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Nichols v. Bell

July 25, 2006

HAROLD WAYNE NICHOLS, PETITIONER,
v.
RICKY BELL, WARDEN, RIVERBEND MAXIMUM SECURITY INSTITUTION, RESPONDENT.



The opinion of the court was delivered by: R. Allan Edgar United States District Judge

Edgar/Inman

MEMORANDUM OPINION

TABLE OF CONTENTS

Harold Wayne Nichols v. Ricky Bell, Warden No. 1:02-cv-330, Eastern District of Tennessee

I. FACTUAL BACKGROUND ..............................................2

A. Facts at Trial Level .............................................. 2-5

B. Facts Introduced During the State Post-Conviction Hearing .................................... 5-16

II. PROCEDURAL BACKGROUND ...................................... 16-23

III. STANDARDS OF REVIEW .............................................23

A. Habeas Claims Cognizable Under 28 U.S.C. § 2254 .....................23

B. Review of Habeas Claims on the Merit ............................ 23-25

C. Factual Bases for Habeas Claims ................................. 25-27

D. Procedural Default ............................................ 27-30

E. Miscarriage of Justice: Actual Innocence ........................... 30-31

F. Summary Judgment ........................................... 31-33

IV. ANALYSIS ...........................................................33

A. Claims Adjudicated in State Court ...................................33

1. Ineffective Assistance of Counsel at Guilt Phase ............... 33-35

a. Failure to Investigate Serology Evidence (Claim 12a) ...................... 35-44

b. Case of T.R. (Claim 12.b) ..............................44

c. Alibi Evidence in the T.M. Case (Claim 12.c) ..............45

d. Coerced Statement (Claims 12.d and 12.e) .............. 45-51

e. Failure to Attack Confession (Claim 12.f) .............. 51-52

f. Failure to Investigate Critical Evidence (Claim 12.g) ..... 52-53

(1) Lack of Physical Evidence (Claim 12.g.i) ........ 53-54

-i-

(a) Weapon in S.T. Case (Claim 12.g.i.(1)) ........................54

(b) 2 x 4 Lumber in the Murder Claim (Claim 12.g.i.(2)) ................ 54-56

(2) Confessions in Other Cases (Claim 12.g.ii) .................................56

(3) Pulley Confession (Claim 12.g.iii) .............. 56-60

(4) Fred Coats (Claim 12.g.iv) .......................60

g. False Confessions (Claims 12.h - j) ................... 60-61

(1) Inadequate Investigation (Other Suspects) (Claim 12.i).................. 61-63

(2) Inadequate Investigation (Physical Evidence) (Claim 12.j) ............... 63-66

h. Ineffective Use of Psychological Expert (Claim 12.k) ..................................... 66-68

i. Illegal Arrest (Claim 12.i) ........................... 68-72

2. Ineffective Assistance of Counsel During the Penalty Phase (Claim 13.a) ................................72

a. Abuse Evidence at Trial ............................ 73-75

b. Abuse Evidence Introduced During State Post-Conviction Proceedings .................... 75-91

3. Prosecutorial Misconduct (Claim 13.b) ...................... 91-96

4. Failure to Request Jury Instructions and Object to Improper Instructions (Claim 13.c) .................. 96-97

a. Failure to Request Jury Instruction ................... 97-101

b. Improper Unanimity Instruction .................... 101-104

5. Counsel's Failure to Argue Against Disclosure of Psychologist's Notes (Claim 13.d) ...................... 104-105

6. Counsel's Direction of Investigation of Mitigation (Claim 13.e) ................... 105-107

7. Cumulative Error (Claim 14) .................................107

-ii-

8. Arbitrary and Invalid Death Sentence (Claims 15, 20, 21(g) and 25) ............................ 107-108

a. Facts ......................................... 108-110

b. Failure to Declare Mistrial (Claim 15) ............... 110-115

c. Court Erroneously Refused to Re-charge Jury on Mitigating Circumstances (Claim 21(g)) ....... 115-120

d. Polling of Jury (Claim 25) ........................ 120-124

e. Middlebrooks' Error (Claim 20) .................... 124-130

9. Objection to Evidence (Claim 16) ........................ 130-133

10. Discovery of Experts Notes and Memorandums (Claim 17) .............................. 133-147

11. Prosecutorial Misconduct (Claim 18) ...................... 147-152

12. Change of Venue (Claim 19) ............................ 152-154

13. Unconstitutional Jury Instruction (Claim 21) ....................155

a. Reasonable Doubt Instruction (Claim 21.a) ........... 155-160

b. Presumption of No Aggravating Circumstance (Claim 21.b) ........................ 160-160

c. Non-Statutory Mitigating Factors (Claim 21.c) ........ 160-161

d. Unanimous Finding of Mitigating Circumstances (Claim 21.d) ....................... 161-164

e. Elements of Underlying Felony Aggravating Circumstance (Claim 24.e) ............. 164-165

f. Failure of Trial Court to Instruct the Jury of its Role as Both Trier of Fact and Law (Claim 21.f) ............................ 166-167

g. Failure to Re-instruct Jury on Mitigating Circumstances (Claim 21.g) ..................167

h. Cumulative Error (Claim 21.h) ..................... 167-168

14. Videotaped Confession Evidence (Claim 22) ................ 168-173

15. Chronological Order of Trials (Claim 23) and Prior Convictions (Claim 28) ............................ 173-173

a. Chronological Order (Claim 23) .................... 173-178

b. Prior Convictions (Claim 28) ...................... 178-179

-iii-

16. 1984 Convictions (Claim 24) ............................ 179-181

17. Polling the Jury (Claim 25) ..................................181

18. Unconstitutionality of Tennessee's Death Penalty Statute (Claim 26) ............................... 181-182

19. Notice of Prior Conviction in Case 175433 as Aggravating Circumstance (Claim 27) ................... 182-184

20. Newly Discovered Evidence (Claim 29) ................... 184-185

21. Caldwell Error (Claim 30) .............................. 185-189

22. Cumulative Error (Claim 31) ............................ 190-191

23. Actual Innocent Claim (Claim 32) ........................ 191-192

V. CONCLUSION .......................................................192

-iv-

MEMORANDUM OPINION

Harold Wayne Nichols ("Nichols" or "petitioner"), a death-sentenced inmate at the Riverbend Maximum Security Institution in Nashville, Tennessee, brings this petition for writ of habeas corpus against the Warden, Ricky Bell ("State" or "respondent"), pursuant to 28 U.S.C. § 2254 [Court File No. 82]. Nichols is petitioning this Court for a writ of habeas corpus discharging him from his "unconstitutional and invalid conviction for first-degree murder" and his resulting death sentence [Court File No. 82, at 1]. Before the Court is respondent's motion and memorandum to dismiss the amended petition [Court File Nos. 119, 120], petitioner's response to the motion to dismiss the amended petition [Court File Nos. 140, 211, Attachment #1], and respondent's reply to petitioner's response to the motion to dismiss [Court File No. 155]. After carefully considering arguments of counsel and the applicable law, the Court will GRANT the respondent's motion to dismiss [Court File No. 119].

I. FACTUAL BACKGROUND

On May 9, 1990, Nichols pleaded guilty to first-degree felony murder, aggravated rape, and first-degree burglary*fn1 in the Criminal Court of Hamilton County before a jury impaneled from Sumner County, Tennessee. The trial proceeded to the penalty phase with the State relying on two aggravating circumstances: (1) the murder's occurrence during the commission of a felony, and (2) Nichols' previous convictions of violent felonies. Tenn. Code Ann. § 39-13-204(i)(2) & (7). At the conclusion of the sentencing hearing, after deliberating approximately two hours, the jury returned a verdict of death based on the two statutory aggravating circumstances.

On direct appeal, the Tennessee Supreme Court determined the use of the felony-murder for which Nichols had been convicted as an aggravating circumstance was error; however, they determined the error was harmless and affirmed the convictions and sentences. The following recitation of the facts is from the direct appeal to the Supreme Court of Tennessee.

A. Facts at the Trial Level

Because of the substantial publicity surrounding the murder and rape cases, the defendant requested a change of venue prior to trial. The trial court granted the change of venue to Sumner County, but only for the limited purpose of jury selection. The court then ordered the case back to Hamilton County for trial with the Sumner County jury. The trial reconvened in Hamilton County on May 9, 1990. Following the court's denial of the defendant's motion to suppress his videotaped confessions, the defendant entered pleas of guilty to the charges of first-degree felony murder, aggravated rape, and first-degree burglary. [The State dismissed a charge of premeditated first-degree murder.]

The trial proceeded to the penalty phase with the State relying on two aggravating circumstances: (1) the murder's occurrence during the commission of a felony and (2) Nichols' previous convictions of violent felonies. Tenn. Code Ann. § 39-13-204(i)(2) & (7). The State introduced evidence concerning the nature and circumstance of the crime, which included the defendant's videotaped confession, testimony from the medical examiner about the nature and extent of the victim's injuries and the cause of her death, and testimony from the detective who had questioned the defendant on the videotaped interview. The Hamilton County Criminal Court Clerk also testified concerning the defendant's five prior convictions for aggravated rape.

The proof showed that on the night of September 30, 1988, the defendant broke into the house where the 21-year-old-victim, Karen Pulley, lived with two roommates in the Brainerd area of Chattanooga, Tennessee. After finding Pulley home alone in her upstairs bedroom, the defendant tore her undergarments from her and violently raped her. Because of her resistance during the rape, he forcibly struck her at least twice in the head with a two-by-four he had picked up after entering the house. After the rape, the defendant, while still struggling with the victim, struck her again several times with great force in the head with the two-by-four. The next morning, one of Karen Pulley's roommates discovered her alive and lying in a pool of blood on the floor next to her bed. Pulley died the next day. Three months after the rape and murder, a Chattanooga police detective questioned the defendant about Pulley's murder while he was in the custody of the East Ridge police department on unrelated charges. It was at this point that the defendant confessed to the crime. This videotaped confession provided the only link between the defendant and the Pulley rape and murder.

The evidence showed that, until his arrest in January 1989, the defendant roamed the city at night and, when "energized" relentlessly searched for vulnerable female victims. At the time of trial, the defendant had been convicted on five charges of aggravated rape involving four other Chattanooga women. These rapes had occurred in December 1988 and January 1989, within three months after Pulley's rape and murder. The convictions presented to the jury were as follows: The defendant was indicted for feloniously engaging in sexual penetration of T.R. on December 27, 1988, by the use of force or coercion while the defendant was armed with a weapon- -a cord. The defendant plead guilty to the offense of aggravated rape.

The defendant was indicted for feloniously engaging in sexual penetration - -anal intercourse- -with S.T. on the 3rd day of January, 1989, by the use of force or coercion while he, the defendant, was armed with a weapon- -a pistol. The defendant pled guilty to aggravated rape.

The defendant was indicted for feloniously engaging in sexual penetration- -fellatio- -with P.A.R. on January 3, 1989, thereby causing personal injury to her. The defendant was also indicted for feloniously engaging in sexual penetration - -vaginal intercourse- -with P.A.R., on January 3, 1989. The defendant pled not guilty and the jury found the defendant guilty of aggravated rape in each case.

The defendant was indicted for feloniously engaging in sexual penetration, vaginal intercourse, with P.A.G. on December 21, 1988, by the use of force or coercion while he, the defendant, was armed with a weapon- -a knife. The defendant pled not guilty and a jury convicted the defendant of aggravated rape.

The primary factors in mitigation presented by the defense were the defendant's cooperation with the police and the psychological effects of his childhood. Several persons who knew the defendant testified to his good character and passive nature. The defendant also took the stand and testified about his life and the violent crimes he had committed. After his mother died of breast cancer when he was ten years old, he and his older sister were placed in an orphanage for six years by his father, who was apparently emotionally abusive, at least to the defendant's older sister. In 1976, just as he was about to be adopted, he was returned to his father. In 1984 he pled guilty to attempted rape, was sentenced to five years in prison and served eighteen months. Thereafter, he violated parole and served an additional nine months. He was married in 1986. At the time of the killing, he was employed by Godfather's Pizza as a first assistant manager.

Defendant testified that when he committed these violent criminal acts, a "strange energized feeling" that he could not resist would come over him and result in actions that he could not stop. He explained that he had not asked for help for his affliction or told anyone about this criminal activity because he was afraid he would lose everything. He expressed remorse for his actions but testified that, if he had not been arrested, he would have continued to violently attack women.

Finally, Dr. Eric Engum, a lawyer and clinical psychologist, testified that he had diagnosed the defendant with a psychological disorder termed "intermittent explosive disorder." According to Engum, a person suffering from this disorder normally experiences an increasing, irresistible drive that results in some type of violent, destructive act. Dr. Engum opined that the defendant's condition may have grown out of his anger at abandonment in childhood but conceded that the disorder was rare. According to him, the defendant would function normally in a institutional regimented setting but, if released, would repeat the violent behavior. The State offered Dr. Engum's investigating notes to prove that he was a member of the defense team acting as a lawyer searching for a defense, rather than an objective psychologist searching for a diagnosis.

State v. Nichols, 877 S.W.2d 722, 725-27 (Tenn. 1994), cert. denied, 513 U.S. 1114 (1995).

B. Facts Introduced During the State Post-Conviction Hearing

Some additional facts not introduced at the trial level were introduced by petitioner during his state post-conviction hearing [Addendum No. 1].*fn2 The substance of the testimony of the witnesses presented at the state post-conviction hearing will be taken from different sections of the appellate opinion. Nichols v. State, 2001 WL 55747 (Tenn.Crim.App. 2001). Throughout the proceedings involving this death penalty case, the related cases, and the cases used as aggravating factors, Nichols was represented by the same two appointed counsel, against whom he has made claims of ineffective assistance counsel. An overview of the proof presented at the state post-conviction hearing is included in the Court of Criminal Appeals decision. The following recitation of the pertinent facts is from the appeal of the denial of his post-conviction petition to the Tennessee Court of Criminal Appeals:

Senior trial counsel appointed by the trial court was a 1966 graduate of Vanderbilt University and a 1969 graduate of Yale Law School. He was a law clerk for a United States District Court judge, an attorney with the Civil Rights Division of the Justice Department for three years, and an Assistant United States Attorney for three years. Previously, he had been counsel in two capital cases, and his practice consisted of ten percent criminal work and ninety percent civil work. He was the author of the voir dire section of the Tennessee Association of Criminal Defense Lawyers ("TACDL") Death Penalty Manual.

Junior trial counsel was a member of both the National Association of Criminal Defense Lawyers and the TACDL. She was on the board of directors of the TACDL in 1989 and had been a member of the organization for a number of years, holding various offices. She had been the head of their continuing legal education program for a year. She had attended a number of TACDL seminars and had presented a Tennessee criminal law update at "one or two" seminars. Before representing the petitioner, she had attended at least one TACDL capital case seminar, as well as a capital case seminar of the National Association of Criminal Defense Lawyers. Additionally, she had attended criminal seminars presented by the Chattanooga Bar Association. According to testimony, as well as an exhibit introduced during the post-conviction hearing, the combined hours billed by trial counsel for the matters in which they represented the petitioner were as follows: 1,386.80 Out-of-court hours in the Karen Pulley case 259.75 In-court hours in the Karen Pulley case 654.50 Out-of-court hours in the rape cases 29.25 In-court hours in the rape cases According to counsel, the 2,330.30 hours billed were less than the actual combined hours spent on the various matters, but the total was reduced to avoid duplicative billings. Additionally, according to counsel, the 289 in-court hours "were always" with the petitioner present and usually included a meeting with the petitioner in the court anteroom. Further, trial counsel spent "at least" 69.75 hours meeting with the petitioner in jail.

The investigator retained by trial counsel was Michael Cohan, who had been a self-employed private investigator since 1986. He has a bachelor's degree in criminal justice and had been employed in "one form of police work or another" during most of the years since 1969. For four years, he had been a military police officer and was then employed for two years as a police officer by the University of Tennessee.

Next, he was a Metro narcotics officer in Knoxville for about five years and then was the assistant regional director for investigations for the Department of Human Services Welfare Fraud Division for approximately five years. He left that position in 1986 to become a private investigator. According to his time records, he spent fifty-one hours conferring with trial counsel and met with the petitioner on more than one occasion, although the records showed only one six-hour meeting. He recorded 163 hours locating and interviewing witnesses. He had previously been involved in several capital cases but was unable to say exactly how many.

Nichols v. State, 2001 WL 55747, *2-5 (Tenn.Crim.App. 2001). As the Tennessee appellate court observed, one of petitioner's claims is that his trial counsel were ineffective for failing to investigate Nichols' confessions to ascertain whether they were "false." According to petitioner, the confessions, especially to the other crimes, were very brief and basically answers to leading questions. Therefore, according to petitioner, had counsel investigated the confessions, they would have determined the confessions were false. The various confessions made by petitioner will be recited below as summarized in the appellate court decision.

In addition to the hour-long videotaped statement which the petitioner made regarding the death of Karen Pulley, as described in the supreme court opinion affirming his conviction for that crime, he made additional statements regarding his guilt in that case, as well as the others with which he was charged. On January 6, 1989, beginning at 12:47 a.m., he confessed to law enforcement officers to the rapes of D.L., P.G., P.R., and S.T. These confessions were short, and the purpose of the questions appeared to be to determine how many rape complaints would be closed as the result of the arrest of the petitioner. Shortly after that, he confessed to a rape and an attempted rape in Tiftonia, occurring apparently in October and December 1988, as well as a third rape that occurred in the same area, the victims not being identified by name and the intent of the questions apparently being to ascertain whether the petitioner had committed these rapes as well. Next, the petitioner confessed to two rapes occurring in Red Bank, with the victims again not being identified by name. Also, the petitioner made additional short confessions as to items he had taken from three rape scenes, one relating to the rape of P.G. The other victims were not identified by name. It appears that all of these statements were tape-recorded. It is unclear how many statements subsequently were made to law enforcement officers in addition to these.

That same morning, an oral statement was taken from the petitioner's wife, who said that beginning in July or August of 1988, the petitioner began going out at night. On some occasions, she would be aware when he left, but other times she "would wake up and he would be gone and [she] would wonder where he was." She said on January 3, 1989, he left home between 8:30 and 9:00 p.m. and returned home about 7:00 a.m. This is the period when P.R. and S.T. were both raped. She told officers that he explained the scratch on his eye when he arrived home by saying that as he was driving with gloves on to pick her up from work, his eye began to itch and, unable to scratch himself because of the gloves, he picked up a screwdriver to do so and poked himself in the eye, cutting himself. She testified in the Karen Pulley trial that she had asked him, presumably after his arrest, about the Pulley murder, and he told her that he was guilty of it.

As trial counsel noted during the post-conviction hearing, the petitioner consistently admitted to them his guilt as to the charges against him. During a meeting with Michael Cohan, the investigator for defense counsel, the petitioner described in detail his attack upon Karen Pulley. Additionally, he admitted his guilt to Dr. Eric Engum, a psychologist retained by trial counsel. Further, he admitted his guilt in the death of Karen Pulley to the victim's mother and told his uncle, during a post-trial visit to the petitioner in prison, that he was guilty. He also testified in court as to his guilt. During the penalty phase of the Karen Pulley trial, the petitioner testified as to his rape and murder of the victim.

Id. at 5-7.

Although Nichols admitted, during the sentencing hearing, that he attacked and raped Pulley after entering her residence, he maintained that he did not intend to kill the victim. Id. at 8. He explained that she was hanging onto him when he was trying to leave and that is why he hit her, numerous times, with the two-by-four. Id.

A number of witnesses testified at the consolidated evidentiary hearing on Nichols' state post-conviction petitions.*fn3 Not all of the testimony is relevant to this habeas petition. Thus, the Court will summarize the pertinent portions and discuss the substance of the testimony in relevant portions of this opinion. The Court observes that the petitioner did not personally present any relevant testimony at his state post-conviction hearing. The state post-conviction court ruled that although petitioner did not have a privilege against self-incrimination at the hearing, the court would not require him to respond to incriminating questions from the State. Consequently, other than providing basic biographical information, petitioner, asserting a Fifth Amendment privilege, refused to answer any of the State's questions regarding the offenses themselves.

Petitioner presented numerous witnesses, identified as mitigation witnesses, during his state post-conviction proceedings. The first witness to testify was Mr. Winston Gonia ("Mr. Gonia").*fn4 A retired minister, Mr. Gonia testified he had been on the Board of Tomlinson Children's Home, the orphanage where petitioner temporarily resided [Court File No. 19, Addendum No. 1, Vol. X, at 27-29]. Mr. Gonia was the minister at East Chattanooga Church of God of Prophecy for approximately four years (1962-1965). Petitioner and his family attended this church during the time Mr. Gonia was the minister. Mr. Gonia visited petitioner and his family at their home and observed them at church functions. Mr. Gonia testified petitioner's home was nice and clean, and whenever he visited he felt very welcomed. [Court File No. 19, Addendum No. 1, Vol. X, at 37]. Mr. Gonia observed petitioner's mother and grandmother exhibit love and affection towards petitioner and his siblings. However, he described petitioner's father as quiet, withdrawn, and introverted. Mr. Gonia did not observe petitioner's father demonstrate any love or affection toward his family. Furthermore, Mr. Gonia sensed some uneasiness around petitioner's father which he described as a "strange feeling," but he could not say that there was or was not any abuse in the family [Court File No. 19, Addendum No. 1, Vol. X, at 33-35].

Mr. Gonia returned to the area in 1976 for a couple of years and he reconnected with the petitioner after Nichols returned home from the orphanage to live with his father, sometime in 1977. Mr. Gonia found petitioner to be outgoing and he thought petitioner was going to become an important community member [Court File No. 19, Addendum No. 1, Vol. X, at 40-42]. On cross-examination, Mr. Gonia testified he met with petitioner's trial counsel two or three times and he testified about petitioner's good character during his sentencing hearing. Mr. Gonia concluded his testimony acknowledging that he never saw any abuse in petitioner's family [Court File No. 19, Addendum No. 1, Vol. X, at 44-47].

Ms. Diane Sample Allred ("Ms. Allred"), petitioner's cousin, testified that she and her older brother began living with petitioner's family in 1961, after her parents died [Court File No. 19, Addendum No. 1, Vol. X, at 49-50]. Ms. Allred first thought petitioner's family was "just one happy family" but after living there a couple of years, she observed petitioner's father going into rages and spanking petitioner's older sister "till blood would run out of her legs." [Court File No. 19, Addendum No. 1, Vol. X, at 52-53]. Neither Ms. Allred nor her brother were subjected to spankings but petitioner and his sister were whipped by their father.

Ms. Allred moved out of petitioner's home in 1967, when petitioner was almost seven (7) years old. Petitioner's grandmother lived in the house with them and was described as very loving towards petitioner and his sister, as was petitioner's mother. Ms. Allred observed petitioner's mother holding and hugging her children, unlike petitioner's father, who she never observed holding petitioner, not even when he was an infant [Court File No. 19, Addendum No. 1, Vol. X, at 53-55].

Ms. Allred recollected that petitioner loved to attend church, sing at church, and recite the Bible forward and backward. Ms. Allred did not observe anything about petitioner that made her think he was anything other than a normal child [Court File No. 19, Addendum No. 1, Vol. X, at 80-81].

During the time Ms. Allred resided with petitioner's family in the Chattanooga area, they moved several times. While living in North Chattanooga, petitioner's father would often sit on the couch naked which resulted in Ms. Allred being exposed to him as she left the bathroom to go to her bedroom, a bedroom she shared with the mother of petitioner's father.*fn5 Ms. Allred testified no one believed her when she complained about petitioner's father exposing himself to her. Ms. Allred's testimony then became confusing because she testified that when they moved to 3206 Dodson Avenue, she was fifteen (15) years old and petitioner's mother had just had her cancer surgery. At that time, petitioner's father allegedly would go to Ms. Allred's bedroom naked, asking her if he could get in the bed with her, while petitioner's mother would cry and try to get her husband to return to their bedroom with her and her children.*fn6 Ms. Allred responded by "cover[ing] up all over and just tell[ing] him to leave [her] alone." [Court File No. 19, Addendum No. 1, Vol. X, at 56-58]. However, when testifying about petitioner's grandmother's death, Ms. Allred testified petitioner's mother had breast cancer after the grandmother's death, but that she (Ms. Allred) had moved out prior to that time but would come back over to the house to pick up petitioner's mother for her chemo treatment [Court File No. 19, Addendum No. 1, Vol. X, at 58-62].

After petitioner's mother died, his sister called Ms. Allred crying and told her that petitioner's father was sexually mistreating her. A pastor and his wife, Eddie and Helen Gray, brought petitioner and his sister to Ms. Allred's front door requesting that she go to court and testify about petitioner's father's sexual conduct towards her. She agreed to do so, but later Mr. Gray informed her that petitioner's father had agreed to send his children to the orphanage if no one would talk about the abuse [Court File No. 19, Addendum No. 1, Vol. X, at 70-77].*fn7

Ms. Allred testified she was not contacted by petitioner's trial counsel. However, on cross-examination, she explained that she had not had any contact with petitioner's family since 1971, and neither petitioner nor his sister knew she lived in Alabama. She acknowledged that from 1971 to the time this crime occurred, 1988, she had no contact with petitioner or his family [Court File No. 19, Addendum No. 1, Vol. X, at 78-80].

Mr. Royce Sampley, Ms. Allred's brother and petitioner's cousin, came from Bolivar, Texas, to testify on petitioner's behalf during his state post-conviction hearing. Mr. Sampley lived in his uncle's home for approximately six years. Mr. Sampley testified the environment in petitioner's home was "threatening" because his uncle, Mr. Mack Nichols, was an angry person who took his anger out on everyone who lived with him [Court File No. 19, Addendum No. 1, Vol. X, at 92-94].

Mr. Sampley perceived his uncle's relationship towards him and his cousins as one of indifference and basically not wanting to be bothered with any of the children living in the house. Mr. Sampley described his uncle as a person who was always angry and mad. However, Mr. Sampley did state that "it wasn't so much physical that I noticed[,]" but rather, it was Mr. Mack Nichols' demeanor and attitude, which Mr. Sampley described as constantly in a rage and cussing, that set the threatening tone in the house [Court File No. 19, Addendum No. 1, Vol. X, at 94-95]. Mr. Sampley described his uncle's attitude toward his wife and mother as one of resentment when he had to transport them places. However, Mr Sampley said his uncle was pleasant whenever he wanted someone to do something for him [Court File No. 19, Addendum No. 1, Vol. X, at 95-96].

Mr. Sampley's testimony regarding the alleged abuse of his sister by Mr. Mack Nichols is somewhat confusing. First, Mr. Sampley testified that he did not realize his uncle was exposing himself to his sister until after he moved out of his uncle's house. At that time Mr. Sampley tried to talk to some of his relatives about the situation but they did not believe him. Then Mr. Sampley testified he tried to discuss the matter with some of his relatives so that he and his sister could get out of the situation because they were still living with petitioner and his family [Court File No. 19, Addendum No. 1, Vol. X, at 96-99].

Mr. Sampley left petitioner's home in 1967 and never returned. However, Mr. Sampley did see petitioner, his sister, and mother about a year after he moved out of their house but that was their last contact. Mr. Sampley testified no one contacted him prior to petitioner's trial [Court File No. 19, Addendum No. 1, Vol. X, at 99-101].

On cross-examination Mr. Sampley testified he could not remember whether his sister, Joan, called and told him about petitioner's arrest before, during, or after the trial. Mr. Sampley testified petitioner would not have known how to contact him [Court File No. 19, Addendum No. 1, Vol. X, at 101-07].

The state post-conviction court also reviewed the videotaped deposition of petitioner's sister, Ms. Deborah Diane Sullivan ("Ms. Sullivan"). The video tape and sixty-eight page transcript reveals petitioner's sister was very guarded in her answers and not willing to discuss any alleged sexual abuse of her by her father. When asked if there were any allegations of abuse she responded that there were no such allegations "where Wayne is concerned" [Court File No. 67, Addendum No. 9, Exhibit 11, at 36]. Ms. Sullivan described her father's household as "mentally trying." She testified her father and grandmother spanked her and there were constant threats of spankings [Court File No. 67, Addendum No. 9, Exhibit 11, at 11-12, 37].

As previously noted, Ms. Sullivan's testimony differed from Ms. Allred's testimony, in that Ms. Sullivan testified her mother and father slept out in the great room and she had a bedroom between Ms. Allred's and the grandmother's room and the bathroom. Ms. Allred testified petitioner, his sister, and parents slept in the same bedroom. Ms. Sullivan testified her bed was a double bed and her recollection was that petitioner slept in the corner of the great room across from where her parents slept [Court File No. 67, Addendum No. 9, Exhibit 11, at 9].

Ms. Sullivan's testimony paints a picture of a family who, more or less, stayed to themselves. The children did not bring friends home from school. Other than relatives, the only other visitors the children had were a neighbor's grandchildren, but that apparently was only on a rare occasion. Petitioner's father was described as the disciplinarian and although Ms. Sullivan remembered being spanked with a switch until there were welts, when asked if Mr. Mack Nichols ever spanked until there was blood, Ms. Sullivan responded "[p]robably" [Court File No. 67, Addendum No. 9, Exhibit 11, at 10]. Although she was sure her father spanked petitioner, Ms. Sullivan could not recall a particular time when he did so. Ms. Sullivan stated her mother did not attempt to stop the spankings and her Grandmother Tillman, who lived with them and was Mr. Nichols' mother, also spanked them with switches. Ms. Sullivan's testimony indicates there was very little communication in the family. When asked if anyone tried to explain death in relation to the death of their mother she responded that "[y]ou have to, you just, you're handed these things or these things take place and you just, you roll with it, you just go with it, whatever. . . There is a death and then you know they are dead and you go to the funeral and you don't have them anymore and that's it" [Court File No. 67, Addendum No. 9, Exhibit 11, at 33-34].

Ms. Sullivan did admit that there were allegations her father abused her but she would not elaborate on the subject [Court File No. 67, Addendum No. 9, Exhibit 11, at 36-37]. She stated she was constantly living in fear at home and the atmosphere was not healthy, but she and petitioner never discussed their home-life [Court File No. 67, Addendum No. 9, Exhibit 11, at 38]. When asked specifics about the alleged abuse, Ms. Sullivan generally responded that the abuse, if there was any, was against her and not petitioner [Court File No. 67, Addendum No. 9, Exhibit 11, at 40-42]. She stated that, to her knowledge, petitioner was never physically or sexually abused by their father [Court File No. 67, Addendum No. 9, Exhibit 11, at 43]. Ms. Sullivan has always told people that she and petitioner were sent to the orphanage because their father was unable to care for them. She was told by Sue Puryear, the lady she ran to for protection from her father, that was all she needed to tell people. However, Ms. Sullivan stated her father was emotionally unable to take care of her and petitioner:

. . . but then that was always. I mean we didn't - - you know, emotionally mother I guess and grandma probably was the emotional support if there was such a thing back then. There again, it goes back to that old mentality where kids are to be seen and not heard and emotional support was not - - I don't know. That wasn't - - I don't know if that was even in the vocabulary back then, you know, give kids emotional support. [Court File No. 67, Addendum No. 9, Exhibit 11, at 45-47].

Ms. Sullivan described her relationship with petitioner as a close loving relationship. Ms. Sullivan wanted petitioner to stay with his father because she did not think a father and son should be separated [Court File No. 67, Addendum No. 9, Exhibit 11, at 43]. Her recollection was, as a child, petitioner was always with his father, but when he was older petitioner would stay out late and basically felt he could come and go as he pleased [Court File No. 67, Addendum No. 9, Exhibit 11, at 53]. Although she described an incident where petitioner came home to his father's house drunk, she stated her father drank very little [Court File No. 67, Addendum No. 9, Exhibit 11, at 54].

Ms. Sullivan testified petitioner had a sleepy eye, speech impediment, and pneumonia when he was young [Court File No. 67, Addendum No. 9, Exhibit 11, at 56]. When she thinks of her mother she thinks of love. When asked about her memories of her father, who was still alive at the time, petitioner's sister stated that when she needed to have contact with her father, she knew where to contact him [Court File No. 67, Addendum No. 9, Exhibit 11, at 59]. Ms. Sullivan revealed that petitioner's trial attorneys probably tried to contact her and probably spoke with her husband because her husband told her that the petitioner's lawyers were calling and trying to get in touch with her.

A number of other witnesses, family and neighbors, testified at the state post-conviction evidentiary hearing. Since much of the testimony was not mitigating, the Court will discuss the relevant substance of their testimony in the relevant portions of this opinion.

II. PROCEDURAL BACKGROUND

The State of Tennessee has provided the Court with copies of petitioner's state court proceedings [Court File Nos. 17-24, 26-27, 30-33, 37-43, 50, 52, 55, 67-75, 122-23, 194; Addenda 1-11]. Petitioner's conviction and sentence were affirmed on direct appeal. State v. Nichols, 877 S.W.2d 722 (Tenn. 1994).

Petitioner filed his original petition for post-conviction relief on April 20, 1995, in the Criminal Court of Hamilton County, Tennessee. Petitioner alleged twenty-five instances of constitutional violations [Court File No. 17, Addendum No. 1, Vol.2, at 9-25]. Petitioner, through his attorneys, filed an amended petition on September 15, 1995, and December 16, 1996 [Court File No. 17, Addendum No. 1, Vol. 2, at 31, 138-163]. At the conclusion of an evidentiary hearing and after considering post-hearing briefs, the trial court denied the petition on March 18, 1998 [Court File No. 18, Addendum No. 1, Vol. 3, at 498-516].

On April 17, 1998, petitioner, through counsel, filed a notice of appeal to the Tennessee Court of Criminal Appeals on the following issues:

I. Whether petitioner received effective assistance of counsel at the guilty stage of his capital trial and in his non-capital cases?

II. Whether Mr. Nichols was denied the effective assistance of counsel by his counsel's failure to move to suppress his confessions on the theory that the statements were made during a period of illegal arrest?

III. Whether Mr. Nichols was denied the effective assistance of counsel in the penalty phase of his capital trial?

IV. Was Mr. Nichols denied effective assistance of counsel by the failure of his trial counsel to object to improper argument and cross-examination by the prosecutor and failure to raise prosecutorial misconduct in the motion for a new trial or on appeal?

V. Whether petitioner's counsel were ineffective for failing to request jury instructions and for failing to object to the trial court's improper jury instructions?

VI. Are the findings of fact by the court below clearly erroneous?

VII. Did counsel render ineffective assistance by failing to raise at trial or on appeal that death by electrocution is cruel and unusual punishment?

VIII. Did trial and appellate counsel render ineffective assistance by failing to argue in the trial court or on appeal that requiring the petitioner to turn over his psychiatric expert's rough notes, which included statements made by petitioner to his psychiatric expert, violated petitioner's right to remain silent in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, § 9 of the Tennessee Constitution?

IX. Were the accumulation the [sic] errors in this case prejudicial?

X. Must the sentence of death in the instant case be set aside as the imposition of death is unreliable and violates the values recognized and protected by the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I § 16 of the Tennessee Constitution?

XI. Is the death sentence unconstitutional, because it infringes upon Mr. Nichols' fundamental right to life, and is not necessary to promote any compelling state interest? [Court File No. 26, Addendum No. 2, Doc. 1, at xiv-xv].

In addition to attacking his first degree murder conviction, as well as convictions for aggravated rape and first degree burglary resulting from the same facts, Nichols had also filed petitions for post-conviction relief from a number of convictions for sexual attacks on four additional victims. The appellate court consolidated the cases and affirmed the judgments of the post-conviction court, which denied petitioner post-conviction relief from his convictions, but granted him new sentencing hearings in the non-capital cases. Nichols v. State, 2001 WL 55747 (Tenn.Crim.App. 2001).

Nichols filed a petition for rehearing which was denied [Court File No. 26, Addendum No. 2, Docs. 5-6]. Petitioner then filed a motion to consider post-judgment facts which was denied by the appellate court [Court File No. 26, Addendum No. 2, Docs. 7-8]. Nichols next appealed the judgment of the Tennessee Court of Criminal Appeals to the Tennessee Supreme Court. In his application for permission to appeal, petitioner raised the following issues:

I. Did the Court of Criminal Appeals apply an improper standard of review, thus requiring that this Court intervene to secure uniformity of decision, and to assert its supervisory authority over the lower courts?

II. Should this Court grant permission to appeal to address to [sic] conclusions of the Court of Criminal Appeals regarding the [sic] Mr. Nichols' privilege against self-discrimination?

A. Did the decision of the Court of Criminal Appeals deny Mr. Nichols' right to due process under the 14th amendment to the United States Constitution by deciding an issue which had neither been briefed nor argued?

B. Did the decision of the Court of Criminal Appeals violate established procedural rules requiring the intervention of this court by deciding an issue which had neither been briefed or argued?

C. Should this court grant permission to appeal to clarify the scope of a post-conviction petitioner's right to remain silent under the Fifth Amendment to the United States Constitution or Article I, Section 9 of the Tennessee Constitution?

III. Did the Court of Criminal Appeals err in denying Mr. Nichols the opportunity to return to the trial court for additional DNA testing?

IV. Whether Mr. Nichols received ineffective assistance of counsel at the guilt stage of his capital trial and in his non-capital cases.

V. Whether Mr. Nichols was denied the effective assistance of counsel by his counsel's failure to move to suppress his confessions on the theory that the statements were made during a period of illegal arrest.

VI. Whether Mr. Nichols was denied the effective assistance of counsel in the penalty phase of his capital trial.

VII. Was Mr. Nichols denied effective assistance of counsel by the failure of his trial counsel to object to improper argument and cross-examination by the prosecutor and failure to raise prosecutorial misconduct in the motion for a new trial or on appeal?

VIII. Whether Mr. Nichols' counsel were ineffective for failing to request jury instructions and for failing to object to the trial court's improper jury instructions.

IX. Are the findings of fact by the court below clearly erroneous?

X. Did trial and appellate counsel render ineffective assistance by failing to argue in the trial court or on appeal that requiring Mr. Nichols to turn over his psychiatric expert's rough notes, which included statements made by him to his psychiatric expert, violated Nichols' right to remain silent in violation of the fifth and fourteenth amendments to the Constitution of the United States and Article I, § 9 of the Tennessee Constitution?

XI. Were the accumulation [of] the errors in this case prejudicial?

XII. Must the sentence of death in the instant case be set aside as the imposition of death is unreliable and violates the values recognized and protected by the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I, § 16 of the Tennessee Constitution?

XIII. Is the death sentence unconstitutional, because it infringes upon Mr. Nichols' fundamental right to life, and is not necessary to promote any compelling state interest? [Court File No. 27, Addendum No. 3, Tab 1, p. xv-xvi].

The Tennessee Supreme Court granted the application for permission to appeal, and informed the parties that the Court was particularly interested in the issue of whether the Court of Criminal Appeals erred in raising and deciding the issue of how the Fifth Amendment right against self-incrimination applied to Nichols at the petitioner's post-conviction hearing. The Tennessee Supreme Court instructed the parties that "[t]his statement of the issue for oral argument does not prevent the parties from raising additional issues . . . ," [Court File No. 27, Addendum No. 3, Tab 3].

Petitioner's brief included the following issues:

I. Does a death-sentenced post-conviction petitioner have a right to remain silent under the fifth amendment to the United States Constitution or Article I, Section 9 of the Tennessee Constitution?

II. Did the decision of the Court of Criminal Appeals deny Mr. Nichols his right to due process under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 8 and 16 of the Tennessee Constitution by deciding an issue which had neither been briefed nor argued?

III. Did the Court of Criminal Appeals err in denying Mr. Nichols the opportunity to return to the trial court for additional DNA testing?

IV. Did the Court of Criminal Appeals apply an improper standard of proof concerning petitioner's claims of ineffective assistance of counsel?

V. Was Mr. Nichols denied effective assistance of counsel by the failure of his trial counsel to object to improper argument and cross-examination by the prosecutor and failure to raise prosecutorial misconduct in the motion for a new trial or on appeal?

VI. Did Mr. Nichols receive ineffective assistance of counsel at the guilt stage of his capital trial and in his non-capital cases?

VII. Was Mr. Nichols denied the effective assistance of counsel by his counsel's failure to move to suppress his confessions on the theory that the statements were made during a period of illegal arrest?

VIII. Was Mr. Nichols denied the effective assistance of counsel at the penalty phase of his capital trial?

IX. Were Mr. Nichols' counsel ineffective for failing to request jury instructions and for failing to object to the trial court's improper jury instructions?

X. Are the findings of fact by the court below clearly erroneous?

XI. Did trial and appellate counsel render ineffective assistance by failing to argue in the trial court or on appeal that requiring Mr. Nichols to turn over his psychiatric expert's rough notes, which included statements made by him to his psychiatric expert, violate Mr. Nichols' right to remain silent in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 9 of the Tennessee Constitution?

XII. Were the accumulation of errors in this case prejudicial?

XIII. Must the sentence of death in the instant case be set aside as the imposition of death is unreliable and violates the values recognized and protected by the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 16 of the Tennessee Constitution?

XIV. Is the death sentence unconstitutional because it infringes upon Mr. Nichols' fundamental right to life, and is not necessary to promote any compelling state interest?

Nichols requested the Court to consider all issues, even though some issues were not repeated in this brief [Court File No. 27, Addendum No. 3, Tab 4, p. x-xi]. The Supreme Court of Tennessee ultimately affirmed the judgment of the Court of Criminal Appeals on October 7, 2002 [Court File No. 27, Addendum No. 3, Tab 7].

On October 23, 2002, in the United States District Court for the Eastern District of Tennessee, Southern Division, Chattanooga, Tennessee, Nichols' counsel filed a motion and application to appoint counsel under 21 U.S.C. § 848(q)(4)(B) to investigate, prepare and file a petition for writ of habeas corpus [Court File No. 1]. Nichols did not request a stay of execution and it did not appear that an execution date had been set. Nevertheless, this Court ordered that if an execution date had been set, that it was stayed pending further orders of this Court.

Petitioner's motion was granted; counsel was appointed; and petitioner was permitted to proceed without payment of fees [Court File No. 3]. During the course of this proceeding, petitioner has filed numerous motions. A motion for discovery [Court File No. 47] was filed on petitioner's behalf and was denied [Court File No. 77]. Nichols filed a motion to conduct destructive testing and discovery [Court File No. 85] and a motion to stay the habeas proceedings pending the resolution of state court DNA testing [Court File No. 87], both of which were denied [Court File No. 102]. In addition, petitioner's renewed motions to conduct destructive testing and discovery and to hold this matter in abeyance [Court File No. 106] were also denied [Court File No. 124]. Nichols' motion to expand the record [Court File No. 111] was granted [Court File No. 124]. Petitioner also filed a motion for an order directing the filing of additional transcripts and appellate brief [Court File No. 143] which was denied [Court File No. 149]. A second motion by Nichols to expand the record [Court File No. 160] was denied by the Court as moot since the attachments petitioner requested to expand the record with were already a part of the record [Court File No. 178]. Petitioner's third motion for discovery requesting an order permitting DNA testing of evidence [Court File No. 182] was partially withdrawn and the remaining portion of the motion was denied [Court File No. 206]. Petitioner's motion for a copy of the addenda [Court File No. 212] was denied [Court File No. 218] and his motion to direct the State to file missing or incomplete documents [Court File No. 214] was granted in part [Court File No. 227]. Petitioner's motion for reconsideration of the Court's decision denying him a copy of the addenda was referred to the United States Magistrate Judge, as was a portion of the motion requesting the State to file missing or incomplete documents [Court File No. 228]. The claims were eventually resolved by agreement of the parties (respondent provided a copy of the addenda to the petitioner and the incomplete or missing documents were filed with the Court) [Court File Nos. 247, 249].

On May 23, 2003, Nichols filed his petition for writ of habeas corpus [Court File No. 9] which the Court returned as insufficient [Court File No. 14]. On September 2, 2003, petitioner filed another habeas corpus petition [Court File Nos. 34, 35] which was stricken from the record [Court File No. 77]. On November 20, 2003, Nichols filed an amended habeas petition [Court File No. 78]. The State has filed a motion to dismiss pursuant to 28 U.S.C. § 2254(d) [Court File No. 119], to which petitioner has objected [Court File Nos. 140, 211, 213].

III. STANDARDS OF REVIEW

A. Habeas Claims Cognizable Under 28 U.S.C. § 2254

A federal district court has jurisdiction to grant a writ of habeas corpus under § 2254 of Title 28 to the United States Code. 28 U.S.C. § 2254. Section 2254(a) limits the court's jurisdiction to those cases in which a petitioner "in custody pursuant to the judgment of a State court" alleges "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The initial question in a habeas petition is, therefore, whether the petitioner raises claims cognizable under § 2254(a).

B. Review of Habeas Claims on the Merits

The Antiterrorism and Effective Death Penalty Act ("AEDPA") made a number of procedural and substantive changes to the habeas corpus provisions codified in Chapter 153 of Title 28 of the United States Code. Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), limits a federal district court's review of habeas claims that were adjudicated on the merits in state court. In particular, a court considering a habeas claim must defer to any decision by a state court concerning that claim unless the state court's judgment (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)(1)-(2). The United States Supreme Court has interpreted the language of § 2254. See Williams v. Taylor, 529 U.S. 362, 402 (2000) (O'Connor, J., delivering the opinion of the Court as to Part II and concurring as to Parts I and III-V); see also Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001) (construing Williams).

According to the Williams Court, the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" refers to "holdings, as opposed to dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. Hence, a federal district court hearing a habeas corpus petition may not look to lower federal court decisions to determine whether the state court's decision "was contrary to, or involved an unreasonable application of, clearly established law." See id.; Harris, 212 F.3d at 943-44.

The phrase "contrary to . . . clearly established precedent" means "substantially different from the relevant precedent of [the Supreme Court]." Williams, 529 U.S. at 405. A state court decision is "contrary to . . . clearly established precedent" if the state court applied a rule contradicting the governing law set forth in Supreme Court cases. Id. Similarly, a state court decision is "contrary to . . . clearly established precedent" if the state court confronted a set of facts materially indistinguishable from a Supreme Court decision and arrived at a different result. Id. at 405-08. However, a state court decision applying valid Supreme Court precedent does not fall within the "contrary to" language and cannot be reviewed by a federal court under § 2254(d)(1), even if the federal court would have reached a different result in applying the rule.

The phrase "an unreasonable application of . . . clearly established precedent" means an "application of clearly established law [that] was objectively unreasonable." Id. at 409. It does not mean "an incorrect application of federal law." Id. at 410 (emphasis original). Hence, if a federal court concludes in its independent judgment that the state-court decision applied clearly established federal law erroneously or incorrectly, it could grant habeas relief under § 2254(d)(1) only if the application was also unreasonable. Id. at 410-13.

In sum, the changes made to § 2254(d) by the AEDPA require federal courts to pay greater deference to the determinations made by state courts than they were required to under the previous statutory language. Tinsley v. O'Dea, 142 F.3d 436 (6th Cir.) (unpublished table decision), available in 1998 WL 124045, at *2, cert. denied, 525 U.S. 937 (1998); Harpster v. Ohio, 128 F.3d 322 (6th Cir. 1997), cert. denied, 522 U.S. 1112 (1998); Spreitzer v. Peters, 114 F.3d 1435, 1441 (7th Cir.), modified on other grounds, 127 F.3d 551 (1997), cert. denied, 522 U.S. 1120 (1998).

C. Factual Bases for Habeas Claims

In reviewing a state court's adjudication of a habeas claim, the federal district court must presume the state court's factual determinations were correct. 28 U.S.C. § 2254(e)(1). The petitioner may rebut this presumption of correctness by clear and convincing evidence. Id. If the petitioner has failed to develop the factual basis for his habeas claim in the state-court proceedings however, he generally is not entitled to an evidentiary hearing unless (1) the legal or factual basis of the habeas claim did not exist at the time of the state-court proceedings, and (2) "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense." Id. § 2254(e)(2).

A petitioner "fail[s] to develop the factual basis" for his habeas claim in the state-court proceedings through a lack of diligence or some greater fault attributable to him or his counsel. Williams v. Taylor, 529 U.S. 420, 431-35 (2000). Congress intended that "prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing." Id. Hence, whether a petitioner must satisfy the heightened standard imposed by § 2254(e)(2) depends on whether the petitioner was diligent in his efforts to develop a factual basis for his claim, not on whether the facts could have been discovered or whether those efforts would have been successful. Id. at 433-37.

Lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain because there is no relationship between the petitioner's fault and the impossibility of discovery. 28 U.S.C. § 2254(e)(2)(A)(i). Similarly, a petitioner's lack of diligence or fault will not bar a hearing if there is clear and convincing evidence a reasonable trier of fact would not have found the petitioner guilty of the underlying offense but for constitutional error, id. § 2254 (e)(2)(B), or if a new rule of constitutional law not available at the time of the earlier proceedings is made retroactive to cases on collateral review by the Supreme Court, id. § 2254(e)(2)(A)(i). Thus, a petitioner who failed to develop the factual basis of a claim in state court proceedings through lack of diligence or fault has an opportunity to obtain an evidentiary hearing if the legal or factual basis of the claim did not exist at the time of state court proceedings. Williams, 529 U.S. at 435-37.

In summary, a petitioner must be diligent in developing the record and, if possible, in presenting all claims of constitutional error so the state court will have its rightful opportunity to adjudicate federal rights. If the petitioner contributes to the absence of a full and fair adjudication in state court and fails to diligently develop the record, then an evidentiary hearing is prohibited in federal court pursuant to § 2254(e)(2) unless the other stringent requirements of the statute are met. If a petitioner made insufficient effort to pursue a claim in state court, then he will be prohibited from pursuing the claim in federal court. However, if a petitioner failed to develop the factual basis of a claim because he was unable to develop his claim in state court despite diligent effort, then an evidentiary hearing will not be barred by § 2254(e)(2). See id. at 437.

D. Procedural Default

Title 28, United States Code, Section 2254(b), limits federal court jurisdiction to hear a habeas claim to those cases in which a petitioner has exhausted all available state court remedies:

(1) 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 unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective processes; or circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

28 U.S.C. § 2254(b); see also Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509, 519 (1982); Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts.

A petitioner has failed to exhaust his available state court remedies if he still has the opportunity to raise his claim by any available state court procedure. Gray v. Netherland, 518 U.S. 152, 161 (1996), Preiser v. Rodriguez, 411 U.S. 475, 477, 489-90 (1973); Gall v. Parker, 231 F.3d 265, 283-84 (6th Cir. 2000), cert. denied, 533 U.S. 941 (2001). To exhaust these state remedies, the petitioner must have presented to the state courts both the legal basis of the claim for which he seeks habeas relief and the factual basis of the claim. Gray, 518 U.S. at 162-63 (stating that the exhaustion requirement is not satisfied "by presenting the state courts only with the facts necessary to state a claim for relief"); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The factual allegations made in federal court must be the same factual allegations made in state court, and the substance of a federal habeas claim presented to the federal court must first be presented to the state court. Picard, 404 U.S. at 276.

When a petitioner raises different factual issues under the same legal theory, he is required to present each factual claim to the highest state court in order to exhaust his state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A petitioner has not exhausted his state remedies if he has merely presented a particular legal theory to the courts without presenting each factual claim. Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir. 1987). Moreover, each factual claim must be presented to the state courts as a matter of specific federal law. Anderson v. Harless, 459 U.S. 4, 6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made"); Gray, 518 U.S. at 163 ("It is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the 'substance' of such a claim to a state court"); Duncan v. Henry, 513 U.S. 364, 366 (1995) ("If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.").

Conversely, if a petitioner presented the substance of his habeas claim to the state courts, an elaboration of the facts or legal theories will not result in a new claim. Jones v. Washington, 15 F.3d 671, 674-75 (7th Cir.), cert. denied, 512 U.S. 1241 (1994). The standard for determining whether the petitioner has exhausted the factual basis of his claim is whether the additional facts "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986). The supplementation and clarification of the state-court factual record does not necessarily change a claim so dramatically as to require that the state courts be given a new opportunity to hear the issues. Id. at 258-60. The "failure to make every factual argument to support [a] claim does not constitute a failure to exhaust." Patterson v. Cuyler, 729 F.2d 925, 929 (3rd Cir. 1984); see also Picard, 404 U.S. 270 (1971) (A claim may be fairly presented to the state court without citing chapter and verse of the Constitution.).

At bottom, a claim sought to be vindicated in a federal habeas proceeding must have first been raised in the state courts so the state courts have the first opportunity to hear the claim. The state court to which the petitioner presented the issue of federal law must address the merits of those claims. Coleman v. Thompson, 501 U.S. 722, 734-35 (1991). If the state court decides those claims on an adequate and independent state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, the petitioner is barred by this procedural default from seeking federal habeas review, unless he can show cause and prejudice for that default. Edwards v. Carpenter, 529 U.S. 446 (2000); Teague v. Lane, 489 U.S. 288, 297-99 (1989); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977). Cause for a procedural default depends on some "objective factor external to the defense" that interfered with the petitioner's efforts to comply with the procedural rule. Coleman, 501 U.S. at 752-53; Murray v. Carrier, 477 U.S. 478, 488 (1986).

E. Miscarriage of Justice: Actual Innocence

A petitioner may avoid the procedural bar and the necessity of showing cause and prejudice by demonstrating "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Carrier, 477 U.S. at 496). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id.; see also Sawyer v. Whitley, 505 U.S. 333, 339 n.5 (1992) (holding that a petitioner must "show a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of the facts would have entertained a reasonable doubt" (citations omitted)).

In addition to a claim of actual innocence, a habeas petitioner must demonstrate "an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). Thus, "a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 404. The Supreme Court of the United States has explicitly tied the fundamental miscarriage of justice exception to the petitioner's innocence to ensure the exception would remain rare and only be applied in the extraordinary case, while also ensuring relief would be extended to those who are truly deserving. See Schlup, 513 U.S. at 299.

The miscarriage of justice exception is concerned with actual - not legal - innocence. See Smith v. Murray, 477 U.S. 527, 537 (1986). Hence, to show "actual innocence" of the death penalty imposed, a petitioner must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found petitioner eligible for the death penalty. See Sawyer, 505 U.S. at 336. Actual innocence "does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense." Smith, 477 U.S. at 537, quoted in Sawyer, 505 U.S. at 339-40. "Actual innocence" of the death penalty is a very narrow exception and must be determined by relatively objective standards. The "actual innocence" requirement must focus on those elements that render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer, 505 U.S. at 347. Finally, "if a prisoner purposefully or by inadvertence lets the time run under which he could have filed his [habeas] petition, he cannot file a petition beyond the statutory time, even if he claims 'actual innocence.'" Workman v. Bell, 227 F.3d 331, 342 (6th Cir. 2000), cert. denied, 531 U.S. 1193 (2001).

F. Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court will render summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show no genuine issue of material fact exists. Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994), cert. denied, 516 U.S. 806 (1995); Kentucky Div., Horsemen's Benevolent & Protective Assoc., Inc. v. Turfway Park Racing Assoc., Inc., 20 F.3d 1406, 1411 (6th Cir. 1994). The Court must view the facts and all inferences drawn therefrom in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Oakland Gin Co., Inc. v. Marlow, 44 F.3d 426, 429 (6th Cir. 1995); City Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244, 250 (6th Cir. 1994).

Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party may not rest on its pleadings, but must come forward with some significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Lansing Dairy, 39 F.3d at 1347; Horsemen's Benevolent, 20 F.3d at 1411; see also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992) (holding courts do not have the responsibility to search sua sponte the record for genuine issues of material fact). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.

The Court determines whether sufficient evidence has been presented to make the issue of fact a proper question for the trier of fact, but does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435-36 (6th Cir. 1987). The standard for summary judgment mirrors the standard for directed verdict. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [fact finder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. There must be some probative evidence from which the fact finder could reasonably find for the nonmoving party. If the Court concludes a fair-minded ...


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