RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0314a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

PERVIS T. PAYNE,

Petitioner-Appellant,

v.

RICKY BELL, Warden,

Respondent-Appellee.

X

-

-

-

-

>

,

-

-

N

No. 02-5551

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 98-02963—Bernice B. Donald, District Judge.

Submitted: March 4, 2005

Decided and Filed: July 22, 2005 

Before: ROGERS, SUTTON, and COOK, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Todd A. Rose, BURCH, PORTER & JOHNSON, Paris, Tennessee, J. Brooke

Lathram, BURCH, PORTER & JOHNSON, Memphis, Tennessee, for Appellant. Joseph F. Whalen

III, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, Michael E. Moore,

TENNESSEE ATTORNEY GENERAL’S OFFICE, Nashville, Tennessee, for Appellee.

______________________

AMENDED OPINION

______________________

ROGERS, Circuit Judge. This case was the subject of a prior opinion by this panel, Payne

v. Bell, 399 F.3d 768 (6th Cir. Jan. 13, 2005), in which, inter alia, we reversed the district court’s

denial of Payne’s petition and ordered the district court to issue a conditional writ of a habeas corpus

on the ground that the use of the heinous, atrocious, or cruel (“HAC”) aggravating circumstance

instruction violated Payne’s Eighth Amendment rights, and the Tennessee state court’s rejection of

Payne’s challenge was contrary to clearly established United States Supreme Court precedent. On

January 24, 2005, the Supreme Court granted the State of Tennessee’s petition for certiorari in

another HAC case decided by this court, Cone v. Bell, 359 F.3d 785 (6th Cir. 2004), and reversed.

Bell v. Cone, —U.S.—, 125 S.Ct. 847 (2005). The Supreme Court held that our Cone holding had

failed to show proper deference to a state court decision upholding that petitioner’s sentence because

we had presumed that the Tennessee court did not follow its own precedent with respect to a

constitutional narrowing construction of the HAC aggravator. 125 S.Ct. at 853. The Respondent

Warden subsequently filed with this panel a timely petition for rehearing on the basis of the Supreme

1
No. 02-5551 Payne v. Bell Page 2

1

Only Section II.A. has been amended substantively; however, a number of internal references to the conclusion

of Section II.A., appearing in other sections, have also been amended. For ease of reading, the opinion, as amended, is

set out in its entirety below, without an itemized list of individual amendments.

Court’s decision in Bell v. Cone. On February 8, 2005, this panel granted the petition for rehearing

with respect to Section II.A. of the prior opinion, and ordered supplemental briefing. Upon

consideration of the parties’ supplemental briefs and the Supreme Court’s opinion in Bell v. Cone, we withdraw our prior opinion, Payne v. Bell, 399 F.3d 768 (6th Cir. Jan. 13, 2005), and replace it

with this amended opinion.1 

Petitioner Pervis T. Payne was sentenced to death in a Tennessee state court for the murder

of Charisse Christopher and her daughter Lacie Christopher. Payne appeals the district court’s

denial of his petition for the writ of habeas corpus. On appeal, Payne alleges three constitutional

violations: that during the penalty phase, his Eighth Amendment rights were violated by the

instruction on the heinous, atrocious, or cruel aggravating circumstance; that his rights under Brady

v. Maryland, 373 U.S. 83 (1963), were violated; and that he was denied the effective assistance of

counsel. The Tennessee state court decisions upholding Payne’s conviction and sentence were not

unreasonable applications of clearly established Supreme Court law, and accordingly, the decision

of the district court denying the petition for habeas corpus is affirmed. 

I.

The facts of this case, set forth below, are excerpted from the opinion of the Tennessee

Supreme Court, State v. Payne, 791 S.W.2d 10 (Tenn. 1990), aff’d, 501 U.S. 808 (1991). 

Defendant was found guilty of first degree murder of Charisse Christopher

and her daughter, Lacie, and guilty of assault with intent to commit murder in the

first degree of her son, Nicholas. He was given the death penalty for each of the

murders and thirty (30) years for the assault with intent to commit murder offense.

Charisse Christopher was 28 years old, divorced, and lived in Hiwassee

Apartments, in Millington, Tennessee, with her two children, three and one-half year

old Nicholas and two and one-half year old Lacie. The building in which she lived

contained four units, two downstairs and two upstairs. . . . Defendant’s girlfriend,

Bobbie Thomas, lived in the other upstairs unit. . . .

Bobbie Thomas had spent the week visiting her mother in Arkansas but was

expected to return on Saturday, 27 June 1987, and she and Defendant had planned

to spend the weekend together. Prior to 3:00 p.m. on that date, Defendant had visited

the Thomas apartment several times and found no one at home. On one visit he left

his overnight bag, containing clothing, etc., for his weekend stay, in the hallway,

near the entrance to the Thomas apartment. With the bag were three cans of Colt 45

malt liquor.

[At approximately 3:10 p.m., the resident manager, Nancy Wilson, heard a

terrible disturbance and called the police.]

Officer C.E. Owen, of the Millington Police Department, was the first officer

to arrive at the Hiwassee Apartments. He was alone in a squad car when the

disturbance call was assigned to Officers Beck and Brawell. Owen was only two

minutes away from the Hiwassee Apartments so he decided to back them up. He

parked and walked toward the front entrance. As he did so he saw through a large

picture window that a black man was standing on the second floor landing of the

stairwell. Owen saw him bend over and pick up an object and come down the stairs

and out the front door of the building. He was carrying the overnight bag and a pair

of tennis shoes. Owen testified that he was wearing a white shirt and dark colored

pants and had “blood all over him. It looked like he was sweating blood.” Owen
No. 02-5551 Payne v. Bell Page 3

assumed that a domestic fight had taken place and that the blood was that of the

person he was confronting. Owen asked, “[H]ow are you doing?” Defendant

responded, “I’m the complainant.” Owen then asked, “What’s going on up there?”

At that point Defendant struck Owen with the overnight bag, dropped his tennis

shoes and started running west on Biloxi Street. Owen pursued him but Defendant

outdistanced him and disappeared into another apartment complex.

Owen called for help on his walkie-talkie and Officer Boyd responded. By

that time Owen had decided Defendant was not hurt and the blood was not his own—

he was running too fast. Owen told Boyd that “there’s something wrong at that

apartment.” They returned to 4516 Biloxi. Nancy Wilson had a master key and let

them in the locked Christopher apartment. As soon as the door was opened they saw

blood on the walls, floor—everywhere. The three bodies were on the floor of the

kitchen. Boyd discovered that the boy was still breathing and called for an

ambulance and reported their findings to the chief of police and the detective

division. A Medic Ambulance arrived, quickly confirmed that Charisse and Lacie

were dead, and departed with Nicholas. He was taken to Le Bonheur Children’s

Hospital in Memphis . . . . In addition to multiple lacerations, several stab wounds

had gone completely through his body from front to back. . . . He was in intensive

care for a period and had [several] operations before he left the hospital, but he

survived.

Charisse sustained forty-two (42) knife wounds and forty-two (42) defensive

wounds on her arms and hands. . . . [The medical examiner] said no wound

penetrated a very large vessel and the cause of death was bleeding from all of the

wounds; there were thirteen (13) wounds “that were very serious and may have by

themselves caused death. I can’t be sure, but certainly the combination of all the

wounds caused death.” He testified that death probably occurred within, “maybe 30

minutes, that sort of time period,” but that she would have been unconscious within

a few minutes after the stabbing had finished.

The medical examiner testified that the cause of death of Lacie Christopher

was multiple stab wounds to the chest, abdomen, back and head, a total of nine. One

of the wounds cut the aorta and would have been rapidly fatal.

Defendant was located and arrested at a townhouse where a former girlfriend,

Sharon Nathaniel, lived with her sisters. Defendant had attempted to hide in the

Nathaniel attic. When arrested he was wearing nothing but dark pants, no shirt, no

shoes. As he descended the stairs from the attic he said to the officers, “Man, I ain’t

killed no woman.” Officer Beck said that at the time of his arrest he had “a wild

look about him. His pupils were contracted. He was foaming at the mouth, saliva.

He appeared to be very nervous. He was breathing real rapid.” A search of his

pockets revealed a “pony pack” with white residue in it. A toxicologist testified that

the white residue tested positive for cocaine. They also found on his person a B &

D syringe wrapper and an orange cap from a hypodermic syringe. There was blood

on his pants and on his body and he had three or four scratches across his chest. He

was wearing a gold Helbrose wristwatch that had bloodstains on it. The weekend

bag that he struck Officer Owen with was found in a dumpster in the area. It

contained the bloody white shirt he was wearing when Owen saw him at the

Hiwassee Apartments, a blue shirt and other shirts.

It was stipulated that Charisse and Lacie had Type O blood and that Nicholas

and Defendant had Type A. A forensic serologist testified that Type O blood was

found on Defendant’s white shirt, blue shirt, tennis shoes and on the bag. Type A

blood was found on the black pants Defendant was wearing when seen by Owen and

when arrested. Defendant’s baseball cap had a size adjustment strap in the back with

a U-type opening to accommodate adjustments. That baseball cap was on Lacie’s

forearm—her hand and forearm sticking through the opening between the adjustment
No. 02-5551 Payne v. Bell Page 4

strap and the cap material. Three Colt 45 beer cans were found on a small table in

the living room, two unopened, one opened but not empty, bearing Defendant’s

fingerprints, and a fourth empty beer can was on the landing outside the apartment

door. Defendant was shown to have purchased Colt 45 beer earlier in the day.

Defendant’s fingerprints were also found on the telephone and counter in the kitchen.

Charisse’s body was found on the kitchen floor on her back, her legs fully

extended. The right side of her upper body was against the wall, and the outside of

her right leg was almost against the back door that opened onto the back porch. . . .

The medical examiner testified that Charisse was menstruating and a

specimen from her vagina tested positive for acid phosphatase. He said that result

was consistent with the presence of semen, but not conclusive, absent sperm, and no

sperm was found. A used tampon was found on the floor near her knee. The murder

weapon, a bloody butcher knife, was found at the feet of Lacie, whose body was also

on the kitchen floor near her mother. A kitchen drawer nearby was partially open.

Defendant testified. His defense was that he did not harm any of the

Christophers; that he saw a black man descend the inside stairs, race by him and

disappear out the front door of the building, as he returned to pick up his bag and

beer before proceeding to his friend Sharon Nathaniel’s to await the arrival of Bobby

Thomas. He said that as the unidentified intruder bounded down the stairs, attired

in a white tropical shirt that was longer than his shorts, he dropped change and

miscellaneous papers on the stairs which Defendant picked up and put in his pocket

as he continued up the stairs to the second floor landing to retrieve his bag and beer.

When he reached the landing he heard a baby crying and a faint call for help and saw

the door was ajar. He said curiosity motivated him to enter the Christopher

apartment and after saying he was “coming in” and “eased the door on back,” he

described what he saw and his first actions as follows: 

I saw the worst thing I ever saw in my life and like my breath just

had—had tooken—just took out of me. You know, I didn’t know

what to do. And I put my hand over my mouth and walked up closer

to it. And she was looking at me. She had the knife in her throat

with her hand on the knife like she had been trying to get it out and

her mouth was just moving but words had faded away. And I didn’t

know what to do. I was about ready to get sick, about ready to vomit.

And so I ran closer—I saw a phone on the wall and I lift and got the

phone on the wall. I said don’t worry. I said don’t worry. I’m going

to get help. Don’t worry. Don’t worry. And I got ready to grab

it—the phone but I didn’t know no number to call. I didn’t know

nothing. I didn’t know nothing about no number or—I just start

trying to twist numbers. I didn’t know nothing. And she was

watching my movement in the kitchen, like she—I had saw her. It

had been almost a year off and on in the back yard because her kids

had played with Bobbie’s kids. And I have seen her before. She

looked at me like I know you, you know. And I didn’t know what to

do. I couldn’t leave her. I couldn’t leave her because she

needed—she needed help. I was raised up to help and I had to help

her.

He described how he pulled the knife out of her neck, almost vomited, then

kneeled down by the baby girl, had the feeling she was already dead; said the little

boy was on his knees crying, he told him not to cry he was going to get help. His

explanation of the blood on his shirt, pants, tennis shoes, body, etc., was that when

he pulled the knife out of her neck, “she reached up and grab me and hold me, like

she was wanting me to help her . . .”, that in walking and kneeling on the bloody

floor and touching the two babies he got blood all over his clothes. He said he went
No. 02-5551 Payne v. Bell Page 5

2

Mary Zvolanek testified regarding how her grandson Nicholas had been affected by the deaths. Payne’s

objection to the use of such “victim impact” testimony reached the United States Supreme Court following the Tennessee

Supreme Court’s affirmation of his conviction and sentence on direct appeal. In upholding Payne’s sentence, the United

States Supreme Court held that “[a] State may legitimately conclude that evidence about the victim and about the impact

of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be

imposed.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). 

to the kitchen sink, probably twice, to get water to drink when he thought he was

going to vomit, but he denied that he went into the bathroom at any time or used the

bathroom lavatory to wash up, as Nancy Wilson testified she heard someone do after

the violence subsided.

He was then suddenly motivated to leave and seek help and he described his

exit from the apartment as follows: 

And I left. My motivation was going and banging on some doors,

just to knock on some doors and tell someone need help, somebody

call somebody, call the ambulance, call somebody. And when I—as

soon as I left out the door I saw a police car, and some other feeling

just went all over me and just panicked, just like, oh, look at this. I’m

coming out of here with blood on me and everything. It going to look

like I done this crime.

The shoulder strap on the left shoulder of the blue shirt he was wearing while

in the victim’s apartment was torn, a fact he did not seem to realize and could not

remember when it happened. He said he ran because the officer did not seem to

believe him. He claimed that he had the Colt 45 beer with him as he ran; that the

open can with beer in it spilled into the sack, as he ran from Owen, the bottom of the

sack broke, the beer and tennis shoes were scattered along his route. He said that

what witnesses had described as scratches were stretch marks from lifting weights.

Defendant presented five character witnesses who testified that Defendant’s

reputation for truth and veracity was good. Ruth Wakefield Bell testified that she

had known Defendant all of his life. She was age 40 and lived in the same block on

Biloxi as the Hiwassee Apartments, across the street. She said that on the Saturday

afternoon of the murders, Defendant knocked on her door, identified himself and she

looked out her bedroom window and saw him, but she did not let him in—she was

upset with her boyfriend and did not want to see or “entertain” anyone. She denied

that she was afraid to let him in—or that there was anything unusual about his

appearance. She estimated that it was about twenty minutes after he knocked on her

door that she saw police cars and an ambulance across the street. Defendant testified

that he knocked on her door just before he decided to go to Sharon Nathaniels and

went in the Hiwassee Apartments to pick up his bag and beer.

791 S.W.2d at 11-15. The jury convicted Payne of two counts of first degree murder and one count

of assault with intent to commit murder. 

At the sentencing phase, the State presented two pieces of evidence: the testimony of

Charisse’s mother, Mary Zvolanek,2

 and a videotape of the crime scene, introduced through the

identification of a police detective. 791 S.W.2d. at 17. Payne presented four witnesses at the

sentencing phase: his mother and father, his girlfriend Bobbie Thomas, and Dr. John T. Hutson.

The Tennessee Supreme Court described their testimony. 

Bobbie Thomas testified that she joined Defendant’s father’s church and

became acquainted with Defendant; that she had a troubled marriage, was abused by

her husband and it had a bad effect upon her three children; that Defendant was a

very caring person and the time and attention he had devoted to her children had “got

them back to their old self.” She said she did not drink or use drugs and neither did
No. 02-5551 Payne v. Bell Page 6

Defendant; that it was inconsistent with Defendant’s character to have committed

these crimes.

Dr. Hutson is a clinical psychologist, who specializes in criminal court

evaluation work. He gave Defendant the Wechsler Adult Intelligence Scale (WAIS)

revised version. Defendant’s scores were Verbal IQ 78, Performance IQ 82, with a

variance of plus or minus 3 on the Verbal and plus or minus 4 on the Performance.

He testified that the theoretical norm is 100, that actual test results have moved the

norm closer to 110; that historically the mental retardation score was 75, but

“retardation” is not commonly used anymore. He preferred mentally handicapped.

He also gave Defendant the Minnesota Multiphasic Personality Inventory (MMPI).

That test consists of 566 questions that tests a number of different things, that give

insight into personality functioning, responses to stress and physical performance.

Various “scales” measure lying or faking, hypochondria, depression, hysteria,

psychopathic deviance, sexuality, paranoia, cyclothymia, schizophrenia and mania.

The tests are graded by computer. Dr. Hutson testified that Defendant was in a

normal range or near normal range, with the exception of intelligence and

schizophrenia. He said that Defendant “was actually lower intellectually than I had

anticipated. And he is low enough that I consider it significant.” He testified that

Defendant scored above the normal—which is moving toward psychotic—but that

in his opinion Defendant was not psychotic or schizophrenic—that that scale of the

MMPI, “has a racial bias to it. Blacks tend to look higher on it when actually its very

normal for them.” The testing was performed in October, about three months after

the murders. Dr. Hutson described Defendant as “somewhat naive” and one of the

most polite individuals he had ever interviewed in jail.

Defendant’s parents testified that Defendant had no prior criminal record, had

never been arrested and had no history of alcohol or drug abuse; that he worked with

his father as a painter, was good to children and a good son.

791 S.W.2d at 17. 

Payne’s jury was instructed in accordance with former TENN.CODE ANN.§ 39-2-203, which

provides that the death penalty cannot be imposed unless the jury unanimously finds a statutory

aggravating circumstance or circumstances, and which also provides that the jury must weigh these

aggravating circumstances against any mitigating circumstances. TENN.CODE ANN. § 39-2-203(e),

(i) & (j) (1982); see also Coe v. Bell, 161 F.3d 320, 332 (6th Cir. 1998). The jury returned a verdict

that Payne should be sentenced to death by electrocution. See Payne v. Bell, No. 98-2963-D, slip

op. at 2 (W.D. Tenn. May 31, 2001). With respect to Lacie’s murder, the jury found that three

aggravating circumstances applied: that the murder was committed against a person less than twelve

years of age and the defendant was over eighteen; the defendant knowingly created a great risk of

death to two or more persons, other than the victim murdered, during the act of murder; and that the

murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.

Id. at 11. With respect to Charisse’s murder, the jury found that two aggravating circumstances

applied: the defendant knowingly created a great risk of death to two or more persons; and the

murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.

Id. at 10-11. The jury did not find either of two additional aggravating circumstances: that the

murder was committed while the defendant was engaged in committing, or attempting to commit,

rape; or that the murder was committed for the purpose of avoiding, interfering with, or preventing

a lawful arrest or prosecution of the defendant. Id. at 11 n.2. Mitigating evidence, as discussed

above, was presented; however, as Tennessee juries are not required to list mitigating circumstances,

see TENN. CODE ANN. § 39-2-203(g), no record exists of the jury’s determination on the weight of

the mitigating evidence.
No. 02-5551 Payne v. Bell Page 7

Payne was convicted and sentenced on February 16, 1988. Payne filed a notice of appeal

with the Tennessee Supreme Court on April 8, 1988, and on April 16, 1990, that court affirmed

Payne’s conviction and sentences. State v. Payne, 791 S.W.2d 10 (Tenn. 1990). The United States

Supreme Court granted certiorari on the issue of the use of victim impact testimony at sentencing,

and affirmed on June 27, 1991. Payne v. Tennessee, 501 U.S. 808 (1991). 

Payne filed a petition for post-conviction relief in the Shelby County Criminal Court on

January 13, 1992. An interlocutory appeal on the issue of a denied motion for funds to hire

investigative assistance followed, with the result that Payne received funds used to locate an out-ofstate witness. The evidentiary hearing on the petition for post-conviction relief was held August 29-

30, 1996. The court issued an order denying the petition for post-conviction relief on October 10,

1996. On June 26, 1992, Payne also filed a petition for writ of error coram nobis in the same

court, alleging discovery of new evidence. This petition was denied in 1997. Payne’s appeals from

these two denials were consolidated. The Tennessee Court of Criminal Appeals issued a decision

affirming the denials on January 15, 1998. Payne v. State, No. 02C01-9703-CR-00131, 1998 WL

12670 (Tenn. Crim. App. Jan. 15, 1998). The Tennessee Supreme Court denied further review. 

Payne commenced this federal action in the court below in November of 1998, ultimately

alleging twenty-four claims. In orders entered in 2001 and 2002, the district court granted summary

judgment on twenty-three of the claims; one was withdrawn. On February 3, 2003, the district court

granted Payne’s motion for the issuance of a certificate of appealability on the issue of the

constitutionality of Tennessee’s “heinous, atrocious, or cruel” (‘HAC”) aggravating circumstance,

and denied Payne’s motion with respect to all other claims. On December 5, 2003, this panel

granted Payne’s motion to expand the certificate of appealability to include two more issues: (1)

whether the prosecution withheld exculpatory information concerning Daryl Shanks, Charisse’s

boyfriend, from Payne in violation of his rights under Brady v. Maryland, 373 U.S. 83 (1963); and

(2) whether Payne’s trial counsel rendered ineffective assistance during the sentencing phase by

failing to conduct a sufficient investigation and not calling several witnesses in mitigation. This

court denied the motion to expand the certificate of appealability with respect to the remaining

claims raised by defendant. 

With respect to the first issue before us, the district court denied relief. In the district court’s

initial order, dated May 31, 2001, the court held both that the statutory language of Tennessee’s

HAC aggravator was unconstitutionally vague, and that the definitions supplied by the thenapplicable Tennessee Supreme Court precedent, State v. Williams, 690 S.W.2d 517 (Tenn. 1985),

were themselves also unconstitutionally vague. See Payne v. Bell, No. 98-2963-D, slip op. at 190-91

(W.D. Tenn. May 31, 2001). The district court, however, then stated that “[e]ven though

Petitioner’s jury relied on a facially vague statutory term and no proper limiting instruction was

given, the Supreme Court’s decisions make clear that any constitutional error can be cured on

appellate review.” Id. at 192. Following supplemental briefing, the district court on March 25,

2002, granted the respondent’s motion for summary judgment on this claim, holding that the

Tennessee Supreme Court cured the deficiencies in the unconstitutional jury instruction by implicitly

applying a constitutionally sufficient narrowing construction. Payne v. Bell, 194 F. Supp. 2d 739,

752-56 (W.D. Tenn. 2002).

The district court denied relief on the Brady claim because the evidence allegedly suppressed

by the prosecution was not material to Payne’s conviction. The district court denied relief on the

ineffective assistance of counsel claim because the state court decision rejecting Payne’s claim was

not an unreasonable application of clearly established Supreme Court law. 
No. 02-5551 Payne v. Bell Page 8

3

The State does not argue that Payne’s claim was procedurally defaulted, and in fact concedes that Payne raised

the claim in the state courts. Accordingly, there is no need to address procedural default. 

II.

A. Use of the “Heinous, Atrocious, or Cruel” Aggravating Circumstance

This case is not materially distinguishable from Bell v. Cone, —U.S.—, 125 S.Ct. 847

(2005), a case in which the Supreme Court reversed a grant of habeas corpus. We must therefore

come to the same conclusion in this case.3 As in Cone, the Tennessee Supreme Court’s rejection

of petitioner’s challenge to the “heinous, atrocious, or cruel” (“HAC”) aggravator was not contrary

to clearly established federal law as determined by the United States Supreme Court. This is the

standard required for federal habeas relief under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). Under 28 U.S.C. § 2254(d), 

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim—

(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) (2000). This court has elaborated on the statutory language. 

A state court decision is “contrary to” Supreme Court precedent “if the state court

arrives at a conclusion opposite to that reached by [the Court] on a question of law,”

or “if the state court confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at a result opposite to” the Court’s

decision. A state court decision involves an “unreasonable application” of clearly

established Supreme Court precedent when it correctly identifies the governing legal

standard but applies it to the facts of the case before it in an objectively unreasonable

manner. 

Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 405,

409-10 (2000)); see also Cone, 125 S.Ct. at 851.
No. 02-5551 Payne v. Bell Page 9

Under Cone, the use of the HAC aggravator did not violate Payne’s Eighth Amendment

rights, and the Tennessee state court’s rejection of Payne’s challenge therefore was not “contrary

to . . . clearly established Federal law, as determined by the Supreme Court of the United States.”

Therefore under 28 U.S.C. § 2254(d) a writ of habeas corpus is not warranted by the use of the HAC

aggravator. 

At the conclusion of the sentencing phase, Payne’s jury was instructed that the death penalty

could only be imposed if the jury unanimously found at least one of several possible statutory

aggravating circumstances, including the HAC aggravator. The trial judge instructed the jury in

accordance with the statutory language of TENN. CODE ANN. § 39-2-203(i)(5) (1982), which states

that one aggravating factor is that “[t]he murder was especially heinous, atrocious, or cruel in that

it involved torture or depravity of mind.” The trial judge also gave the jury definitions of these

terms in accordance with a limiting construction set out by the Tennessee Supreme Court in State

v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985). The instruction given to Payne’s jury contained

the following definitions:

“Heinous” means grossly wicked or reprehensible; abominable; odious; vile.

“Atrocious” means extremely evil or cruel; monstrous; exceptionally bad;

abominable.

“Cruel” means disposed to inflict pain or suffering; causing suffering; painful. 

“Torture” means the infliction of severe physical pain as a means of punishment or

coercion; the experience of this; mental anguish; any method or thing that causes

such pain or anguish; to inflict with great physical or mental pain. 

“Depravity” means moral corruption; wicked or perverse act.

Payne v. Bell, No. 98-2963-D, slip op. at 181-82 (W.D. Tenn. May 31, 2001). 

This instruction is extremely similar to the instruction given in Bell v. Cone, —U.S.—, 125

S.Ct. 847 (2005), and therefore, as the Supreme Court did in that case, we assume without deciding

that the instruction is unconstitutionally vague. Cone’s jury was instructed that the death penalty

could be imposed if the jury found that “[t]he murder was especially heinous, atrocious, or cruel in

that it involved torture or depravity of mind.” Cone v. Bell, 359 F.3d 785, 794 (6th Cir. 2004). The

court further defined these terms to the jury, stating that:

“Heinous” means extremely wicked or shockingly evil. 

“Atrocious” means outrageously wicked and vile. 

“Cruel” means designed to inflict a high degree of pain, utter indifference to, or

enjoyment of, the suffering of others, pitiless. 

Id. A panel of this court held that the instruction, as given to the jury, was unconstitutionally vague.

Id. at 796-97. The Supreme Court did not reverse this portion of the Sixth Circuit opinion, assuming

without deciding that the instruction was vague. Cone, 125 S.Ct. at 851 n.5.
No. 02-5551 Payne v. Bell Page 10

4

In its initial briefing, the state had argued that the instruction given to Payne’s jury was distinguishable from

the instruction given to Cone’s jury, and that therefore, the instruction was constitutional. An HAC aggravator is

unconstitutional when “[t]here is nothing in these few words, standing alone, that implies any inherent restraint on the

arbitrary and capricious infliction of the death sentence.” Godfrey v. Georgia, 446 U.S. 420, 428 (1980). The changes

made by Tennessee to the HAC jury instruction from the time of Cone’s sentencing to Payne’s sentencing did not in

any way increase the extent to which the jury instruction acted as a “restraint on the arbitrary and capricious infliction

of the death sentence.” For example, Cone’s jury was instructed that “cruel” meant “designed to inflict a high degree

of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless,” whereas Payne’s jury was instructed that

“cruel” meant “disposed to inflict pain or suffering; causing suffering; painful.” If anything, the changes rendered the

instruction more vague. The most substantial revision made by the Tennessee Supreme Court was the addition of

definitions for “torture” and “depravity.” The definition of “torture” may in fact provide more guidance than did the

instruction given to Cone’s jury. Payne’s jury, however, was instructed that the death penalty could be imposed if it

unanimously found that “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity

of mind.” TENN.CODE ANN. § 39-2-203 (emphasis added). The disjunctive “or” permitted the jury to impose the death

penalty upon a finding that the murder involved either torture or depravity of mind. And the definition of “depravity”

as “moral corruption; wicked or perverse act,” is in fact so similar to the definition of “heinous” that its addition cannot

be said to act as a “restraint on the arbitrary and capricious infliction of the death sentence.” 

5

Although recognizing that this was the holding of Cone, Payne preserves his argument that the Supreme Court

in Cone was wrong to hold that a sufficiency determination could cure a trial error. According to Payne, only a harmless

error analysis can cure a trial court error. Brief of Pervis T. Payne in Response to Warden’s Petition for Reconsideration

at 2 n.1. 

We assume that the instruction given to Payne’s jury was also unconstitutionally vague.4

 But as the Supreme Court instructed, we must look beyond the instruction given to the jury in order

to determine if a defendant’s Eighth Amendment right was violated by the use of an HAC

aggravator. See Cone, 125 S.Ct. at 852. Even where the jury is given an unconstitutionally vague

instruction, if on appeal the state court applies “a narrowing construction of the aggravator,” and that

construction is constitutional, then there is no Eighth Amendment violation.5

 Id. And in Payne’s

case, the Tennessee Supreme Court can be presumed to have applied a constitutional narrowing

construction. Therefore, no Eighth Amendment violation occurred. 

At issue in Cone was the question of when a state appellate court can be said to have applied

a narrowing construction. The Tennessee Supreme Court opinion affirming Cone’s sentence had

made no mention of an existing Tennessee case, State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), that

provided a limiting construction for the HAC aggravator. Instead, in reviewing the sufficiency of

the evidence supporting Cone’s sentence, the Tennessee Supreme Court discussed the facts of the

murders without specific mention of the legal standard. 

The jury . . . found that the murders in question were especially heinous,

atrocious, or cruel in that they involved torture or depravity of mind as provided in

T.C.A. § 39-2-203(i)(5). The evidence abundantly established that both of the

elderly victims had been brutally beaten to death by multiple crushing blows to the

skulls. Blood was spattered throughout the house, and both victims apparently had

attempted to resist, because numerous defensive wounds were found on their

persons. The only excuse offered in the entire record for this unspeakably brutal

conduct by the accused was that these elderly victims had at some point ceased to

“cooperate” with him in his ransacking of their home and in his effort to flee from

arrest. As previously stated, it was stipulated by counsel for appellant that there was

no issue of self-defense even remotely suggested. The deaths of the victims were not

instantaneous, and obviously one had to be killed before the other. The terror, fright

and horror that these elderly helpless citizens must have endured was certainly

something that the jury could have taken into account in finding this aggravating

circumstance.
No. 02-5551 Payne v. Bell Page 11

State v. Cone, 665 S.W.2d 87, 94-95 (Tenn. 1984); see also Cone, 125 S.Ct. at 853-54. A panel of

this court concluded that because the Tennessee Supreme Court had explicitly addressed the

sufficiency of the evidence supporting the HAC aggravator without mentioning the limiting

construction for the aggravator provided by Dicks, it was not possible to presume that the court had

in fact applied Dicks. Cone, 359 F.3d at 797. On certiorari, the Supreme Court reversed. 

We do not think that a federal court can presume so lightly that a state court

failed to apply its own law. As we have said before, § 2254(d) dictates a highly

deferential standard for evaluating state-court rulings, which demands that state-court

decisions be given the benefit of the doubt. To the extent that the Court of Appeals

rested its decision on the state court’s failure to cite Dicks, it was mistaken. Federal

courts are not free to presume that a state court did not comply with constitutional

dictates on the basis of nothing more than a lack of citation.

More importantly, however, we find no basis for the Court of Appeals’

statement that the state court “simply, but explicitly, satisfied itself that the labels

‘heinous, atrocious, or cruel,’without more, applied” to the murder. 359 F.3d, at 797.

The state court’s opinion does not disclaim application of that court’s established

construction of the aggravating circumstance; the only thing that it states “explicitly”

is that the evidence in this case supported the jury’s finding of the statutory

aggravator. See Cone, 665 S.W.2d, at 95 (stating that the aggravating circumstance

was “indisputably established by the record”). As we explain below, the State

Supreme Court had construed the aggravating circumstance narrowly and had

followed that precedent numerous times; absent an affirmative indication to the

contrary, we must presume that it did the same thing here. That is especially true in

a case such as this one, where the state court has recognized that its narrowing

construction is constitutionally compelled and has affirmatively assumed the

responsibility to ensure that the aggravating circumstance is applied constitutionally

in each case.

Cone, 125 S.Ct. at 853 (internal citations and quotations omitted). 

The Supreme Court went on to conclude that even without the benefit of the presumption that

a state court correctly applies its own law, the Tennessee Supreme Court’s decision upholding

Cone’s sentence must be read to apply the narrowing construction of Dicks. Cone, 125 S.Ct. at 853.

The Tennessee Supreme Court’s discussion of the evidence supporting the jury’s finding that the

HAC aggravator applied “closely tracked its rationale for affirming the death sentences in other

cases in which it expressly applied a narrowed construction of the same ‘heinous, atrocious, or cruel’

aggravator.” 125 S.Ct. at 853-54. The Supreme Court examined several other Tennessee Supreme

Court decisions that had expressly applied a narrowing construction, and found that the facts

emphasized in those cases were similar to the facts the Tennessee Supreme Court emphasized in

Cone’s case. 

The facts the court relied on to affirm the jury’s verdict—that the elderly victims

attempted to resist, that their deaths were not instantaneous, that [Cone’s] actions

towards them were “unspeakably brutal” and that they endured “terror, fright and

horror” before being killed, 665 S.W.2d, at 95—match, almost exactly, the reasons

the state court gave when it held the evidence in State v. Melson, 638 S.W.2d 342,

367 (1982), to be sufficient to satisfy the torture prong of the narrowed “heinous,

atrocious, or cruel” aggravating circumstance. 

Cone, 125 S.Ct. at 854. 
No. 02-5551 Payne v. Bell Page 12

Payne argues that his case is distinguishable from the situation present in Cone because in

its opinion affirming Payne’s sentence, the Tennessee Supreme Court not only did not mention a

narrowing construction of the HAC aggravator, it in fact did not mention the HAC aggravator at all.

The Supreme Court’s opinion in Cone, however, provides for this situation: under Cone, because

there is no “affirmative indication” that the Tennessee Supreme Court did not follow its own

precedent that narrowly construed the aggravating circumstance, we must presume that it did. Cone, 125 S.Ct. at 853. The fact that, in Cone’s case, the Tennessee Supreme Court did examine the facts

supporting the aggravator strengthened the United States Supreme Court’s conclusion that

Tennessee applied a narrowing construction, but was not the basis for the presumption that the

Tennessee Supreme Court did so. The presumption that the Tennessee Supreme Court applied a

narrowing construction came into being because “the State Supreme Court had construed the

aggravating circumstance narrowly and had followed that precedent numerous times” and there was

no “affirmative indication to the contrary.” Cone, 125 S.Ct. at 853. But because the Tennessee

Supreme Court did examine the facts supporting the aggravator, “[e]ven absent [the] presumption”

that the narrowing construction was applied, the Supreme Court would have held that in Cone’s

case, the Tennessee Supreme Court in fact applied the narrowing construction. Id. Therefore, in

Payne’s case, it is not determinative that the Tennessee Supreme Court did not explicitly examine

the facts supporting the narrowing construction; we need only look to whether there was Tennessee

precedent for a narrowing construction and whether there was an “affirmative indication” that the

Tennessee Supreme Court did not in fact apply the construction. 

The Tennessee Supreme Court in this case can be presumed to have applied a narrowing

construction to the HAC aggravator in its decision upholding Payne’s sentence. Cone itself settles

the first half of the inquiry, whether the state has precedent for a narrowing construction.

Obviously, as the Supreme Court noted, Tennessee was in the practice of following a narrowing

construction for the HAC aggravator. 125 S.Ct. at 854-55. Regarding the second half of the inquiry,

whether there is any affirmative indication that the state did not apply a narrowing construction, in

Payne’s case, no such indication can be found. In fact, there is at least some indication that the state

did apply a narrowing construction.

The Tennessee Supreme Court opinion affirming Payne’s sentence states that “[p]ursuant

to TENN. CODE ANN. § 39-13-205 we have reviewed the sentence of death and are of the opinion

that it was neither excessive nor disproportionate to the penalty imposed in similar cases.” State v.

Payne, 791 S.W.2d 10, 21 (Tenn. 1990). Section 39-13-205, a predecessor of which was at the heart

of this circuit’s now-reversed decision in Cone, provides for mandatory appellate review in death

penalty cases. 

In reviewing the sentence of death for first degree murder, the Tennessee supreme

court shall determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury’s finding of statutory aggravating circumstance

or circumstances;

(C) The evidence supports the jury’s finding that the aggravating circumstance or

circumstances outweigh any mitigating circumstances; and

(D) The sentence of death is excessive or disproportionate to the penalty imposed in

similar cases, considering both the nature of the crime and the defendant.

TENN. CODE ANN. § 39-13-205 (c)(1) (1989) (current version at TENN. CODE ANN. § 39-13-206

(2003)). Although the Tennessee Supreme Court singled out only the fourth inquiry, whether the

sentence was excessive or disproportionate, we cannot lightly disregard that Court’s invocation of

the entire section. Section 39-13-205 clearly required the Tennessee Supreme Court to consider

whether “[t]he evidence supports the jury’s finding of statutory aggravating circumstance or

circumstances.” This is not the situation contemplated by the concurrence in Cone, in which “[t]he
No. 02-5551 Payne v. Bell Page 13

state court, in disposing of the case, left one or more of the issues [raised by the prisoner]

unaddressed.” 125 S.Ct. at 856 (Ginsburg, J., concurring).

As Payne argues, the brief discussion of § 39-13-205 in Payne’s case does not compare to

the lengthy factual analysis that the Tennessee Supreme Court conducted in Cone on the specific

issue of whether the jury’s finding of the HAC aggravator had evidentiary support. It is also true

that a significant portion of the United States Supreme Court opinion in Cone focused on the factual

analysis. Nonetheless, the discussion of § 39-13-205 clearly takes this case out of the realm of those

in which there is an affirmative indication that the state Supreme Court did not apply a narrowing

construction. Accordingly, as the Supreme Court held in Cone, we must presume that the Tennessee

Supreme Court applied a narrowing construction of the HAC. 

“The only remaining question is whether the narrowing construction that the Tennessee

Supreme Court applied was itself unconstitutionally vague.” Cone, 125 S.Ct. at 854. The narrowing

construction analyzed in Cone was supplied by State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), Cone, 125 S.Ct. at 854, whereas the limiting construction in Payne’s case was at least partially supplied

by State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985). The Supreme Court explained the

construction used in Dicks, and why it was constitutional. 

In State v. Dicks, 615 S.W.2d 126 (Tenn.1981), the state court adopted the exact

construction of the aggravator that we approved in Proffitt [v. Florida, 428 U.S. 242,

255 (1976)]: that the aggravator was “directed at ‘the conscienceless or pitiless crime

which is unnecessarily torturous to the victim,’” Dicks, [615 S.W.2d] at 132. In light

of Proffitt, we think this interpretation of the aggravator, standing alone, would be

sufficient to overcome the claim that the aggravating circumstance applied by the

state court was “contrary to” clearly established federal law under 28 U.S.C.

§ 2254(d)(1).

The State Supreme Court’s subsequent application of this aggravating

circumstance, as construed in Dicks, stands as further proof that it could be applied

meaningfully to narrow the class of death-eligible offenders. Later in the year that

Dicks was decided, the court elaborated on the meaning of the aggravator: 

“Although the Tennessee aggravating circumstances [sic] [that the

murder was heinous, atrocious, or cruel], does not contain the phrase,

‘an aggravated battery to the victim’ it is clear that a constitutional

construction of this aggravating circumstance requires evidence that

the defendant inflicted torture on the victim before death or that [the]

defendant committed acts evincing a depraved state of mind; that the

depraved state of mind or the torture inflicted must meet the test of

heinous, atrocious, or cruel.” [State v. Pritchett, 621 S.W.2d, 127,

139 (Tenn. 1981)] (citation omitted). 

With respect to the meaning of “torture,” the court held that the aggravator was not

satisfied where the victim dies instantly, ibid., but that it was where “the

uncontradicted proof shows that [the victim] had defensive injuries to her arms and

hands, proving that there was time for her to realize what was happening, to feel fear,

and to try to protect herself,” [State v. Melson, 638 S.W.2d 342, 367 (Tenn. 1982)].

Accord, [Maynard v. Cartwright, 486 U.S. 356, 364-65 (1988)] (approving the

limitation of the “heinous, atrocious, or cruel” aggravating circumstance to killings

in which the victim suffered “some kind of torture or serious physical abuse” prior

to the murder). As to “depravity of mind,” the court held the fact that the defendant

fired a second shotgun blast into a victim after he was dead to be insufficient as a

matter of law, see Pritchett, 621 S.W.2d, at 139 (explaining that the depravity in such

an action falls short of that exhibited by the defendant in [Godfrey v. Georgia, 446

U.S. 420 (1980)]), but concluded that, “a killing wherein the victim is struck up to
No. 02-5551 Payne v. Bell Page 14

thirty times, causing an entire room to be covered with a spray of flying blood, and

causing the victim’s brains to extrude through the gaping hole in her skull,” sufficed,

Melson, 638 S.W.2d, at 367. In light of these holdings, we are satisfied that the

State’s aggravating circumstance, as construed by the Tennessee Supreme Court,

ensured that there was a “principled basis” for distinguishing between those cases in

which the death penalty was assessed and those cases in which it was not. Arave v.

Creech, 507 U.S. 463, 474 (1993).

Cone, 125 S.Ct. at 854-55 (internal citations and footnote omitted). 

Payne argues that the narrowing construction set out in Tennessee’s post-State v. Dicks case

of State v. Williams, 690 S.W.2d 517 (Tenn. 1985), cannot pass constitutional muster. According

to State v. Williams:

Our statute provides that it is the murder which must be especially heinous,

atrocious, or cruel. The second clause of this statutory provision, viz., “. . . in that it

involved torture or depravity of mind,” qualifies, limits and restricts the preceding

words “especially heinous, atrocious or cruel.” This second clause means that to

show that the murder was especially heinous, atrocious or cruel the State must prove

that it involved torture of the victim or depravity of mind of the killer.

 “Torture” means the infliction of severe physical or mental pain upon the

victim while he or she remains alive and conscious. In proving that such torture

occurred, the State, necessarily, also proves that the murder involved depravity of

mind of the murderer, because the state of mind of one who willfully inflicts such

severe physical or mental pain on the victim is depraved.

However, we hold that “depravity of mind” may, in some circumstances, be

shown although torture, as hereinabove defined, did not occur. If acts occurring after

the death of the victim are relied upon to show depravity of mind of the murderer,

such acts must be shown to have occurred so close to the time of the victim’s death,

and must have been of such a nature, that the inference can be fairly drawn that the

depraved state of mind of the murderer existed at the time the fatal blows were

inflicted upon the victim. This is true because it is the murderer’s state of mind at

the time of the killing which must be shown to have been depraved. 

Thus, mutilation of the dead body of the victim may be found to constitute

depravity of mind, but only if the mutilation occurred so soon after the death of the

victim that the inference may be fairly drawn that the murderer possessed that

depravity of mind at the time of the actual killing. If the length of time intervening

between the time of death of the victim and the time of mutilation of the body is so

great that the inference cannot be fairly drawn that the murderer possessed the

depravity of mind at the time the fatal blows were inflicted, then it cannot be said

that the murder, itself, involved depravity of mind.

690 S.W.2d at 529-30 (internal quotations and citations omitted). Payne argues that the Williams

narrowing construction is missing vital elements present in the Dicks construction. 

It is clear, however, that the Tennessee Supreme Court in Williams was not breaking from

prior Tennessee cases, but rather expounding upon them. With respect to the narrowing

construction, the Williams Court ultimately held that “[t]he defendant’s contention that T.C.A.,

§ 39-2-203(i)(5) [the HAC aggravator], is unconstitutionally vague is without merit, Godfrey v.

Georgia, supra, State v. Pritchett, supra, so long as the abstract terms employed therein are

construed and interpreted as we have done in this opinion and other opinions of this Court.”

Williams, 690 S.W.2d at 533. The language “as we have done in this opinion and other opinions of

this Court” id., clearly indicates that Williams incorporated past decisions, of which Dicks would
No. 02-5551 Payne v. Bell Page 15

be one. The Tennessee Supreme Court case explicitly relied upon, Pritchett, was also discussed

favorably by Cone. See Cone, 125 S.Ct. at 855. Therefore, the narrowing construction that we

presume was applied by the Tennessee Supreme Court in upholding Payne’s sentence is in fact the

same narrowing construction that the United States Supreme Court declared constitutional in Cone.

This case is therefore materially indistinguishable from Cone. The Tennessee Supreme

Court is entitled to a presumption that in affirming Payne’s sentence, it applied a narrowing

construction of the HAC aggravator. Furthermore, the content of that narrowing construction, as

provided by other Tennessee Supreme Court cases, such as Dicks, Pritchett, and Williams, was

constitutional. See Cone, 125 S.Ct. at 855. Therefore, the Tennessee Supreme Court decision

affirming Payne’s sentence was not 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,” and accordingly, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)

must be denied. 

B. Brady Claim

The remaining claims before us also do not support a grant of habeas corpus relief. In his

state post-conviction petition, Payne raised a claim that the prosecution withheld exculpatory

information from Payne in violation of Brady v. Maryland, 373 U.S. 83 (1963), specifically,

information that the victim Charisse Christopher had a boyfriend who, at one point, admitted to

having intercourse with Charisse the night before the murders. The Tennessee Court of Criminal

Appeals, the last state court to issue a reasoned opinion on the issue, affirmed the denial of Payne’s

petition for post-conviction relief. Payne v. State, No. 02C01-9703-CR-00131, 1998 WL 12670

(Tenn. Crim. App. Jan. 15, 1998). Given the state court’s factual determination on what evidence

was in the possession of the prosecution at the time of trial, a determination that we must defer to,

the Court of Criminal Appeals’ affirmance was not an unreasonable application of clearly

established federal law. 

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

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

irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. In order to establish

a Brady violation, a defendant must show (1) that the evidence at issue was exculpatory, that is,

favorable to the accused, United States v. Bagley, 473 U.S. 667, 676 (1985); (2) that the evidence

was material, so that “there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different,” id. at 682; and (3) that the evidence

that was suppressed was known to the prosecution but unknown to the defense at the time of trial,

United States v. Agurs, 427 U.S. 97, 103 (1976). 

The Court of Criminal Appeals described and analyzed Payne’s claim as follows:

At the post-conviction hearing, various witnesses were called to testify as to

their participation in the investigation and trial. Former Millington Police Detective

Sammy B. Wilson, the lead investigator in the Christopher murders, testified that

during his investigation of this case he had occasion to communicate and work with

the district attorney’s office. Detective Wilson kept all notes and reports concerning

this case in a notebook and explained that the district attorney general’s office had

access to this notebook. Included in this notebook were Wilson’s notes from a July

1, 1987 telephone conversation with Darryl Shanks, Charisse Christopher’s

boyfriend. The notes revealed that Shanks saw Charisse on the Thursday evening

preceding the murder. Detective Wilson could not recall whether Shanks had said

he had spent the night at Christopher’s apartment.
No. 02-5551 Payne v. Bell Page 16

On November 11, 1992, after the post-conviction hearing had been initiated,

Darryl Shanks signed an affidavit, submitted by the appellant’s post-conviction

investigator, which stated, in part: 

The last time I saw Charisse was during the early morning hours of

June 27, 1987. I stopped at her apartment and spent the night with

her, and we had sex. I left the apartment approximately eight hours

before she was killed. I did inform the prosecuting attorney,

Henderson, of this fact.

At the hearing, Shanks testified that when he signed the affidavit he had

misconstrued the inquiry into the nature of his relationship with Charisse. He stated

that he understood his answer to mean that he previously had sexual relations with

Charisse during the course of their relationship, but not on the night preceding her

murder. He revealed that he had been involved in an “on and off” intimate

relationship with Charisse Christopher for the past fourteen years. He stated that he

last saw Charisse alive the night before her murder. He added that he spent the night

at her apartment, however, he averred that they did not have sexual relations because

Charisse was menstruating and because Lacie had a nightmare that evening and had

slept with them in their bed. He maintained that the last time he and Charisse had

intimate relations was approximately two weeks prior to that night.

Jim Garts, the appellant’s trial counsel, testified that this was his first death

penalty case as a defense attorney, however, he stated that he had been practicing law

for over nineteen years, three of which were spent as an assistant district attorney

general. Garts maintained that he made every effort to protect his client’s

constitutional rights. He testified that, because of the odd nature of this case, motive

was an important issue. He conceded that, although the State could not show that a

particular person had sexual relations with Ms. Christopher on the day of the

murders, the testimony from two expert witnesses concerning acid phosphatase

found in a sample taken from Ms. Christopher’s vagina was both significant and

lengthy. Garts’ strategy on cross-examination was to show that this testimony did

not prove anything with respect to the appellant. The testimony revealed that,

although acid phosphatase is a good indicator of sexual contact, it can be found in

a person who has not had sex. Garts further testified that, if he had been provided

the information that Darryl Shanks had spent the previous night with Charisse

Christopher, his strategy would have changed. Specifically, he stated that he would

have put Shanks on the stand to show that this expert testimony was “a smoke screen

created by the district attorney’s office.” In other words, if Shanks had testified that

he had sexual intercourse with Charisse the previous night, then it would have

eliminated the State’s expert testimony on phosphatase acid. Even if Shanks had not

testified that he had sex the previous night, Garts would still have put him on the

stand to create a doubt in the jury’s minds as to who was the source of the acid

phosphatase. Garts testified that he filed a Brady request and that the information

regarding Darryl Shanks should have been provided to him.

The State presented the testimony of Tom Henderson, the lead prosecutor in

this case. Henderson did not recall meeting or talking with Darryl Shanks, however,

his case notes reflect the name of “Daryl Starks.” The notes indicate that “Starks”

was Charisse Christopher’s boyfriend and that an investigator was looking for him.

Henderson testified that, because of Garts’ former affiliation with the district

attorney’s office, he had turned over more information to Garts than what was

required. He believed that, if Garts had been given the information that Shanks had

intercourse with Charisse Christopher the night before the murders, Garts would

have used it to explain the acid phosphatase present in Ms. Christopher’s body.

Henderson also stated that, if Shanks had told him that he had sex with Ms.

Christopher the night before the murder, he would have turned the information over
No. 02-5551 Payne v. Bell Page 17

to Garts. However, Henderson would not have considered it Brady material if

Shanks had merely told him he had spent the night. Henderson admitted that the

prosecution attempted to show the appellant had attempted to rape Ms. Christopher.

Notwithstanding the State’s effort, however, he felt that the jury rejected this theory

because it did not find the felony murder aggravating circumstance. Moreover, he

felt the strongest evidence indicating rape was the removed tampon and the position

of the victim’s shorts.

Obviously, the State was in possession of information that Darryl Shanks was

the boyfriend of Ms. Christopher. However, as the trial court found, there is not “any

indication that the prosecutors had any information in their possession that would

indicate that Mr. Shanks and Ms. Christopher had sex[ual] relations the night prior

to the murders.” The affidavit signed in 1992 and Shanks testimony at the

post-conviction hearing are irrelevant to our determination of a Brady violation. Our

perspective of the undisclosed information is to be evaluated based upon that

information which would have been available at the time of the non-disclosure.

Thus, our contemporaneous assessment focuses solely on the police investigative

report which reveals that Darryl Shanks, Charisse Christopher’s boyfriend, “saw

[the] victim [the] Thursday nite [sic] [preceding the murders],” and not, as the

appellant argues on appeal, “the night before the murder.” Next, defense counsel

filed a motion requesting exculpatory evidence. However, the motion did not

specifically request the name of the boyfriend of the victim. Thus, the only questions

remaining are whether the evidence is exculpatory, and, if the evidence is

exculpatory, whether the information is material.

The trial court concluded that information revealing Mr. Shanks as the

boyfriend of Ms. Christopher is “not . . . the type of information that the prosecutor

would have a constitutional obligation to disclose . . . .” We agree with the trial

court that the undisclosed material was not exculpatory. We are unpersuaded that,

because Shanks spent Thursday night with the victim, Charisse Christopher, prior to

her murder on Saturday afternoon, this fact would have served to weaken the State’s

theory of a sexual motive. Our review focuses, not on speculation or conjecture, but

rather upon those undisputed facts and circumstances surrounding the murders. The

proof does show that, after a period of injecting cocaine, drinking beer, and looking

at sexually stimulating pictures, the appellant entered Ms. Christopher’s apartment.

Upon his leaving her apartment, she was found lying on her back, a used tampon at

her side, her shorts pushed up, and the presence of acid phosphatase in her vagina.

We find from these facts that a rational jury could have clearly inferred that the

attack upon Charisse Christopher was sexually motivated. Moreover, we conclude

that the fact that Shanks spent the night with Ms. Christopher two days prior to her

murder would not have diminished the State’s theory that the crimes were sexually

motivated. Accordingly, we conclude that the information regarding Darryl Shanks

is not favorable, or even relevant, to the guilt or innocence of the appellant. The

appellant has not satisfied his burden of showing that the undisclosed information is

exculpatory. This claim is without merit.

Payne, 1998 WL 12670, at *6-8.

The Tennessee court’s factual determination eliminates the element of a Brady claim that

exculpatory evidence be “known to the prosecution but unknown to the defense” at the time of trial.

Agurs, 427 U.S. at 103. The Tennessee Court of Criminal Appeals determined that the prosecution

was not in possession of any evidence at the time of trial that indicated that Shanks and Christopher

had intercourse the night before the murders. The only evidence in the possession of the prosecution

at the time of trial, according to that court, was the evidence that “Darryl Shanks, Charisse

Christopher’s boyfriend, ‘saw [the] victim [the] Thursday nite [sic] [preceding the murders].’”
No. 02-5551 Payne v. Bell Page 18

6

The district court below disposed of Payne’s Brady claim regarding the Shanks Evidence on what the court

termed “a far simpler ground.” Payne v. Bell, No. 98-2963-D, slip op. at 44 (W.D. Tenn. May 31, 2001). The district

court held that even assuming the truth of Darryl Shanks’s 1992 affidavit, the evidence was not material, and therefore

the court need not determine whether the state court determination that the evidence was not exculpatory involved an

unreasonable application of clearly established federal law. See id. at 44 & n.23. In light of our holding, it is

unnecessary to consider this alternative analysis. 

Payne, 1998 WL 12670, at *8. Under 28 U.S.C. § 2254(e)(1), this factual determination “shall

be presumed to be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.”

Although Payne relies upon numerous pieces of evidence to support his argument that the

prosecution knew that Shanks and Charisse Christopher had intercourse one or two nights before

the murder, he has not carried his burden of rebutting the correctness of the state court

determination by clear and convincing evidence. The key piece of evidence relied upon by Payne,

Shank’s 1992 affidavit, was not available to the prosecution at the time of trial, and therefore does

not constitute clear and convincing evidence that the state court determination was wrong. Payne

also devotes considerable effort to challenging the prosecutor’s credibility in denying that he ever

talked to Shanks. He notes that the prosecutor removed Shank’s name from a list of potential

witnesses after the autopsy report revealed the presence of acid phosphatase in Christopher’s vagina.

Payne also asserts that the prosecutor’s statement that he did not talk to Shanks or did not remember

talking to Shanks is unbelievable in light of the importance that the prosecutor admittedly placed

on interviewing the victim’s boyfriend. Again, it is not sufficient to show that there was some

conflicting evidence; rather, Payne must present clear and convincing evidence in order to rebut the

presumption of correctness afforded the state court determination. He has not done so in this case.

Payne argues that even accepting the state court determination regarding what evidence was

in the possession of the prosecution, that court’s holding that the evidence was not exculpatory

constitutes an unreasonable application of clearly established federal law. We cannot say that it is.

Payne’s first-degree murder indictment charged him with “feloniously[,] willfully, deliberately,

maliciously[,] and premeditatedly” murdering Charisse and Lacie. Payne was not charged with

“murder . . . committed in the perpetration of, or attempt to perpetrate, . . . rape,” another form of

first-degree murder available at the time. See Tenn. Code Ann. § 39-2-202(a) (1987). And although

sexual motive was the theory of the prosecution, the Court of Criminal Appeals determined that the

evidence available to the prosecution, by itself, was not exculpatory because it would not have

weakened the state’s theory of sexual motivation. Payne, 1998 WL 12670, at *8. It could be argued

that if Payne had been aware of this evidence, he could have argued by inference that Shanks and

Christopher must have engaged in sexual relations that night. This inference, however, does not

demonstrate that the state court unreasonably applied the rule of Brady to Payne’s petition. Payne

is accordingly not entitled to habeas relief.6

C. Ineffective Assistance of Counsel 

Finally, Payne’s claim of ineffective assistance of trial counsel does not warrant habeas

relief. Payne argues that during the sentencing phase, his trial counsel rendered constitutionally

ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), by failing to conduct

a sufficient investigation and not calling several witnesses in mitigation. The Tennessee Court of

Criminal Appeals also addressed this claim in its affirmance of the denial of Payne’s petition for

post-conviction relief. Payne, 1998 WL 12670, at *14-17. That adjudication was not an

unreasonable application of clearly established federal law.
No. 02-5551 Payne v. Bell Page 19

7

The Supreme Court’s decision in Bell v. Cone, 535 U.S. 685 (2002), reversed a 2001 decision of this court,

Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), and remanded the case for further proceedings. The decision issued by this

court following that remand, Cone v. Bell, 359 F.3d 785 (6th Cir. 2004), addressing the HAC aggravator, was reversed

by Bell v. Cone, —U.S.—, 125 S.Ct. 847 (2005). The bulk of this opinion involves the 2005 Bell v. Cone opinion. 

The Supreme Court has made clear that post-AEDPA claims of ineffective assistance of

counsel brought by habeas petitioners will succeed only in very limited circumstances. In Bell v.

Cone, 535 U.S. 685 (2002),7 the Supreme Court explained that the question in such a case is:

whether [the petitioner] can obtain relief on the ground that the state court’s

adjudication of his claim involved an “unreasonable application” of Strickland. In

Strickland we said that “[j]udicial scrutiny of a counsel’s performance must be

highly deferential” and that “every effort [must] be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Thus,

even when a court is presented with an ineffective-assistance claim not subject to

§ 2254(d)(1) deference, a defendant must overcome the “presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

For [the petitioner] to succeed, however, he must do more than show that he

would have satisfied Strickland’s test if his claim were being analyzed in the first

instance, because under § 2254(d)(1), it is not enough to convince a federal habeas

court that, in its independent judgment, the state-court decision applied Strickland

incorrectly. Rather, he must show that the Tennessee Court of Appeals applied

Strickland to the facts of his case in an objectively unreasonable manner.

535 U.S. at 698-99 (internal citations omitted). 

The evidence that was presented by Payne’s counsel at sentencing in mitigation, laid out

above, consisted of the testimony of Payne’s mother and father, his girlfriend Bobbie Thomas, and

Dr. John T. Hutson. See Payne, 791 S.W.2d at 17. The evidence not presented and the investigation

not done were discussed in the opinion of the Court of Criminal Appeals. 

During the guilt phase of the appellant’s trial, trial counsel called William Brooks,

Willie Wright, Vera Wherry, Sidney Thomas, and John Scott to testify that the

appellant had a good reputation for truth and veracity. The record indicates that the

prosecutor attempted to question these witnesses about prior bad acts of the appellant

including his drug use and reputation as a peeping Tom. . . . 

At the post-conviction hearing, four of the five character witnesses who

testified at the guilt phase of the appellant’s trial again testified as to the appellant’s

good reputation and character. Specifically, Sydney Thomas reiterated the

appellant’s attendance at church, the appellant’s musical talents and how the

appellant taught younger children to play the drums. William Brooks, the appellant’s

assistant high school principal, testified regarding the appellant’s leadership role in

high school, including his participation in the band and the glee club. Willie Wright,

the owner of a store in Drummonds, stated that he had extended the appellant credit

on a store account and that the appellant drove Wright’s son to band practice. John

Scott, the principal of Munford High School, explained that the appellant got along

well with all students and was never a disciplinary problem.

Additionally, four other witness who did not testify at the appellant’s trial

testified that they were not interviewed by Garts and would have offered mitigating

testimony on the appellant’s behalf. The appellant’s two sisters described their

relationship with their brother. They testified that he was always involved in their
No. 02-5551 Payne v. Bell Page 20

lives and was very protective. They also mentioned that the appellant was a very

popular young man. Stephanie Robinson testified that the appellant transported

herself and her family to church services. Martha Fain, a guidance counselor at

Munford High School, stated that, although the appellant was not a discipline

problem, he sometimes needed extra help in science class.

Additionally, the appellant presented testimony of two expert witnesses.

Gloria Shettles, a mitigation specialist with Inquisitor Incorporated, testified that she

spent approximately sixty hours on this case investigating potential mitigating proof

that was not presented at the appellant’s sentencing hearing. She testified that “[t]his

is probably the easiest investigation I’ve ever done,” because potential witnesses

were easily located. In her opinion, Garts’ investigation was minimal and very poor.

Dr. George Baroff, a clinical psychologist, examined the appellant and confirmed Dr.

Hutson’s evaluation of the appellant, i.e., an IQ of 78, which placed the appellant in

a category of borderline intelligence. However, Dr. Baroff added that the appellant

had the reasoning ability of a ten year old child. . . .

The appellant contends that presentation of this evidence would have shown

that, up until the present offenses, he had been a good person. Initially, we note that,

regarding counsel’s failure to interview all potential mitigation witnesses, “when the

facts that support a certain potential line of defense are generally known to counsel

because of what the defendant has said, the need for further investigation may be

considerably diminished or eliminated altogether.” St[r]ickland v. Washington, 466

U.S. at 691. Clearly, the testimony of the non-testifying mitigating witnesses was

merely cumulative of that offered by those character witnesses called at both the guilt

and penalty phase. Additionally, the testimony of Dr. Baroff merely confirmed that

of Dr. Hutson. Finally, Garts’ closing argument detailed the appellant’s life noting

that the appellant had lived an exemplary life until these crimes had been committed.

In almost an effort to explain his limited presentation of mitigation witnesses, Garts

stated in closing argument: 

 . . . You have heard from character witnesses from every walk of

life. I just chose five people that have known Pervis all his life.

People from every walk of life, in education, his high school

principal. Farthest thing from anybody’s mind that Pervis could ever

do or be accused of anything like this. . . .

. . . We could call every person seated back there and they would say

essentially the same things about Pervis and their experiences with

Pervis over the year. And you can consider the support that he has

as a mitigating circumstance.

Again, we cannot minimize trial counsel’s obvious concerns that testimony

about the appellant’s character would have opened the door to questions about the

appellant’s alleged bad acts. Absent a showing that counsel’s tactical decision was

uninformed due to inadequate preparation, this court will not second guess the

strategic choices made by trial counsel. 

Payne, 1998 WL 12670, at *15-17 (internal citations omitted). 

Payne has not presented arguments explaining how this decision was an unreasonable

application of Strickland. He argues that the failure to call the additional witnesses “prevented the

jury from learning that Payne’s life had significant value—that there was something to put on the

side of the scale opposite to the aggravating circumstances.” Petitioner’s Br. at 71. Under the high

standard imposed by AEDPA, however, it is not enough to show that counsel may have been

ineffective. See Bell, 535 U.S. at 698-99. For instance, in Bell, the Court did not find error in a trial

counsel’s decision not to recall guilt phase medical experts during the sentencing phase, stating that

the attorney could reasonably assume that the testimony was still fresh in the minds of the jurors.
No. 02-5551 Payne v. Bell Page 21

535 U.S. at 699. This is similar to Payne’s situation, where witnesses who testified to Payne’s

reputation for truth and veracity during the guilt phase were not recalled. Payne’s arguments are

insufficient to “show that the Tennessee Court of [Criminal] Appeals applied Strickland to the facts

of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 699. 

III.

For the reasons stated above, the district court’s decision is affirmed.