RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0027p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

TERRY LYNN KING, 

Petitioner-Appellant, 

v. 

BRUCE WESTBROOKS, Warden, 

Respondent-Appellee. 

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No. 13-6387 

Appeal from the United States District Court for 

the Eastern District of Tennessee at Knoxville. 

No. 3:99-cv-00454—Robert Leon Jordan, District Judge. 

Argued: September 28, 2016 

Decided and Filed: February 9, 2017 

 Before: BATCHELDER, MOORE, and GIBBONS, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN 

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE 

TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: 

Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, 

INC., Knoxville, Tennessee, Wade V. Davies, Stephen Ross Johnson, RITCHIE, DILLARD, 

DAVIES & JOHNSON, P.C., Knoxville, Tennessee, C. Mark Pickrell, THE PICKRELL LAW 

GROUP, P.C., Nashville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE 

TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. 

>
No. 13-6387 King v. Westbrooks Page 2

_________________ 

OPINION 

_________________ 

 KAREN NELSON MOORE, Circuit Judge. This death penalty case arises out of the 

kidnapping and murder of Diana K. Smith by Petitioner-Appellant Terry King. Following the 

district court’s dismissal of King’s petition for a writ of habeas corpus, we granted a certificate 

of appealability on two issues: whether trial counsel was ineffective for failing to present during 

the trial testimony about King’s intoxication at the time of the murder and whether trial counsel 

was ineffective for failing to investigate adequately King’s mental health and to obtain expert 

assistance in a timely manner. For the reasons stated below, we AFFIRM the judgment of the 

district court. 

I. BACKGROUND

At trial, the Government put forth the testimony of two individuals to whom King 

confessed: Jerry Childers,1

 an acquaintance of King, see Trial Tr. (“TT”) Vol. IX at 52 (Childers 

Test.), and David Davenport, id. at 84 (Davenport Test.), an investigator for the Tennessee 

Bureau of Investigation. Childers described a conversation he had with King, see id. at 53–69 

(Childers Test.), and Davenport read statements that he took from King and Randall Joe Sexton, 

King’s co-defendant, at the Knox County Sherriff’s Department, see TT Vol. IX at 86 

(Davenport Test.); id. at 90–94 (Davenport Test., Sexton Statement); TT Vols. IX–X at 100–05 

(Davenport Test., King Statement). The following is a summary of that testimony. 

On July 31, 1983, King; his cousin, Don King; a man named Eugene Thornhill; and the 

victim, Diana K. Smith, consumed large amounts of alcohol, LSD, and Quaaludes and engaged 

in sexual intercourse throughout the day. Id. at 100–01 (Davenport Test., King Statement). At 

 1

Although Childers’s name is spelled “Childress” in the trial court transcript, see, e.g., TT Vol. IX at 51 

(Childers Test.), King explains in his brief that his name is actually spelled “Childers.” See Appellant’s Br. at 10 

n.3. Because the Government and previous courts have also spelled his name “Childers,” see, e.g., Appellee’s Br. at 

11; State v. King, 718 S.W.2d 241, 243 (Tenn. 1986); King v. State, 989 S.W.2d 319, 330 (Tenn. 1999); but see 

King v. Bell, No. 3:99-cv-454, 2011 WL 3566843, at *1 n.4 (E.D. Tenn. Aug. 12, 2011); King v. State, No. 03C01-

9601-CR-00024, 1997 WL 416389, at *8 (Tenn. Crim. App. July 14, 1997), we use this spelling throughout this 

opinion. 
No. 13-6387 King v. Westbrooks Page 3

one point, King and Smith drove to a wooded area in Smith’s car, where Smith accused King and 

the others of raping her. TT Vol. IX at 56 (Appellant’s App’x at 110) (Childers Test.); TT Vol. 

X at 101 (Davenport Test.). In response, King told Smith to get into the trunk of the car. TT 

Vol. IX at 56 (Appellant’s App’x at 110) (Childers Test.); TT Vol. X at 101–02 (Davenport 

Test., King Statement). With Smith in the trunk, King drove to Sexton’s house, where King 

obtained a rifle and shovel. TT Vol. IX at 56 (Appellant’s App’x at 110) (Childers Test.); id. at 

91 (Davenport Test., Sexton Statement); TT Vol. X at 102 (Davenport Test., King Statement). 

King and Sexton then drove to a wooded area, where King ordered Smith out of the trunk and 

shot her in the back of the head. TT Vol. IX at 67–68 (Childers Test.); TT Vol. X at 102–03 

(Davenport Test., King Statement). After unsuccessfully attempting to bury Smith, King and 

Sexton went home. TT Vol. X at 103 (Davenport Test., King Statement). The following day, 

King and Sexton returned to the scene and disposed of Smith’s body in a nearby quarry. TT Vol. 

IX at 92 (Davenport Test., Sexton Statement); TT Vol. X at 103 (Davenport Test., King 

Statement). 

In preparation for trial, which began on January 23, 1985, see Post–conviction Tr. 

(“PCT”) Vol. V at 426 (Appellant’s 2d Supp. App’x at 796) (Simpson Test.), King’s trial 

counsel, Robert R. Simpson, suspected that King may have had brain damage as a result of a 

childhood head injury and substance abuse. PCT Vol. IV at 376, 381–82, 384 (Appellant’s 2d 

Supp. App’x at 744, 749–50, 752) (Simpson Test.). In addition to a childhood head injury, in 

1982, King—then about nineteen years old—hit his head in a car accident and had double vision 

for a couple of months afterwards. R. 254-3 at 4 (Gebrow Report at 2) (Page ID #475). From 

age eight to sixteen, King sniffed gasoline. Id. at 5 (Gebrow Report at 3) (Page ID #476). He 

also consumed alcohol beginning at age twelve or thirteen and LSD and Quaaludes beginning at 

age fifteen or sixteen. Id. at 4–5 (Gebrow Report at 2–3) (Page ID #475–76). 

On January 15, 1985, Simpson retained a mental-health expert, Martin Gebrow, M.D., to 

evaluate King. Simpson used private funds from King’s family to pay for Dr. Gebrow’s services 

because Simpson was unaware of state law that provided for state funding of an expert. 

PCT Vol. V at 424, 431–32 (Appellant’s 2d Supp. App’x at 794, 801–02) (Simpson Test.). Dr. 

Gebrow’s report indicated that he evaluated King on January 23, 1985. R. 254-3 (Gebrow 
No. 13-6387 King v. Westbrooks Page 4

Report at 1) (Page ID #474). The report described King’s background, including his history of 

substance abuse. Id. at 1–3 (Page ID #474–76). Dr. Gebrow concluded, “My examination of 

Mr. King did not reveal any evidence of psychotic thought process. Nor did it reveal any 

evidence of an organic brain syndrome such as might have been caused by the chronic use of 

hydrocarbons by inhalation, alcohol, or LSD.” Id. at 3–4 (Page ID #476–77). He continued, 

“This however does not mean that any brain damage does not exist. It would be my 

recommendation that Mr. King have an electroencephalogram and psychological testing to rule 

out organicity and/or major thought disorder.” Id. at 4 (Page ID #477). 

During voir dire, Simpson made an oral motion to “permit the taking of an 

electroencephalogram” of King, TT Vol. VII at 552–53 (Appellant’s App’x at 158–59), which is 

“a brain wave test that measures the electrical activity of the brain and can ascertain whether or 

not there are any abnormal electrical discharges which would indicate brain damage,” TT Vol. 

VIII at 642 (Gebrow Test.). In a hearing on the motion, during which Dr. Gebrow testified, the 

trial court inquired of Dr. Gebrow whether there was “a substantial possibility of damage.” Id. at 

657. Dr. Gebrow responded, “With the eight year—eight-or-nine-year history of constant 

hydrocarbon abuse, I think that there would be—could be an excellent chance that this was—that 

there was some damage” but that it was not a “probability.” Id. at 658. Dr. Gebrow also agreed 

that, based on the examination, King was coherent, his memory appeared to be intact, and that he 

was able to express himself well. Id. Because Dr. Gebrow “went in cold to do the evaluation,” 

id. at 655, he was not aware of certain conditions that he admitted would affect the evaluation, 

including prior psychological testing, id. at 648, and evidence of antisocial behavior, id. at 665–

66. As a result, the trial court denied King’s motion but noted that it would reconsider if Dr. 

Gebrow reviewed more of King’s medical records and decided that an electroencephalogram 

would still be required. See id. at 670. Having reviewed these records, Dr. Gebrow testified 

later at trial that an electroencephalogram was not necessary. TT Vol. XII at 383 (Gebrow 

Test.). 

Simpson suggested in his opening statement that King’s intoxicated state influenced his 

actions: 
No. 13-6387 King v. Westbrooks Page 5

We think the proof will show that whatever happened to Mrs. Smith, Mr. King’s 

involvement was the product of an incredible quantity of intoxicants. And we 

think the proof will show that he cannot be held legally responsible for all of his 

actions to the degree the State would ask you, simply because of the vast 

quantities of intoxicants that he consumed. And the proof is going to be very 

clear on that point. 

TT Vol. IX at 10 (Appellant’s App’x at 161). Simpson’s trial strategy changed when King’s 

former girlfriend, Lori Eastman Carter (“Carter”), testified. Carter described an incident on 

October 13, 1982, in which King assaulted her in her car. TT Vol. XI at 278–79 (Appellee’s 

App’x at 203–04). She testified that King struck her, causing her to lose consciousness, and that 

when she became conscious, “he pulled me from the floorboard by my hair, rolled my hair up in 

the car window, and continued to beat me around my face and neck.” Id. at 279 (Appellee’s 

App’x at 204). She continued, “Several times he said that he wanted me to tell him—he asked 

me if I knew that I was dying, and I said yes. And he wanted me to tell him how it felt to be 

dying, so that the next woman he killed he would know how she felt.” Id. After losing and 

regaining consciousness once more, Carter overheard King telling his brother, James King, that 

he killed Carter and that he needed help putting her body in a quarry. Id. at 280 (Appellee’s 

App’x at 205). Carter did not say whether King was sober when he attacked her. 

At the penalty phase, King’s mother, Billie King, testified that she would find King 

sniffing gasoline when she came home from work: “Well, you could tell that he had—he had a 

motorcycle. It was tore up, but it was on the back porch. And he had the gas cap off from the 

motorcycle. And you could tell that he had been into the gas, and he couldn’t hardly sit up. And 

I whipped him, you know. He promised me he’d never do it again.” TT Vol. XIII at 496. 

Similarly, King’s brother, Gary Edward King, testified that following his father’s death, King 

would sniff gasoline “several times a week.” TT Vol. XIV at 509. King also called Robert 

Booher, M.D., a specialist in “addictionology,” to testify about the general effects of LSD, 

Quaaludes, and alcohol. TT Vol. XVI at 730–37. 

Ultimately, the jury found King guilty of first-degree murder and recommended death by 

electrocution, which the trial court imposed. See State v. King, 718 S.W.2d 241, 243 (Tenn. 

1986). Following an unsuccessful direct appeal, see id., King filed a petition for post–conviction 

relief in state court, in which he raised, among other claims, the same ineffective assistance of 
No. 13-6387 King v. Westbrooks Page 6

counsel claims that are the subject of this appeal. See King v. State, No. 03C01-9601-CR-00024, 

1997 WL 416389, at *1, 12–17 (Tenn. Crim. App. July 14, 1997). At post–conviction 

proceedings, King called a clinical psychologist, Pamela Auble, Ph.D, who had evaluated King 

and reviewed his medical records. PCT Vols. I–II at 76, 99–100, 106–07 (Appellant’s 2d Supp. 

App’x at 439, 462–63, 471–72) (Auble Test.). She testified, “The psychological testing that I 

have done and that has been done—the evaluation by Dr. Gebrow that was done prior both raise 

the question of potential brain damage. This issue still needs to be explored, is not yet 

conclusive, but is a possible thing that could be explored.” PCT Vol. II at 148, 168 (Appellant’s 

2d Supp. App’x at 513, 533) (Auble Test.). She also testified that she had reviewed a report by a 

Dr. Kaminski, who performed an EEG on King that “showed negative results.”2 Id. at 167 

(Appellant’s 2d Supp. App’x at 532) (Auble Test.). She further observed that there was no 

evidence of psychotic thought process. Id. 

In addition to Dr. Auble, Simpson testified during post–conviction proceedings on his 

decision not to raise an intoxication defense. He stated that “The testimony of Lori Eastman 

[Carter] was, from our perspective, totally unexpected and very devastating. It really skewed 

how we were looking at this case. We dropped the idea, after that, of even raising intoxication in 

the hopes of getting a second-degree murder conviction, which we had viewed as slim, anyway, 

and just decided to proceed with it in the penalty phase and raise it there, because of her 

testimony, apparently when he was sober, of nearly beating her to death.” PCT Vol. IV at 400 

(Appellee’s 2d App’x at 768) (Simpson Test.). Characterizing her testimony as “Pretty 

devastating stuff,” he continued: “But that really skewed our defense, and we wanted out of that 

phase as quick as we could and focus the jury on our side of the case, and our side of the case 

was as long as the guilt-innocence phase.” Id. at 400–01 (Appellee’s 2d App’x at 768, 771) 

(Simpson Test.).

 2

Dr. Auble testified on September 26, 1994. PCT Vol. I at ii (Appellant’s 2d Supp. App’x at 360). In a 

report she prepared prior to testifying, Dr. Auble wrote, “Mr. King was evaluated by Dr. Gary Solomon on August 

16–17, 1990 at the request of Dr. Michael Kaminski. Apparently, Dr. Kaminski had seen Mr. King for a 

neurological evaluation for severe headaches and episodic loss of balance. I do not have Dr. Kaminski’s report.” 

Auble Report at 5 (Appellant’s App’x at 40). However, later in her testimony, she stated that she had access to Dr. 

Kaminski’s report. PCT Vol. I at 100 (Appellant’s 2d Supp. App’x at 463). At oral argument for the instant 

proceedings, counsel was unable to clarify whether Dr. Auble reviewed Dr. Kaminski’s report. It appears from her 

1994 testimony that Dr. Auble reviewed Dr. Kaminski’s report between writing her report and testifying at the post–

conviction proceedings. 
No. 13-6387 King v. Westbrooks Page 7

The trial court denied King’s petition for post–conviction relief, and the Tennessee Court 

of Criminal Appeals and Tennessee Supreme Court affirmed its judgment. See King v. State, 

989 S.W.2d 319, 321 (Tenn. 1999); King, 1997 WL 416389, at *19. King then filed a federal 

petition for a writ of habeas corpus, in which he raised the same ineffective-assistance-of-counsel 

claims. See King v. Bell, No. 3:99-cv-454, 2011 WL 3566843, at *20–26 (E.D. Tenn. Aug. 12, 

2011). At this stage, King called expert witnesses who stated that in fact King had organic brain 

damage at the time of Smith’s death. An evaluation by James R. Merikangas, M.D., P.C., on 

June 27, 2000, demonstrated with “a reasonable degree of medical certainty that Mr. King 

suffers from brain damage and did so at the time of the crime for which he stands convicted.” 

Merikangas Report at 3 (Appellant’s App’x at 48). Dr. Merikangas also stated that King does 

not have antisocial personality disorder, but rather “brain damage which is no fault of his own.” 

Id. at 4 (Appellant’s App’x at 49). On March 21, 2001, a psychiatrist named Robert L. Sadoff, 

M.D., evaluated King and, after reviewing King’s previous medical records, including Dr. 

Merikangas’s report, concluded that “[i]t was the combination of all these factors, including his 

intoxication by several substances at the same time, his brain damage and his personality 

disorders that substantially impaired his capacity to conform his conduct to the requirements of 

the law.” Sadoff Report at 22 (Appellant’s App’x at 79). Finally, a physician named Murray W. 

Smith, M.D., evaluated King and, in a February 7, 2001 affidavit, stated “Any pre-existing brain 

damage resulting from the very heavy and frequent use of inhalants from age 8 to age 16, as well 

as the use of cocaine and amphetamine as found in my evaluation of Mr. King, would further 

multiply the effects of the alcohol and drugs on the causation of the violent interaction Mr. Terry 

King had with Ms. Diana Smith.” Smith Aff. at 2 (Appellant’s App’x at 53). Ultimately, the 

district court awarded summary judgment against King and dismissed his petition. King has 

appealed the district court’s judgment. 

II. DISCUSSION 

We granted a certificate of appealability on two questions: (1) “[W]hether trial counsel 

was ineffective for failing to present testimony about King’s intoxication at the time of the 

murder during the trial” and (2) “[W]hether trial counsel was ineffective for failing to adequately 
No. 13-6387 King v. Westbrooks Page 8

investigate King’s mental health and obtain expert assistance in a timely manner.” Certificate of 

Appealability at 2. For the reasons stated below, the answer to both questions is no. 

A. Standard of Review 

When reviewing a district court’s denial of a § 2254 petition, “[t]his court reviews de 

novo [the] district court’s legal conclusions and mixed questions of law and fact and reviews its 

factual findings for clear error.” Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013). King is 

entitled to relief only if the Tennessee Supreme Court—which issued “the last reasoned statecourt opinion” in this case, Ylst v. Nunnemaker, 501 U.S. 797, 804–05 (1991)—adjudicated 

King’s ineffective-assistance claims on the merits in a way that: 

(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) (2012). 

The Tennessee Supreme Court, applying Strickland and Tennessee ineffective-assistance 

case law, rejected both of the ineffective-assistance claims that King raises in this appeal. King, 

989 S.W.2d at 330–32 (intoxication defense); id. at 332–33 (mental-health investigation). The 

district court also rejected both claims in its order denying King’s § 2254 petition. King, 2011 

WL 3566843, at *20–23 (intoxication defense); id. at *24–26 (mental-health investigation). 

B. King’s Ineffective Assistance of Counsel Claims 

To demonstrate that his counsel was constitutionally ineffective under Strickland v. 

Washington, 466 U.S. 668 (1984), King must make two showings: “(1) [his] counsel’s 

performance was deficient, or put differently, ‘fell below an objective standard of 

reasonableness’; and (2) the performance prejudiced [King].” United States v. Mahbub, 

818 F.3d 213, 230–31 (6th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). Because the 

Strickland standard is already “highly deferential,” Strickland, 466 U.S. at 689, our review of a 

state-court decision on a Strickland claim is “doubly deferential” under the Anti-Terrorism and 
No. 13-6387 King v. Westbrooks Page 9

Effective Death Penalty Act of 1996 (“AEDPA”). Cullen v. Pinholster, 563 U.S. 170, 189–90 

(2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). However, “[w]hen a state 

court relied only on one Strickland prong to adjudicate an ineffective assistance of counsel claim, 

AEDPA deference does not apply to review of the Strickland prong not relied upon by the state 

court. The unadjudicated prong is reviewed de novo.” Rayner v. Mills, 685 F.3d 631, 638 (6th 

Cir. 2012). 

Although the Tennessee Supreme Court did not specifically state how it ruled on either 

Strickland prong, it is clear from the substance of its decision that it decided the intoxication 

defense ineffective-assistance-of-counsel claim based on the deficient-performance prong and 

the mental-health-expert ineffective-assistance-of-counsel claim based on the prejudice prong. 

With respect to the intoxication defense ineffective-assistance-of-counsel claim, the court held as 

follows: 

Although we acknowledge that defense attorneys should strive to present a 

consistent theory of defense at trial, we must avoid judging the tactical decisions 

of counsel in hindsight. We have reviewed the circumstances from counsel’s 

perspective at the time and conclude that the change in strategy does not rise to 

the level of ineffective assistance. 

King v. State, 989 S.W.2d at 331–32 (citing Strickland, 466 U.S. at 689; Hellard v. State, 

629 S.W.2d 4, 9 (Tenn. 1982)). Because the court focused on Simpson’s “tactical decisions” and 

trial strategy, it appears to have concluded that Simpson’s performance was not deficient. And 

with respect to the mental-health expert ineffective-assistance-of-counsel claim, it held as 

follows: 

The trial court concluded . . . that even if defense counsel had initiated the mental 

health evaluations earlier, there was no proof that a more favorable report would 

have been obtained. We find no evidence to preponderate against that finding. 

Moreover, the record reflects that counsel presented evidence through lay 

witnesses that was remarkably similar to the information provided by Dr. Auble. 

Appellant’s counsel were not ineffective on this issue. 

Id. at 333. Because the court focused on the effect mental-health experts would have had on the 

defense, and not whether Simpson’s failure to retain those experts hurt King’s defense, it appears 

to have concluded that Simpson’s performance, regardless of its deficiency, did not prejudice 

King. Nevertheless, we will analyze the deficiency prong of King’s intoxication defense 
No. 13-6387 King v. Westbrooks Page 10

ineffective-assistance claim and the prejudice prong of King’s mental-health-expert ineffectiveassistance claim de novo “because, even under that more liberal standard of review, we conclude 

that his counsel was not deficient.” See Davis v. Lafler, 658 F.3d 525, 537 (6th Cir. 2011) (en 

banc). 

1. Intoxication Defense 

King argues that his trial counsel was ineffective during the guilt phase of King’s trial for 

failing to present evidence that King was severely intoxicated when he murdered Smith. 

Appellant’s Br. at 29. That evidence, King contends, would have shown that King lacked the 

capacity “to form the specific intent for first-degree murder.” Id. at 31; see id. at 29 (same). 

As stated above, we review the deficiency prong of this claim de novo. 

Determining whether an attorney’s representation “fell below an objective standard of 

reasonableness” requires a court to consider “all the circumstances.” Strickland, 466 U.S. at 

687–88. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account 

of the variety of circumstances faced by defense counsel or the range of legitimate decisions 

regarding how best to represent a criminal defendant.” Id. at 688–89. In addition, “[j]udicial 

scrutiny of counsel’s performance must be highly deferential.” Id. at 689. In light of this 

standard and the manner in which the trial unfolded, we conclude that Simpson’s representation 

did not fall below an objective standard of reasonableness. 

Simpson’s view that Carter’s testimony was “very devastating” is wholly supported by 

the circumstances of the case. Carter testified that King struck her unconscious with a slapstick, 

“rolled [her] hair up in the car window,” and “beat [her] around [her] face and neck.” TT Vol. 

XI at 279, 281–82 (Appellant’s App’x at 96, 98–99) (Carter Test.). Her testimony that King 

asked her “how it felt to be dying, so that the next woman he killed he would know how she felt” 

could be seen as an ominous reference to Smith. See id. at 279 (Appellant’s App’x at 96) (Carter 

Test.). Finally, that King considered putting Carter’s body—and actually put Smith’s body—in a 

quarry demonstrates a premeditation common to both attacks that could frustrate an intoxication 

defense. See TT Vol. IX at 92 (Davenport Test., Sexton Statement); TT Vol. X at 103 

(Davenport Test., King Statement); TT Vol. XI at 280 (Appellant’s App’x at 97) (Carter Test.). 
No. 13-6387 King v. Westbrooks Page 11

Yet another reason for Simpson to abandon the intoxication defense was that King 

“apparently” was sober when he attacked Carter. PCT Vol. IV at 400 (Appellant’s 2d Supp. 

App’x at 768) (Simpson Test.). If King appeared to be sober when he attacked Carter, an already 

“slim” intoxication defense, id., would become even slimmer. King argues that Simpson had an 

inaccurate understanding of Carter’s testimony when Simpson stated that King assaulted Carter 

“apparently when he was sober.” See id. In truth, it was the Tennessee Supreme Court, but not 

necessarily Simpson, that had an inaccurate understanding of Carter’s testimony. The record 

does not support that court’s conclusion that “Ms. Carter testified that the appellant was sober 

when he attacked her with the slapstick” because Carter did not specifically state whether King 

was sober. See King, 989 S.W.2d at 331. Crucially, however, Simpson never claimed that 

Carter stated that King was sober; Simpson said that King “apparently” was sober. See PCT Vol. 

IV at 400 (Appellant’s 2d Supp. App’x at 768) (Simpson Test.). Tone, mannerisms, and the like 

are impossible to discern from the cold record before us, so we will not second-guess Simpson’s 

conclusion on what was “apparently” so in Carter’s testimony. Therefore, and in light of 

Carter’s testimony, it was not unreasonable for Simpson to get “out of [the guilt] phase as quick 

as we could and focus the jury on our side of the case.” See PCT Vol. V at 401 (Appellant’s 2d 

Supp. App’x at 771) (Simpson Test.). Accordingly, King has failed to demonstrate deficient 

performance of his trial counsel, and we AFFIRM the judgment of the district court on this 

ineffective-assistance-of-counsel claim. 

2. Mental-Health Expert 

King next argues that his counsel was constitutionally ineffective at the guilt and penalty 

phases for failing to investigate King’s mental health on a timely basis and to obtain expert 

assistance concerning the same. Specifically, King focuses on his attorney’s allegedly untimely 

retention of Dr. Gebrow. As discussed above, we review the deficient performance prong de 

novo because the state court did not address this prong. We also review the prejudice prong de 

novo because “even under that more liberal standard of review, we conclude that his counsel was 

not [ineffective].” See Davis, 658 F.3d at 537. 

There is no question that Simpson’s delay in retaining Dr. Gebrow fell below an 

objective standard of reasonableness. “An attorney’s ignorance of a point of law that is 
No. 13-6387 King v. Westbrooks Page 12

fundamental to his case combined with his failure to perform basic research on that point is a 

quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, 134 

S. Ct. 1081, 1088–89 (2014) (citing Williams v. Taylor, 529 U.S. 362, 395 (2000)). Section 40-

14-207 of the Tennessee Code, which has not been amended since the time of King’s trial, states 

in relevant part, 

In capital cases where the defendant has been found to be indigent by the court of 

record having jurisdiction of the case, the court in an ex parte hearing may, in its 

discretion, determine that investigative or expert services or other similar services 

are necessary to ensure that the constitutional rights of the defendant are properly 

protected. 

Tenn. Code Ann. § 40-14-207(b) (West 2002). At a hearing on King’s state petition for post–

conviction relief, trial counsel stated that he “was unaware of” his ability to obtain state funds in 

order to hire an expert for King under this section. PCT Vol. V at 424 (Appellant’s 2d Supp. 

App’x at 794) (Simpson Test.). He also indicated that he waited to receive private funds before 

retaining Dr. Gebrow because he was unaware of this section. Id. at 425 (Appellant’s 2d Supp. 

App’x at 795) (Simpson Test.). King was charged with first-degree murder; his mental state at 

the time he killed Smith was a critical factor in the jury’s determination that he was guilty and 

that he deserved a death sentence. Such an “inexcusable mistake of law—the unreasonable 

failure to understand the resources that state law made available to him” constitutes deficient 

performance. See Hinton, 134 S. Ct. at 1089. Nevertheless, because King has not shown that he 

was prejudiced by this deficient performance, he has not demonstrated ineffective assistance of 

counsel. 

Even reviewing the prejudice prong de novo, we conclude that habeas relief is not 

warranted. Fundamentally, King has not shown, with the evidence properly available to us on 

federal habeas review, that the timely retention of a mental expert would have produced any 

evidence different from what was already available at the time of trial. Dr. Gebrow testified at a 

hearing on King’s motion to continue the trial that “with the history of gasoline inhalation that 

there might be a generalized diffused type of brain damage” and that “[y]ou could also find, 

possibly, some focal point of brain damage.” TT Vol. VIII at 644 (Gebrow Test.). He stated, 

“That is the reason that I requested or recommended that an electroencephalogram and 
No. 13-6387 King v. Westbrooks Page 13

psychological testing be done.” Id. To support his argument that his trial counsel should have 

obtained a mental expert earlier, King introduced Dr. Auble during post–conviction proceedings. 

Similarly to Dr. Gebrow, she testified, “The psychological testing that I have done and that has 

been done—the evaluation by Dr. Gebrow that was done prior both raise the question of 

potential brain damage. This issue still needs to be explored, is not yet conclusive, but is a 

possible thing that could be explored.” PCT Vol. II at 148 (Appellant’s 2d Supp. App’x at 513) 

(Auble Test.). She also acknowledged that an electroencephalogram had been performed on 

King that showed negative results, but that it still had not been determined whether there was 

evidence of organic brain syndrome. Id. at 167–68 (Appellant’s 2d Supp. App’x at 532–33) 

(Auble Test.). Based on Dr. Auble’s nearly identical uncertainty regarding whether King had 

brain damage, King has not shown that “[t]imely securing the services of an expert would have 

provided counsel with an expert opinion that related the impact of intoxication and brain damage 

on King’s judgment and behavior at the time of the crime and King’s ability to form specific 

intent for first-degree murder,” Appellant’s Br. at 75, let alone whether there would be a 

reasonable probability of a different outcome. See Strickland, 466 U.S. at 695–96. Therefore, 

King has not shown that he was prejudiced by the delay in retaining a mental-health expert. 

To be sure, the findings of the mental-health experts on federal habeas review are 

troubling. Although the experts presented at trial and during state post–conviction proceedings 

were never able definitively to determine whether King had brain damage, we now know that 

King “suffers from brain damage which is no fault of his own.” Merikangas Report at 4 

(Appellant’s App’x at 49). Unfortunately for King, AEDPA does not permit us to consider this 

evidence. Section 2254(e)(2) controls the admissibility of evidence on federal habeas review: 

If the applicant has failed to develop the factual basis of a claim in State court 

proceedings, the court shall not hold an evidentiary hearing on the claim unless 

the applicant shows that— 

(A) the claim relies on— 

(i) a new rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously 

unavailable; or 

(ii) a factual predicate that could not have been previously 

discovered through the exercise of due diligence; and 
No. 13-6387 King v. Westbrooks Page 14

(B) the facts underlying the claim would be sufficient to establish by clear 

and convincing evidence that but for constitutional error, no reasonable 

factfinder would have found the applicant guilty of the underlying offense. 

28 U.S.C. § 2254(e)(2). This provision controls even if the petitioner seeks relief based on new 

evidence without an evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 653 (2004). 

“Although state prisoners may sometimes submit new evidence in federal court, AEDPA’s 

statutory scheme is designed to strongly discourage them from doing so. Provisions like 

§§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal courts sitting in habeas are not an alternative 

forum for trying facts and issues which a prisoner made insufficient effort to pursue in state 

proceedings.’” Pinholster, 563 U.S. at 186 (citation omitted). 

The mental-health experts to whom King points at this late stage cannot be considered 

because they could have been discovered through the exercise of due diligence of post–

conviction counsel. See Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir. 2004) (“Seeking and 

presenting medical records and affidavits from family members available at the time of the state 

habeas hearing is within the exercise of due diligence.”). Each of the medical reports presented 

for the first time on federal habeas review necessarily relies on information that was available at 

the time of post–conviction review; they draw conclusions on King’s mental health at the time of 

the crime. Indeed, that King was able to obtain the medical report from Dr. Auble during state 

post–conviction proceedings demonstrates that he could have obtained expert opinions at that 

time. Therefore, with the evidence that can be considered on federal habeas review, we conclude 

that King has not shown that he was prejudiced by trial counsel’s deficient performance, and 

habeas relief is unwarranted. See Strickland, 466 U.S. at 687. 

III. CONCLUSION 

 For the foregoing reasons, we AFFIRM the judgment of the district court.