NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0465n.06

Case No. 11-6180

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARY WAYNE SUTTON,

Petitioner-Appellant,

v.

WAYNE CARPENTER, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

TENNESSEE

BEFORE: BOGGS, GIBBONS, and COOK, Circuit Judges.

COOK, Circuit Judge. Gary Wayne Sutton, a Tennessee prisoner sentenced to death, 

appeals the district court’s denial of his petition for a writ of habeas corpus filed under 28 U.S.C. 

§ 2254. We review two claims certified for appeal: (1) Sutton’s Brady claim that the state

withheld evidence that could be used to impeach its time-of-death rebuttal witness; and 

(2) Sutton’s ineffective-assistance-of-counsel claim that trial counsel conducted an inadequate 

investigation and presented insufficient mitigating evidence of Sutton’s family background at 

sentencing. Finding no reversible error in the district court’s rejection of these claims, 

we AFFIRM.
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I.

A. Trial & Sentencing

The state prosecuted Sutton and his uncle, James Dellinger, for murdering their mutual

friend, Tommy Griffin, and Griffin’s sister, Connie Branam, in February 1992. After joint trials, 

juries convicted Sutton and Dellinger for both murders. This habeas proceeding arises from

Sutton’s conviction for Griffin’s murder. 

The state relied on circumstantial evidence to convict Dellinger and Sutton. The two 

defendants met Griffin at Howie’s Hideaway Lounge in Maryville, Tennessee, on the afternoon 

of February 21, 1992. According to the prosecution, what began as an afternoon of drinking and 

pool between friends devolved into a road-side fight, Griffin’s arrest for public intoxication, the 

burning of Griffin’s trailer, and Griffin’s disappearance following his release from jail. The 

evidence supported the following timeline of events: officers booked Griffin at 7:40 p.m.;

Dellinger visited the jail forty-five minutes to an hour later to ask about Griffin’s release; the 

officers told Dellinger about the department’s four-hour detention policy for public-intoxication 

arrests; and then Dellinger returned with Sutton around 11:30 p.m. and bailed Griffin out of jail. 

Meanwhile, at around 9 p.m.—between Dellinger’s visits to the jail—a neighbor saw Griffin’s

trailer catch fire moments after seeing Dellinger’s white truck speed by with two occupants. 

Griffin’s niece, Jennifer Branam, went to Dellinger’s trailer to ask about her uncle and, after a 

brief chat, asked Sutton and Dellinger to accompany her to Griffin’s trailer. The men declined, 

with Dellinger responding to the effect that they were already in enough trouble. Looking 

through her window after returning home, Branam saw Dellinger move a sheet-wrapped object 

that “resembled a shotgun” from his truck to the back of his wife’s Oldsmobile. Sutton and 
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Dellinger left the trailer park in that car around 10 p.m. See State v. Dellinger, 79 S.W.3d 458, 

462–65 (Tenn. 2002).

No one saw Griffin after his release at 11:30 p.m. but, approximately twenty minutes 

after he left the station with Sutton and Dellinger, witnesses heard gunshots near the Blue Hole 

area of Little River. Three days later, passersby found Griffin’s body on the banks of Blue Hole, 

the victim of a gunshot wound to the head. Forensics linked 12-gauge shotgun shells lying next 

to Griffin’s body to shells found in Dellinger’s yard. Id.

Connie Branam set out looking for her missing brother with Sutton and Dellinger on the 

afternoon of February 22. They stopped at the bar to ask about Griffin. Later that night, 

witnesses observed a fire in the woods near the Clear Fork area of Sevier County. A white truck 

with two passengers was spotted leaving those woods the following morning. Six days later, 

authorities found Connie Branam’s body, burned in her car, in the same wooded area. 

Investigators tied a rifle shell found in her car to a .303 rifle found in Dellinger’s trailer. Id. at 

464–65. 

Relevant to this habeas petition, both the prosecution and the defense relied on time-ofdeath evidence. The State attempted to prove that Griffin died on the night of February 21 while 

still in the company of Dellinger and Sutton, and Sutton tried to prove otherwise. The district 

court’s opinion succinctly explains the time-of-death controversy.

Dr. Eric Patrick Ellington (“Dr. Ellington”), the pathologist who 

conducted the autopsy on the remains of Griffin on February 25, 1992 testified 

that he does not make time-of-death determinations. Therefore, he did not provide 

a time of death. Dr. Ellington also clarified that the date on his report—February 

24, 1992—was the date the body was discovered, and not the date or time of 

death. Although Dr. Ellington did not make a time-of-death determination, he 

was questioned about the factors that are considered when making such 
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determinations. He explained that rigor mortis begins somewhere within 30 

minutes to an hour after death and lasts up to 24 to 36 hours and then goes away. 

He specifically clarified that the time frames are not strict, but are an average 

length of time and are dependent on the ambient temperature and climatic 

conditions to which the body is exposed. Other facts which assist in determining 

the time of death, Dr. Ellington explained, are core body temperature, chemical 

test results on eyeball fluid, and the presence or absence of the stage of insect 

larvae. Dr. Ellington did not observe any injuries to Griffin’s body which could be 

attributed to carrion eaters or carnivores, did not take or have taken the core body 

temperature, and did not order any chemical tests performed on the fluid from the 

eyeball. 

Dr. Ellington then detailed some of his autopsy findings. Griffin’s 

pancreas had gross features of autolysis, meaning it had started to digest itself 

which happens shortly after death occurs. Both of Griffin’s lungs, his left adrenal 

gland, and his liver showed signs of decomposition, with the latter organ being 

more extensively decomposed and containing cystic areas which did not appear to 

be a postmortem change. Dr. Ellington also pointed out that the rate of 

decomposition is variable—the colder the climate the slower the rate of 

decomposition.

The defense presented Dr. Larry Elmo Wolfe (“Dr. Wolfe”), the medical 

examiner and coroner in Union County, as its expert to testify about the victim’s 

time-of-death. Dr. Wolfe, a licensed medical doctor, though not board certified in 

any field of medicine, testified that Griffin died 24 to 36 hours before his body 

was discovered, thus placing his time of death between 3:00 a.m. and 3:00 p.m. 

Sunday February 23, 1991. But the doctor conceded that, conceivably, Griffin 

died on Friday when the shots were heard.

The State did not present any expert-time-of-death testimony during its 

case-in-chief given Dr. Ellington’s reluctance to determine a time of death, and 

the disqualification of its intended expert on the subject, Dr. Cleland Blake, due to 

a conflict of interest. Rather, on rebuttal, the State combated Dr. Wolfe’s estimate 

as to the time of death by presenting the testimony of Dr. Charles Harlan (“Dr. 

Harlan”) as to that issue.

Dr. Harlan, a board-certified forensic pathologist, testified that he 

considered the reports from the first responders, the autopsy report, the 

photographs, the tissues on the microscopic slides, and the fact the victim was last 

seen alive around 11:30 p.m. on Friday, February 21, 1992, and estimated that 

Griffin died between 11:30 p.m. on Friday, February 21, 1992 and 8:00 a.m. on 

Saturday, February 22, 1992.
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During closing argument, the prosecution touted Dr. Harlan’s credentials and forensic experience 

as superior to those of Dr. Wolfe, who lacked training in pathology. The jury convicted 

Dellinger and Sutton.

During the penalty phase of his trial, Sutton’s counsel presented evidence of Sutton’s 

employment history, his good behavior during a previous period of imprisonment, his parents’

divorce, and his reputation as a good family man who rescued his niece from a fire and supported

his sister-in-law’s family while she recovered from surgery. A clinical psychologist also testified 

that Sutton dropped out of school in the eighth grade; had a low IQ; abused alcohol from an early 

age; and suffered mental and physical abuse as a child, stemming from his parents’ rocky 

relationship. Despite this mitigating evidence, the jury found sufficient aggravating 

circumstances under Tennessee law and sentenced Sutton to death. Dellinger, 79 S.W.3d at 

465–66 (citing Tenn. Code Ann. § 39–13–204(i)(2)). The Tennessee Court of Criminal Appeals

(TCCA) and the Tennessee Supreme Court affirmed Sutton’s conviction and sentence. 

Id. at 503.

B. Post-Conviction Proceedings

In 2003, Sutton filed a petition for post-conviction relief in the Circuit Court for Blount 

County, alleging inter alia that trial counsel rendered constitutionally deficient assistance at 

sentencing by failing to investigate and present evidence of Sutton’s abusive childhood. The 

trial court denied relief, and the TCCA affirmed. The TCCA summarized Sutton’s mitigation 

evidence as follows:

At sentencing, the defense presented the majority of its evidence through 

the testimony of Dr. Engum. . . . Concerning the petitioner’s background, Dr. 

Engum testified that his interviews of the petitioner and his family members 
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revealed that the petitioner’s father was an alcoholic, which “set the stage” for the 

petitioner to become an alcohol abuser by age twelve. He noted that the petitioner 

came from a broken home and that both parents subjected the petitioner to “mind 

games” and tried to bribe him to live with one parent over the other. He said the 

petitioner had endured physical and mental abuse and characterized him as “one 

of the least favored of all the children” in the family. He said the petitioner’s 

“extremely poor” academic record, culminating in the petitioner’s quitting school 

in the eighth grade, was not unexpected given his life in a “highly dysfunctional” 

and “chaotic family background.” In summary, Dr. Engum described the 

petitioner’s family background as “fairly deplorable.”

Asked to describe the petitioner as an individual, Dr. Engum testified that 

the petitioner learned to distrust others from a young age and that his “selfprotective mechanism” led to feelings of social isolation, aloneness, and 

depression. He said the petitioner used alcohol as well as marijuana as a form of 

self-anesthesia to lessen his pain. He said the petitioner was easily manipulated 

and became a follower, especially of persons older and more experienced than 

he was.

Sutton v. State, No. E2004-02305, 2006 WL 1472542, at *22–23 (Tenn. Crim. App. May 30, 

2006). Applying the well-established standard from Strickland v. Washington, 466 U.S. 668, 

686–87 (1984), the TCCA rejected Sutton’s ineffective-assistance claim, reasoning:

[T]he record before us does not support [Sutton’s] assertion that counsel 

wholly failed to investigate his background and were thereby prevented by a lack 

of awareness from presenting any mitigating proof of his social and family 

history. The record indicates that counsel relied on information provided by their 

expert psychologist together with the information counsel gained from personally 

interviewing dozens of witnesses in deciding which information to present to the 

jury. Although counsel might have chosen to place greater emphasis on certain 

negative aspects of his background, the jury was certainly made aware of the 

petitioner’s abuse and neglect, alcoholism, drug abuse, lack of education, limited 

intelligence, and tendency to be influenced by others. In short, the record supports 

the trial court’s finding that much of the evidence the petitioner presented at the 

post-conviction hearing was cumulative and only ‘expanded’ the evidence 

presented at trial.

At sentencing, the state relied on the petitioner’s prior violent felony 

convictions in support of a sentence of death. Our supreme court has stated that 

the prior violent felony aggravating circumstance is “more qualitatively 

persuasive and objectively reliable than others.” State v. McKinney, 74 S.W.3d 

291, 313 (Tenn. 2002); State v. Howell, 868 S.W.2d 238, 261 (Tenn. 1993). In 

our view, this aggravating factor was all the more persuasive and difficult to 

overcome in the petitioner’s case considering the fact that one of the petitioner’s 
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prior violent felony convictions was for the murder of the victim’s sister. We are 

unpersuaded that being presented with more details or specific instances of the 

petitioner’s abuse and neglect or his relationship with Dellinger would have led 

the jury to reach a different sentencing decision. Counsel’s efforts to convince the 

jury not to return a sentence of death by emphasizing the petitioner’s more 

positive attributes and by arguing that the petitioner’s life had some value and 

should be spared despite his convictions were not unreasonable or uninformed. 

The fact the strategy was not successful does not, alone, establish that counsel 

were ineffective in preparing or presenting his case in mitigation.

Id. at *24 (Tenn. Crim. App. 2006). In sum, the court found neither deficient performance nor 

prejudice under Strickland. Id. at *24.

During the pendency of that appeal, the state Board of Medical Examiners revoked Dr. 

Harlan’s medical license and released findings that he had engaged in improper forensic 

practices dating back to 1995. On the heels of this revelation, Sutton filed a motion with the 

TCCA to remand his post-conviction proceeding to the trial court for an evidentiary hearing on 

whether the prosecution suppressed impeachment evidence—i.e., information related to the 

state’s investigation of Dr. Harlan—in violation of Brady v. Maryland, 373 U.S. 83 (1963). 

After ordering the state to respond, the TCCA denied the remand motion, concluding that Sutton 

failed to present a “sustainable claim that the state suppressed the evidence or a reasonable 

probability that, armed with impeaching evidence against Dr. Harlan, the outcome of the trial 

would have been different.” 

In 2007, Sutton filed a habeas petition in federal court pursuant to 28 U.S.C. § 2254, 

attacking his conviction and sentence on twenty-five grounds, including the Strickland and 

Brady claims detailed above. Though the district court ultimately rejected all claims and denied 

the petition, it held an evidentiary hearing on the Brady claim pertaining to the prosecution’s 

knowledge of the investigation of Dr. Harlan’s professional misconduct. Finding no proof that 

members of the prosecution team knew or should have known of the investigation, the court 
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rejected Sutton’s claim that the state suppressed favorable evidence. The court granted a 

certificate of appealability on the Brady and Strickland claims, and we expanded the ineffectiveassistance claim to encompass Sutton’s assertion that trial counsel should have presented 

evidence of Dellinger’s corrupting influence at sentencing. Sutton appeals.

II.

The district court exercised jurisdiction under 28 U.S.C. § 2254, and we have appellate 

jurisdiction to review its final decision under 28 U.S.C. § 1291. We review the district court’s 

legal conclusions de novo and its factual determinations for clear error. Awkal v. Mitchell, 613 

F.3d 629, 638 (6th Cir. 2010) (en banc).

A. The AEDPA Standard

The parties agree that the deferential standard of review imposed by § 2254(d) of the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to the ineffectiveassistance claim. This provision constrains federal habeas review of claims “adjudicated on the 

merits in State court,” such that federal courts may grant relief only if the state court’s decision:

(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). AEDPA also accords a rebuttable presumption of correctness to a state 

court’s factual determinations. Id. § 2254(e)(1). 
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The parties presume, however, that AEDPA deference does not apply to the Brady claim, 

despite the fact that the TCCA ostensibly addressed the merits of that claim in denying Sutton’s 

motion to remand. If that ruling constituted a decision “on the merits,” then it receives AEDPA 

deference, and we must confine our review to the record considered by the state court. See

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). 

The district court did not have the benefit of Cullen v. Pinholster in January 2010 when it 

granted an evidentiary hearing on the Brady claim. The court also bypassed the 

AEDPA-deference issue, concluding that the Brady claim failed under de novo review. This 

approach comes as no surprise; the state conceded that the TCCA’s denial of the remand motion 

did not constitute a decision on the merits, waived exhaustion, and consented to an evidentiary 

hearing. Though the state’s concession of the AEDPA-deference issue does not control, see 

Moritz v. Lafler, 525 F. App’x 277, 285 (6th Cir. 2013) (citing Brown v. Smith, 551 F.3d 424,

428 n.2 (6th Cir. 2008)), we need not resolve this unbriefed issue because we agree with the 

district court that the Brady claim fails under the more lenient de novo standard, see Berghuis v. 

Thompkins, 560 U.S. 370, 390 (2010) (explaining that courts may deny habeas relief under 

§ 2254 “by engaging in de novo review when it is unclear whether AEDPA deference applies”).

B. Brady Claim

In Brady v. Maryland, the Supreme Court held that the prosecution violates due process 

when it suppresses material evidence favorable to the accused, regardless of whether the

prosecution acts in good faith. 373 U.S. at 87. The prosecution has an affirmative duty to 

disclose such evidence, and that “duty encompasses impeachment evidence as well as 

exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing United States v. 
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Agurs, 427 U.S. 97, 107 (1976) and United States v. Bagley, 473 U.S. 667, 676 (1985)). Due 

process also requires the prosecutor “to learn of any favorable evidence known to the others 

acting on the government’s behalf in the case, including the police,” and to disclose that 

evidence if material. Kyles v. Whitley, 514 U.S. 419, 437 (1995). A Brady claim consists of 

three elements: (1) exculpatory or impeaching material evidence; (2) willfully or inadvertently 

suppressed by the state; (3) resulting in prejudice. Doan v. Carter, 548 F.3d 449, 459 (6th Cir.

2008) (quoting Strickler, 527 U.S. at 281–82). Because the state concedes materiality, we focus 

on suppression and prejudice.

1. State’s Duty to Discover & Suppression of Impeaching Evidence

Citing Kyles, Sutton argues that the prosecution had a constitutional duty to learn of the 

state’s investigation into Dr. Harlan and to disclose that evidence, which he then could use to 

impeach Dr. Harlan’s credibility as a time-of-death expert. The Supreme Court in Kyles held 

that the prosecution’s failure to disclose exculpatory and impeaching evidence known to the 

police detectives assigned to the case constituted a Brady violation. Kyles, 514 U.S. at 441–52 

(noting the detectives’ knowledge of eyewitnesses’ inconsistent and potentially selfincriminating statements). Sutton argues that the same type of non-disclosure occurred here, 

where members of the Tennessee Bureau of Investigation (TBI) investigated both his case and

Dr. Harlan’s misfeasance. Yet, Sutton offers no evidence that the same TBI agents or teams

participated in both investigations. Thus, he asks us either to impute the knowledge of the TBI 

agents investigating Harlan to those working on Sutton’s case, or to impose an affirmative duty 

on the prosecution to learn all potential witness credibility defects known by members of a 

cooperating government agency. As the district court recognized, no court has extended the 

prosecution’s Brady obligations so far. 
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Though we have not addressed this specific theory before—attributing the knowledge of 

certain agents to the entire investigative agency—we have stated that “Brady clearly does not 

impose an affirmative duty upon the government to take action to discover information which it 

does not possess.” United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007). Accordingly, 

we have rejected Brady claims premised on evidence possessed by uninvolved government 

agencies, Goff v. Bagley, 601 F.3d 445, 476 (6th Cir. 2010) (prosecutor had no duty to 

investigate the unrelated federal prosecution of a witness), as well as evidence possessed only by 

a cooperating witness, Graham, 484 F.3d at 416–17 (distinguishing the cooperating witness in 

that case from the police officers “acting on the government’s behalf” in Kyles, explaining 

that the witness “remained an independent actor” with his own agenda). 

Other circuits have similarly confined prosecutors’ sleuthing duties to material 

information possessed by members of the prosecution team. See, e.g., Avila v. Quarterman, 

560 F.3d 299, 307–08 (5th Cir. 2009) (concluding that pathologist’s exculpatory opinion could 

not be imputed to prosecution team, because he served only as an expert witness and did not play 

an active role in either the investigation or prosecution); Moon v. Head, 285 F.3d 1301, 1310 

(11th Cir. 2002) (declining to presume Georgia prosecutor’s knowledge of TBI investigation, in 

the absence of evidence that TBI worked with the Georgia prosecution team during the relevant 

investigation); United States v. Morris, 80 F.3d 1151, 1169–70 (7th Cir. 1996) (concluding that 

Kyles imposed no obligation on the prosecution to inquire into exculpatory information 

possessed by other federal agencies when those agencies played no part in the relevant 

investigation or prosecution); see also United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 

1998) (construing Kyles to mean that “[a]n individual prosecutor is presumed . . . to have 

knowledge of all information gathered in connection with his office’s investigation of the case”); 
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United States v. Quinn, 445 F.2d 940, 943–44 (2d Cir. 1971) (rejecting defendant’s constructivenotice theory for imputing the knowledge of any government agent to the prosecutor). 

We find instructive the Second Circuit’s decision in United States v. Locascio, where the 

court declined to presume federal prosecutors’ knowledge of reports prepared by FBI agents 

unaffiliated with the trial or underlying investigation. 6 F.3d 924, 949 (2d Cir. 1993). Like that 

court, “[w]e will not infer the prosecutors’ knowledge simply because some other government 

agents knew about the report.” Id.; see also Avellino, 136 F.3d at 255 (“[K]nowledge on the part 

of persons employed by a different office of the government does not in all instances warrant the 

imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a 

prosecutor to inquire of other offices not working with the prosecutor’s office on the case . . . 

would inappropriately require us to adopt ‘a monolithic view of government’ that would 

‘condemn the prosecution of criminal cases to a state of paralysis.’”). 

Here, the district court found that:

the evidence to impeach Dr. Harlan was in the possession of TBI Special Agents 

G. Richard Wright, Roy Copeland, and Jim Taylor—TBI agents with no 

connection or involvement in the investigation of Petitioner’s case. Petitioner has 

not offered, and the record does not contain, any evidence of a collaborative effort 

between TBI Agents Wright, Copeland, and Taylor and Petitioner’s prosecution 

team. Indeed, the proof is to the contrary as the prosecutors in Petitioner’s state 

criminal case aver they had no knowledge of any investigation into Dr. Harlan at 

the time he testified.

In response, Sutton stresses the egregiousness of Dr. Harlan’s professional transgressions, but he 

does not dispute these essential facts. Nor does he present facts supporting the inference that the 

prosecution team should have known of the state’s investigation of Dr. Harlan. He therefore 

shows neither government suppression of favorable evidence nor a violation of the duty to 
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discover “favorable evidence known to . . . others acting on the government’s behalf in the case.” 

Kyles, 514 U.S. at 437. 

2. Prejudice

Even if the prosecution had a duty to discover Dr. Harlan’s professional misconduct, 

Sutton suffered no prejudice. Sutton admits that the prosecution’s questioning “destroyed” his 

only time-of-death evidence: the expert testimony of Dr. Wolfe, a local general practitioner. 

Indeed, during cross-examination, Dr. Wolfe conceded that he lacked qualifications to make 

time-of-death determinations. Notably, the state successfully undermined Dr. Wolfe’s testimony

before it presented Dr. Harlan as a rebuttal witness.

The state also presented strong circumstantial evidence linking Griffin’s murder to the 

night that Sutton and Dellinger bailed him out of jail. Two witnesses heard gunshots twenty-five 

minutes after Griffin’s release into petitioner’s custody, near the spot where Griffin’s body 

would be found two days later. No one saw Griffin during the intervening period, despite the 

burning of his residence—a fact emphasized by the Tennessee Supreme Court in denying 

Dellinger’s actual-innocence claim. See Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) 

(“If Griffin were alive, it is improbable that no one would have been in contact with him during 

that time, especially considering that his home had burned down and his family was looking for 

him.”). This, combined with the evidence of the road-side fight, the proximity of Dellinger’s 

truck to Griffin’s trailer at the time of the fire, forensic analysis of the shells found near the body, 

and the repeated attempts to bail Griffin out of jail, provided sufficient evidence for the jury to 

conclude that Sutton and Dellinger murdered Griffin on the evening of February 21, 1992.
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Though prejudice for a Brady claim demands less than a sufficiency-of-the-evidence 

analysis, it still requires a “‘reasonable probability’ of a different result”—i.e., a “showing that 

the favorable evidence could reasonably be taken to put the whole case in such a different light 

as to undermine confidence in the verdict.” Kyles, 514 U.S. at 434–35 (quoting Bagley, 473 U.S. 

at 678). Sutton fails to show such a reasonable probability, where the impeaching evidence 

would have hurt the credibility of the government’s rebuttal time-of-death witness—presuming 

the government still chose to call Dr. Harlan to the stand—but would have done nothing to 

undermine the remainder of the government’s case. We have no reason to believe that the jury 

could have reached a different verdict had the parties known about the investigation of Dr. 

Harlan.

C. Ineffective-Assistance Claim

Sutton’s certified ineffective-assistance claim targets counsel’s failure to investigate and 

present additional social-history evidence pertaining to Sutton’s abusive childhood and 

Dellinger’s corrupting influence. Relying on the post-conviction testimony of Dr. Pamela Auble, 

Sutton lists a number of abusive incidents that he believes counsel should have discovered and

introduced in mitigation. These include abandonment by his mother, repeated physical abuse by 

a mentally unstable step-mother, and exile from the family home by his father, who sided with 

the step-mother. This neglect, he argues, made him vulnerable to the corrupting influence of 

Dellinger, the uncle who, at different points in Sutton’s childhood and adolescence, introduced 

him to alcohol, routinely removed him from school, took him to Georgia while fleeing criminal

charges, and fired shots at his car.
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Under Strickland, a Sixth Amendment ineffective-assistance claim requires a showing of 

both (i) constitutionally deficient performance by counsel and (ii) prejudice, defined in the 

capital-punishment context as a reasonable probability that, but for counsel’s errors, the 

sentencer would have chosen a different penalty. 466 U.S. at 687–94, 697. “The standards 

created by Strickland and [AEDPA] are both highly deferential, and when the two apply in 

tandem, review is doubly so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation 

marks and citations omitted). Thus, in reviewing Sutton’s ineffective-assistance claim, we 

decide “whether there is any reasonable argument that counsel satisfied Strickland’s 

deferential standard.” Id. 

The TCCA found both Strickland elements wanting. Rejecting Sutton’s 

deficient-performance argument, the court pointed out that “the jury was certainly made aware of 

the petitioner’s abuse and neglect, alcoholism, drug abuse, lack of education, limited 

intelligence, and tendency to be influenced by others,” and found that counsel made the strategic 

decision to emphasize Sutton’s positive attributes. Sutton, 2006 WL 1472542, at *24. The court

noted that “counsel relied on information provided by their expert psychologist together with the 

information counsel gained from personally interviewing dozens of witnesses,” and dismissed 

Sutton’s additional evidence as mostly “cumulative.” Id. “The fact that the strategy was not 

successful does not, alone, establish that counsel were ineffective in preparing or presenting his 

case in mitigation.” Id. As for prejudice, the court found that Sutton’s additional conviction for

murdering Connie Branam undermined his assertion that additional evidence of his family 

history would have produced a different outcome. Id. 
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Sutton faults the state court for erroneous factual findings and argues that the court 

unreasonably applied Strickland and two other cases articulating counsel’s duty to investigate 

mitigating circumstances, Williams v. Taylor and Wiggins v. Smith. We disagree on both fronts.

1. Unreasonable Determinations of Fact

First, Sutton contends that the state court misconstrued lead trial counsel’s postconviction testimony that he interviewed dozens of witnesses, overlooking the admission that he 

limited his investigation to positive character witnesses. But the portion of counsel’s testimony 

cited by Sutton admits no such thing. Rather, it states:

[F]or the family review, we were able to secure the free services of a . . . College 

senior . . . . And she worked under the tutelage of Dr. Engum and myself to 

interview prospective character witnesses and things of that nature, the 

family profile. 

Counsel then provided examples of witnesses who spoke of Sutton’s good deeds—hardly an 

admission that the defense team never investigated Sutton’s background. Dr. Engum’s 

sentencing testimony about Sutton’s broken home and abuse—limited though it was—proves 

otherwise.1 And so does Dr. Auble’s testimony; as the TCCA noted, Dr. Auble “acknowledged 

that Dr. Engum had interviewed various family members” and that Dr. Engum’s notes 

 

1At sentencing, Dr. Engum characterized Sutton’s childhood as being:

[e]ssentially, a fairly deplorable family background. I guess the most significant 

aspect of his family background is a father who was basically a chronic alcoholic. 

This kind of set the stage for Gary himself to become an alcohol abuser by age 

twelve. Mother and father were divorced fairly early. There were indications, 

from interviewing both Mr. Sutton as well as other family members, that there 

was a lot of—I don’t want to use the word competition, but a lot of attempts to 

bribe Gary by one parent or the other to try to cause Gary to live with either the 

father or the mother. Gary was subjected to a lot of mind games, a lot of head 

games. There’s also indications in the record of quite a bit of physical and mental 

abuse, and a certain sense that—it was at least felt by some family members that 

Gary was one of the least favored of all the children.
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“indicated that he was aware that family members, including Dellinger, had exposed [Sutton] to 

alcohol and prostitutes and that the petitioner’s father had once locked him out of the house and 

made him stay in a dog house.” Sutton, 2006 WL 1472542, at *7. This evidence sustains the 

TCCA’s finding that “counsel relied on information provided by their expert psychologist 

together with the information counsel gained from personally interviewing dozens of witnesses 

in deciding which information to present to the jury.” See Sutton, 2006 WL 1472542, at *24.

Resisting this conclusion, Sutton argues that we can infer counsel’s ignorance of Sutton’s 

abusive childhood from his failure to request a jury instruction concerning abuse and a stray 

remark about Sutton’s parents “vying” for his attention during counsel’s argument to the jury. 

Such speculation, however, does not overcome the state court’s presumptively correct (and 

substantiated) factual conclusion that the defense team knew of and presented evidence of 

Sutton’s deplorable childhood. See 28 U.S.C. § 2254(e)(1). 

Next, Sutton takes issue with the TCCA’s statement summarizing witness testimony that 

he “lived in a filthy house where he was verbally and physically mistreated by an unstable 

stepmother for one to two years,” Sutton, 2006 WL 1472542, at *23, when, in fact, he lived with 

the woman from the age of six into his teenage years. The TCCA attributed this fact to the 

testimony of Sutton’s brother, id. at *7, but we cannot confirm it in the record on appeal. 

Regardless, this slight misstatement of fact did not affect the state court’s decision; the court 

detailed his stepmother’s abuse and Dellinger’s corrupting influence, reflecting its understanding 

of the evidence Sutton claimed counsel should have presented. See id. 
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In sum, Sutton has not shown that the TCCA’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d)(2).

2. Unreasonable Application of Law

We turn now to the main thrust of Sutton’s argument: that the TCCA unreasonably 

applied Strickland, Williams, and Wiggins.

Sutton challenges lead defense counsel’s diligence on a number of fronts, stressing his 

lack of experience in capital sentencing proceedings; the minimal time billed specifically for 

sentencing preparation (five hours), half of which occurred after the verdict; and his reliance on 

Dr. Engum, whose records lack details of the investigation into Sutton’s family background. In 

short, Sutton argues that, with a more thorough investigation, counsel would have presented 

more evidence of Sutton’s abusive upbringing that may have persuaded the jury to spare his life.

Still, as noted above, the TCCA found that the defense team had access to evidence of 

Sutton’s abusive childhood, as demonstrated by Dr. Engum’s sentencing testimony about 

Sutton’s broken home, alcoholism, distrust of others, and manipulability. See Sutton, 2006 WL 

1472542, at *22–23. And the TCCA rejected Sutton’s prejudice argument, finding that the 

aggravating circumstance of Branam’s murder still would have outweighed any additional

mitigating evidence. Thus, the real question is whether the defense should have discovered more 

specific instances of abuse and devoted more attention to that subject and to Dellinger’s 

influence in its presentation to the sentencing jury. In the absence of clearly established Supreme 

Court precedent requiring additional investigation under similar circumstances, a fairminded 

jurist could conclude that the defense team satisfied the constitutional requirement. See 
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Harrington, 562 U.S. at 103 (explaining, under § 2254(d)(1), that the habeas petitioner “must 

show that the state court’s ruling on the claim being presented in federal court was so lacking in 

justification that there was an error well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement”); Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003) 

(stressing that AEDPA’s “unreasonable application” prong reaches only “objectively 

unreasonable” state court decisions, not incorrect ones). 

Williams and Wiggins do not compel a contrary conclusion. The TCCA distinguished 

these cases as addressing the situation where “counsel wholly failed to investigate [the 

defendant’s] background and were thereby prevented by lack of awareness from presenting any 

mitigating proof of . . . social and family history.” See Sutton, 2006 WL 1472542, at *24. 

Sutton argues that this narrow reading distorts Williams and Wiggins, both of which found 

deficient performance and prejudice. But the TCCA reasonably concluded that counsel’s 

performance surpassed the constitutionally deficient assistance in those cases.

In Williams, counsel failed to investigate several key mitigating circumstances, including 

Williams’s “nightmarish childhood,” borderline mental capacity, and prison records 

documenting his good behavior. Williams, 529 U.S. at 395–96. These oversights occurred: 

not because of any strategic calculation but because [counsel] incorrectly thought 

that state law barred access to such records. Had they [investigated], the jury 

would have learned that Williams’ parents had been imprisoned for the criminal 

neglect of Williams and his siblings, that Williams had been severely and 

repeatedly beaten by his father, that he had been committed to the custody of the 

social services bureau for two years during his parents’ incarceration (including 

one stint in an abusive foster home), and then, after his parents were released from 

prison, had been returned to his parents’ custody.
Case No. 11-6180, Sutton v. Carpenter

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Id. at 395. In view of the “comparatively voluminous amount of evidence” missed, the Court 

held that “trial counsel did not fulfill their obligation to conduct a thorough investigation of the 

defendant’s background.” Id. at 396. 

In Wiggins, counsel presented no family-history evidence at sentencing. Wiggins, 

539 U.S. at 516. Viewing skeptically counsel’s strategy to forgo mitigation, the Court noted that 

counsel limited its investigation of the defendant’s life history to the presentence investigation 

report and a handful of social services records documenting Wiggins’s foster care placements. 

Counsel also declined funds offered by the public defender’s office to obtain a forensic social 

worker. Wiggins, 539 U.S. at 523–24. The Court found that counsel’s conduct fell below 

Maryland and ABA standards for capital defense work, explaining that: 

The scope of their investigation was . . . unreasonable in light of what 

counsel actually discovered in the [social services] records. The records revealed 

several facts: Petitioner’s mother was a chronic alcoholic; Wiggins was shuttled 

from foster home to foster home and displayed some emotional difficulties while 

there; he had frequent, lengthy absences from school; and, on at least one 

occasion, his mother left him and his siblings alone for days without food. As the 

Federal District Court emphasized, any reasonably competent attorney would 

have realized that pursuing these leads was necessary to making an informed 

choice among possible defenses, particularly given the apparent absence of any 

aggravating factors in petitioner’s background. 

Id. at 525.

Here, as stated above, counsel testified that he relied on information provided by Dr. 

Engum and a college student to get a better understanding of Sutton’s family situation. He also 

had group meetings with family members during his investigation of the case. Admittedly, the 

short amount of time devoted to sentencing preparation gives pause, but as the district court 

explained, counsel’s earlier efforts overlapped somewhat with the penalty-phase preparation. As 

noted above, the defense team presented mitigating evidence on a variety of subjects, including 
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Sutton’s employment history, previous conduct as a prisoner, his fine reputation as a family man 

(including heroic acts), and his family background. The jury heard about his parents’ divorce, 

his childhood abuse and “least favored” child status, his limited education and IQ, his alcoholism 

from an early age, and his tendency to follow others. Dr. Engum’s notes demonstrated that the 

defense team knew of Dellinger’s corrupting influence during Sutton’s childhood and of abuse 

by Sutton’s father. And, to the extent Sutton argues that counsel should have argued that 

Dellinger played a dominant role in the commission of the crime, he offers no evidence that 

Dellinger actually did take such a leadership role and thus fails to explain why counsel should 

have explored this mitigation theory.2

Strickland teaches that:

strategic choices made after thorough investigation of law and facts relevant to 

plausible options are virtually unchallengeable; and strategic choices made after 

less than complete investigation are reasonable precisely to the extent that 

reasonable professional judgments support the limitations on investigation. In 

other words, counsel has a duty to make reasonable investigations or to make a 

reasonable decision that makes particular investigations unnecessary. In any 

ineffectiveness case, a particular decision not to investigate must be directly 

assessed for reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel’s judgments.

466 U.S. at 690–91. Counsel could have focused more on Sutton’s family background, but the 

TCCA reasonably distinguished Williams and Wiggins and determined that counsel investigated 

enough to make the strategic decision not to devote more attention to that subject. Cf. Bobby v. 

Van Hook, 558 U.S. 4, 9–11 (2009) (per curiam) (rejecting Strickland claim where counsel 

 

2

Sutton points to three actions in arguing that Dellinger controlled their encounters with 

Griffin: Dellinger ordered the beer at the bar, he hid the gun in his trailer, and he posted Griffin’s 

bond. None supports Sutton’s claim that he followed Dellinger’s lead in a crime that both denied 

committing.
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presented considerable mitigating evidence from the petitioner’s traumatic childhood, including 

beatings, alcoholism, and violent tendencies).

And even if counsel’s performance fell below the constitutional standard, Sutton fails to 

show prejudice under AEDPA. No doubt, the additional social-history evidence adduced during 

post-conviction proceedings paints a more vivid and harrowing picture of Sutton’s childhood 

abuse. But the state court reasonably concluded that the new evidence complemented Dr. 

Engum’s less-detailed testimony on the subject and, thus, was largely cumulative. The evidence 

Sutton now presents illustrates the abuse that Dr. Engum alluded to in describing Sutton’s 

“deplorable” childhood, but breaks no new ground. Further undermining Sutton’s prejudice

argument, Dr. Auble informed the state court that “evidence of a negative childhood ha[s] some, 

but ‘not a great deal’ of impact on jurors.” Sutton, 2006 WL 1472542, at *6. Finally, the TCCA 

reasonably relied on state-court precedent that emphasizes the persuasive force of additional 

violent felony convictions. Id. at *24 (citing State v. McKinney, 74 S.W.3d 291, 313 (Tenn.

2002); State v. Howell, 868 S.W.2d 238, 261 (Tenn. 1993)). The U.S. Supreme Court 

acknowledged the strength of such a counterweight in its prejudice analysis in Wong v. 

Belmontes, 558 U.S. 15, 25–26 (2009) (referring to the additional murder conviction as the 

“elephant in the courtroom”). In light of Sutton’s additional conviction for murdering Connie 

Branam, the TCCA could reasonably conclude that the absence of evidence detailing specific 

instances of abuse and corruption by Dellinger did not cast doubt on Sutton’s death-sentence

under Strickland’s reasonable-probability standard.
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D. Uncertified Ineffective-Assistance Claim: Trial Counsel’s Time-of-Death Strategy

Sutton touches on another ineffective-assistance claim not certified for appeal: trial 

counsel’s performance litigating the time-of-death issue during the guilt phase of trial. Our order 

of June 11, 2013, denied Sutton’s request to certify this claim for appeal. Sutton argues that, 

under recent Supreme Court precedent, he may assert ineffective assistance of post-conviction 

counsel as a reason to supplement the record for his underlying ineffective-assistance claim. See

Trevino v. Thaler, 133 S. Ct. 1911 (2013); Martinez v. Ryan, 132 S. Ct. 1309 (2012). Yet, as we 

stated in Moore v. Mitchell, Martinez provides a limited remedy for procedurally defaulted

ineffective-assistance-of-trial-counsel claims, not an opportunity to expand the record when the 

state court denies such claims on the merits. 708 F.3d 760, 784–85 (6th Cir. 2013); see also

Martinez, 132 S. Ct. at 1319–20 (characterizing its holding as a “limited” remedy for a 

procedural default); Trevino, 133 S. Ct. at 1921(extending Martinez’s procedural-default remedy 

to jurisdictions that, while technically allowing ineffective-assistance claims on direct appeal, 

provide no “meaningful opportunity” for those claims to be heard). To read Martinez and 

Trevino more expansively would undermine Pinholster’s conclusion that AEDPA limits federalcourt review of habeas claims to the record established in state court. Moore, 708 F.3d at 785; 

see also Pinholster, 131 S. Ct. at 1398. 

Sutton acknowledges that the TCCA rejected this uncertified time-of-death ineffectiveassistance claim on the merits. Sutton, 2006 WL 1472542, at *20. In the absence of procedural 

default, Martinez and Trevino have no application. We therefore have no occasion to reconsider 

excluding this ineffective-assistance claim from the certificate of appealability.
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III.

For these reasons, we AFFIRM.