The opinion of the court was delivered by: Leon Jordan United States District Judge
This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Edward L. Harris ("Harris"). The matter is before the court on the motion for partial summary judgment and the amended motion for summary judgment, filed by the Attorney General for the State of Tennessee on behalf of the respondent, and Harris' responses thereto. For the following reasons, the respondent's motion for summary judgment will be GRANTED to the extent set forth herein, and, for the reasons set forth below, a majority of Harris' claims will be DENIED. As noted, respondent should file his answer or other response with respect to the remaining claims.
I. Procedural History and Factual Background
The State has provided the court with copies of Harris' state court proceedings. [Court File No. 6, Notice of Filing of Documents, Addenda 1-19; Court File No. 47, Amended Notice of Filing of Documents, Addendum 2A (Transcript of Pre-Trial Hearing on April 18, 1988); Court File No. 48, Amended Notice of Filing of Documents, Addendum 2B (Supplemental Transcript of Proceedings on May 12, 1988, regarding statements to agent David Davenport)].
Harris, alias "Tattoo Eddie," was convicted in Sevier County, Tennessee, of one count of armed robbery, for which he received a sentence of life imprisonment, and two counts of first degree murder, for which he was sentenced to death. His convictions and sentences were affirmed on direct appeal. State v. Harris, 839 S.W.2d 54 (Tenn. 1992), cert. denied, 507 U.S. 954 (1993). He was also denied post-conviction relief. Harris v. State, 947 S.W.2d 156 (Tenn. Crim. App. 1996), permission to appeal denied, id. (Tenn. 1997).
During the pendency of the case, the experts hired by the parties, as well as the expert appointed by the court, determined that petitioner is mentally retarded. Also during the pendency of the case, the Tennessee Supreme Court and the United States Supreme Court determined that, under their respective constitutions, persons meeting the criteria for mental retardation are not eligible for the death penalty. As a result, the Criminal Court for Sevier County, Tennessee, upon agreement of counsel for petitioner and the State, modified petitioner's two death sentences to consecutive sentences of life imprisonment.
The facts that led to Harris' convictions are set forth in detail in the opinion of the Tennessee Supreme Court on direct appeal, 839 S.W.2d at 59-63, and summarized by the Tennessee Court of Criminal Appeals in post-conviction proceeding as follows:
The appellant was convicted of the September 13, 1986, murders of two employees of the Rocky Top Village Inn in Gatlinburg. Also charged in the murders were Kimberly Pelley, the appellant's girlfriend; Joseph DeModica*fn1 , a Georgia state penitentiary acquaintance of the appellant; and transvestite, Rufus Doby, also known as Ashley Silvers. At trial, two key sources of evidence for the State were the testimony of the co-defendant, DeModica, which implicated the appellant in the murders, and a letter describing the murders, recovered in a phone booth near the police station in Maggie Valley, North Carolina.
At trial, Joseph DeModica testified that, on the day of the murders, he, Doby, Pelley, and the appellant drove to Gatlinburg. Following a visit to the Great Smoky Mountains National Park, the group drove to the Rocky Top Village Inn. DeModica observed the appellant, Pelley, and one of the victims, Melissa Hill, enter the motel room in which Hill's body was subsequently discovered. Pelley carried a knife in her hand. DeModica remained in the parking lot. He heard several screams. A security guard, Troy Valentine, arrived, but encountered the appellant, who had come out of the motel room. Valentine and the appellant began to fight. Pelley also came out of the motel room, took the guard's flashlight, and struck him over the head with it. The appellant and Pelley then dragged Valentine into the motel room. DeModica heard two gunshots. He testified that, when the appellant and Pelley again came out of the motel room, they looked as if someone had sprayed them with red paint.
The State presented evidence to corroborate various aspects of DeModica's testimony. For example, with respect to the knife that DeModica observed in Pelley's hand, an acquaintance testified that the appellant carried a lock-blade knife and a hunting knife with a serrated edge. Moreover, each victim suffered a deep neck wound from a serrated knife. Each victim had also been shot in the head. The massive amount of blood at the crime scene and the number of injuries inflicted upon each victim were consistent with DeModica's description of the appellant and Pelley following the murders. Finally, DeModica knew that Valentine had been clubbed with his flashlight. This information was not released to the media and would have been known only to the killers.
The Maggie Valley letter, which was found three days after the murders, also contained information which only the killers would have known. The State's document examiner excluded DeModica, Pelley, and Silvers as the writer of the letter. Expert testimony further established strong indications that the appellant wrote this letter. A former girlfriend of the appellant, Antonia Jones, identified the handwriting in the Maggie Valley letter as being that of the appellant.
Following his arrest, the appellant made a series of statements to Tennessee Bureau of Investigation agents and Georgia law enforcement officers. Initially, the appellant denied going to Gatlinburg. However, he subsequently stated that he and his companions had eaten in a restaurant in Pigeon Forge, and that, while he and Pelley were in Gatlinburg with DeModica and Silvers, he had purchased a chain for Pelley. He denied participating in the killings and implied that DeModica and Silvers were the murderers.
The appellant did not testify at the guilt phase of his trial. Essentially, his defense, as advanced through the appellant's statements to the police following his arrest, was a denial of any participation in the crime. However, reviewing the sufficiency of the evidence on direct appeal, the supreme court remarked that "the overwhelming evidence supported the verdict of the jury...." Similarly, the post-conviction court observed, "And the proof came in. The proof continued to come in.... This evidence as it rolled in, was overwhelming."
Harris v. State, 947 S.W.2d at 161-62 (quoting State v. Harris, 839 S.W.2d at 76).*fn2
Harris has set forth a multitude of claims, many with subparts, challenging his convictions and sentences of death. The Attorney General contends the respondent is entitled to judgment as a matter of law based upon procedural default and upon the findings of the Tennessee state courts. In addition, the court notes that, because his two death sentences have been modified to consecutive sentences of life imprisonment, a number of Harris' claims are now moot. The court will refer to Harris' claims set forth in his amended habeas corpus petition by their numeric paragraph designation assigned by Harris.
The court finds that the following claims, which pertain to the imposition of petitioner's death sentences, are moot and will therefore be denied as moot. In instances where a claim contains subparts, some of which are moot and other not, the claim is referenced with only the moot subpart set forth.
83. Before, during, and/or after Petitioner's trial the State violated Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. These unconstitutional violations include, but are not limited to, the following:
a. T.C.A. §39-2-203(f)*fn3 and (g) provides insufficient guidance to the jury concerning who has the burden of proving whether mitigation outweighs aggravation and what standard of proof the jury should use in making that determination.
b. T.C.A. §39-2-203 does not sufficiently narrow the population of defendants, convicted of first degree murder, who are eligible for a sentence of death.
c. T.C.A. §39-2-203 does not sufficiently limit the exercise of the jury's discretion because, once the jury finds aggravation, it can impose the sentence of death no matter what mitigation is shown.
d. T.C.A. §39-2-203 insufficiently limits the exercise of the jury's discretion by mandatorily requiring the jury to impose a sentence of death if it finds the aggravating circumstances to outweigh the mitigation circumstances.
e. T.C.A. §39-2-203 allows the jury to accord too little weight to non-statutory mitigating factors and limits the jury's options to impose the sentence of life.
f. T.C.A. §39-2-203 does not require the jury to make the ultimate determination that death is the appropriate punishment.
g. T.C.A. §39-2-203 does not inform the jury of its ability to impose a life sentence out of mercy.
h. T.C.A. §39-2-203 provides no requirement that the jury make findings of facts as to the presence or absence of mitigating circumstances, thereby preventing effective review of appeal under T.C.A. §39-2-205(c).
i. The imposition of the sentence of death pursuant to T.C.A. §39-2-203 is cruel and unusual punishment.
j. The proportionality and arbitrariness review conducted by the Tennessee Supreme Court pursuant to T.C.A. §39-2-205 is inadequate and deficient, in part because the Court did not consider all mitigating evidence presented at trial.
k. T.C.A. §39-2-203(c) permits the introduction of relatively unreliable evidence in the State's proof of aggravation or rebuttal of mitigation.
l. T.C.A. §39-2-203(d) allows the State to make final closing arguments to the jury in the penalty phase.
m. T.C.A. §39-2-203(h) prohibited the jury from being informed of the consequences of its failure to reach a unanimous verdict in the penalty phase.
85. In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the statutory provisions and actual practices that govern appellate review of death sentences in Tennessee, and that were utilized in reviewing petitioner's sentence of death on appeal:
a. Denied Petitioner a fundamentally fair hearing on appeal on the issue of whether he should live or die;
b. Denied Petitioner adequate and fair notice of the facts and criteria relief upon by the Supreme Court of Tennessee in determining whether he should live or die;
c. Denied Petitioner a reliable determination - free from arbitrariness, caprice and prejudice - of the issues of whether he should live or die;
d. Denied Petitioner the effective assistance of counsel on appeal;
e. Failed to consider and weigh all mitigating evidence, including, e.g., evidence of Petitioner's drug problems;
f. Failed to compare the facts and the sentence to those in other similar cases, i.e., to conduct a meaningful proportionality review;
g. Did not have complete information before it in the trial court's report before performing such review;
h. Had no comprehensive information upon which to find arbitrariness in sentencing;
i. Failed to consider the arbitrary factors influencing the jury including outside influences, the introduction of inflammatory pictures, and inflammatory argument by the prosecutor.
86. The jury instructions in this case at the guilt phase violated Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. These unconstitutional jury instructions include, but are not limited to, the following:
f. Instructions on an aggravating circumstance that duplicated an element of the crime itself.
g. Instructions which required the jury to give weight to non-statutory aggravating factors, e.g., Tr. 1529.
87. The jury instructions in this case at the penalty phase violated Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. These unconstitutional jury instructions include, but are not limited to, the following:
a. Instructions that shifted the burden of proof to Petitioner to show the existence of mitigating circumstances.
b. Instructions on aggravating circumstances which failed to narrow the class of persons eligible for the death penalty and to provide meaningful detained guidance to the jury, including "murder during the course of a felony" aggravating circumstance and the "heinous, atrocious, or cruel" aggravating factor.
c. Instructions that diminished the jury's responsibility for imposing the death penalty.
d. Instructions on an aggravating circumstance which were vague and over broad as applied in Petitioner's case and which did not adequately channel the jury's discretion and invited arbitrary, capricious, and inconsistent application of the death penalty.
e. Instruction on an aggravating circumstance that duplicated an element of the crime itself.
f. Instructions which required the jury to give weight to non-statutory aggravating factors, e.g. Tr. 1529.
88. The State violated Petitioner's rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because it has failed to demonstrate that, in light of Petitioner's fundamental right to life, the death penalty is necessary to promote any compelling state interest and is the least restrictive means of achieving any such interest.
89. The State violated Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because electrocution constitutes cruel and unusual punishment which does not comport with the evolving standards of decency of a civilized society. Petitioner alleges that execution by electrocution violates the Eighth Amendment to the Constitution. [Subparts a-e with case law are omitted].
92. In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, the Tennessee death penalty statute is based upon an unconstitutional standard.
93. Execution of the Petitioner would violate the Eighth Amendment because Petitioner is incompetent to be executed.
94. The death penalty is imposed in Tennessee in an arbitrary, capricious, and irrational manner that shocks the conscience and is based on racial, gender-based, economic, and geographic discrimination and is inconsistent with sentences imposed in similar cases in Tennessee. In these circumstances Petitioner's sentence violated the Eighth and Fourteenth Amendments to the United States Constitution.
95. Tennessee's death penalty lacks any constitutional, moral or penalogical justification, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of The United States Constitution.
96. In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, the jury considered non-statutory aggravating circumstances.
The Attorney General contends that a majority of Harris' claims are procedurally defaulted. The doctrine of procedural default is an extension of the exhaustion doctrine. A state prisoner's petition for a writ of habeas corpus cannot be granted by a federal court unless the petitioner has exhausted his available state court remedies. 28 U.S.C. § 2254.
This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971). See also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (Exhaustion "generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review."). Moreover, the substance of the claim must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).
Harris cannot file another state petition for post-conviction relief. Tenn. Code Ann. § 40-30-102(a). Accordingly, he has no remedy available to him in the Tennessee state courts for challenging his conviction and is deemed to have exhausted his state remedies.
It is well established that a criminal defendant who fails to comply with state procedural rules which require the timely presentation of constitutional claims waives the right to federal habeas corpus review of those claims "absent a showing of cause for the non- compliance and some showing of actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, 433 U.S. 72, 84 (1977). Accord Engle v. Isaac, 456 U.S. 107, 129 (1982) ("We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.").
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
"When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). Therefore, to excuse his procedural default, Harris must first demonstrate cause for his failure to present an issue to the state courts. "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).
Harris acknowledges that a number of his claims were never raised in the state courts.
He alleges, however, that the State of Tennessee failed to provide him a full and fair opportunity to challenge the federal constitutional errors which he claims infected his convictions and sentences of death. According to Harris, the State denied him the resources he required in order to discover the facts he has presented in his habeas corpus petition and thus obstructed his efforts to obtain state court review of his convictions and sentences.
This court has reviewed the record of Harris' trial [Addendum 1, Technical Record; Addendum 2, Transcript of the Evidence, vol. I-XX; Addendum 3, Exhibits to Pretrial Motions] and post-conviction proceedings [Addendum 11, Technical Record; Addendum 12, Transcript of the Evidence, vol. 1-2]. The court finds that plaintiff had a full and fair opportunity to present the issues which were procedurally defaulted and thus he has failed to demonstrate cause to excuse his procedural default.
As Harris lacks cause for his state procedural default, this court need not consider whether petitioner would be prejudiced by his inability to raise the claims in these proceedings. McCleskey v. Zant, 499 U.S. 467, 502 (1991); Murray v. Carrier, 477 U.S. at 494 (Supreme Court rejected proposition that showing of prejudice allows relief in the absence of cause).
Harris also claims his procedural default should be excused because to do otherwise would result in a miscarriage of justice based upon the conviction of a factually innocent person. "Briefly stated, a fundamental miscarriage of justice occurs when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Mitchell v. Rees, 114 F.3d 571, 579 n.12 (6th Cir. 1997) (citations omitted). Harris, however, has failed to demonstrate that he is actually innocent of the crimes for which he was convicted.
The court finds that the following claims are procedurally defaulted, either by petitioner's failure to raise them at all in the state courts, or if raised in the trial court, then having been abandoned when not raised on appeal to the Tennessee Supreme Court or Tennessee Court of Criminal Appeals, or, where noted, having been raised only as state law claims or conclusory allegations without supporting facts. In instances where a claim contains subparts, some of which are procedurally defaulted and others not, the claim is referenced with only the defaulted subpart set forth.
78. In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, the trial court's instructions at the guilt and sentencing phases equated "reasonable doubt" with an "honest doubt which ... will not permit your mind to rest as to the certainty of guilt," or a doubt which was not merely possible or imaginary. Tr. 1453. These instructions unconstitutionally relieved the prosecution of its burden of proof. Petitioner is, therefore, entitled to a new trial and sentencing hearing. See e.g., Rickman v. Dutton, 864 F.Supp. 868 (M.D. Tenn. 1994).
80. In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, Petitioner was denied the effective assistance of counsel at the guilt phase of trial, the sentencing phase of trial, on appeal, and in post-conviction proceedings. In particular counsel failed to perform reasonably, and there is a reasonable probability, sufficient to undermine confidence in the outcome of trial, sentencing, appeal, and post-conviction proceedings, that, had counsel performed reasonably, Petitioner would not have been convicted or sentenced to death, and/or would have received relief on appeal or in post-conviction proceedings. Specifically, counsel was ineffective for the following non-exclusive list of reasons:
c. Counsel was ineffective for failing to investigate and/or demonstrate that Mr. Harris suffered severe, pervasive, and long-standing brain damage, and that such brain damage rendered Mr. Harris unable to conform his conduct to the requirements of the law and/or substantially impaired his ability to do so. Counsel was ineffective for failing to demonstrate that Mr. Harris was mentally retarded.
d. Counsel suffered from an undisclosed and irreconcilable conflict of interest. Within days after the subject offenses, Joseph Charles Demodica and Rufus Edward Doby, Petitioner's co-defendants, were arrested in Gatlinburg, Tennessee. At the time of their arrest they were driving the stolen white Toyota allegedly used in the subject offenses. In their possession were items stolen from the Father Ryan Catholic School in Nashville, Tennessee. They were charged with possessing such items of stolen property. Their story at the time was that the Petitioner, who was not present, had stolen those items. At the time of their arrest they were specifically questioned regarding the murders of Mr. Valentine and Mrs. Hill. They were given a lie detector test regarding those murders. Their story was that they were not in Gatlinburg at the time of the murders, a story standing in stark contrast to Mr. Demodica's testimony at Petitioner's trial. Mr. Charles Sexton was the attorney appointed to represent Mr. Demodica and Mr. Silvers on these charges. At Petitioner's trial Mr. Sexton failed to impeach Mr. Demodica with the prior inconsistent statement he made at the time he was being represented by Mr. Sexton or with the prior inconsistent statements made by Mr. Demodica to Mr. Sexton during the course of Mr. Sexton's representation. At the time of state post-conviction proceedings Mr. Sexton was an officer of the State of Tennessee, i.e., an elected judge, and had an affirmative duty to reveal his conflict of interest. The failure of Mr. Sexton to reveal that conflict prevented the same from being presented to the state courts of Tennessee. Moreover, under the circumstances, such conflict was not discoverable through the exercise of due diligence. Finally, the State of Tennessee failed to provide Petitioner with the resources to discover that conflict of interest. In all instances the actions of the State of Tennessee constituted cause to excuse Petitioner's failure to present this claim to the state courts of Tennessee.
e. To the extent that it was available through the exercise of due dilligence [sic], counsel failed to present the exculpatory evidence set forth in Paragraph 79.
f. Counsel failed to move for a directed verdict as to the offenses [sic] of common law murder in the first degree when the State failed to introduce any evidence to support the statutory element of deliberation.
g. ... Counsel failed to secure the appearance and testimony of a crime scene investigation expert to testify that: (1) there was very little probability and/or likelihood that unidentified hairs found on the body of victim Valentine and elsewhere at the crime scene could have been deposited in the manner alleged by the State or, for that matter, in any manner consistent with Mr. Harris' alleged guilt; and (2) there was very little probability and/or likelihood that Mr. Harris could have been involved in the fight with Mr. Valentine described during Mr. Demodica's testimony without leaving hair or trace evidence, contrary to the theory of the State. ... [The omitted allegations are addressed elsewhere in this opinion].
h. Counsel failed to develop a reasonable trial strategy or defense for petitioner.*fn4
i. Counsel failed to investigate and present all available evidence that would support petitioner's claims of innocence regarding all charges including, but not limited to, the first degree murder charges.*fn5
j. Counsel failed to properly rebut the State's case at both the guilt phase and the sentencing phase of trial.*fn6
k. Counsel failed to prepare adequately for either the guilt phase or the penalty phase of trial and to develop and present to the jury a coherent theory of defense at either phase.*fn7
l. Counsel lacked the experience and knowledge necessary for effective representation of Petitioner in a death penalty case.*fn8
m. Counsel failed to conduct, and/or was prevented by the trial court from conducting, a meaningful voir dire sufficient to discover and remove biased jurors or to prevent the removal for cause of unbiased jurors. Alternatively, the trial court failed and/or refused to conduct a meaningful voir dire sufficient to discover and remove biased jurors, or to prevent the removal for cause of unbiased jurors. No inquiry was made regarding whether jurors who favored capital punishment would follow the law. Furthermore, when Jurors Mynatt, Carr, Reagan, Gibson, Vandergriff, Norton, Hampton, Newman, Jones, Blalock, Gillespie, Cates, and Peerman, indicated a generalized opposition to the imposition of the death penalty, no adequate inquiry was made to determine whether such jurors were excludable under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
n. Counsel failed to exclude, and/or was prevented by the trial court from excluding, jurors whose opinions would lead them to impose the death penalty in every case or those jurors whose views would prevent or substantially impair the performance of their duties as a juror.
o. Counsel failed to challenge for cause those jurors who by their answers showed some type of bias against the petitioner, his case, or any group or class to which the petitioner belongs.
p. Counsel failed to file necessary motions before, during, and after trial, on direct appeal or on post-conviction. [Harris' claim that his counsel failed to move to suppress the statement made by him to law enforcement was litigated in post-conviction proceedings and is considered by the court, infra].
q. Counsel failed to adequately advise Petitioner as to the consequences of his decision to testify and/or render advice sufficient to allow Petitioner to make an informed and conscious choice not to testify at either the quilt phase or penalty phase of trial or any prior post-conviction proceedings. ... [The omitted allegations are addressed elsewhere in this opinion].
r. Counsel failed to assure Petitioner's presence at crucial stages during all prior proceedings. E.g., Tr. 1129.
s. Counsel was ineffective for allowing Mr. Harris to speak with the trial court in a transcribed ex parte proceeding without being present. Counsel was also ineffective for failing to advise Mr. Harris of the consequences of doing so without benefit of counsel and while being recorded.
t. Counsel failed to object to the prosecutor's improper, inflammatory, prejudicial, inappropriate, and misleading or inaccurate statements concerning the law, the evidence or the petitioner during voir dire, opening, direct examination, cross examination, closing, and rebuttal closing at the guilt phase of Petitioner's trial, and during opening, direct examination, cross examination, closing and rebuttal closing at the penalty phase of Petitioner's trial, e.g., (i) the prosecutor indicated that Mr. Harris had some burden to come forward with corroboration for the fact that he did not have a gun or knife, an impermissible comment on Mr. Harris' right to remain silent. (Tr. 1435); (ii) the prosecutor indicated that Mr. Harris had some burden to come forward with corroboration for the fact that the handwriting on the Maggie Valley note was not his, another impermissible comment on Mr. Harris' right to remain silent. (Tr. 1435); and, (iii) the prosecutor urged the jury to consider the impact of the crime on the victim, the victim's family, society and/or the victim's social, moral or religious worth.
u. Counsel failed to object to jury instructions which shifted the burden of proof on malice, an element of ...