been the victim of a
ro bb e ry ; f a iled to q ue sti on jur or s T uc ke r, Ta

tum , O ’N e a l and

Roo ks ; and

fa ile d to object to the prose cutions improper a rg ument during voir dire.

These a lleg ations ar e wi t hout merit. I nitially , this court notes that juror questionnaires a

re discr etionary

and ar e routinely either de nied or modified by trial
c ourt s.

. . . [T ]his c ourt do e s n ot f

ind that tr ia l c ouns e l’ s fai lur e to r e qu e st a qu e sti on na ir e , a lon e , f

a lls so fa r b e low the a c c e pte d le ve l of

re pr e se ntatio n a s to
re nd e r the ir re pr e se ntatio n of [the P]et iti on e r ine ff e c tiv e . Wh ile c ouns e l di d n ot a sk sp e c if ic qu e sti on s r e g ard ingthe we ig hin g of a g g ra vatin g and

mit ig a tin g fa c tor s, bo th the cour t and the prose cution extensively revie wed the statute. Thus, any ineffe ctiveness on the p art of tr ial counsel . . . did not prejudice [t he P]etit ioner’s
case . Despite [the P] et i t i o n er ’s arg uments, a re view of the trial rec ord indicate s counsel did question the jurors a bout their understa

nding of the [S ]t ate’ s burden of proof a nd the conc ept of re asonable doubt. Whi le def ense counsel did not question jur or Ros s a bo ut the ro bb e ry pe rp e tr a te d ag a ins t him, the pr os e c uto r did a sk Mr . Ro ss if there was any

thing about that incident that would af fec t his judgment as a

juror .

. . . T h u s , t h i s c o u rt f

i n d s c o u n s e l w a s n o t i n e f f e c t i v e i n f

a i l i n g t o qu e sti on him fu rt he r. L ike wi se , th is c ourt do es no t f ind c ouns e l w a s in e ff

e c tiv e in f

a ili ngto question jurors Tucke r, Tatum, O’Ne al and Rooks. The de cision whether to voir dire
a p r o s p e c t i v e j u r o r

o nt h i s i s s u e , o r

t o w h a td e g r e e , i s a

s t r a t e g i c o n e

. . . . F i n a l l y, thi s c ourt fa ile d to fin d an y mis c on du c t on beh a lf of the pr os e c uti on duri ngthe vo ir dir e of po te nti a l juro rs

.
XI I . O bje c tio n to State ’s Op e nin g and Clo sin g State me nts [The] Petitioner contends counse l was ineff ective f or failing to obje ct to the prosec ution’s improper re fer ence in opening statement to the “A merica n nightmar e.” Th is c ourt fi nd s th a t, a lth ou g h th e ph ra se is inf lammator y , it wa s use d only

on e tim e during the prosec utor’s closing arguments. Thus, this court finds even if counsel wa s ineffe ctive i n failingto raise a n objection, the [P] etitioner wa s not prejudiced by
c ouns e l’ s f

a ilure to a c t. [The] Petitioner also contends c ounsel should have objec ted [to] the prosec ution’s improper ca ll to t h e j ury , during closing argument of the sente ncing phase, to “ mete out j ustice.” This c ourt ag ain finds counse l’s perf ormanc e wa s not defic ient for failing to object to t he prose cution[’] s singular use of the a

bove phra se.

XI I I . O pe nin g and

Clo sin g State me nts [The] Petitioner cont en d s co u n sel failed to a rg ue any fac t, law, theory

or defe nse duringopening and closing arguments of the g uilt phase of trial. This court disa g r e e s

. B o th tr ia l c o u n s e l te s ti f ie d a t th e h e ar in g

. . . th a t th e y felt [the-35-

P] etitioner’s de fense was limited. Howeve r, both emphasized in opening and closing the pre sumption of innocenc e, the [S ]t ate’ s burden of proof a nd rea sonable doubt and
argue d th a t th e [S]ta te e ith e r w ou ld n ot be a ble to me e t the ir burd e n or ha d f a ile d to meet th e ir b u r d e n r e s p e c ti v e ly

. T h is c o u rt w il l n o t s e c o n d g u e s s th e ir d e c is io ns. . .

.
XIV. De fe ns e and

/or Th e or y of the Ca se [Th e ] Pet iti on e r c on te nd s c ouns e l f a ile d to for

m any de fe ns e or

the or y in h is
c a s e

. S p e c i f

i c a l l y, h e ar g u e s c o u n s e l f a i l e d t o d e v e l o p p r o o f

o f d i m i n i s h e d

c a p a c i t y; introduce pr oof of [the P] etitioner’s limited intellectual func tionin g; p resent an argument fo r voluntary

manslaug hter; def

end [the P] etitioner under a theor y of criminal re cklessness; pre sent evidenc e of [the P] etitioner’ s o wn wound to the leg which impacte d his state of mind; and failed to pr es en t a d efense of ig noranc e or mistake o f fa ct based upon [the P] etitioner’s limited intelligenc e and pe rsonal
e xpe ri e nc e s.

. . . [T] his c ourt does not find counse l was ineff ective in f

ailing to pr esent proof

of mental disease or re tardation and was not ineff ective in failing to ra ise a de fense of diminis hed ca

pacity

. . . . [T] his court also finds counsel was not ineffe ctive in fa iling to a rgue to t he jury that th e mur de r w a s o ne of vo lun tary

mans la ug hte r o r r e c kle ss ho mic ide . L ike wi se , th is c ourt c an n ot f ind that couns e l wa s ine ff e c tiv e in f a ili ngto argue ig noranc e or mistake of fac t. Both co u n s el testified that [the P] etitioner’s defe nse wa s limi ted; but, claimed that they attempted to pr esent e vidence to the jury that the [ P] e ti ti o n e r

d id n o t i n te n d

to k il l t h e v ic ti m a

n d th u s w a s n o t gu il ty

of preme ditated murder

. . . .
XV . L e sse r I

nc lud e d O ff

e ns e [The] Petitioner contends counse l was ineff ective f or fa iling to demand a

jury instruction reg ardingthe lesser included off

ense of neg lige nt homicide. This court finds that g iven that other lesser inc luded offe nses wer e cha rg ed and the jury

found [the P]et iti on e r guil ty

of the g re a te r c ha

rg e , a ny fa ilure on

the pa rt of c ounsel to reque st an instruction as to n egl i gen t homicide, did not result in prejudice to [ the P] etitioner. . . .

XVI . Bur den of Proof
[Th e ] Pet ition er con te nd s c ouns e l w a s in e ff e c tiv e in f

a ili ngto r e qu e st a proper jury instruction f

or the burden of proof in this case ; object to the trial cour t’s imp ro pe r ins tr

uc tio n; and

in f a ili ngto r a ise thi s is su e in t he ir Mo tio n f or Ne w T ri a l. . . . [T] he jury

was instructed that the State bor e the bur den of pr oving e ach e lement of the o ff

en s e b ey ond a re asonable doubt. . . . [ T]his court finds c ounsel’s-36-

pe rf or manc e wa s d efi cie nt in this re g ard . N e ve rt he le ss, sin c e the jur

y e sse nti a lly
rec eive d a c o mp le te in s tr

u c ti o n , th is c o u rt d o e s n o t f in d c o u n s e l’ s d e f

ic ie ncy prejudice d [t he P]etit ioner to the point that either a differ ent ver dict or punishment would have be en ac complished absent c ounsel’s neg lige nce.

XV I I

. E rr o n eo u s J u ry

C h ar ge First, [P ]etit ioner contends c ounsel was inef fec tive in failing to object when the trial cour

t failed to prope rly

instruct t h e j u ry re g ardingthe appr opriate ve rdict forms for a ver dict of death. [ The] Petiti oner a rg ues that the trial c ourt in s t ru ction that w a s g ive n in the ins tant c a se imp e rm iss ibl y ins tr uc te d th e jur or s th a t th e y

mus t unanimously find mitigation exis ts in order to c onsider a mitigation proof a nd further imp ro pe rl y

ins tr uc te d th e jur

y that th e y mus t un anim ou sly

rej ect th e de a th p e na lty befor e imposing a

lesser punishment. . . . [T] his court finds the tri al cour t ga ve a proper jury char g e. This alleg ation is without m erit.

Se c on d, [the P] etiti on e r c on te nd s c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto reque st a jury instruction indicating that a deliberate act is one pe rfor med with a cool purp os e . A g a in, thi s c ourt fi nd s th e tr ia l c ou

rt g a ve a pr op e r ins tr

uc tio n and

did in fa c t in fo rm

the jur y that a del ibe rate a c t is on e pe rf or me d with c oo l pu rp os e . T hu s, thi s a lle g a tio n is wi tho ut m e ri t. Third, [t he P] etitioner contends counsel was inef fec tive for f

ailing to objec t to t he tr ia l c ourt ’s ins tr

uc tio n r e g ard ing the de fi nit ion of a pr e me dit a te d a c t. Wh ile this court finds the trial cour t improperly

omitted the initi al portion of one se ntence
o f t h e s t a tu t o r

y d e f i n i t i o n ; s i n c e t h i s c o u rt f

i n d s t h e i n s t r

u c t i o np r o v i d e d

s t i l l c o n v e ys the appr opriate la

w, this court does [not] find trial counse l was ineff ective. . . .

Four th, [ the P] etitioner conte nds counsel should h av e objected [to] an err oneous jury instruction r eg arding the proper proce ss the jury should employ when evaluating a g g ravating a

nd mitigating fac tors. This court finds t he jury char g e . . . proper ly i n s tructed the jury that they

wer e to only

consider the ag g ravating circ umstances relied upon by the [S ]t ate a

nd supported by

the proof. . . . [T]his court finds counsel wa s not ineffe ctive. . . .
Next, the [ P] etitioner conte nds coun sel was inef fec tive for f

ailing to objec t to the trial court’ s improper c om m en t reg ardingmitigation. . . . [The P] etitioner contends c ounsel should have objected to the court’s instructing the jury to consider [t he P]etit ioner’s pa st c riminal conduct. This court does not find [the P] etitioner’s int e rp re ta tio n o f t

he ins tr uc tio n g ive n p e rs ua si ve.

. . . The c ourt a lso pr op e rl y instructed the jury

. . . . This court finds nothing improper in this instruction . . . . Finally , the [ P] etitioner conte nds counsel wa s neg lige nt in failing to objec t-37-

to the actua l verdict for

m provided to the j ury and the actua l verdic t. [ The] Petiti oner contends that by listi ng (1) crue l a nd (2) torture, the jury failed to f ind a ny statutory
a g g r a v a ti n g c ir c u ms ta

n c e

. T h e c o u rt f

in d s n o th in g im

p r o p e r in th e c h arg e or the verdic t forms. . . . Moreove r, the a ppel l at e courts re viewed the verdic t on direct appea l and af

firmed [the P] etitioner’s c onviction and s entenc e. There fore , this court fi nd s n o n e g lig e nc e on

the pa rt of [the P]et iti on e r’ s tr ia l c ouns e l.

XVI I I . SentencingPhase Ope ning Stateme nt [The] Petit ioner c ontends counsel f ailed to g ive a mea

ningf ul opening statement during the pena lty portion of the trial. . . . [T] rial counse l does lay out the [S ]t ate’ s burden to prove eac h ag g ravating circ umstance bey ond a rea sonable doubt and fur ther re minds the jury

that they m[ ust] find the ag g ra v at ing c ircumstance or circ umstances outweighs any mitigation t hey are provided. This court does not find counsel’ s p erf

ormanc e fe ll so far be low the standar d of what is required a s to be deeme d ineffe ctive. . . .

XI X. Victim I mpact Evidenc e [The] Petitioner contends counse l should have objec ted to the abusive,
un fa ir ly pr e jud ic ia l and

c umu la tiv e vic timimp a c t pr oof. Th is a lle g a tio n is wh oll y witho u t me r it

. A t tr ia l, th e [S ]t a te p r e s e n te d te s ti mo n y f r o m o n e v ic ti m impact wi tne ss. Th e fu ll l e ng th o f t he te sti mony

wa s le ss t

ha n tw o tr ans c ri be d p a g e s.
XX. Sentenc ing Phase Closing Argument [The] Petitioner contends counse l failed to p re s ent a meaning ful closing argument during the senten ci n g phase of his trial. This court disag ree s. Counsel clea rly argued that the [S] tate had f ailed to meet its burde n with r espec t to proving the a g g ra vatin g c ir c ums tanc e . T his a lle g a tio n is wi tho ut m e ri t.

XXI . Non-Statutory

Mitigation
[The] Petitioner argues counsel was inef fec tive for f

ailing to r equest a

jury char g e on non-statutory

mitigation. This allega t i o n has no merit. The trial court specific ally

char g ed the jury t h at t h ey wer e to consider

any and all mitigation that the y fo un d e xiste d b e y on d th e e nume ra te d s ta tut or

y fa c tor s.

XXI I . I neff

ective A ssistance on Appe al
[The] Petitioner contends counse l was ineff ective on a

ppeal. . . . Having previously addre ssed eac h of these issues and havingfound counse l-38-

was e ither not ineff

ective in f

ailing to pe rfor

m the requisite tas k s o r h av ing f ound,
even w here counsel’s perf ormanc e was defic ient, [t he P]etit ioner wa s not prejudiced by counsel’s inaction, this court declines t o addre ss eac h of t hese issues a s it relates to appellate c ounsel’s re prese ntation.

I. Stand ard of Review

Pos t -c o nviction relief is only war rante d when a

petitioner establishes that his or he r conviction i s void or voi dable be cause of an a bridg ement of a

constitutional right. T.C.A. § 40-30- 10 3 ( 20 06 ). Th e pe tit ion

c ha lle ng ingPe tit ion e r B land ’s c on vic tio ns is g ov e rn e d b y the 19 95 Pos tC o n v i ct i o n Act, which r equire s that alleg ations be prove n by clea r and c onvincing evidenc e. See T.C.A. § 40-30-110( f) ( 2006). Evidenc e is clea r and c onvincing when ther e is no serious or substantial doubt about the acc urac y of the conclusions draw n from the evidenc e. Hi c k s v . S tat e , 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998)

. Once the pos t-conviction court has ruled upon a petition, its finding s of fa ct ar e conc lusive on appea l unless the evidenc e in the re cord pr eponder ates a g ainst them. W all ac e v . S tat e , 121 S.W .3d 652, 656 (Tenn. 2003) ; Nic ho ls v . S tat e , 9 0 S

. W

. 3 d

5 7 6 , 5 8 6 (T en n

. 2 0 0 2 ) ( ci t i n g State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999) ). This court may not rewe igh or

ree valuate the evidenc e or substitut e its infere nce f

or those dra

wn by the pos t-conviction court. Id . Questions conce rning the
c re dib ili ty

of wi tne sse s and

the we ig ht t o b e g ive n th e ir te sti mony

are fo r r e so lut ion

by the po stconviction cour

t. Id

. (c i t i n g He nle

yv . S tat e , 960 S.W .2d 572, 579 (Tenn. 1997)). I t is, therefor e, the burde n of the pe titioner to show that the evidenc e pre ponderated ag ainst those finding s. Clenny
v . S tat e , 576 S.W .2d 12, 14 (Tenn. Crim. App. 1978)

.
No tw ith sta

nd ing , d e te rm inatio ns of wh e the r co un se l pro vid e d a p e tit ion e r c on sti tut ion a lly defic ient assistance prese nt mix ed questions of lawand fa ct. W allace , 1 21 S.W. 3d

a t 65 6; Nic ho ls , 90 S.W .3d at 586. As such, the f indings of f

act a re r eviewe d under a d

e n ovo s t an d ar d, “ac companied w ith a presumption that those finding s are corr ect u n l es s the pre pondera nce of the evidenc e is otherwise .” Fi e lds v . S tat e , 40 S.W .3d 450, 458 (Tenn. 2001). I n clar ifying the standard, our supre me cour

t expl ained that the sta

ndard f or re viewing the fac tual finding s of a tria l court has al w ay s b e e nin

a c c o r d an c e w it

h th e r e qu ir e me n ts o f

th e T e n n e s s e e Ru le s o f

A p p e ll a te Pr o c edure , specific ally

Rule 13(d). Id . at 456.

II. Ineff

ect ive Assistance of Counsel

A. Legal Stand ard

The Six th Amendment provides, in per tinent part, t h at “[i] n all criminal prose cutions, the
a c c us e d s ha ll enjo y

the ri g ht .

. . to h a ve the As sis tanc e of Couns e l f

or his de fe nc e .” U. S. Co ns t. amend. VI . This rig ht to counsel is “so fundame ntal and e s s en t i al to a fa ir trial, and so, to due proce ss of law, that it is made oblig atory upon the States by

the Four teenth Amendme nt.” Gideon-39-

v. W ainwright , 372 U.S. 335, 340, 83 S. C t. 792, 802 (1963) (citation omitted). I nhere nt in the rig ht to counsel is the rig ht to effe ctive assist ance of counse l. Cuyler v. Sullivan , 446 U.S. 335, 344, 100 S. Ct . 1 70 8, 17 16 (1 98 0) ; McM ann v. Richardson , 397 U.S. 75 9 , 7 7 1 n

. 14, 90 S. Ct . 1441, 1449 (1 97 0) ; se e als o Strickland v. W ashington , 466 U.S. 668, 686, 104 S. C t. 2052, 2063 (1984).

“The benchma

rk for judgingany

claim of inef

fec tiveness must be whethe r counse l’s conduct so undermined the proper functioning of the adve rsar ial proce ss that the trial ca nnot be re lied on as having produce d a just result.” Strickland , 4 66 U. S. at 68 6, 10 4 S. Ct. a t 20 64 ; Com bs v . Co y le , 205 F.3d 269, 277 ( 6th Cir. 2000). A two-prongtest directs a co u rt ’s evaluation of a cla im of ine ff e c tiv e ne ss:

F ir st, the de fe nd ant mu st s ho w that c ouns e l’ s p e rf or manc e wa s d e fi c ie nt. Th is require s showing that counsel made err ors so serious that counse l was not fu nc tio nin g a s th e “ c ouns e l” g ua ra nte e d th e de fe nd ant b y

the Sixth A me ndme nt. Second, the de fendant must show that the deficient pe rfor mance prejudice d the defe nse. This require s showing that counsel’s e rror s were so serious as to depr ive the defe ndant of a

fair tr ial, a trial whose result is reliable.
Strickland, 46 6 U .S. a t 68 7, 10 4 S. Ct. a t 20 64 ; se e als o Combs , 205 F.3d at 277.

T he per formanc e prongof the Strickland test require s a petitioner r aising a cla im of ineffe ctiveness to show that c ounsel ’s represe ntation fell below a n objective standa

rd of
rea sonablene ss or “outside the rang e of pr ofessionally competent a ssistance.” Strickland , 4 66 U. S.
a t 69 0, 10 4 S. Ct. a t 20 66 ; se e als o Kimmelman v. M orrison , 477 U.S. 365, 386, 106 S. C t. 2574, 2588 (1986). “Judi cial scr utiny of per formanc e is hig hly defe rential, a

nd ‘[a] fair assessment of attorney perf orm an ce r equire s that ever y eff ort be made to eliminate the distorting e ffe cts of hindsight, to rec onstruct the cir cumstance s o f counse l’s challeng ed conduc t, and to evaluate the conduct f rom counsel’ s perspe ctive at the time.’ ” Combs , 20 5 F .3 d a t 27 8. Up on re vie wi ngc la ims of ineff ective a ssistance of c ounsel, th e court “must indul g e a strongpresumption that counsel’s
c on du c t f a lls wi thi n th e wi de ra

ng e of re a so na

ble pr of e ssi on a l ass ist anc e ; tha t is, the de fe nd ant m us t
overc ome the pre sumption t hat, under the circ umstances, the c halleng ed ac tions ‘migh t be
cons i dere d sound trial strateg y .’” Strickland , 4 6 6 U

. S

. a t6 8 9 , 1 0 4 S

. C t

. a t2 0 6 5

. A d d i t i o n a l l y, c ourt s sh ou ld d e fe r t o tri a l strate g y or ta c tic a l cho ic e s if the y are inf or me d one s bas e d u

po n a de qu a te prepa ration. He lla rd

v . S tat e , 629 S.W .2d 4, 9 (Tenn. 1982)

. Finally , it is acknowledg ed that
c ri min a l de fe nd ants are no t e nti tle d to pe rfect r e pr e se ntatio n, on ly c on sti tut ion a lly

a de qu a te repr esentation. De nto n v . S tat e , 9 45 S.W. 2d

79 3, 79 6 ( Te nn . Cr im. Ap p. 19 96 ). I n o the r w or ds , “ in consideringclaims of inef fec tive assistance of counse l, ‘we a ddress not what is pr u d ent or appropr iate, but only what is constitutionally compelled.’ ” Burger v. Kemp , 483 U.S. 776, 794, 107 S. Ct . 3114, 3126 (1987). Notwithstanding, it is the dut y of t his court to “sea rch f or constitutional [deficienc ie s ] w it

h p a in s ta k in g c ar e ” a s th is r e s p o n s ib il it y is “ n e v e r mo r e e xa c ti n g th an it is in a capital c ase.” Id . at 785, 107 S. Ct. at 3121.

I f the pe titioner shows that counsel’s repr esentation f ell below a rea sonable standa rd, then-40-

the petit i o n er must satisfy the pre judice prongof the Strickland te st b y de mon str a tin g “ the re is a
rea sonable proba

bility that, but for couns el ’s u n p rofe ssional error s, the result of the pr ocee ding would have be en diffe rent.” Strickland , 4 66 U. S. at 69 4, 10 4 S

. Ct

. at 2068 . “ A r e a so na ble probability is a probability sufficie nt to undermine conf idence in the outcome.” Id

. I n evaluating whether a petitioner s at i s fi es t he pre judice prong , a cour

t must ask “whether

counsel’s de ficient perf ormanc e rende rs the result of the trial unreliable or the proce eding fundamen t al l y u n fair.” Loc k ha rt v . F re twe ll , 5 0 6 U. S

. 3 6 4 , 3 7 2 , 1 1 3 S

. C t

. 8 3 8 , 8 4 4 (1 9 9 3 ) ( ci t i n g Strickland , 466 U.S. at 687, 104 S. Ct . at 2064). That is, a petitioner must establish that the deficienc y of counse l was of such a de g ree that it deprived the defe ndant of a fair trial and c alled into question the reliability of the outcome. Nic ho ls , 9 0 S. W.3 d at 58 7. F or e xamp le , the e vid e nc e ste mmi ng fr om t he fa ilure to prepa re a sound defe nse or to pre sent witnesses must be sig nificant, but it does not nece ssarily follow that the t rial would have otherwise resulted i n an ac quittal. Nealy v. Cabana , 764 F.2d 1173, 1178- 79 (5 th C ir . 1 98 5) ; Cod

e v . M on tgo me ry , 7 99 F.2 d 14 81 , 1 48 3 ( 11 th C ir . 1 98 6) . “ A r e a so na ble probability

of beingfound g uilty

of a le sser c harg e, or a shorter sentence satisfies the sec ond prong of Strickland .” State v. Zimmerman , 82 3 S.W. 2d 22 0, 22 5 (T e nn

. Cr im . Ap p. 19 91 ); se e als o Chambers v. Armontrout , 907 F.2d 825, 832 ( 8th Cir. 1990), cert. de nied , 4 98 U. S. 9 50 , 1 11 S. Ct

. 36 9 ( 19 90 ). Mo re ov e r, wh e n c ha lle ng ingthe imp os iti on of a se nte nc e of

de a th, the pe tit ion e r m

us t sh owthat “ the re is a

re a so na ble pr ob a bil ity that, a

bs e nt the e rr or s o f c ouns e l, t he se nte nc e r .

. . wo uld have concl u d e d

th a t t h e b a la n c e o f th e a g g r a v a ti n g an d

mi ti g a ti n g c ir c u ms ta

n c e s d id n o t w a r r a nt death.” Henley , 9 6 0 S

. W

. 2 d at 5 7 9 -8 0 (c i t i n g Strickland , 466 U.S. at 695, 104 S. Ct . at 2069).

B. Guilt P hase Deficiencies

The Petitioner ra ises n u m er o u s co m p l ai n ts that trial counsel, Patricia O dell and Wil liam J ohnson, failed to func tion as eff ective cou n s el as guara

nteed by both the Tenne ssee a

nd United States Consti tutions. I n this reg ard, the Petitioner asserts that trial c ounsel denied him ef fec tive assistance of counse l at the g uilt phase of his ca pital trial by

brea ching acc eptable sta ndards f or c a pit a l r e pr e se ntatio n in

that:

1. Couns e l f

a ile d to fo rm

ulate any de fe ns e or

the or y of de fe ns e ; 2. Couns e l f

a ile d to int e rv ie w a

nd inv e sti g a te po te nti a l w itn e sse s; 3. Counsel failed to have a mental e valuation per formed on the Petitioner; 4. Counsel failed to conduc t a thoroug h voir dire; 5. Couns e l f

a ile d to fi le pr op e r m oti on s; 6. Counsel failed to make proper opening and closing statements; and 7

. C o u n s e l f

a i l e d t o r e qu e s t j u r

y i n s t r u c t i o n s an d

/ o r o b j e c t t o i mp r o p e r j u r

y ins tr uc tio ns

. 1. Co unse l fai le d t o for m anyde fens e or th e or y o f defe nse
The Petitioner asse rts that there was ample proof f rom which a defe nse t heory could be made. He c ontends that, despite this proof, trial c ounsel failed to de velop and pur sue a c o m p re h ensive defe nse theory for the g uilt/i nnocenc e phase of his c apital trial. Wit hin this claim, the P et i t i o n er-41-

strong ly criticizes the i nexperience of counsel, Patricia Odell. I n this reg ard, he asser ts that she wa s ine ff e c tiv e in f

a ili ng to mov e th e co ur

t to re lie ve he r c on sid e ri nghe r t ota l la c k o f e xpe ri e nc e in capital murde r trials. The Petitioner a dds that Ms. Odell’s lack of experience “re sulted in a situation wh e re on ly

on e a tto rn e y

(f ro m a pr a c tic a l st and

po int ) h a d a

ny purp or te d qu a lif ic a tio n to d e fe nd

thi s man.” At the post-conviction hea ring , bot h M s

. Od el l and Mr. Johnson recog nized that the Pe tit ion e r’ s d e fe ns e wa s li mit e d. Th e y procee de d o n a

the or y that th e Pe tit ion e r d id n ot i nte nd to kil l th e vic timand , th

us , w a s n ot guil ty

of pr e me dit a te d mu

rd e r. Th e low e r co ur

t de te rm ine d th a t, based on the fac ts of the crime, including the fac t that the “[P] etitioner shot the victim in the leg at least five times at relatively close ra ng e to the point that witnesses descri bed the victim’s legas looking like ‘g round hamburge r m eat’

. . .”, trial counsel was not ineffe ctive in fa iling to adva nce other de fense theories, including an ar g ument that t h e m urder was one of voluntary

manslaug hter
or re ckless homi ci d e. The lowe r cour t further deter mined that, based upon the proof pr esente d at the post-conviction hea

ring , defe nse counse l was not ineff ectiv e f o r f a ilingto present pr oof of menta l reta rdation or diminished ca

pacity . We ag ree

. This court is unable to conclude that the P etitioner’s trial counsel we re ine ffe ctive base d on t h i s c l a i m

. T h e P e t i t i o n e r d i d n o ta d v an c e an y

o t h e r r e a s o n a b l e t h e o r y o f d e f e n s e a tt h e p o s tconviction hea

ring . The Petitioner has not met the re quirements to be g rante d post-conviction re lief on this iss ue. On appe al, the Peti t i o n er also attac ks Ms. Odell’s qualifications to represe nt a ca pital defe ndant. Ms. Odell was a ppointed to repre sent the Petitioner in June 1993. Her appointment was prior to the e f

f e c ti v e d a te o f

th e s ta n d ar d s f o r a p p o in tm e n t o f

c o u n s e l c o n ta in e d

in th e c u r r e nt version of Rule 13, Rules of the Tenne ssee Supre me Court. Prior t o J u l y 1 , 1997, no qualifying criter ia w a s s p e c if

ie d a s to le a d

c o u n s e l. M o r e o v e r , w h il e th e A B A s ta n d ar d s a s to c apital
re pr e se ntatio n w e re in p la c e a t th e tim e of the a pp oin tme nt, and , wh ile it mus t be c on c e de d th a t Ms

. Odell fa iled to satisfy

the sug g ested c riteria e stablished by the AB A, these guidelines are not binding upon the trial cour

ts of t his state. There is no authority that the aspirational qualifications of c ounsel in a ca pital trial set forth in the AB A standar ds or that the re quired qua lifications of ca pital counsel set forth in Rule 13, Rules of the Te nnessee Supreme Court , ar e constit utionally compelled. See ge n e r a l l y T r e nt S tar k s v . S tat e , No

. W 2 0 0 5 -0 2 4 7 8 -C C A- R 3 -P C (T en n

. C ri m

. Ap p

. , at J ac k s o n , Nov. 2, 2006), perm. app. de nied (T e nn . M ar. 5, 20 07 ). Th e F ourt e e nth Am e ndme nt guid e lin e s si mpl y require the appointment of an attorney to a capital defe ndant. Whil e the Te nnessee Supreme Court h a s p u ti n t o p l a c e h e i g h t e n e d r e qu i r e m e n t s i n R

u l e 1 3 , i n c l u d i n g t h e r e qu i r e m e n t s o f t w o a t t o r n e ys that mee t ce rt a in spe c if

ic e lig ibi lity c ri te ri a , the atto rn e y s nee d not me e t the se str ing e nt s tand a rd s to pass constitutional muster. Id

. Whil e the Six th A m en d m en t d o es not gr ant a de fenda nt the rig ht to counsel of his own choice , since Gr e

gg v . G e or gia , 428 U.S. 153, 96 S. C t. 2909 (1976), it has become appar ent that sp e c ia l sk ill s are ne c e ssa

ry to a ssu re a de qu a te re pr e se ntatio n o f d e fe nd ants in d e a th p e na lty c a se s. See AB A, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, at-42-

5.1. Notwithstanding this fa ct, there is no presumption that counsel is ineffe ctive bec ause of lack of experienc e in try ing a particular kind of case. Ru sse ll v . S tat e , 849 So.2d 85, 122 (Miss. 2003). I n other wor ds, lack of e x perie nce doe s not equate to pe r sedefic ient perf o rm an ce

. A succ essful claim of inef

fec tiveness re quires m ore tha n just a showing that counsel wa s inex perie nced. T he Petitioner must demonstrate with specific ity that counsel made err ors so serious that counse l was not functioning as counse l gua rante ed the de fenda

nt by the Six th Amend m en t an d that such er rors prejudice d the def

ense. We proce ed, ther efor e, to examine the Petitioner’s spec ific alleg ations of defic ient perf

ormanc e.
2. Counsel f

ailed to interview and investigate potential witnesses

Ne xt, th e Pe tit ion e r c omp la ins that tr ia l c ouns e l f a ile d to pr op e rl y

inv e sti g a te by

fa ili ngto identify , locate, a

nd interview a ll releva

nt witnesses, including but not limit ed to: pe rsons who wer e in contact with t h e P et i t i o n er around the time of the crime, pe rsons who we re in c ontact with key State’s witnesses at or nea r the time of the c ri m e, the State’ s witnesses at or ne ar the time of the crime, the State’s witnesses a g ainst the P etitioner, and law enforce ment office rs involved in ever y sta g e of the inv e sti g a tio n o f t

his of fe ns e . Sp e c if

ic a lly , th e Pe tit ion e r c omp la ins : (a) Trial c ouns el fai led t o interv i ew th e Pe titioner’ s co-defendants
concer nin g the P etitioner ’s role in the e s p ecially aggravated robbery The Petitioner complains that trial counsel ne ver inter viewed e ither Robert D. D avenpor t or Da rr y l B a ile y , b oth

c o- de fe nd ants of the Pe tit ion e r. He a sse rt s th a t ha d c ouns e l in te rv ie we d th e se two me n , th e y w o u ld h a v e b e e n a b le to f o r mu late a s tr o n g e r c a s e f o r th e Pe ti ti oner, both for neg otiation purposes and for trial. At the post-conviction hea ring , Robert D. Davenport testified that the Pe ti ti o n e r w a s n o t inv o lv e d in th e r o b b e r y d is c u s s io n h e ld a t Ch ar le s Sa n d e r s ’ a p artm e n t. He added that the Petitioner was not amongthe men who jumped on the two me n in the first ca r. Howeve r, the Petitioner did conf ront Ontrain Sande rs, t he man in the Cadill ac. D arr y l Ba iley ag ree d with Robert D. Dave nport that the Petitioner was not involved in the pre liminary discussion about
a r o b b e r y

. H e e xp la in e d th a t, a f

te r th e r o b b e r

y w a s p la n n e d , “ tw o d

u d e s c o me o v e r g oing to se e some lady ” and “ the robbe ry went on. . . .” H e stated that there was fig hting with these two men, then another Cadillac pul led up, and the Petit ioner wa s involved in a confr ontation with this man. Dar ryl Ba iley testified t hat t he P etitioner “had come out the hous e [ and] he shot him in the l eg

. . . .” Whil e the victim was try ing to g et away , the P etitioner followed him around the corne r, and more g un shots we re hear d. Dar ryl B ailey denied that the Petitioner was pr esent whe n the first two men
we re jum pe d. He st ate d th a t, a lth ou g h th e Pe tit ion e r’ s atto rn e y s h a d n ot atte mpt e d to sp e a k w ith him, if they

had, he pr obably

would not have talke d with them.

Neither Mr. Dave nport nor Mr. B ailey denied the fac t that the Petitioner shot the victim. The lower c ourt ac knowledg ed that Mr. B ailey would not have spoken with the Petitioner’s trial counse l
e ve n if the y ha d a pp ro a c he d him

. Th e low e r c ourt fo un d Mr . D a ve np or t’ s st a te me nt t

hat he wo uld have disc ussed the ca se with the Petitioner’s attorne y s not credible. There is no revelation in either-43-

of these two me n’s testimony that would have altere d the Petitioner’s culpa bility for the f irst deg ree murder c onviction. We also note that, prior to his trial, the Petitioner acknow ledg ed that he did not provide c o u n s e l t

h e n a me s o f

an y p e r s o n s w h o c o u ld

s e r v e a s w it n e s s e s a t t

h e g u il t o r

s e n te ncing phases of t h e t ri al. While both men maintained that the Petitioner was not involved in the discussions concer

ning the robber

y and that the Petitioner was not pre sent at the time of the initial confr ontation with the two robbery victims, Nug ent and Norman, the y said that the Petitioner, af ter fata lly shooting Ontrain Sanders, r eturne d to the orig inal scene and shot Nug ent in both leg s as the co-de fenda

nts continued robbing them. The P etitioner fa ils to establish how either the testimony of Mr . D a ve np or

t or Mr . B a ile y

wo ul d ha ve bo lst e re d th e Pe tit ion e r’ s d e fe ns e a g a ins t th e e sp e c ia lly ag g ravated robbe ry

char g e. Bas ed upon the proof pr esente d at the Petitioner’s orig inal trial, we cannot c onclude that trial counsel was ineffe ctive for f ailing to investig ate c o-def endants Da

venport
an d B a i l e y. (b) Trial c ouns el fai led t o investigate the police off icer s and lay witn e sse s a va ila ble to pr e par e , de ve lop , and pr e se nt m e ani ngful gui ltphas e ar gum e nt s for a le sse r -i nc lude d offe nse
The Petitioner also c halleng es trial counse l’s fa i l u re to investigate police office rs and lay witnesses. Off

icer Richard Da

vid Roleson testified at the P etitioner’s post-conviction hearingthat a per son shot in the leg is less likely to die. He added that police officer s are taug ht to shoot i n the cente r of a

body in order to kill an individual. The Petitioner’s uncle, Rickey Bla nd, testified that there wer e two ty

pes of pe rsons that ca

rry g uns, “killers” a

nd “non-killers.” He e x plained that a nonkil le r w ill sh oo t be low the wa ist be c a us e he do e s no t in te nd

to k ill the pe rs on , w he re a s a kil le r w ill shoot above the w aist. The Petitioner asser ts that trial counsel should have elicited this information prior to trial in order to a ssist wit h a def ense the ory

. Spe c if

ic a lly , the Pe tit ion e r c on te nd s th a t th is testimony would have e stablished that the Petitioner did not have the requisite preme ditation to be convicted of

first deg ree murder.

T h i s court re mains unconvince d that introduction of this testimony at the Petitioner’s trial would have chang ed the outcome of the trial. The Petitioner ha s consistently maintained, including in his statement presente d to the jury , that he was not shooting to kill and that was why the Petitioner shot the vi ctim in the l eg

. The iss ue was alre ady befor e the jury

. We also remain unc onvinced that trial counsel wa s ineffe ctive for failing to hire an inde pendent investig ator for t h e p u rpose of int e rv ie wi ngpo te nti a l w itn e sse s. Th e Pe tit ion e r i s n ot e nti tle d to re lie f o n th is c la im.

3. Counsel f

ailed to s ec u re a men ta l ev a l u a ti o n a n d to have an expert
exam ine the P etitioner

Th e Pe tit ion e r c ha lle ng e s tr ia l c ouns e l’ s fa ilure to obt a in a m e nta l he a lthe xpe rt to e va luate his mental health, intellige nce, a nd social backg round in order to support defe nse ar g uments for lesser inc luded offe nses and diminished ca pacity to rebut the int ent element of first-de g ree murder in the g uilt phase and to bolster mitigation evide nce in the pe nalty phase. The Petitioner contends that if counsel ha d investigated the Petitioner’s menta l health, they would have discovere d his below-44-

aver ag e func tioning. The Petitioner argues that had counse l submit ted this information to the jury in both the guilt and the penalty phases, ther e is a re asonable probability the outcomes in these sta g es of the tr ia l w ou ld h a ve be e n d if fe re nt. The post-c onviction court de termined that the Petitioner ha d failed to prove his entitlement to r e lie f o n th is c la im. Spe c if ic a lly , th e Pe tit ion e r’ s o wn e xpe rt te sti fi e d th a t th e Pe tit ion e r h a d a fu ll scale I .Q. of 85. The lower c ourt noted that “this l ev el of func tioning is well above mental reta rdation.” The court fur

ther obser ved that the Petitioner’s expert, Dr. Ang elillo, testified that the Petitioner’s “sy

mptoms could just as likely fit a[ ] sociopath patholog y .” The lowe r cour t rea soned that “[s] uch information would just as likely have be en dama g ing to mitigation as helpful.”

Ms. O dell testified that a re port by Dr. Parr indicated that the Petitioner ha d “a ve ry strong
anti so c ia l or ie ntatio n. ” Th e re po rt fu rt he r r e fl e c te d th a t th e P eti ti one r w a s “ ve ry na rc iss tic in orientation and ty

pically uti l itarian a

nd manipulative in his relationships with other people.” Mr. J ohnson testified that he wa s awa re that the Petitioner had scor ed an I .Q. of 60 on one test and a n I .Q. of 85 on another. He explained that he was unsur e as to whe ther the Petitioner ha d any mental impairment. Howe ver, he observe d that the Petit i oner w as able to conver se, wa s articulate , and
un de rs too d wh a t wa s g oin g on

. Mr

. John so n state d that, b a se d u po n th e ir ob se rv a tio ns , th e de fe ns e team re lied upon the hig her I .Q. score

. Counsel and their investig ator spoke w ith the Petiti oner a nd his family

members. The re w as no indication that the Petitioner was f unctioning at an impaired le vel or that he suffe red in a ny way from any mental def

ects. A la

wy er ma y make r easona

ble dec ision s that rende r par ticular investigations unnecessa

ry

. A r e vie w o f t

he re c ord in di cat e s th a t tr ia l c ouns e l’ s d e c isi on s n ot t o employ a mental he alth expert were rea sonable c onsidering the information ama ss ed by counsel thr ou g h th e ir

inv e sti g atio n. Ac c or din g ly , c ou ns el we re no t de fi c ie nt i n th e ir inv e sti g a tio n in

thi s matter. The Petitioner is not entitl ed to re lief on this issue.

4. Counsel f

ailed to condu ct a t horough voi r dire
Next, the Petit ioner arg ues t hat counse l did not conduct a mea ningf ul or eff ective voir

dire on any topic. The Petit i o n er p re s ented the testimony of Ge rald Skaha

n at the post-convic tion hear ing. Mr . Skahan testi fied that “ther e is not [a] situation wher e y ou would not voir dire the jury
on de a th. ” Th e Pe tit ion e r a sse rt s th a t “ [h]a d co un se l c on du c te d a tho ro ug h v oir

dir e , th e re is a
rea sonable probab i l i t y t h e ver dicts would have be en diffe rent.” He spe cifica lly targ ets counsel’ s failure to a sk any

questions conce rning the death penalty , i.e. , death qua lification, life-qua lification, and issues of rac e. The P etitioner also cha lleng es trial counse l’s failure to object to the prosec ution’s ina pp ro pr ia te vo ir

dir e that amou

nte d to argume nt r athe r t

ha n q ue sti on s.
Th e ult imate g oa l of vo ir dir e is to ins ur e that jur or s are c omp e te nt, un bia se d, and

imp a rt ia l. State v. Mann , 959 S.W .2d 503, 533 (Tenn. 1997) , reh’g de nied , (1998), cert. de nied, 524 U.S. 956, 11 8 S. Ct. 23 76 (1 99 8) ; Sta t e v

. C a z es , 875 S.W .2d 253, 262 (Tenn. 1994) . There is no
c on sti tut ion a l r ig ht t

hat a de fe nd ant i s e nti tle d to hav e qu e sti on s p os e d to the ve nir e sp e c if ic a lly-45-

direc ted to matters that conc eivably might prejudice ve niremen a g ainst him. Ri sta ino v . R os s , 424 U. S

. 5 8 9 , 5 9 4 , 9 6 S

. C t

. 1 0 1 7 , 1 0 2 0 (c i t i n g Ham v. South Carolina , 4 09 U. S. 5 24 , 5 27 -2 8, 93 S. Ct

. 84 8, 85 0 ( 19 73 )) . M or e ov e r, in the c a pit a l mur de r co nte xt, whe re the jur y in t he punis hme nt p ha se m u s t choose be tween life and death, severa l courts have held that not questioning a s to whether a prospec tive juror ca

n fairly consider a

life sentenc e does n o t n ece ssarily constitute deficie nt perf ormanc e. Ha rtm an v . S

tat e , 89 6 S.W. 2d 94 , 10 5 (T e nn . 1 99 5) ; see also Stanf ord v. Parke r , 266 F .3 d 4 42 , 4 53 -5 4 ( 6th

Cir . 2 00 1) ; Com mo nwe alt h v . M orris , 684 A.2d 1037, 1042-43 (Pa. 1996)

.

This court has r eviewe d the transc ript of the voir dire . We ca n n o t conclude that the P eti tione r’ s tr ia l w a s r e nd e re d f un dame nta lly

un fa ir du e to t ri a l c ouns e l’ s f

a ilure to a sk

sp e c if ic questions. Each of the jurors ultimately impaneled made unqualified asser tions that they

could be fa ir and imp art ia l. T he tr ans c ri pt b e fo re thi s c ourt do e s no t de mon str a te any fu nd a me nta l un fa ir

ne ss in the conduct of

the trial. “[W] here a juror is not leg ally disqualified or ther e is no inhere nt prejudice , the burde n is on the [d] efe ndant t o show that a juror is in some way biased or pr ejudiced.” State v. Caughron , 855 S.W .2d 526, 539 (Tenn.) , cert. de nied , 510 U.S. 979, 114 S. C t. 475 (1993).

I n the p r e s e n t c a s e , th e Pe ti ti o n e r h a s f a il e d to e s ta

b li s h th a t h e w a s n o t p r o v ided a tria l cloake d with g uara

ntees of fundame ntal fairne ss. The recor d reve als that both the trial court a nd the prosec uti o n i n fo rm ed the jury of the a pplicable leg al burde ns. The re cord a lso revea ls that trial counsel did inquire a s to the jurors’ unde rstanding of t he S tate’s burden of proof. The P etitioner has fa ile d to presen t any

sp e c if ic pr oo f t o e sta

bli shthat tr ia l c ouns e l a c te d o bje c tiv e ly un re a so na

ble under the fac ts and circ umstan ce s o f t h is case by not delving f

urther into these issues during jury selec tion. Finally , the re cord is devoid of proof of prejudice that the Petitioner may have suf fer ed in this reg ard, pr esuming that counsel’s la ck of que stioning constituted def icient per formanc e. Acc o r d in g ly , we c annot conc lude that trial counse l was def icient in perf

orming an ade quate voir dire

. Th e Pe tit ion e r i s n ot e nti tle d to po st- c on vic tio n r e lie f o n th is c la im.

5. Co unse l fai le d t o fil e pr ope r m ot ion s
The Petitioner next contends that trial counse l was ineff ective fo r failing to file prope r m o t i o n s , i n cl u d i n g: (a ) a m oti on fo r a pr e tr ia l Morgan hear ing; and (b) pretria l motions challeng ing the c on sti tut ion a lity

of the Te nn e sse e de a th p e na lty statut e s. (a) Morgan he ar ing

The Petitioner contends that trial counsel was ineffe ctive for failing to move the trial cour t to conduct a hear ing to determine whe ther a ny prior convic tions of the State could be use d for the purpose of

impe ac h i n g t h e Petitioner’s testimony

. See State v . Morgan , 541 S.W .2d 385 (Tenn. 19 76 ); see also Tenn. R. Evid. 609. The r ecor d from the Petit ioner’s tria l reve als that he did not testify

. The trial court conducte d a voir dire colloquy in which the Petitioner af firmatively

waived the ri g ht t o te sti fy

in h is o wn

de fe ns e a t th e g uil t ph a se of the tr ia l.-46-

The post-c onviction court dete rmined that trial counsel did, in fac t, f ile a motion for a pre

tr ia l Morgan hear ing, but the motion wa s withdrawn on the day of trial. The post-conviction cour t
surm ise d th a t c ouns e l ma y have re c og nize d th a t the Pe tit ion e r w a s n ot g oin g to t e sti fy a t th e g uil t ph a se and , th e re fo re , s uc h h e ari ngwa s n ot n e c e ssa ry . In f a c t, the Pe tit ion e r did no t te sti fy a t th e g uil t phase of the trial. As dete rmined by the lower

court, this court will not speculate as to whethe r de fe ns e c ouns e l w ou ld n ot h a ve re ne we d th e re qu e st f or a he ari ngha d th e Pe tit ion e r u lti ma te ly decide d to take the stand on his own be half. More over, suc h speculation is unnecessar y , as the Petitioner did not testify

at the g uilt phase. Acc ording ly , the P etitioner i s unable to establish that he was pre judiced by

defe nse counse l’s failure to reque st a Morgan h ea ri n g. ( b) Motions challengi ng t he c o ns t it ut io na li t y o f Te nn e s s e e ’ s de ath penalty statutes

The Petitioner next contends that defe nse counsel failed to file pretrial motions challeng ing the constitutionality

of Tenne ssee’ s death pe nalty statutes. The Petitioner ar g ues that, had c ounsel fi le d s uc h mo tio ns , th e re is a po ssi bil ity

the ind ic tme nt may hav e be e n d ism iss e d a nd /or the se c on sti tut ion a l i ss ues wo uld have be e n p re se rv e d in

the re c or d f

or c on sid e ratio n o n a

pp e a l and in post-conviction. Specifica lly , the Petitioner contends that the f ollowing c halleng es we re not made to t he Te nn e sse e de a th p e na lty statut e s:

a. The statutes provide insufficient guidance to the jury conce rning what standard o f p ro of the jury should use in making the deter mination that the
a g g ra vatin g c ir c ums tanc e s o utw e ig h th e mit ig a tin g c ir c ums tanc e s;
b

. Th e sta tut e s d o n o t s u f f i c i e n t l y n ar

r o w t h e p o pu la tio n o f de fe nd a nts convicted of

first deg ree murder w ho are elig ible for a sentenc e of de ath;

c. The statutes do n o t s u fficiently limit the exercise of

the jury ’s discre tion, beca use once the jury

fi n d s the exist ence of one a g g ravating f actor , it can impose a sentenc e of death no matter what evide nce of

mitigation is shown;

d. The statutes limit the jury ’s discre tion to ex erc ise merc y by requiringthe jury t o i mp o s e a s en t en ce o f d ea t h i f i tfi n d s t h at t h e a ggra v at i n g fa ct o rs o u t we i gh t h e m i t i g a t i n g f

a c t o r s , f u rt h e r m a k i n g d e a t h m an d a t o r

y;

e. The statutes fail to e nsure that non-statutory mitigating fac tors are g iven the
same we ight a s statutory

mitigating fac tors by

not requiringthat the jury be g iven written instructions on the equa l weig ht of non-statutory mitigating fa c tor s;
f. The statutes do not require the j ury to make the ultimate de termination that the appr opriate punishment is a de ath sentenc e;-47-

g

. The statutes do not require that the j ury be in s t ru ct ed i n writing that it may impose a life se ntence on the basis of mer cy alone;

h. The statutes do not provide a way to corr ect, by writ t en i n s t ru ct ions or the prese ntation

o f e v id e n c e , ju

r o r s ’ c o mm o n

mi s p e rce ptions reg ardingthe ac tual terms of life sentenc es and de ath sentenc es, the c ost of incar cer ation and the cost of executions, the death penalty ’s deter rent va lue, and the pa inful nature of death by

elec trocution;

i. The statutes pre vent eff ective revie w on appe al bec ause the y do not require the jury to make spec ific finding s with respec t to the presenc e or a bsence of mit ig a tin g fa c tor s; j. The statutes provide for a punishment, de ath, which is crue l and unusual.

. . . Thus, it is a punishment wh i ch h as become incre asing ly unusual and
c on tr ary to e vo lvi ngsta

nd ard s o f d e c e nc y

and human r ig hts ;
k. The statutes provide for a method of execution, elec trocution, which is cruel
and unus ua l;

l. Th e statut e s ar e a

pp lie d in a dis c ri min a tor

y mann e r – un fa ir ly a ff e c tin g ra c ia l, g e nd e r, g e og ra

ph ic , e c on omi c and

po lit ic a l c la sse s;

m. The statutes do not p ro v i de an a dequate method for pr oportionality and
arb itr ari ne ss r e vie w b y

the Te nn e sse e Sup re me Court ;

n. Th e statut e s h a ve be e n a pp lie d b y pr os e c uto rs in a

mann e r t hat a bu se s th e ir discretion bec ause the statutes do not provide uni fo rm s tandar ds for application of the death se ntence ;

o. The statutes have produc ed violations of the equal protec tion clauses of the state and f eder al constitutions because the y do not provide uniform standa rds fo r q ua lif y ingjur or s f

or se rv ic e on

c a pit a l juri e s;

p. The statutes permit the introduction of unreliable ev i d en ce i n s u p p o rt of
a g g ra vatin g fa c tor s and

in r e bu tta l of

mit ig a tin g fa c tor s;

q. The statutes allow the [S ]t ate to mak e clos ing arguments to the jury in the penalty phase;

r. The statutes do not require that the jury be instructed in writing reg ardingthe conseque nces of its failure to r eac h a unanimous ver dict in the penalty phase;-48-

s. Th e statut e s re qu ir e the jur y to a g re e to a un anim ou s verd ict in ord er to impose a life se ntence ;

t. Ex ecution by

either el ec t ro cu t i o n o r lethal injec tion is cruel and unusual punis hme nt.

Th e po st- c on vic tio n c ourt no te d th a t th e Pe tit ion e r l ist e d o ve r t we nty sp eci fi c a lle g a tio ns , which he claims rende rs Tenne ssee’ s statutory scheme unconstitutional. A review of the transc ript
re fl e c ts t hat tr ia l c ouns e l di d, in f

a c t, c ha lle ng e the co ns tit

uti on a lity of the de a th p e na lty

pr e tr ia l. Moreove r, the Te nnessee appellate courts have c ontinuously addre ssed these c laims and have found
e a c h t o b e w i t h o u tm e r i t

. S p e c i f i c a l l y,

a

. The s tatute s p r o v id e in s u f f ic ie n t g u id an c e to th e jury conce rning what standard of

proof the jury s h o u l d use in making the deter mination that the
a g g ra vatin g c ir c ums tanc e s o utw e ig h th e mit ig a tin g c ir c ums tanc e s. Th is contention was reje cted in Houston v. State, 593 S.W .2d 267 (Tenn. 1980) , o v e r r u l e d o n o t h e r

g r o u n d s b y Sta te v . B ro wn , 836 S.W .2d 550 (Tenn. 1992)

.
b

. Th e sta tut e s do not suf fi c ie nt l y n ar r o w t h e p o p u l a t i o no f d e fe nd a nts convicted of

first deg ree murder who are elig ible for a sentenc e of de ath, including the “heinous, atrocious, cr uel” a g g ravating c ircumstance . The Tenne ssee Sup re m e Court has reje cted this argument. Terry v. State, 46 S.W .3d 147, 159 (Tenn.) , cert. de nied, 534 U.S. 1023, 122 S. C t. 553 (2001).

c. The statute s d o n o t s u ff i ciently limit the exercise of

the jury ’s discretion, beca use once t h e jury

finds the exist ence of one a g g ravating f actor , it can impose a sentence of death no matter what evidenc e of mitigation i s shown. T h i s ar g u m e n t w a s r e

j e c t e d b y State v. Smith, 857 S.W .2d 1, 21-22 (Te nn. 19 93 ); see also Franklin v. Lynaugh, 487 U.S. 164, 178-80, 108 S. Ct. 2320, 23 30 (1 98 8) ; State v. Hurley
, 8 7 6 S

. W

. 2d 57, 69 (Tenn. 1993) , superse ded b y s t atute on other

g rounds as re cog nized in State v. Price , 46 S.W .3d 785 (Tenn. Crim. App. 2000)

. d. The statutes limit the jury ’s discre tion to ex erc ise merc y by requiringthe jury t o i mp o s e as en t en ce o f d ea t h i f i tfi n d s t h at t h e a ggra v at i n g fa ct o rs o u t we i gh the m iti g a ti n g f

a c to r s , f u rth e r ma k in g d e a th

ma n d a to r y

. Sp e c if ic a ll y , our supreme c ourt has repeate dly held that “‘ the statute, take n in its entirety , does not in any

way unconstit u t i onally

deprive the sentenc er of the discre tion mandated by

the i ndividualiz ed sente nce r equire ments of the Constituti on.’” State v. Bane

, 8 5 3 S

. W

. 2 d

4 8 3 , 4 8 8 (T en n

. 1 9 9 3 ) ( qu o t i n g State v. Boy d, 797 S.W .2d 589, 596 (Tenn. 1990) , cert. de nied, 498 U.S. 1074, 111 S. Ct. 800 (1991))

.-49-

e. The statutes fail to e nsure that non-statutory mitigating fac tors are g iven the
same we ight a s statutory

mitigating fac tors by

not requiring that the jury be g iven written instructions on the equa l weig ht of non-statutory mitigating fac tors. This argument has bee n reje cted in Sta te v . B us h , 942 S.W .2d 489, 524 (Tenn. 1997)

. f. The statutes do not re quire the jury to make the ultimate determination that the a pp ro pr ia te punis hme nt i s a de a th s e nte nc e . T his argume nt h a s li ke wi se b ee n re j ecte d by our supre me cour

t. Sta te v . H

all
, 9 5 8 S. W. 2 d

6 7 9 , 7 18 (T e nn . 1 99 7) ; Sta te v . B rim me r, 87 6 S.W. 2d 75 , 87 (T e nn . 1 99 4) ; Smith, 857 S.W .2d at 22.

g

. The statutes do not require that the j ury be ins tructed in wr i t i n g t h at it may impose a life se ntence on the basis of mer cy alone. Our

appellate courts have consistently

reje cted the a

rg ument that the “mer cy instruction” is r equire d at
a capital sentenc ing he aring

. State v. Cauthern, 967 S.W .2d 726, 749 (Tenn. 19 98 ); State v. Bigbee

, 885 S.W .2d 797, 813-14 (Te nn. 1994), super seded by statute on other g rounds as re cog nized in State v. Odom , 1 3 7 S. W. 3 d 572 (T e nn . 2 00 4) ; Caz es, 875 S.W .2d at 269 n.6.

h. The sta t u t es d o n o t provide a way to corr ect, by written instructions or the p re s en t at i o no f e v i d en ce , j u ro rs ’ c o m m o nmisperce ptions reg arding the ac tual terms of life sentenc es and death se ntence s, the cost of inca rce ration and the cost of executions, the death penalty ’s deter rent va lue, and the pa inful nature of de a th b y e le c tr oc uti on . T his argume nt h a s b e e n r e je c te d b y our s up re me court. Terry, 46 S.W. 3d

a t 17 0; Br im me r, 87 6 S. W.2 d at 86 -8 7; Caz es, 875 S.W. 2d a t 26 8; State v. Black

, 815 S.W .2d 166, 179 (Tenn. 1991)

. i. The statutes preve nt effe ctive re view on appe al bec ause the y do not require the jury to make spec ific finding s with respec t to the presenc e or absence of mitigating fac tors. I n considering simil ar challeng es, our supreme c ourt has repe atedly

held that the appe llate review process i s constitutionally adequate. Ha ll, 95 8 S.W.2 d at 71 9; State v. Smith, 893 S.W .2d 908, 927 (Tenn. 1994) ; Caz es, 87 5 S. W.2 d at 27 0- 71 ; Sta te v . H arris , 839 S

. W

. 2d 54, 77 (Tenn. 19 92 ); Sta te v . B ar be r, 753 S.W .2d 659, 664 (Tenn. 1988)

. j. “The statutes provide for a punishment, de ath, which is c ruel and unusual. . . . Thus, it i s a p u n ishment which has bec ome incre asing ly unusual and contra ry t o evolving standards of dece ncy and human r ights.” The Petitioner’s argument that the death penalty by an y means c onstitut es cr

uel and unusual punishment in violation of the state and fede ral constitutions has been r epea

tedly reje cted by

our appe llate cour

ts. State v. Keen, 31 S.W .3d 196, 233 (Tenn. 2000) , cert. de nied, 532 U.S. 907, 121 S. Ct. 1233 (2001) ;-50- State v. Pike

, 978 S.W .2d 904, 925 (Tenn. 1998) , cert. de nied, 526 U.S. 1147, 11 9 S. Ct. 20 25 (1 99 9) ; Sta te v . Ne sb it, 978 S.W .2d 8 72, 902-03 (Te nn. 1998), cert. de nied, 5 2 6 U

. S

. 1 0 5 2 , 1 1 9 S

. C t

. 1 3 5 9 ( 1 9 9 9 ) ; S t ate v. Vann, 976 S.W .2d 93, 11 8 (Tenn. 1998) , cert. de nied, 52 6 U .S. 10 71 , 1 19 S. Ct

. 14 67 (1 99 9) ; State v. Blanton, 975 S.W .2d 269, 286 (Tenn. 1998) , c e rt. denied, 52 5 U. S. 11 80 , 11 9 S. Ct. 11 18 (1 99 9) ; Sta te v . Cr ibb s, 967 S.W .2d 773, 796 (Tenn. 1998) , cert. de nied, 525 U.S. 93 2 , 1 1 9 S. Ct . 343 (1998); Cauthern, 967 S.W .2d at 751.

k. The statutes provide for a method of execution, elec trocution, which is cr uel and unusual. This ar g ument has bee n reje cted. Se e su pra

. l. Th e statut e s are a

pp lie d in a

dis c ri min a tor

y mann e r – un fa ir ly a ff e c tin g ra c ia l, g ender , g eog raphic , economic a nd political classes. This argument has bee n reje cted by

our supre me cour

t. Sta te v . Th om as , 158 S.W .3d 361, 407 (Tenn. 20 05 ); St at e v. Hin es, 91 9 S. W.2 d 5 73 , 5 82 (T e nn . 1 99 5) ; Br im me r, 876 S.W. 2d a t 87 ; Caz es, 87 5 S. W.2 d at 26 8; Smith, 857 S.W .2d at 23.

m. The statutes do not provide a n adequa te method for pr oporti o n al i t y and arbitra rines s revie w by

the Tenne ssee Supre me Court. Our supre me cour t has reje cted this argument also. Tho ma s, 15 8 S .W. 3d a t 40 8; State v. Re id, 91 S.W. 3d 24 7, 31 3 ( Te nn . 2 00 2) ; Caz es, 875 S.W .2d at 270-71. More over, our supreme c ourt has h eld t hat, while important as a n additional safe g uard ag ainst a r b it r a r y o r c a p r ic io u s s e nte n c in g , compar ative propor tionality revie w is not constitut ionally

require d. Bland, 958 S.W .2d at 663.

n. Th e statut e s h a ve be e n a pp lie d b y pr os e c uto rs in a

mann e r t hat a bu se s th e ir discretion bec ause the statutes do not provide uni fo rm s tandar ds for application of the d ea t h s en t ence . This argument has bee n reje cted by our supreme c ourt. Tho ma s, 15 8 S. W.3 d at 40 7; Hi ne s, 919 S.W .2d at 582.

o. The statutes have produce d violations of the equal pr otection clause s of the state and fe dera l constituti ons beca use they do not provide uniform standa rds for qua lify ing j u rors for servic e on ca pital juries. This challeng e has be en reje cted by

our Supreme Court in Re id , 91 S.W .3d at 313.

p

. The statutes p e r

mi t t h e in tr o d u c ti o no f u n r e li a b le e v id e n c e in

s u p p ort of ag g ravating f

actor s and in r ebuttal of mitigating fac tors. This argument has be e n r e je c te d in Bu sh , 942 S.W .2d at 524.

q. The statutes all o w the [S ]t ate to make closing arguments to the jury in the penalty phase. This a

rg ument has bee n reje cted. Br im me r, 876 S.W .2d at 87; Caz es, 87 5 S. W.2 d at 26 9; Smith, 85 7 S. W.2 d at 24 ; Caughron, 855 S.W .2d-51- at 542.

r. The statutes do not require that the jury be instructed in writing reg ardingthe conseque nces of

its failure to re ach a

unanimous verdic t in the penalty phase. This argument has bee n reje cted by our supre me cour

t. Terry, 46 S.W .3d at 17 0; B r i m me r, 87 6 S. W.2 d at 87 ; Caz es, 87 5 S. W.2 d at 26 8; Smith, 857 S.W .2d at 22-23.

s

. Th e s t a tu t e s r e qu i r e t h e j u r y t o a g r e e t o a u n an i m o u s v e r d ic t in or de r to impose a life se ntence . This argument has bee n repe atedly reje cted. State v. Ivy
, 1 8 8 S

. W

. 3 d

1 3 2 , 1 6 3 (T en n

. 2 0 0 6 ) ( ci t i n g Br im me r, 876 S.W .2d at 87); State v. Thompson, 76 8 S. W.2 d 2 39, 25 0 (Tenn. 1 98 9) ; King, 718 S.W .2d 241, 249 (Tenn. 1986) , supersede d b y st atute as recognized by State v. Hutchinson, 898 S.W .2d 161 (Tenn. 1994)

.
t. Th e Pe tit ion e r ar g ue s tha t leth al inj e c tio n is cr ue l and unus ua l pu

nis hme nt. Our supreme court has rejected this cla im in State v. Bank s , 271 S.W .3d 90, 108 (Tenn. 2008) , and Abu-Ali Abdul Rahman v. Bre desen, 181 S.W .3d 292, 307-310 (Te nn. 2005)

. W e fu rt her a cknowledg e that the United States Supreme Court re

jected a constitutional chal l en ge of Kentucky ’s standar d three -d ru g l et h al injection protocol in Baze v. R ees , - - U .S. -- , 1 28 S. Ct

. 1520, 1528 (2008).

Acc ording ly , trial counsel’ s failure to preser ve these issue s fo r d irec t appea l cannot be de emed prejudicia l. The Petitioner is not entitled to relief on this issue.

6. Counsel d elivere d in adequate openin g and closi ng statem ents

Th e Pe tit ion e r c on te nd s th a t tr ial c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto i nc lud e in t

he ir opening and closing argument any argument of fa ct, l aw, or defe nse. The lowe r cour t disag ree d, concludingthat counsel “ emphasized in both opening and closing argument the pre sumption of inn oc e nc e , the State ’s burd e n of pr oo f an d re a so na ble do ub t and argue d th a t th e State e ith e r w ou ld not be able to meet their burden or had fa iled to meet their burde n retrospe ctively .” The lowe r cour t d et er m i n edt h at t h e c o n t en to f o p en i n g an d cl o s i n g s t at em en t s wa s wi t h i nt h e r ea s o n edt ri al s t ra t egy of c ouns e l and

that th e c ourt

wo uld no t se c on d gue ss t

he ir de c isi on s.
Th e ri g h tt o e f

f e c t i v e a s s i s t an c e o f

c o u n s e l e xt e n d s t o o p e n i n g an d c l o s i n g ar g ume nts

. Y ar bo ro ug h v . G e ntr y , 5 40 U. S. 1 , 5 -6 , 1 24 S. Ct . 1 , 4 (2 00 3) ; Be ll v. Cone , 535 U.S. 685, 701-02, 12 2 S. Ct

. 18 43 , 185 3 ( 20 02 ). No ne the le ss, c ouns e l ha s w ide la tit ud e in d e c idi ngho w b e st t o re pr e se nt a

c lie nt, and

de fe renc e to c ouns e l’ s ta c tic a l de c isi on s in his c los ingpr e se ntatio n is particula rly important beca

use of the br oad ra

ng e of leg itimate defe nse strate g y at that stag e. Closing arguments should sharpen a nd clar ify the issues for r esolution by the trier of

fa ct, Herring v. New Y or k , 4 22 U. S. 8 53 , 8 62 , 9 5 S. Ct. 25 50 , 25 55 (1 97 5) , b ut w hic h is su e s to sh arp e n a nd ho w b e st t o-52-

c lari fy the m are qu e sti on s w ithmany re a so na ble ans we rs

. I nd e e d, it m ig ht s ome tim e s ma ke se ns e to foreg o closing argument altog ether

. Be ll , 535 U.S. at 701-02, 122 S. Ct. 1843. J udicial re view of a de fe ns e a tto rn e y ’s su mmatio n is the re fo re hig hly de fe re nti a l and

do ub ly de fe re nti a l w he n it

is conducte d in hindsight. Y arbrough 540 U.S. at 5-6, 124 S. Ct. at 4.

I n the pre sent ca se, duringher open i n g ar gu ment, Ms. Odell stressed the f act that the pr os e c uto r’ s argume nt w a s me re ly argume nt. She a dv ise d th e jur y that th e y we re to o bta in t

he fa c ts from the pr oof that would come from the witnesses. She emphasized that the State must prove ea ch and every element of the crime and that the j ury was bound to follow the l aw pr ovided by the trial court. In closing argument, Mr. J ohnson ag ain focused on the State’s burde n of proof and that the State mus t pr ov e e a c h a

nd e ve ry e le me nt b e y on d a

re a so na ble do ub t. H e a sk ed the jur y to b e fa ir and open minded. Mr. J ohnson reiter ated the elements of preme ditated m urder and foc used on the element of

preme ditation. Mr. J ohnson also ref err ed to the offe nse of re ckless homicide. While we
a g r e e t h a tc o u n s e l ’ s ar g u m e n t s f a i l e d t o s e t f o rt h an y f a c t s o f t h e c r i m e s o r

a s p e c i f i c d e f e n s e t h e o r y, w e c an n o tc o n c l u d e t h a t , h a d c o u n s e l d o n e s o , a d i f

f e r e n t r e s u l t w o u l d h a v e o c c u r r e d

. A d d i t i o n a l l y, as t he trial court properly

instructed the jury

as to the ele ments of the off enses, we cannot c onclude that counsel’s o p en i n g an d closing statements constituted prejudicia l error . The Petitioner is not
e nti tle d to re lie f o n th is c la im.

7. Co unse l fai le d t o r e que stc e r ta in j ur y in st r uc ti ons (a) Burden of

P roof

The Petitioner conte nds that t ri al counsel was ineffe ctive by failing to reque st special jury instructions. Specifically , he ar g ues that counsel failed to r equest a proper jury instruction f or the g uilt phase burden of

proof a nd, in the alternative, failed to objec t to the improper instruc tion pr ov ide d by the tr ia l court . T he Pe tit ion e r c omp la ins that, at th e g uil t ph a se of the tr ia l, n o s pe c if

ic instruction reg ardingthe burde n of proof was provide d to the jury . The Petiti o n er a sserts that the
a pp ro pr ia te jur

y c ha rg e on the burd e n o f p ro of

wa s a s f oll ow s: [T] he [S] tate has the burden of p ro v i n g t he g uilt of the defe ndant beyond a
rea sonable doubt, and this burden never shifts but remains on the [S ]t ate throug hout the trial of the c ase. The defe ndant is not require d to prove his innocenc e.

T.P.I . Crim. 2.02 (4th ed

. 1 9 9 5 ). The instruction provided to the jur y at the beg inning of

jury selec tion by

the trial cour

t provided:

Th e inq uir y by the lawy e rs ha s n o r e la tio n w hatso e ve r w he the r t he de fe nd ant i s g uil ty or not g u i l t y o f the offe nse cha rg ed. As he sits before you, he is presume d to be innocent. The State must prove his guilt to y ou bey ond a rea sonable doubt and to a
m o ra l ce rt ai n t y

b ef o re y o uca nfi n d

h i m gu i l t y

o f a n y t h i n g.
Durin g j u ry

selec tion, the trial court ag ain stated that the State “ has the burde n of-53-

proof in cr iminal cases” and that it “must prove the de fenda nt guilty bey ond a
rea sonable doubt and to a

moral ce rtainty .” During both the Petitioner’s opening and
c lo s in g s tate me n ts , d e f

e n s e c o u n s e l r e it e r a te d th a t th e St a te b o r e th e burden of proving the ca se bey ond a rea sonable doubt. During the jury char g e, the tria l court instructed the jury

for the f elony murder c harg e that “the [S ]t ate must have proven bey ond a re asonable doubt t h e ex i s t ence of” the eleme nts of the offe nse. On the preme ditated murder

char g e, the tria l court instructed, “ I f y o u fi n d fr o m the proof bey ond a re asonable doubt that the defe ndant i s g uilty of m urder in the first deg ree , y ou will so report y our verdic t.” The court further instructed on the pre sumption of inn oc e nc e and

re a so na ble do ub t. At the post-conviction hea ring , the lower court de termined that the tria l court instructed that the State bore the burde n of provingeac h element of the offe nse beyond a re asonable doubt. The lower court deter

mined that, beca

use counsel had an obligation to specific ally reque s t t h e p attern instruction reg arding the burden of proof and to object to any instruction that did not include a prope r burden of proof inst ruction, t rial counsel was deficient. Howeve r, t he trial court fur ther de termined that th e de fi c ien c y

did no t pr e jud ic e the Pe tit ion e r a s th e jur y e sse nti a lly

re c e ive d a

c omp le te instruction.

“T h e b e y o n d a r e a s o n a

b le d o u b t s ta n d ar d is a r e qu ir e me n t o f d u e p r o c e s s , b u t the Con sti tut ion ne ith e r p ro hib its tr ia l c ourt s f ro m de fi nin g re a so na

ble do ub t no r r e qu ir e s th e m to do so as a matter of c ourse.” Victor v. N eb r a ska, 511 U.S. 1, 5, 114 S. C t. 1239, 1242 (1994). Fur thermore , “so long as the c ourt instructs the jury on the nec essity

that the def

endant’ s gu i l t be proved be y ond a re asonable doubt,

. . . [t ]he Const itution does not require that a ny particula r for m of words be used in advising the jury of the g overnme nt’s burden of proof.” Id. (citations omitted). I n viewing the numerous times the trial c ourt advised the jury of the burde n of proof , we c onclude that the trial cour

t “suffic iently

descr ibed the deg ree of doubt nec essar y for a cquittal and the deg ree of proof nece ssary

for c onviction.” See Pettyjohn v. State, 885 S.W .2d 364, 365 (Tenn. Crim. App. 1994). Ac cording ly , we c annot conc lude that the Petitioner wa s prejudice d by trial counsel’ s failure to r e qu e st the patte rn

jury ins tr uc tio n o r c ouns e l’ s f

a ilure to o bje c t to the tr ia l c ourt ’s fa ilure to provide said instruction.

(b) “Deliberat ion” instruction
Next, the Petit ioner c ontends that the trial cour t impro p er l y i n structed the jur y reg arding “deliber ation” in the cha

rg e re lated to first deg ree preme ditated m urder . During the trial, the c ourt ins tr uc te d th e jur

y a s f oll ow s:
The men ta l s tate o f

th e a c c u s e d

a t t h e ti me h e a ll e g e d ly

d e c id e d to k il l m u s t be
car efully considere d in order

to determine w hether

the ac cused w as suffic iently fre e from ex citement and passion as t o be capable of preme ditation, it i s immaterial that the ac cused ma

y have been in a st ate of passion or ex citement when the desig n was c arr ie d in to e ff

e c t.-54-

C i t i n g Sta te v . W

est , 8 4 4 S. W. 2 d 1 4 4 , 1 4 7 ( T e n n

. 1 9 9 2 ) , th e Pe ti ti o n e r arg ues that “deliber ation .

. . re q u i re s t h at the killing be done with a cool purpose – in other words, that the killer be fr ee f

rom the passions of the moment.” The Petitioner complains that trial c ounsel neither raised an obj ection at trial nor cited this err or i n the m otion for new t rial. He further complains that counsel fa iled to raise this issue on appe al.

On direc t appea l, a pane l of this Court noted:

Al t h o u gh n o t raised as an issue on this appea l, we note that the tr ial court’s jury instructions included in the technic al re cord c ontained an a rg uably m i s l ea ding a

nd partially err oneous instruction conc erningthe eleme nt of deliberation. Among other instructions, the jury

was told, “The mental state o f t h e ac cused at the time he alleg edly decide d to kill must be care fully considere d in order to de termine whe ther the ac cu s ed was suff

iciently fre e fr om excitement and passion as to be c apable of preme ditation, it is i mmaterial that the accuse d may have been in a state of passi on or e x c item e nt w he n th e de

sig n wa s c arrie d in to e

ffe c t. ” (e mph a sis a dd e d) . T his instruction i s s o m ew h at confusing and a ppear s to be out of context. W e do not believe the emphasized phrase should ha ve bee n included. Se e Sta te v . B ro ok s, 880 S.W .2d 390 (Tenn. Crim. App. 1993) . Howeve r, t h e char g e in the ca se sub judice did not include other problematic instructions noted by this Court i n Brooks . Also, this Court further noted in Brooks that, “ be c a us e the e vid e nc e fr om t

he re c or d c ou ld either suppor

t or fail to support a finding of deliberation, we ca nnot conclude that the
err oneous jury

i n s t ru ct i o ns were harmless.” Id. at 393. I n the ca se sub judice,
o v e r w h e lm in g e v id e n c e s u

p p o rts a f in d in g o f d e li b e r ati o n

. B r o oks is c le arl y distinguishable on its fac ts and th e q u es t i o ned instruction. We conclude that any
e rr or in t he tr ia l c ourt ’s ins tr

uc tio ns c on c e rn ing de lib e ra tio n w a s h arm le ss.
State v. A ndre Bland , No. 02C01-9412-CR-00281 n.11 (Te nn. Crim. App., at J ackson, Ma r. 27, 1996). De spite this holdi ng by this c ourt, the Petitioner complains that counsel wa s ineffe ctive for failing to raise the issue be fore the Tenne ssee Supreme Court. Whil e it is appar ent that counse l was defi cient in fa iling to object to the instruction and f or fa iling to ra ise the issue on appe al, the Petitioner is unable to establish that he wa s prejudice d by the def iciency

. T h e P et i t ioner c annot establish that a diffe rent outcome would have r esulted at trial ha d a more appropr iate def inition of

“ de lib e ratio n” be e n g ive n. Th e Pe tit ion e r i s n ot e nti tle d to re lie f o n th is c la im.

(c) Defense of ign orance orm istake of f act instruct ion

The Petitioner asse rts that trial counsel’ s perf ormanc e was defic ient and prejudicia l in that counsel fa iled to re q uest a jury instruction for the de fense of ig noranc e or mistake of fac t. The Petitioner asserts that the pr oof wa s available to the defe nse and c ould have been prese nted to the j u r y t h r o u g h b o t h e x p e rtan d l ay t e s t i m o n y.-55-

“[ I ]gnora nce or mistake of fac t is a defe nse to prosec ution if such ignor ance or mist ake neg ates the c ulpable mental state of the char g ed offe nse.” T.C.A. § 39- 11-502(a ) (2003) . The trial court must instruct the jury on the defense if it is fairly raised by the proof. T.C.A. § 39-11-203( a), (c ) ( 20 03 ). Th e Se nte nc ingCom mis sio n Co mme nts pr ov ide that ig no ra nc e or mis take of fa c t “ is a
narr ow def

ense.” T.C.A. § 3 9 -11-502, Sentenc ing Comm’n Comments. The proof at the Petitioner’s trial did not fairly raise this def

ense.

Howeve r, the pre mi s e of the Petitioner’s argument appea rs to focus on the f

act that tria l
c ouns e l f a ile d to int

ro du c e e vid e nc e of

“ ig no ra nc e or mis take of fa c t.” Th e fa c ts o f t he c ri me be lie any proof of “ig noranc e or mistake of fac t.” The Petit ioner relies upon proof that he did not intend to kill t he victim beca

use he shot at his leg s. The P etitioner also relies upon fra g mented evide nce of a po ssi ble me nta l imp a ir me nt. Th e fa c t th a t th e Pe tit ion e r c ha se d th e vic timun de rn e a th a ve hic le and then fired multi ple rounds at t he victim ’s leg s belies any “ig noranc e or mistake of

fac t.” When a def endant e mploy s a deadly wea pon ag ainst another in a deadly manner , we c an only conclude that he intends a deadly result of his a ction. The jury was instructe d as to lesser of fense s of first deg ree murder w ith less culpable mental state s. The jury reje cted these lesser of fense s. The Petitioner has failed to show that he was pre judiced by

counsel’s f

ailure to introduce proof of ignor ance or mistake of fa ct. The Petitioner is not entitled to relief on this claim.
(d ) Ne gli ge nt hom ic ide

I n h is f ina l c ha lle ng e to j ur

y ins tr uc tio ns , th e Pe tit ion e r c on te nd s th a t tr ia l cou ns e l f a ile d to reque st a proper jury instruction for the of fense of neg lige nt homicide. He a rg ues that trial counse l failed to de velop witnesses in orde r to support this theory

. Counsel failed to present evide nce of the Petitioner’s limit ed intellige nce a nd of his persona l experience of a w ound to the leg

. Th e p o s t- c o n v ic ti o nc o u rt c o n c lu d e d th a t o th e r

le s s e r in c lu d e d o f f e n s e s w e r e c h ar g e d

a nd the jury found the Petitio n er guilty of the g reater c harg e. Ac cording ly , the post-conviction cour t conclude d that any

failure on part of trial counsel to r equest an instruction a s to neg lige nt homicide did not result in prejudice to the Petitioner.

Th e j u ry convicted the Petitioner of first deg ree murder a s char g ed, re jecting the lesser ho mic ide c ha

rg e s ins tr uc te d. I nte rv e nin g le sse r inc lud e d of fe ns e s we re of

fe re d. Th e re su lt w ou ld not ha ve been dif

fer ent had c riminally

neg lige nt homicide been c harg ed. See State v. W illiams , 977 S.W .2d 101, 105 (Tenn. 1998) (any err or in failing to instruct on lesser of fense was ha

rmless wher e jury instructed on interve ning le sser but convic ted defe ndant as char g ed). We c annot conc lude that the Petitioner was pr ejudiced as a result of counse l’s failure to reque st an instruction on neg lige nt homicide. The Petitioner is not entitled to relief on this iss ue.
C. P enalty P hase Deficiencies

The Petitioner raises numerous complaints reg arding trial counsel’s pe rfor mance during the pe na lty ph a se of his c a pit a l tr ia l. S pe c if

ic a lly , th e Pe tit ion e r c onten ds th at tria l c ouns e l, P a tr ic ia-56-

Odell and W illiam J ohnson, failed to func tion as eff ective c ounsel as g uara

nteed by both the Te nn e sse e a nd

Un ite d St a te s Co ns tit

uti on s, in t

hat:

1. Counsel failed to interview and investig ate potential witnesse s for mitigation; 2. Couns e l f

a ile d to re ta in a

mit ig a tio n e xpe rt ; 3. Counsel failed to re quest ce rtain jury instructions; and 4. Counsel f

ailed to inspe ct or reque st a valid jury verdic t f orm and failed to objec t to the improper jury

verdic t form.

1. Counsel f

ailed to interview potential w itnesses for m itigation

The P etitioner contends that trial counsel failed t o talk with other family members a

nd other individuals familiar with the P etitioner’s li fe in order to put forth a more a ccur ate soc ial history and lif e sto ry of the Pe tit ion e r d

ur ingthe pe na lty

ph a se of tr ia l. He ma int a ins that couns e l had a du ty to talk with all of his family members in orde r to g et the full story of his life history

.
I n the context of capital c ases, a defe ndant’s bac kg round, cha rac ter, and mental condition are unquestionably

signific ant. “[E]vi dence about the def endant’ s back gr o u

n d and cha rac ter is re levant b eca use of the belief

. . . that defe ndants who commit c riminal acts that are attributable to a disadvantag ed backgr o u n d , or to emotional and menta l problems, may be less culpa

ble than defe ndants who have no such excuse.” Cal ifo rn ia v . B ro wn , 479 U.S. 538, 545, 107 S. C t. 837, 841 (1 98 7) ; see also Eddings v. Oklahoma , 455 U. S. 104 , 113 -1 5, 10 2 S. Ct. 86 9, 87 6- 77 (1 98 2) ; Loc k e tt
v . O hio , 4 38 U. S. 5 86 , 6 04 -0 5, 98 S. Ct . 2 95 4, 29 64 (1 97 8) (p lur a lity op ini on ); Zagor

sk i v . S tat e , 983 S.W .2d 654, 657-58 (Tenn. 1998). The right that capital defenda nts have to present a va st arra y of per sonal information i n mitigation at the penalty phase, how ever , is constituti onally distinct from the qu e sti on

wh e the r c ouns e l’ s c ho ic e of wh a t in fo rm a tio n to pr e se nt t o th e jur y wa s p ro fe ssi on a lly
rea sonable.

There is no constituti onal imperative that counsel must offe r m i t iga tion evidence at the penalty phase of a ca p ital trial. Nonethele ss, the basic c oncer ns of counse l during a ca pital
se nte nc ingpr oc e e din g are to n e utr a lize the a g g ra vatin g c ir c ums tanc e s adv anc e d by the State a nd to prese nt miti g ating evidenc e on beha lf of the de fenda nt. Although ther e is no requir ement to pre sent mitigating evidenc e, counse l does have the duty to investigate and pr epar e for both the g uilt and the penalty phase. Go ad

v . S tat e , 938 S.W .2d 363, 369-70 (Te nn. 1996). Although there is no absolute dut y to investigate particular facts or a cer tain line of def

ense, counsel doe s have a

duty to make r ea sonable investig ation or to make a rea sonable de cision that makes pa rticular inve stigation unne cessary

. Strickland , 4 6 6 U

. S

. a t6 9 1 , 1 0 4 S

. C t

. a t2 0 5 2

. In deter mining whe ther c ounsel brea ched this duty , counsel’s pe rfor mance is reviewe d for
rea sonablene ss under pre vailing pr ofessional norms , whi ch includes a context-depende nt consideration of the cha lleng ed conduc t as seen f rom counsel’ s prospec tive at the time. W iggins v. Sm ith , 539 U.S. 510, 523, 123 S. C t. 2527, 2536 (2003) (c itations omi tted). Counsel is not require d to i nv e sti g a te e ve ry

c on c e iva ble lin e of mit ig a tin g e vid e nc e no ma tte r h owun lik e ly the e ff or t w ou ld-57-

as s i s t the defe ndant at sente ncing

. Id. a t 5 3 3 , 1 2 1 S

. C t

. a t 2 5 4 1

. N e i t h e r i s c o u n s e l r e qu i re d to interview ever

y conce ivable witness. Hendrick s v. Calderon , 70 F.3d 1032, 1040 (9th Cir. 1995). I n other wor ds, counsel’s duty to investigate and prepar e is not limi tless. W ashington v. W

atkins , 655 F.2d 1346, 1356 (5th Cir. 1981). Counsel’s per formanc e will not be found de ficient for failing to unveil all miti g ating evidenc e, if, a fter a rea sonable investig ation, nothing ha s p u t co u n s el on notice of the e x istence of

that evidenc e. Babbit v. Calderson , 151 F.3d 1170, 1174 (9th Cir. 1998) (citation omitted). I n summary , “no par ticular set of

detailed r

ules ca n satisfac to ri l y t ake a ccount of the va riety of circ umstances f

ace d by defe nse cou n s el

. ” R ather , “cour ts must j udg e the
rea sonablene ss of counsel’ s conduct on the f acts of the particula

r ca se, viewe d as of the time of counsel’s c onduct, and judicial scrutiny of counsel’s perf ormanc e must be highly defe rential.” Roe v. Flores-O rtega , 5 2 8 U

. S. 4 7 0 , 4 7 7 , 1 2 0 S. Ct

. 1 0 2 9 , 1 0 3 4

- 3 5 ( 2 0 0 0 ) ( in te r n a l c it ations and quotations omit ted).

To deter mine whether

or not trial co u n s el was inef fec tive for f

ailing to pr esent mitigating
e vid e nc e , th e re vie wi ngc ourt mus t c on sid e r s e ve ra l f

a c tor s:
1. The re viewingcourt must ana l y z e t h e n at u re a nd extent of the mitigating evidenc e that was available but was not prese nted. Goad , 938 S.W .2d at 371 (c i t i n g Deutsche r v. W

hitley , 9 4 6 F

. 2 d

1 4 4 3 ( 9 t h C i r

. 1 9 9 1 ); S t ep h ens v. Kemp , 8 46 F .2 d 6 42 (1 1th Cir . 1 98 8) ; State v. Adk ins , 911 S.W .2d 334 (Tenn. Crim. App. 1994) ; C o o p e r v

. S t a te , 847 S.W .2d 521, 532 (Tenn. Crim. App. 1992)).

2. The court must de termine whether substantially simil ar mitigating evidenc e was pre sented to the jury in either the guilt or penalty phase of

the proce eding s. Goad, 9 3 8 S

. W

. 2 d at3 7 1 (c i t i n g At

k ins v . S ing le tar y , 965 F.2d 952 (1 1 t h C i r. 1992), cert. de nied , 515 U.S. 1165, 115 S. C t. 2624 (1995); Clozza v. Murray , 913 F.2d 1092 (4th Cir. 1990), cert. de nied , 499 U.S. 913, 11 1 S. Ct. 11 23 (1 99 1) ; State v. Me lson , 772 S.W .2d 417, 421 (Tenn. 1989) ).

3. T h e co u rt m u s t co n s i d er wh et h er t here was such strongevidenc e of applicable ag g ravating f

actor (s) that the mitig ating evidenc e would not have aff ecte d the jury ’s deter

mination. Goad, 9 3 8 S

. W

. 2d at 371 (c iting Fitzgerald v. Thompson , 943 F.2d 463, 470 (4th Cir. 1991), cert. de nied , 502 U. S. 111 2, 11 2 S. Ct. 12 19 (1 99 2) ; Elledge v . Dugger , 8 23 F .2 d 1 43 9 ( 11 th Cir. 1987), cert. de nied , 485 U.S. 1014, 108 S. C t. 1487 (1988)). During the penalty phase of his tria l, the Petitioner prese nted the testi m o n y o f h i s mother, Marily n Boyd; his gra

ndmother, Virg inia Bla

nd ; and himself. The ir testimony reve aled that the Petitioner had neve r kno wn h i s b i o l o g ical father a nd that he wa s raised by his mother and g ra ndmot he r. B oth Mari ly

n Bo y d an d Vir g ini a B land te sti fi e d th a t th e Pe tit ion e r h a d tu rn e d h ims e lf in to the police at their urging

. The P etitioner had dropped out of hi g h school in the eleve nth gr ade, when he was suspende d for be ing “ disrespec tful to a teacher .” He had a juve nile rec ord beg inning-58-

at the ag e of e leven, c onsisting of multiple assaults and batter ies, car t h ef t s , and at lea st one drug conviction. The de fenda

nt testified that he shot the victim be cause the victim r an back to his car as if he wa s “fixing to g et hi s g un or som ething ;” t hat he did not know why he and D arr

y l had followed the victim; that he had bee n drinking and the crime was a spur of the moment decision; and that the victim was shot severa l times because the automatic gun “kept on r epeating shots.” He e x presse d
remorse and re peate d that he was not trying to kill the vi ctim. The Petitioner also a dmitted that he
ca rr i eda gu nb ec au s e h e s o l d dru gs an d

t h at h e h adb ee ns el l i n g dru gs o nt h e n i gh to f t h e k i l l i n g. The only ag g ravating c ircums ta

n c e w a s th e ( i) ( 5 ) f

a c to r , “ [t ]h e mur der w as espe cially heinous
a tr oc iou s o r c ru e l in

that it inv olv e d to rt

ur e or se ri ou s p hy sic a l a

bu se be y on d th a t ne c e ssa ry to produce death.” T.C.A. § 39-13-204( i)(5) ( 2003). The jury found that the a g g ravating c ircumstance outweig hed the mitigating circ umstances bey ond a re asonable doubt and, as a result, sentenc ed the Petitioner to death.

We summarize the mitigating evidenc e presented at the post-conviction evidentiar y hear ing
a s f oll ow s:
1. Virginia Bl and, grand m other . I n addition to the testimony she provided du ri n g the penalty phase, Virg inia Bla nd testified reg ardingthe dec ay of the L eMoy

ne Ga rdens ne ighbor

hood. She stated that t he P etitioner m oved with his family into a home in Ger

mantown. The f

amily had plenty of money , and the Petitioner wa s doing wel l i n school. This ended w hen the Petitioner’s ste pf a the r, Mi tch ell B oyd, Sr ., wa s arr e ste d, c on vic te d, and se nte nc e d to fe de ra l pr iso n. Vi rg ini a Bla nd detailed a

n incident when the Petitioner was pistol whipped and a nother incide nt when the Petitioner was shot in both leg s. Both incidents require d hospitaliz ation. Virg inia Bla nd stated that t h e P et i t ioner discove red the body of a murde r victim in the apar tment building. She stated the Petitioner was re morseful for the killing of Ontrain Sanders. She testified that the Petitioner had a child. She further

testified that, at the time of his ar rest, the Petitioner wa s l i v i n g in her thre ebe dr oo m a

pa rtme nt w itha

pp ro xima te ly

tw e lve oth e r f

a mil y me mbe rs

. 2. Marilyn Boyd, mot her . In a dd iti on to t he te sti mony

sh e provi ded du ringthe pe na lty phase, Ma

rily n Boyd stated that she wa s marrie d to Mitchell Boyd, Sr. I n 1985, Mitchell Boyd, Sr., moved the family , including the Petitioner, into a two-story home in Ger

mantown. Mitchell Boyd, Sr., paid $200, 0 0 0 fo r t h e h o me. Ther e we re no dr ug s, no crimes, a

nd no prostitution i n the Ge rm anto wn ne ig hb or

ho od wh e re the fa

mil y liv e d for thr e e a

nd on e -h a lf y e ars

. I n 1 98 7, Mit c he ll Boyd, Sr., was arreste d, and the family eventua lly

had to move out of the G erma ntown home. They reloc ated to the Hic kory Hill ar ea

. Eventually , the family moved bac k into the Whi tehave n neig hborhood. I t was at this time that the Petitioner beg an g etting into trouble, a nd his gr ades be g an to fall at school. Marily

n Boyd stated that she had hear d that the Petitioner was selling drug s. She
wa s awa re that he r br oth e rs so ld dr ug s. She a dmi tte d th a t he r h us ba nd , M itc he ll B oyd, Sr ., we nt t o fe de ra l pr ison for se lli ngdr ug s o n a “ bigtim e sc a le .” Mit c he ll B oyd, Sr ., wa s mu rd e re d in W a s h i n g t o n , D

. C

. , a f

t e r b e i n g r e l e a s e d f

r o m f e d e r a l p r i s o n

. A s d i d

h e r m o t h e r , M ar i l ynB o yd descr ibed two incidents, one in w hich the Petitioner had bee n pistol whipped and another when he had bee n shot in the leg s.-59-

3. Ir ish R ut he r for d, fa m ilyfri e nd

. I rish Rutherford descr ibed the cr ime in the L eMoy ne Gar dens ar ea. She stated that the Petitioner wa s “a nice y oung boy ” and that he was sor ry for what he had done

. 4. Rose Tatum , aunt. Rose Tatum testified that the Petitioner wa s alway s respe ctful of he r. She stated that the Petitioner “f eels that he has bee n reha bilitated.”

5. Tere sa Wiggs, m other of the P etitioner ’s child. Te re sa Wig g s st a te d th a t, a

t th e tim e of the Petitioner’s arr est, she was his girlf riend. The Petitioner’s son was born on Aug ust 26, 1993, six months prior to the Petitioner’s trial. She rec alled that, on the nig ht of the incident, the Petitioner
came to her a

partment. He was c rying a nd kept re peatingthat “he didn’ t try to hurt any

body .”

6. Ri c ke y Bl and, unc le . Rickey Bla nd descr ibed the Ge rmantown ne ighbor hood that the Petitioner had lived in as “c rime fr ee.” He a cknowledg ed that the Petitioner’s stepf ather “made a lot of money ” by

selling dr

ug s. He fur

ther a cknowledg ed that whe n the fami l y l i v ed in the Germa n to w n h o u s e , th e y dr o v e a M e r c e d e s , a B M W, an d a Po r s c h e

. Ri c k e y B la n d s tated that Mitchell Bo y d , Sr

. , w a s o n e o f th e b ig g e s t dr u g d e a le r s in M e mp h is

. U p o n M it c h e ll B o y d , Sr.’s
c on vic tio n, the fa

mil y we nt f ro m “ ri c he s to ra g s. ” Th e fa mil y ult imate ly

mov e d in to t

he B ri ars g a te Apar tments, an are a Rickey

Bla nd descr ibed as “roug h.” People were be ing r obbed, shooting s were g oing on ne arby , and homes we re be ing bur g larized. He state d that one alwa y s had to be on g uard. Rickey Bla nd stated that t hree of hi s four brothers we re dr ug deale rs. Two of his brothe rs had be en shot. Rickey

Bla nd also sold drug s. Rickey Bla nd descr ibed the incident in which the Petitioner w as pistol whipped and the incident in whic h the Petitioner was shot. Afte r the shooting incident, the Petitioner beg an ca

rry ing a wea pon and beg an selling drug s. He a lso describe d the diffe renc es be tw e e n “ kil le rs ” and

“ no n- kil le rs .” Ric ke y

B land state d th at he lov e d th e P eti ti on er wi th a ll h is he art . H e a lso state d th a t th e Pe tit ion e r w a s v e ry up set o ve r t

he inc ide nt a

nd tur ne d h ims e lf

in t o make thi ng s r ig ht.

7. P erinta Bland, b rother
. Perinta Bland barely rec alled whe n their stepfather wa s arr ested and sent to prison. He descr ibed the B riarsg ate Apa rtments as beinga violent ar ea. H e stated that the Petitioner discoura g ed him from the dr ug trade and tried to ke ep him awa y from cr ime.

8. Tr av is B lan d, unc le . Travis Bland testified that he and the Petitioner we re ve ry close. He state d that he sold drug s until he was shot.

9. Ca r oly n Ja c kso n, fa m ilyfri e nd. Caroly n J ackson also lived in L eMoy ne Ga rdens. She descr ibed the ar ea a s a ver y roug h neig hborhood. She stated that ther e were drug s on ever y corne r. Caroly n J ackson state d that she l oved the Petitioner. Ms. J ackson ha d visited the family when they liv e d in Ge rm anto wn . Sh e a c kn ow le dg e d th a t Ma ri ly n B oyd’ s hus ba

nd , M itc he ll B oyd, Sr ., “ so ld a little drug s.” When Mitchell Boyd, Sr., went to pris o n , t h e fa m i l y could no long er a ffor d the Ge rm anto wn

ho us e so the y

mov e d b a c k in to t

he Ki ng sgat e Apa rtme nts . Sh e state d th a t, i n th is
n ei ghb o rh o o d , p eo p l e s o l d dru gs , b ro k e in t o h o m es , an d h adfi gh t s

. Or , as s h e d es cr i b edi t , t h i n gs “the avera g e tee nag er would do.” Ms. J ackson te stified that the Petitioner’s biolog ical father wa s-60-

an alc oholic and eventua lly died of cirrhosis. I t w as Mitchell Boyd, Sr., who was the fathe r fig ure to the Petitioner. Ms. J ackson state d that the Petitioner should not be on death r ow.
10. Ke vin S m ith, f

riend. Kevin Smit h stated that the Petitioner was his best frie nd. He ha d visited the Petitioner at the Ger mantown house. He stated that there was no cr i m e a n d n o d rug deale rs in Ger

mantown. When the family moved bac k to the Br iarsg ate Ap artments, he and the Petitioner were able to spend more time toge ther. Ke vin Smi th stated, howeve r, that this are a wa s crime- ridden a

nd that one could commonly see w omen prostituting themselve s. Kevin Smith was prese nt when the Petitioner wa s pistol whipped. After this incide nt, the Petitioner told Sm ith, “That
wa s th e la st t ime so me thi nglik e that w a s g oin g to h a ppen. ” S mith a lso re c a lle d th e inc ide nt i n which the Petitioner wa s shot in the legs.

11. Sand ra Bland , aunt. Sandra B land stated that the Petitioner’ s stepfathe r was a drug deale r. The family had a nice home, nice c ars, a nd nice c lothes. She stated that the Petitioner wa s influence d more by

his stepfather

than his biologica l fathe r. The Petitioner had told Sandra Bla nd that he wa s sorry

about the murd er and that he did not intend to kill any one. She stated that she loved the Petitioner.

12. Toni Blan d, cousin. Toni Bland r eca lled the Petitioner’s home in Ge rmantown. She stated that the Petitioner and his fa mily had nice things. She kne w that the Petitioner’s stepf ather
was a drug deale r. She desc ribed th e P et itioner as “a very nice, kind, loving person” and as “ the joker in the fa

mily .”

13. Lar r y Bla nd, un c le

. L arr y Bla nd stated t hat t he P etitioner expressed r emorse ove r the murder. T he Petitioner had told L arr y Bla nd that he did not intend to kill Ontrain Sanders. L arr y Bla nd stated that he love d his nephew.

14. Je ssi e Le e M oo dy, gr e ataunt . J essie L ee Moody stated that the Petitioner’s stepf ather
was a “dope deale r.” She de scribed the Petitioner as “a very respe ctable c hild” and said “ that he loved her .” Ms. Moody

stated that she loved the Petitioner.

15. Ke vin Wil liam s, acquain tance

. Kevin Wil liams w as the per son who shot the Petitioner in t he le g s. He e xpla ine d th a t the y ha d g ott e n in to a n a lte rc a tio n a

nd that th e sh oo tin g wa s a

re su lt. After the incident, he a sked for the Petitioner’s fo rgi v en ess, which wa s g iven. The two me n rema ined frie nds after

this incident. During the g uilt phase of the Petitioner’s tria l, the Petitioner’s mot h er an d g randmother testified as to his educational history and his history of

juvenile arr ests. The pe nalty phase w itnesses
a lso te sti fi e d th a t th e Pe tit ion e r wa s re mor se fu l for his c ri me s and ha d n ot i nte nd e d to kil l th e vic tim

. At the post-conviction hea ring , trial counsel testified that the Petitioner would not provide them the names of a

ny witnesses. Howe ver, Ms. Odell told the P etitioner’s fa mily members to come to court and to bring the other f

amily member s wi t h t h em

. Ms. Odell conce ded that she w as aw are of the Pe tit ion e r’ s in vo lve me nt i n th e sa le of ill e g a l dr ug s and the inv olv e me nt of the Pe tit ion e r’ s f a mil y-61-

in the drug trade

. Reg ardle ss, counsel attempted to ke ep this information awa y from the jury . The Petitioner, howeve r, told the jury himself that he sold drug s. Reg ardingthe information about the Petitioner’s stepfather, Ms. Ode ll stated that she would have wanted to e valuate this information
more c are fully

. I n her opinion, she would not have wanted to a ppear to have be en g lorifying the drug life. Simil arly , Mr. J ohnson stated that the defe nse team wanted to ke ep any information about the s ale of illega l drug s awa y from the jury

. He stated that information t hat the Petitioner’s unc les and stepfather sold drug s would not ex plain the Petitioner’s own involvement in the sale of illeg al drug s.
Th e Pe tit ion e r pr e se nte d the te sti mony of fi ft e e n p ote nti a l mi tig a tio n w itn e sse s at th e po stconviction evidentiar

y hear ing. T he testimony

of t h ese witnesses can be char acte rized in severa l differ ent categ ories: (1) the Petitioner was surr ounded by family member s i n v o l v ed in t he illeg al drug trade ; (2) the Petitioner wa s loved; (3) the Petitioner did not intend to kill Ontrain Sande rs; (4) the Petit i o n er was re morseful of his a ctions; (5) the Petitioner wa s a nice y oung man; (6) the Petitioner lived in a nice ne ighbor hood in G erma

ntown for a

period of time; (7) the neig hborhood in which the Petitioner l ived was crime- ridden; and (8) the Petitioner ha d twice be en the victim of vio le nt c ri me s.
Som e of the e vid e nc e a t the po st- c on vic tio n e vid e nti ary he ari ng wa s me re ly c umu la tiv e to that evidenc e which w as pre sented to the jury at the pena lty phase of the trial. In this reg ard, testimony that the Petitioner was loved, that the Petitioner did not int end to kill Ontrain Sanders, that the Pe tit ion e r w a s a

nic e man, and

that th e Pe tit ion e r w a s r e mor se fu l f or his a c tio ns , wa s me re ly cumulative t o ev i dence alre ady prese nted. No pre

judice re sulted from the fa ilure to prese nt more evidenc e of this same nature. Many of the witnesse s at the post

- c o nv ic ti o n e videntiary

hear ing te stified that the Petitioner’s neig hborhood wa s crime- ridden. De fense counsel did n o t p resent any such evide nce of

the neig hborhood environme nt during the pena lty phase. D efe nse counsel did, however , visit t he sce ne of the murder. Notwithstanding, we cannot de termine why trial counsel would not have explored this ty pe of standa

rd mitiga tion testim ony

. See, e .g., Sta te v . D av is , 872 So.2d 250, 257 (Fla. 2004) (no justification for c ounsel’s fa ilure to explore standard- ty pe mi tigation of defendant’ s family and neig hborhood). We do, howe ver, a cce pt Ms. Odell’s conce rn that introducing proof of the family ’s up sc a le lif

e sty le in G e rm anto wn

a s a re su lt o f t he ill e g a l sa le of

dr ug s may no t ha

ve g on e ov e r w e ll with a jury . We cannot conc lude that information re g ardingthe Petitioner being pistol whipped and shot would have aff

ecte d the outcome of the penalty phase. Simi larly , we are not able to conc lude that e vid e nc e that th e Pe tit ion e r m ov e d f ro m a c ri me -f

re e ne ig hb or

ho od to o ne ri dd le d w ithc ri me would have a ffe cted the outc ome of the pe nalty phase. A g ain, trial counse l testified that the Petitioner failed to provide them with the names of w itnesses. Trial c ounsel int er viewed the Petitioner’s mother and g randmother and talked wi th the Petitioner’s uncle. The fac t that the Petitioner’s family

members f

ailed to bring to light evid en ce o f the Petitioner’s stepf ather ’s drug de a lin g , th e fa c t tha t the fa mil y ha d live d in Ge rm anto wn , an d the imp a c t of two pr ior c ri me s a g a ins t the Pe tit ion e r d oe s n ot r e nd e r c ouns e l’ s sc op e of inv e sti g a tio n unr e a so na

ble . E ve n c on sid e ri nga ll of the mitigation evidence prese nted at the post-conviction hear ing, this c ourt is una ble to conclude-62-

that th is e vid e nc e wo uld have a lte re d th e ou tc ome of the tr ia l. T he mit ig a tin g e vid e nc e a t th e po stc on vic tio n h e ari ngwo uld have be e n s ub

je c t to imp e a c hme nt ha d it be e n admit te d dur ingthe pe na lty phase. The Petitioner’s family ’s history of involvement in the illeg al drug trade and their g ains and losses from t heir invol vement therein are not inhere ntly mitigating

. A jury consideringevidenc e of this nature could view the information as e ither mitigating or ag g ravating, de pending , of cour se, on wh e the r t he ind ivi du a l he ari ngthe e vid e nc e fi nd s th a t it e vo ke s c omp a ssi on

or de mon s t r a t e s p o s s ibl e future da ng erousne ss. Wi th consideration of the ag g ravating c ircumstance relied upon by the State,
we c annot conclude that additional mitigating evidenc e being prese nted at trial would have re sulted in a se nte nc e oth e r t

ha n d e a th b e ing imp os e d. Th e Pe tit ion e r is not en tit le d to re lie f on t his ba sis

. 2. Couns el f

a i led to em ploy or seek appoi ntm ent of in vestigator to interview and investigate witnesses

The Petitioner asse rt s t h at co unsel’s per formanc e fe ll below the minimum s tandar d of prac tice for a death penalty case to pr ocee d without the aid of a mitigation expert. There is no per se rule r e qu ir in g d e f

e n s e c o u n s e l t o r e ta in

e xp e rts in

e v e r y c a p it a l c a s e

. Wh il e th e U n it e d State s Supreme Court has a dopted standar ds such as those se t forth by the Amer ican B ar As s o ci at i on as g uidelines for what is rea sonable, the Court ha s repe atedly declined to a dopt a rig id chec klist of tasks that defe nse counse l mus t p er fo rm i n all case s beca use “[n]o particular set of detailed r

ules for
c ouns e l’ s con du c t can sat isf a c tor ily take a c c ount of the va ri e ty of c ir c ums tanc e s fa c e d by de fe ns e counsel or the ra

ng e of le g itimate decisions reg ardinghow best to repr esent a criminal def

endant.” Strickland, 46 6 U .S. a t 68 8- 89 , 1 04 S. Ct . at 20 65

. Th is fact , c ou ple d w iththe “ c on sti tut ion a lly protec ted independe nce of counsel,” has resulted in tr ial counsel be ing g rante d broad discr etion as to whether

the re tention of an e x p ert will serve the intere sts of their clients. W igg ins , 539 U.S. at 53 3, 12 3 S. Ct. a t 25 41 ; see also Kandies v. Polk
, 3 8 5 F

. 3 d

4 5 7 , 4 7 0 ( 4 th

Ci r

. 2 0 0 4 ) ( v a c a te d

on other g rounds by

545 U.S. 1137, 125 S. C t. 2974 (2005)).
As for counsel’s failure to r etain a mitigating specia list, it is c lear that such a witness is not the exclusive means throug h wh i ch defe nse counse l can thoroug hly investigate a pe titioner’s backg round. Kan die

s, 38 5 F. 3d a t 470. De fe ns e c ouns e l ha s nume ro us too ls a va ila ble by wh ic h to conduct a backg round investig ation, including la y persons such as family , friends, c oworke rs, the petitioner, and de fense counsel’s ow n experience

. Id. I n th e p r e s e n t c a s e , c o u n s el conduc ted an investigation a

nd develope d a mitigation theory to w hich they adher ed. The testimo n y o f t he wi tne sse s at th e se nte nc inghe ari ngsu pp or te d c ouns e l’s in vest ig a tio n a nd de ve lop me nt o f t

his theory

. Although additional information reg arding the Petitioner’s family history was pre sented at the post-conviction hea

ring , much of that evidenc e dealt with the fa ct that the Petitioner wa s raised in a fa mil y imm e rs e d in the dr

ug c ult ur e

. Th e re wa s no othe r ev ide nc e pr e se nte d to sh owho w this lif e sty le imp a c te d th e Pe tit ion e r. Mo re ov e r, we a g re e wi th t ri a l c ouns e l th a t pr e se ntatio n o f t his
e vi d e n c e b e f

o r e a j u r y m ay h a v e b a c k f

i r e d

. T h e U n i t e d

S t a t e s S u p r e m e C o u rth a s u n e qu ivo c a lly stated that “what investigation decisions are rea sonable de pends cr itically ” on “inf ormation supplied by the def endant.” Strickland, 46 6 U.S. a t 691, 10 4 S. Ct. 20 66 ; cf. Barnes v . Thompson, 58 F.3d 97 1, 97 9- 80 (4 th C ir . 1 99 5) (s ta tin g that c ouns e l “ may re ly on the tr uth fu lne ss o f h is c lie nt a

nd tho se whom he intervie ws in deciding how to pursue his investig ation”). Thus, c ounsel ca nnot be fa ulted fo r r e lyingup on

the a sse rt ion s o f t

he Pe tit ion e r a

nd /or his fa mil y me mbe rs

.-63-

I n sum, this is not a case in w hich counsel failed to c onduct any inquiry into the acc used’s backg round and soc ial history

. Se e W ill iam s v . Ta

y lor
, 529 U.S. 362, 396, 120 S. Ct. 1495, 1 5 14 (2 00 0) . Rathe r, ba se d o n th e ir inv e sti g a tio n, tr ia l c ouns e l de te rm ine d th a t th e be st m it i g a t i on de fe ns e wa s to sh owtha

t th e Pe tit ion e r d id n ot i nte nd to k ill the vic timand

that he wa s re mor se fu l fo r h is
a c t i o n s

. C o u n s e l b a s e d t h i s t h e o r y u p o n t h e i n f

o r m a t i o n p r o v i d e d

b y t h e P e t i t i o n e r

an d h i s f a m i l y. There was no indication, by either the Petitioner, his gr andmother, or his mother, that further investigation into t he family history was ne cessa ry or would have been f

ruitful. Reg ardle ss of what a diffe rent investig ation might have uncover ed, the Petit ioner must first demonstrate that counsel’s decision not to investigate furthe r wa s objectively unrea sonable pe rfor

mance

. See Cauthern v . State, 145 S.W .3d 571, 604 (Tenn. Crim. App.) , perm. app. de nied (Tenn. 2004) . The Petitioner has f ailed to do so. The Petitioner is not entitled to relief as to this issue.

3. Co unse l fai le d t o r e que stpr ope r ju r y in st r uc ti ons

a. Non-statutor y m itigating f actor s
The P e ti ti o n e r

c o n te n d s th a t t

r ia l c o u n s e l f

a il e d to r e qu e s t t

h a t n o n
- s tatuto r

y mi ti g a ting fac tors be cha

rg ed to the jury . The State re sponds that the P etitioner has wa ived this issue by failing to meet the re quirements of Rule 10, Rules of the Tennes s ee C o urt of Criminal Appea ls. I n the
a lte rn a tiv e , th e State c on te nd s th a t th e tr ia l c ourt sp e c if ic a lly c ha rg e d th e jur

y that th e y we re to consider a

ny and all mitigation that they found existed bey ond the enumer ated statutory fac tors.

The Petitioner’s c laim is without merit. A trial court wa s “not requir ed to cha rg e the jury

on specific non-statutory

mitigatingcirc umstances” at the time of this offense and trial. Se e Nic ho ls , 9 0 S

. W

. 3 d

at 6 0 3 (c i t i n g Cau the rn , 967 S.W .2d at 747). The Petitioner is not entitled to relief on this claim.

b. Weighing of aggravating and mitigating factors The Petitioner similarly

contends that trial c ounsel failed to request a pr oper jury instruction for the w eig hing of

ag g ravating and mitigating fac tors. At the conc lusion of the penalty phase, the trial court pr ovided the following instruction:

Tenne ssee law

provides that no death penalty shall be imposed by a jury but upon a unanimous finding that t h e [ S] tate has pr oven beyond a re asonable doubt the
e xiste nc e of

on e or mor e of the statut or

y a g g ra vatin g c ir c ums tanc e s.

. . . .
Tenne ssee law provides that in arr iving at the punishment, the jury shall consider a s here tofore indica

ted, any mitigating circ umstances . . . .-64-

Th e tr ia l c ourt

a lso ins tr uc te d th e jur

y that:

the def endant doe s not have the b u rd en of proving mitig ating circ umstances. I f there i s s o m e evidence that miti g ating
c ir c ums tanc e s e xist, the n th e burd e n o f p ro of is u po n the [ S ] ta te to prove be y ond a re asonable doubt that mi ti g ating circ umstances do not exis t. There is no require ment of jury unanimity

as to any particula r mitigating circ umstance, or that y ou ag ree on the same mi tigating circ umstance.

The c ourt continued to instruct the jury that they could only

impose a death sentence : [i ]f y ou unanimously deter mine that at least one statutory ag g ravating circ umstance or

sever al statutory

ag gravating c ircumstance s have be e n p ro ve n b y

the [S]ta te be y on d a

reas on a ble do ub t and

the sa id
c ir c ums tanc e or

circ ums tanc e s h a ve be e n p ro ve n b y the [S]ta te to
o u t weig h any

mitigating circ umstance or circ umstances be y ond a
re a so na ble do ub t.

The trial c o u rt fu rt h er direc ted the jury in the verdic t form to list any ag g ravating
c ir c ums tanc e s una

nim ou sly fo un d, and the jur y wa s a sk e d to fi nd un anim ou sly wh e the r “ the [S]ta te has prove n bey ond a re asonable doubt that the statutory ag g ravating c ircumstance or circ umstances . . . outweig h any

mitigating circ umstances.” The jury was instructed t h at “[ t] he ver dict must be unanimous and sig ned by eac h juror.” The Petitioner complains that the tria l court’s instruction improper ly place d the burde n of unanimity

in order to g ive ef

fec t to any

mitigation offe red. The Petitioner asser ts that requiring that the jur y un anim ou sly

fi nd th at mit ig a tio n o utw e ig hs a g g ra vatin g fa c tor s v iol a te s th e Ei g hth Amendment under McClesk y v. Ke mp , 4 81 U. S. 2 79 , 107 S. Ct . 1 75 6 ( 19 87 ); Mills v. Maryland , 486 U.S. 367, 108 S. Ct . 1860 (1988); and McKoy v . North C arolina , 494 U.S. 433, 110 S. C t. 1227 (1990). Additional l y , h e a rgu es t h at t h e j u ry i n s t ru ct i o ni mp er m i s s i b l y s h i ft edt h e ap p ro p ri at e burden by requiringthe def

ense to prove that no mitigating circ umstances s u ff i ci entl y outweig hed the statutory ag g ravating c ircumstance in order to deliver a punishment other than death. Finally , the Petitioner states that the instruction impermissibly lessened the burden of

the State to prove the ag g ravating f

actor s.
Th e re c or d d oe s no t su

pp or t the Pe tit ion e r’ s c la ims

. Th e jur y wa s f ull y inf or me d th a t it

c ou ld only impose a death sentence if the State prove d an ag g ravating f actor bey ond a re asonable doubt by unanimous decision of the jury and if the State proved that such ag g ravating f actor outweig hed any mitigating fac tors bey ond a re asonable doubt by unanimous decision of the jury

.

c. Counsel f

ailed to o b ject to instruct ion w hich amounted to an im proper judicial com m ent upon the evidence-65-

Thec on te ste d in str uc tio n p ro v ide

s:
Miti gat i n g ci rc u m s t an ce s

. T en n es s ee l aw p ro v i d es t h at i narri v i n g at p u n i s h m ent, t he jur y sh a ll c on sid e r a s her e tof

or e ind ic a te d, a

ny mit ig a tin g c ir c ums tanc e s w hic h s ha ll i n cl u d e, b u tn o tb e l i m i t edt o , t h e f o l l o wi n g:
1

. T h e d e f

e n d an t h a s n o s i g n i f

i c an t h i s t o r

y o f p r i o r c r i m i n a l a c t i v i t y. Conviction of th e c r im e of the ft of an aut om obi le oras sa ultis not an ag g ravated circ umstance to be considere d i n d et ermini ng the pe na lty , b ut a

c on vi cti on

of that c ri me may

be c on sid e re d in deter mining whe ther or not the defe ndant has a signific ant history of p r i o r c r i m i n a l h i s t o r

y. (Emphasis adde d). The Petitioner co m p l ains that this inst ruction improper ly comments upon the evidenc e and or ders the jur y t o consider the past crimes of the def endant, spe cifica lly

naming the juvenile cr imes. The Petitioner conte nds that, had counse l objected to this improper c harg e, ther e is a re a so na ble pr ob a bil ity the ve rd ic t on

se nte nc ingwo uld

be dif fe re nt.

The c halleng ed instruction was a corr ect statement of the law. Fur thermore , the instruction was supporte d by the evidenc e introduced dur ing the penalty phase. The Tenne ssee Constitution, of c ours e , p ro hib its jud g e s f ro m ma kin g any c omm e nt “ wi th r e g ard to m a tte rs of

fa c t.” Te nn . Co ns t.
art . V I , § 9; Sta te v . S

utt le s, 76 7 S. W.2 d 4 03 , 4 06 (T e nn . 1 98 9) . T he a im of th is rule is to a vo id g iving “ the jury

any impression as to his fee lings or to make any statement which mig ht refle ct upon t h e we i gh t o r credibilit y

of evide nce or

which mig ht sway

the jury .” Su ttl es, 7 6 7 S. W. 2 d a t 4 0 7; State v. Brown, 823 S.W .2d 576 (Tenn. Crim. App. 1991) . “I t is natural that jurors should be a nx ious to kn ow the min d of the c ourt and fo llo w it. Th e re fo re , a c ourt c ann ot be too c a ut io us in his inquiries.” Mc

Do na ld v . S

tat e , 1 4 S.W. 48 7, 48 8 ( Te nn . 1 89 0) . In th e pr e se nt c a se , th e c ha rg e did not amount to a comment upon the evidence. The recor d does not contain any indication of the trial court’s opinion of the evidence

. Rather, the instruction cautioned the jury that it was not to consider any of t he crimes of t he P etitioner aga inst him as an ag g ravating circumstance

. The P etitioner is not entitled to relief on this issue.

4. Counsel f

ailed to insp ect

and/ or objec t to t he jury ver dict

Th e Petitioner next contends that trial counsel wa s ineffe ctive for failing to inspect and/or challeng e the “ highly

ambig uous verdict f

orm.” The Petitioner complains that the ver dict form and verdic t were constitutionally invalid. I n the s ec t ion of the ver dict form that notes the a g g ravating cir cu mstances the jur

y unanimously

found, the jury

listed: (1) “c ruel” and (2) “torture .” Citing Tenne ssee Code A nnotated sec tion 39-13-204(i), the Petitioner contends that the appropriate f ormat for a jury to report a

ny finding of an a g g ravating c ircumstance is for it to do so in the languag e of the statute so that there can be no mistake.-66-

On d i re ct ap p ea l , t h e T en n es s ee S u p re m e C o u rt ad dre s s edt h e v er d i ct fo rm , co n cl u d i n g: The spec ific finding of the j u ry i n t h i s case was that the murde r wa s “1. cr uel 2. torture.” I ndeed, the State did not rely upon the “se rious phy sical abuse ” prong of the statute. The f

ailure of the ver dict to repe at the languag e of the s t at ute def ining the ag g ravating c ircumstance does not invalidate the jury ’s finding s. See State v . Henley
, 774 S.W .2d 908, 917 (Tenn. 1989) (upholding verdic t of “atrocious, cr uel, torture” );
se e als o S tat e v . Te e l, 793 S.W .2d 236, 250 (Tenn. 1990)

. Bland, 958 S.W .2d at 661 n.6. As the Tenne ssee Supre me Court has found no e rror in the verdic t fo rm , th e Pe tit ion e r i s n ot e nti tle d to po st- c on vic tio n r e lie f a s to thi s c la im.

D. Appellate deficiencies

Th e Pe tit ion e r c omp la ins that c ouns e l f a ile d to ra ise the fo llo wi ngiss ue s o n a pp e a l:

1. Counsel failed to cha lleng e the jury instruction on the burden of proof; 2. Couns e l fa il ed to cha lle ng e the jur y ins tr uc tio n fo r de lib e ra

tio n in the fi rs t deg ree murder c harg e; 3. Counsel failed to cha lleng e the jury instruction for the of

fens e o f n egli g ent ho mic ide ; 4

. Couns e l f

a il e d to c h a ll e n g e ju

r y in s tr uction for de fense of ignor ance or mis take of

fa c t; 5. Counsel failed to reque st proper instruction for weig hing of ag g ravators and mitigators; and 6. Couns e l f

a ile d to c ha lle ng e the pe na lty ph a se jur y ve rd ic t. The Petitioner complains that counsel fa iled to raise numer ous issues on appea l, including challeng es to jury

instructions and to the jury verdic t. The same pr inciples apply in determining the eff ectivene ss of both trial and appe llate counse l. C a m p b e ll v . Stat e , 904 S.W .2d 594, 596 (Tenn. 19 95 ). A pe tit ion e r a lle g ing ine ff e c tiv e a ssi sta

nc e of a pp e llate c ouns e l mu st p ro ve tha t ( 1) a pp e llate counsel acte d objectively unrea sonably in f ailing to r aise a

particula r issue on appe al and ( 2) abse nt
c ou nsel ’s d efi cie ntperf

orm ance, th ere was a reas on abl e pro bab il it y th a t th e pe tit ion e r’ s a

pp e a l w ou ld have be en succe ssful befor e the state ’s hig hest court. See, e .g., Smith v. Robbins , 528 U.S. 259, 285, 12 0 S. Ct. 74 6, 76 4 ( 20 00 ); Aparico v. Artuz , 269 F .3 d 78, 95 (2 nd Cir . 2 00 1) ; Mayo v . Hende rson , 13 F.3d 528, 533- 34 (2nd Cir. 1994). To show that counsel was defic ient for failing to r aise a n issue
on direc t a

ppeal, the revie wing court must de termine the merits of the issue. Car pe nte r v. S

tat e , 126 S

. W

. 3 d 8 7 9 , 8 8 7 (T en n

. 2 0 0 4 ) ( ci t i n g Kimmelman v. M orrison , 477 U.S. 365, 375, 106 S. C t. 2574, 2583 (1986))

. Obviously , if an issue has no merit or is weak, the n appellate counsel’s pe rfor mance w il l n o t b e d e f

ic ie n t if c o u n s e l f

a ils to ra ise it. Id. L ike wi se , unle ss t he omi tte d is su e ha s so me me ri t, t he Pe tit ion e r s uf

fe rs no pr e jud ic e fr om ap pe llate c ouns e l’ s fa ilure to ra ise the iss ue on a pp e a l. Id. When a

n omitted issue is wit hout merit, the Petitioner cannot pr evail on an ine ffe ctive assistanc e of counse l claim. Carpenter , 12 6 S.W.3 d at 88 8 ( c itatio n o mit te d) . A dd iti on a lly , in e ff e c tiv e ne ss-67-

is very rar ely found in c ases whe re a petitioner asse rts that appellate counsel fa iled to raise a n issue on direc t a

ppeal, primarily beca

use the decision of what issues to raise is one of the most important str a te g ic de c isi on s to be ma de by a pp e llate c ouns e l.

The P et i t i o n er ’s ch al l en ges t o ap p el l at e c o u n s el ’s fa i l u re t o ra i s e c er t ai ni s s u es o nappea l, i.e., (1) c halleng e to jury

instruction on rea sonable doubt; (2) c hallen ge t o jury instruction on d el i b er at i o n ; (3 ) c h al l en ge t o fa i l u re t o i n s t ru ct j u ry o n i gn o ra n ce o r m i s t ak e o f fa ct ; (4 ) c h al l en ge to failure to instruct jury

on neg lige nt h o m i ci d e; (5) c halleng e to jury instruction on weig hing of ag g ravating a

nd mitigating fac tors; and (6) c halleng e t o j ury verdic t form, have been disc ussed
su pra

. This court has c oncluded that the Petitioner ha s failed to e stablish that he was pre judiced by
c o u n s e l ’ s f

a i l u r e t o r e qu e s t o r c h a l l e n g e t h e j u r y i n s t r u c t i o n s an d t h e j ur

y v e r d i c t f

o r m

. S i m i l a r l y, we c annot conc lude that the Petitioner wa s prejudice d by counsel’s f

ailure to raise the se same issues
on a pp e a l. T he Pe tit ion e r i s n ot e nti tle d to re lie f o n th is c la im.

CO NC LU SION

After a thoroug h revie w of the r ecor d and the law applicable to the issues raised he rein, we conclude that the Petitioner has fa iled to prove the a lleg ations contained in his post-conviction petition by

clea r and convincing evidenc e. The post-conviction court properly denied the Petiti oner relief . Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

______________________________ J OHN EV ERET T WI L L I AMS, J UDGE