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

. ) ) ) ) ) ) ) ) ) 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 co rpus filed under 28 U.S.C. § 2254 . We review two claims certified for appeal: (1) Sutton’s Brady claim that the state withh e ld 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.Case No. 11

- 6180 , Sutton v. Carpenter

- 2

- 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 bot h murders. This habeas proceeding arises from Sutton’s conviction for Griffin’s murder

.
The s tate 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, w hat beg a n 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 di sappearance following his release from jail

. The evidence support ed 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 De llinger 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 neigh bor 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 acco mpany 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 shotgu n” from his truck to the back of his wife’s Oldsmobile

. Sutton andCase No. 11

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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, approximate ly 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, p assersby f ound 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 Bran am’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, b oth the prosecution and the defense relied on ti me - of

death evidence

. T he State attempted to prove that Griffin died on the night of February 21 while still in the c ompany of Dellinger and Sutton , and Sutton tried to prove otherwise. The district court’s opinion succinctly explains the time

- of

- death c ontroversy. 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 th at are considered when making suchCase No. 11

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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 t o 36 hours and then goes away

. He specifically clarified that the time frames are not strict, b ut 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 temperatu re, 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. Ellin gton 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 test ify 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 det ermine 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 tout ed Dr. Harlan’s credentials and forensic experience

a s 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 emplo yment 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 fro m surgery. A clinica l 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, t he 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 S upreme 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 T CCA affirmed

. The TCCA summarized Sutton’s mitigation

e vidence 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 membersCase No. 11

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reveal ed 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 t ried 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” academ ic 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 de plorable.” 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 “self

protective 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. A pp. 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, reason ing :

[T]he record b efore 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 coun sel 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, th e 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 vio lent 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. 20 02) ; State v. Howell , 868 S.W.2d 238, 261 (Tenn. 19 93) . 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’sCase No. 11

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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 cou rt 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 forensi c 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. , i nformation 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 motio n, 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 convic tion 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 t he investigation , the courtCase No. 11

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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 ineffective

assistance claim to encompass Sutton’s assertion that trial counsel should have presented evidence o f Dellinger’s corrupting influence at sentencing. Sutton appeals.

II.
The district court exercised jurisdiction under 28 U.S.C. § 22 54 , 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 ba nc).

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) appl ies to the ineffective

assistance claim. T his 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 correc tness to a state court’ s factual determinations

. Id. § 2254(e)(1)

.Case No. 11

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The parties presume, however, that AEDPA deference does not apply to the Brady claim, despite the fact that the T CCA ostensibly addressed the merits of that claim in deny ing Sutton’s

mo tion to remand. If that ruling constitute d 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 (2 011)

.
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. Th ough the state’s c oncession of the AEDPA

- deferen ce issue does not control , s ee Moritz v. Lafler , 525 F. App’x 277, 285 (6th Cir. 20 13) (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 , s ee Berghuis v. Thompkins , 560 U.S. 370, 390 (2010) (explaining that courts may deny habeas relief under § 2254 “by engaging in de n ovo review when it is unclear whether AEDPA deference applies”)

.
B

. B rady Claim

In Brady v. Maryland , the Supreme Court held that the prosecution violates due process when it suppresses material evidence favorable to the ac cused, 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 (19 99) (citing United States v.Case No. 11

- 6180 , Sutton v. Carpenter

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-

Agurs , 427 U.S. 97, 107 (19 76) and United States v. Bagley , 473 U.S. 667, 676 (19 85)). 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 (19 95). 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.
20 08) (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 & Suppr ession 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 f

ailure 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 self

incrim inating statements). Sutton argues that the same type of non

- disclosure occurred here, where members of the Tennessee Bureau of Investigation (TBI) investigat ed both his case and Dr. Harlan ’s misfeasance . Yet, Sutton offers no evidence that the same TBI agents or teams participat ed 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 ha s extended the prosecution’s Brady obligations so far.Case No. 11

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Though we have not addressed this specific theory before

— attributing th e 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.3 d 413, 417 (6th Cir. 20 07)

. Accordingly, we have rejected Brady claims premised on evidence possessed by un involved government agencies, Goff v. Bagley , 601 F.3d 445, 476 (6th Cir. 20 10) ( prosecutor had no duty to investigate the unrelated federal prosecution of a witness), as we ll as evidence possessed only by a cooperating witness, Graham , 484 F.3d at 41 6

– 1 7 ( distinguish ing the cooperating witness in that case from the police officers “acting on the gov ernment’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. S ee, 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 inves tigation or prosecution ); Moon v. Head , 285 F.3d 1301, 1310 (11th Cir. 2 002) (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 in to exculpatory information possessed by other federal agencies whe n those agencies played no part in the relevant investigation or prosecution); see also United States v. Avellino , 136 F.3d 249, 255 (2d Cir. 19 98) ( 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”) ;Case No. 11

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-

United States v. Quinn , 445 F.2d 940, 943

– 44 (2d Cir. 1971) (rejecting defendant’s c onstructive

notice 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 report s prepared by FBI agents unaffiliated with the trial or underlying investigation. 6 F.3d 924, 949 (2d Cir. 19 93). Like that court, “[w]e will not infer the prosecutor s’ knowledge simply because some other government agents knew about the report.” Id. ; s ee 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 knowle dge 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 inferen ce that the prosecution team should have known of the sta te’s investigation of Dr. Harlan . He therefore shows neither government suppression of favorable evidence nor a violation of the duty toCase No. 11

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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

E ven if the prosecution had a duty to discover Dr. Harlan’s professional misconduct, Sutton suffered no prejudice. Sutton admits that the prosecution ’s questioning “destroy ed” 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, t he state successfully undermined Dr. Wolfe’s testimony before it pre sented Dr. Harlan as a rebuttal witness.

T he state also presented strong circumstantial evidence linking Griffin’s murder to the night that Sutton and Dellinger bailed him out of jail

. T wo 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 t he Tennessee Supreme Court in denying Dellinger’s actual

- innocence claim

. See Dellinger v. State , 279 S.W.3d 282, 292 (Tenn. 20 09) ( “If Griffin were alive, it is improbable that no one would have been in contact with him during that time, especially consi dering 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 nea r 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 “show ing 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

- d eath witness

—

presuming the government still chose to call Dr. Harlan to the stand

— but would have done nothing to undermine the remai nder of the government’s case. We have no reason to believe that the jury

c ould have reached a different verdict had the pa rties known about t he investigation of Dr. Harlan.

C . Ineffective

-

Assistance Clai m
Sutton’s certified ineffective

- assistance claim target s counsel’s failure to investigate and present additional social

- history evidence pertaining to Sutton’s abusive chil dhood and Dellinger’s corrupting influence. R elying on the post

- conviction testimony of Dr. Pamela Auble,
Sutton lists a number of abusive in cidents 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 t o Georgia while fleeing criminal charges , and fir ed shots at his car.Case No. 11

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Under Strickland , a Sixth Amendment ineffective

- assist ance 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 differen t penalty. 466 U.S. at 687

– 94, 6 97. “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 (20 11) (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 Str ickland elements wa nting. 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 togethe r 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 in effective in preparing or presenting his case in mitigation.” Id. As for prejudice, t he 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.Case No. 11

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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 Determination s of Fact
First, Sutton contends that the state court misconstrued lead trial counsel’s post

conviction testimony that he interviewed dozens of witnesse s, overlooking the admission that he limit ed his investigation to positive character witnesses. But the portion of counsel’s testimony cited by Sutton admit s no such thing . Rather, it states:
[F]or the family review, we were able to secure the free servi ces of a . . . College senior . . . . And she worked under the tutelage of Dr. Engum and myself to interview prospective character witnesses and things of th at nature, the family profile. Counsel then provided examples of witnesses who sp o k e 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

1 At 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 indicati ons, 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.Case No. 11

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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 *2 4

. 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 co urt’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 int o 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 c orrupting influence, reflecting its understanding of the evidence Sutton claimed counsel should have presented. See id

.Case No. 11

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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 t he 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 present ed more evidence of Sutton’s abusive upbringing that may have persuad ed 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. Th us, th e 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 s entencing 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. SeeCase No. 11

- 6180 , Sutton v. Carpenter

- 19

-

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 compr ehended 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 incorrec t 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 f rom presenting any mitigating proof of . . . social and family history.” See Sutton , 2006 WL 1472542, at *2 4

. Sutton argues that this narrow reading distorts Williams and Wiggins , both of which found deficient performance and prejudice . But the TCCA rea sonably conclude d that counsel’s performance surpassed th e c onstitutionally deficient assistance in those cases.

In Williams , counsel failed to investigate several key mitigating circumstances, including Williams’s “nightmarish childhood,” borderline ment al 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 custo dy 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

.
I n 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 c onduct 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 f acts: 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, t he defense team presented mitigating evidence on a variety of subjects , includingCase No. 11

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Sutton’s employment history, previous conduct as a prisoner, his fine reputation as a family man (i ncluding 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 a lcoholism from an early age, and his tendency to follow others . Dr. Engu m’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 t ake 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 limitati ons 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 dir ectly 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 distinguish ed Williams and Wiggins and determine d that counsel investigated enough to make the strategic decision not to devote m ore attention to that subject. Cf. Bobby v. Van Hook , 558 U.S. 4 , 9

– 11 (2009) (per curia m) (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 support s Sutton ’s claim that he followed Dellinger’s lead in a crime that both denied committing.Case No. 11

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-

presented consi derable mitigating evidence from the petitioner’s traumatic childhood, including beatings, alcoholi sm, and violent tendencies).

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

. No doubt , the a dditional 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 conclude d that the new evidence complement ed Dr. Engum’s less

- detaile d 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 emphasiz es the persuasive force of additional violent felony convictions. Id. at *24 (citing State v. McKinney , 74 S.W.3d 291, 313 (Tenn.
20 02) ; State v. Howell , 868 S.W.2d 238, 261 (Tenn. 19 93 ))

. The U.S. Supreme Court acknowledge d 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 murder ing Connie Branam, the TCCA c ould 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.Case No. 11

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- 23

-

D. Uncertified Ineffective

- Assistance Claim: Trial Counsel’s Time

- of

- Death Strategy

Sutton touches on an other 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 , und er recent Supreme Court precedent, he may assert ineffective assistance of post

- conviction counsel as a reason to supplement the record for his underlying ineffective

- assist ance 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
T revino more expansively would undermine Pinholster ’s conclusion that AEDPA limits federal

court 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 t he TCCA rejected this uncertified time

- of

- death ineffective

assistance 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 excl uding this ineffective

- assistance claim from the certificate of appealability

.Case No. 11

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- I II

. For these reasons, we AFFIRM.