The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge
This is a petition for the writ of habeas corpus under 28 U.S.C. § 2254; the petitioner is presently incarcerated on death row. The matter is before the court on the petitioner's amendment to the amended petition, petitioner's motion for summary judgment, and the respondent's response to the amendment and response to the motion for summary judgment.
For the following reasons, the motion for summary judgment [Court Doc. 307] will be GRANTED IN PART and DENIED IN PART. Petitioner will be GRANTED a conditional writ of habeas corpus that will result in the vacation of his conviction and sentence unless the State of Tennessee commences a new trial against him within 180 days after this judgment becomes final.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was convicted of the first degree murder of Mrs. Carolyn Muncey and was sentenced to death. His conviction and sentence were affirmed on direct appeal. State v. House, 743 S.W.2d 141 (Tenn. 1987). House was twice denied state post-conviction relief. House v. State, C.C.A. No. 28, 1989 WL 152742 (Tenn. Crim. App. Dec. 15, 1989), perm. app. denied, id. (Tenn. March 5, 1990), cert. denied, 498 U.S. 912 (1990); House v. State, 911 S.W.2d 705 (Tenn. 1995), cert. denied, 517 U.S. 1193 (1996).
Petitioner then filed his petition for the writ of habeas corpus. This court*fn1 granted summary judgment as to all claims other than petitioner's claim of actual innocence and the claims associated with the actual innocence claim. The basis for summary judgment was that almost half of the claims were procedurally defaulted; the court rejected the remaining claims on the merits. House v. Bell, Civil Action No. 3:96cv883 (E.D. Tenn. June 25, 1998) (order and memorandum opinion granting partial summary judgment). After an evidentiary hearing on the claim of actual innocence, the court concluded that petitioner had failed to demonstrate actual innocence and denied the habeas corpus petition. Id. (E.D. Tenn. February 16, 2000) (order and memorandum opinion denying habeas corpus petition).
After granting en banc review, the Sixth Circuit affirmed the denial of habeas corpus relief. House v. Bell, 386 F.3d 668 (6th Cir. 2004) (en banc).
The United States Supreme Court reversed and remanded. House v. Bell, 126 S.Ct. 2064 (2006). The Supreme Court found that petitioner satisfied the gateway standard set forth in Schlup v. Delo, 513 U.S. 298 (1995), "for obtaining federal review despite a state procedural default." 126 S.Ct. at 2087. The Schlup standard requires "that prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Id. at 2076-77 (quoting Schlup, 513 U.S. at 327).
The Supreme Court further observed that "a petition supported by a convincing Schlup gateway showing 'raise[s] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error.'" Id. at 2077 (quoting Schlup, 513 U.S. at 317).
The result of the Supreme Court's decision is that this court must consider on the merits the claims that were procedurally defaulted. "House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims." Id. at 2087. After the case was remanded to this court, petitioner filed a motion for summary judgment on seven of his claims for relief. Because several of those claims were based upon evidence that was developed at the evidentiary hearing on the actual innocence claim, petitioner was allowed to amend his habeas corpus petition to conform to the proof. Respondent has now filed his response to the amended petition and his response to the motion for summary judgment.
II. PETITIONER'S CLAIMS FOR RELIEF
As noted, petitioner filed a motion for summary judgment on seven of his claims for relief. Those claims, as listed in petitioner's index of claims, are as follows:
39. Prosecutorial Misconduct -- Intentional Withholding of Evidence -- Blue Jeans
This claim relates to the State's delay in turning over petitioner's blue jeans to defense counsel for expert testing of the bloodstains. By the time petitioner's expert received the blue jeans, the bloodstains had deteriorated to such an extent that the expert was unable to do any meaningful testing. Petitioner moved to suppress the bloodstain evidence based upon the State's delay; the trial court denied the motion to suppress and the Tennessee Supreme Court affirmed. This court denied the claim on the merits, holding that the state courts' finding of no deliberate delay on the part of the State was presumed correct and that the state courts' determination that the evidence should not have been suppressed was not an unreasonable application of clearly established federal law.
40. Prosecutorial Misconduct -- Intentional Withholding of Evidence -- Blue Jeans -- Interference with Constitutional Right to Effective Assistance of Counsel
This claim was held procedurally defaulted based upon petitioner's failure to raise the claim in any state court proceeding.
41. Prosecutorial Misconduct -- Introduction of Tampered or False Evidence
In his original amended habeas corpus petition, petitioner alleged that the physical evidence used to convict him showed significant signs of tampering. He specifically claimed that the underpants taken from Mrs. Muncey showed no traces of semen at the time of their initial testing, pursuant to the orders of Dr. Carabia, the county medical examiner, but that semen was determined to be present when the underpants were tested by the FBI lab. The claim was procedurally defaulted based upon petitioner's failure to raise the claim in any state court proceeding.
Petitioner has apparently abandoned this claim with respect to Mrs. Muncey's underpants and now relies on evidence developed at the evidentiary hearing. He specifically alleges that FBI Special Agent Chester Blythe misled the jury with respect to the transfer of fibers from Mrs. Muncey's clothes to petitioner and vice versa. Agent Blythe testified that the blue jean fibers found on Mrs. Muncey's clothing were consistent with fibers from petitioner's blue jeans. On cross examination, Agent Blythe admitted that blue jean fibers were very common, that no fibers from Mrs. Muncey's clothing were found on the blue jeans, and that cotton clothing easily transfers and retains fibers.
When asked whether fibers from Mrs. Muncey's clothing were found on petitioner's blue jeans, Agent Blythe answered no but also opined that clothing made of nylon doesn't transfer at all and that Mrs. Muncey's nightgown was not the type of material that would transfer. Agent Blythe did not reveal that Mrs. Muncey's housecoat, bra, and panties were all made of cotton. Petitioner argues ...