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Duncan v. Carpenter

United States District Court, M.D. Tennessee, Nashville Division

March 4, 2015

DAVID CARL DUNCAN, Petitioner,
v.
WAYNE CARPENTER, Warden, Respondent.

MEMORANDUM

JOHN T. NIXON, Senior District Judge.

Petitioner David Carl Duncan, a prisoner in state custody confined under a sentence of death at Riverbend Maximum Security Institution, has filed a petition under 28 U.S.C. § 2254 for the writ of habeas corpus. By Order entered August 11, 2014, the Court disposed of all of Petitioner's claims except for his claims of ineffective assistance of counsel, and ordered additional briefing on the latter claims in light of intervening case law including Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012). (Doc. No. 238.) The parties have now completed their supplemental briefing (Doc. Nos. 242, 248, 249), and Petitioner's ineffective-assistance claims are ripe for adjudication.

For the reasons set forth below, Petitioner David Carl Duncan is entitled to federal habeas relief on the ground that his trial attorney rendered ineffective assistance at the sentencing phase of his capital murder trial. The Court will accordingly vacate Petitioner's sentence of death subject to the State's right to commence a new sentencing hearing consistent with this ruling. The petition will be denied in all other respects, and Petitioner's convictions and other sentences will not be affected by this ruling.

I. HISTORY AND STANDARD OF REVIEW

Petitioner was convicted on April 1, 1983, in Sumner County, Tennessee, of the first degree murder, armed robbery and aggravated rape of convenience store clerk Ruby Evelyn Burgess.[1] The trial court imposed life sentences for the robbery and rape. At the sentencing phase for the capital murder offense, the jury found two aggravating factors: (1) that the murder was heinous, atrocious or cruel, and (2) that it was committed during the perpetration of a felony. It further found that any mitigating factors did not outweigh the aggravating factors, and accordingly sentenced Petitioner to death. All of Petitioner's efforts to obtain relief from his convictions or sentences - including direct appeal, three state post-conviction proceedings and a motion to reopen the third, and two state habeas corpus actions - have been unsuccessful. The present action was filed in November 1988, stayed in 1990 pending Petitioner's exhaustion of state remedies, and reactivated in December 1999. Since that time, Petitioner has conducted discovery and filed two amendments to his petition, and the Court held a full evidentiary hearing on Petitioner's claims in 2012. In August 2014, the Court ruled on both parties' motions for summary judgment and disposed of all but 1 of Petitioner's 33 distinct claims for relief. (Doc. No. 238.) The only claim remaining for resolution is Petitioner's claim that he received ineffective assistance of counsel at the guilt and sentencing phases of his trial and on direct appeal, about which the parties submitted additional briefing through December 4, 2014. (Doc. Nos. 242, 248, 249.)

The Amended Petition breaks Petitioner's ineffective-assistance claim (Claim 13) into five sub-claims (13(a) through 13(e)), the first two of which are themselves broken into 18 and 14 subparagraphs respectively, amounting to an actual total of 35 claims. (Doc. No. 64, at 16-21.) Of that total, Petitioner asserts in his supplemental brief that he is pursuing relief on claims asserted in 4 subparagraphs that he maintains are exhausted: 13(a)(3), 13(a)(17), 13(b) and 13(d); and in 6 subparagraphs that he acknowledges are defaulted: 13(a)(1), 13(a)(2), 13(a)(5), 13(a)(6), 13(c) and 13(e). He also seeks to revive substantive claims from 10(b) and (c), which the Court previously dismissed as procedurally defaulted. The Court addresses those claims below.[2]

A state prisoner is entitled to a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because Petitioner filed his original petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the pre-AEDPA standard of review applies. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under that standard the Court may "make its own independent determination of [Petitioner's] federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings." Buell v. Mitchell, 274 F.3d 337, 344 (6th Cir. 2001) (quoting Wainwright v. Sykes, 433 U.S. 72, 87 (1977)).

State court findings of fact relevant to a district court's review of a habeas corpus petition are entitled to a presumption of correctness. 28 U.S.C. § 2254(d) (1966). However, under pre-AEDPA standards, that presumption can be overcome by any of eight statutory exceptions, including the district court's independent finding that the state court's findings are not fairly supported by the record. Id. ; Bragan v. Morgan, 791 F.Supp. 704, 717-18 (M.D. Tenn. 1992). The presumption of correctness does not attach to a state court's pure legal conclusions or to findings that involve mixed questions of law and fact. Sumner v. Mata, 449 U.S. 539, 597 (1981).

Subsections (b) and (c) of pre-AEDPA § 2254 require a habeas corpus petitioner to exhaust the state remedies available to him before raising claims in federal court. Exhaustion requires that petitioners "fairly present" federal claims to the state courts to provide them with an opportunity to correct alleged violations of state prisoners' federal rights. Picard v. Connor, 404 U.S. 270, 275-76 (1971). If the petitioner has no remedy currently available in state court, the exhaustion requirement is satisfied. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Teague v. Lane, 489 U.S. 288 (1989).

Although a claim may be deemed fully exhausted under these circumstances, the petitioner's failure to assert the claim in state court may constitute procedural default barring federal review. Gray, 518 U.S. at 162. The procedural default doctrine is an extension of the comity policy that underscores the exhaustion doctrine. As explained by the Supreme Court, under this doctrine "[t]his Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729-30 (1992). Thus, when a claim is procedurally barred under state law, it is procedurally defaulted for the purpose of federal habeas review, and cannot be considered on its merits unless the petitioner establishes cause and prejudice for the default, or that failure to review the claim will result in a miscarriage of justice, i.e., that he is actually innocent. Schlup v. Delo, 513 U.S. 298, 318-21 (1995); Alley v. Bell, 307 F.3d 380, 385-86 (6th Cir. 2002).

The constitutional standard for effectiveness of counsel applies to retained counsel and appointed counsel alike. Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980) ("The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection. Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers."). Claims of ineffective assistance of counsel are subject to the highly deferential two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether counsel was deficient in representing the defendant; and (2) whether counsel's alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To meet the first prong, a petitioner must establish that his attorney's representation "fell below an objective standard of reasonableness." Id. at 688. Mere attorney ignorance or inadvertence will not constitute "cause" unless the error rises to the level of a constitutional violation. See Coleman, 501 U.S. at 752-55. The "prejudice" component of the claim "focuses on the question of whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

In assessing counsel's performance, a reviewing court must be highly deferential and avoid the "second-guess[ing of] counsel's assistance..., [as] it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. The court must determine whether under the circumstances counsel's allegedly unreasonable acts or omissions "were outside the wide range of professionally competent assistance." Id. at 690. In order to avoid "the distorting effects of hindsight, " a reviewing "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that... the challenged action might be considered sound trial strategy.'" Id. at 689 (citation omitted).

Prejudice, under Strickland, requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court has further explained the Strickland prejudice requirement as follows:

In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is "reasonably likely" the result would have been different. This does not require a showing that counsel's actions "more likely than not altered the outcome, " but the difference between Strickland 's prejudice standard and a more-probable-than-not standard is slight and matters "only in the rarest case." The likelihood of a different result must be substantial, not just conceivable.

Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 791-92 (2011) (internal citations omitted).

With these standards in mind, the Court turns to Petitioner's specific claims of ineffective assistance.

II. EXHAUSTED CLAIMS

A. Paragraphs 13(b) and 13(d): Ineffectiveness Concerning Background, Intelligence and Mental Health Mitigation Evidence

At the sentencing hearing following Petitioner's murder conviction, his trial counsel, William Ligon, offered no proof in defense of Petitioner's life, and delivered this argument that fills less than two and a half pages of the trial transcript:

Ladies and gentlemen, it's not often that I lose my composure. It is not very often that I am at a loss for words, but, as the General said, mercy, because you all have already discharged a portion of your duties and we went through thirteen (13) hours the other day to let you know what you have to do if you came to the decision that you came to. There are two (2) families involved here. At this particular point in time, neither of them are happy with this situation. The family of Ms. Burgess, they know she won't be back. They knew she wouldn't be back when they found out that this serious crime has occurred. But I'll tell you what, I have learned something in the last two (2) or three (3) hours here, and I hope I'm not putting anyone on the spot, but Reverend Anderson and I have found out that charity and hope is still alive. And, in what you conveyed to me, after the jury came back with their verdict, I conveyed to my client and if I've ever met someone that I felt was a Christian and a giving person, sir, it's you. Now, when I leave here, no matter what your decision will be, I'm going to have to walk down and tell the mother that - all that's gone on here in the last two (2) or three (3) hours. That her baby boy - and I told her before she left, and think about it, ladies and gentlemen, the best he can do is life. That's the best. She knows what the worst is. David Carl Duncan, sitting over here, believe it or not, ever since he's been picked up, knew what the worst was. And, in a few minutes, after your deliberation, I hope I'm able to prove him wrong. But the disappointment that I have standing here, and not so much disappointment in the outcome of this circumstance, ladies and gentlemen, just disappointment in the fact that faced with your choices, I'm disappointed that you have to make it. I sincerely hope that you will consider the Duncan family, and I sincerely hope that you will consider Ms. Anderson's family, and I sincerely hope that you consider the fact that even though she's gone, this woman left here among us a very, very forgiving, charitable and Christian son, whom I've had only the occasion to met [sic] in the last two (2) hours. I'm not going to put any words in Reverend Anderson's mouth or anything like that, but the message that I got from him, I sincerely hope that permeates this courtroom. If it does permeate this courtroom, then I would, at least, be able to step in the door in just a little while and say, at least, you will be alive. Now, I understand you made your decision based on the fact that there was a death, but to wear out a biblical phrase that probably already been over used time after time, an eye for an eye and a tooth for a tooth. Every since I heard the verdict on the first Count, that's been running through my mind. It's always been taken out of context. It's always been abused and misused, and I would pray that you twelve (12) good people, citizens of this county, would not take it out of context again. There is very little that you do here that will be able to salvage the wounds that Ms. Burgess' family felt over the last two (2) years. And, I would only ask and I will only plead, and I will only beg, that you twelve (12) good people in your attempt to heal up the old wounds, please don't open up new wounds. Thank you.

(Doc. No. 10, Add. 1 vol. 8, Tr. 647-49.)

In Paragraph 13(b) of his Amended Petition, Petitioner claims that Ligon was ineffective at sentencing for failing to investigate and present numerous categories of available mitigating evidence, including: his being raised in extreme poverty with no indoor plumbing in a small house with seven other people and an abusive, alcoholic father who denied being Petitioner's father; his childhood head injury, below average I.Q. and poor academic performance before dropping out of school at an early stage; his good employment history; his kindness to others; his close relationship with his mother; the taunting he endured as a child because of his stutter and crossed eye; his heavy drinking, including blackouts, and drug use; his psychological impairments; and his good adjustment to prison life. (Doc. No. 64, at 18-20.) In Paragraph 13(d) he adds that counsel was ineffective at sentencing for failing to secure the assistance of mental health experts to present some of those mitigating factors to the jury. ( Id. at 21.)

1. Exhaustion

There is some disagreement between the parties about the extent to which this combined claim was exhausted in state court and whether any of the legal or factual bases upon which Petitioner now relies are procedurally defaulted. Respondent urges, without any specificity, that:

To the extent [Petitioner] now seeks to raise additional basis for ineffectiveness at sentencing, those claims are now procedurally defaulted. Further, to the extent he failed to develop the factual basis of his claims in the state court, additional facts are likewise defaulted under Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12 (1992) (under pre-AEDPA standard, petitioner entitled to evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from the failure). Furthermore, Martinez [ v. Ryan , 132 S.Ct. 1309 (2012)] provides no basis to excuse either of these defaults, which occurred outside initial-review collateral proceedings. Martinez, 132 S.Ct. at 1320 ("The holding... does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.").

(Doc. No. 248, at 16-17.) This disagreement necessitates a thorough (and unfortunately lengthy) review of when and how this claim was presented during state court proceedings.

a. First Post-Conviction Proceeding

Petitioner's amended petition in his first state post-conviction action, filed by appointed counsel William Vest, included a bare-bones claim that trial counsel was ineffective for "[i]ntroducing no proof during the sentence stage of the trial." (Doc. No. 10, Add. 12, at 2.) Trial counsel Ligon testified at the first post-conviction hearing in December 1986 that he had graduated from college in 1974 and from law school in 1979, and had passed the bar exam in 1980. (Doc. No. 10, Add. 2 vol. 1, Tr. at 43.) He was paid a total of $4, 000 to defend Petitioner in this trial and a second unrelated murder trial, and at the time this case went to trial in March 1983, he had never represented a defendant in a capital case or any other criminal jury trials. ( Id., Tr. at 5-6.) Ligon acknowledged that the Tennessee Supreme Court had cited him for contempt of court and sanctioned him for failing to file Petitioner's appeal timely, and that at the time of his testimony he was in the process of appealing a one-year suspension by the Board of Professional Responsibility. ( Id., Tr. at 43-44.)

Ligon's hearing testimony about his strategy for the sentencing phase of the trial was as follows:

Q. Now did you consult and advise Mr. Duncan during the sentencing stage of this trial as to whether he should testify or not?
A. Well, we didn't - once again, we went out and discussed it as to whether or not anybody would take the stand. The unfortunate thing about this sentencing phase was that what we were looking for or what we thought the jury would be looking for was some particular type of remorse. It was not the time to maintain your innocence which was what Mr. Duncan did throughout the entire proceedings. So at that particular time we didn't really feel we could put anybody on. We didn't have anybody on. I asked Mrs. Duncan would she think it was wise to go back, but if I recall everybody was pretty much devastated by the fact that our story was not believable. At least the jury did not believe it and there was a general reluctance of anybody to get back on that stand and actually go along with the conviction.
* * *
Q. Now, is that also the reason you didn't have Mr. Duncan's mother testify during the sentencing phase?
A. Well, she was pretty upset as I recall. And if I recall the conversation that we had in the back here it was all centered around the fact that no one was believed. The reason that no one was believed I think we understood or thought was the fact that one of our witnesses had changed her testimony on the stand - testified differently as to what we had previously discussed and what they had talked to Detective Lame about and that was pretty inflammatory.[3] It came out in the proof in chief and we were pretty much afraid that at this particular time that anything we said would be subject to question because we had put on a witness who had changed their testimony and that had been brought out on rebuttal. But in answer to your question, sir, no, sir, nobody felt confident in getting back on the stand based on the limitations that we would have at a sentencing hearing which would basically be in a capital case like this we would have to ask for some type of mercy or leniency presupposing that the conviction was correct.

(Doc. No. 10, Add. 2 vol. 1, Tr. at 38:7-39:22.) Ligon elaborated about his perspective on the sentencing phase during cross-examination:

Q. Just generally tell us what your discussion [about testifying during the sentencing hearing] concerned?
A. Well, the discussion at that particular time was after the jury had determined that Mr. Duncan was guilty of all three counts. And I recall explaining to perspective [sic] witnesses that the testimony now would have to be one of a kind of remorse, of stating that, you know, Mr. Duncan or the family would be very sorry that he had been involved in this and express some kind of grief for the loss of the victim's family and ask for some type of forgiveness and some particular type of leniency. And that argument had to presuppose that the jury was correct in its determination. At that particular time no one really that I spoke to saw it that way. They either felt that there had been - that the jury had not taken into consideration everything that had come down or that either they had not believed them. And I recall there was some general hesitance of anybody to go back and get on the stand because they had only testified maybe a few hours earlier and didn't feel that they had been believed.
Q. What about Mr. Duncan himself, did he want to testify at the hearing?
A. Well, at that particular time I don't recall whether he wanted to or not but the decision was made for him not to take the stand. He had just been sentenced to death by electrocution.
Q. He had just been convicted.
A. Well, I had to explain to him that I didn't think it was going to be anything more than a foregone conclusion that if the jury came back as fast as they did with a murder conviction that I thought they were going to lean more toward the death penalty. I did explain that to him when we first got the verdict back. And, you know, he took it fairly well but I could still tell, of course, he was pretty much affected by it and I was pretty much afraid to advise him to take the stand under those particular circumstances.
Q. Did you not advise him to take it?
A. Well, sir, I didn't advise him to take it or not to take it. The decision was made in concert, I guess, with everybody involved that I would just have to come out and make some kind of plea. That's basically how it boiled down. I didn't really have anybody to put on. Nobody was willing to get back up there under the circumstances.

(Doc. No. 10, Add. 2 vol. 1, Tr. at 63:11-65:2.)

Ligon's reference to the notion that "no one was believed" by the jury, in connection with the decision about whether to have Petitioner's mother testify at sentencing, requires some discussion of her brief testimony during the guilt phase of the trial. ( See Doc. No. 10, Add. 1 vol. 8, Tr. at 603-18.) During Mrs. Duncan's direct testimony at trial, she said that it was not unusual for Petitioner to spend nights or even weeks at his girlfriend Leony Jenkins's house, but she was not asked where Petitioner was at the time of the murder, and on cross-examination she acknowledged that she did not recall where he was that night. The primary point of her testimony appears to have been to rebut the prosecution's evidence that Petitioner had access to two green cars like the one that a witness identified Petitioner with at the murder scene. She testified that her son Jimmy did not buy his green Buick Electra until 1982, the year after the murder. She further testified that although her son Albert had a green Chevrolet Nova parked in her yard at the time of the murder, he had given strict instructions for no one to drive the vehicle because it had a busted headlight, expired tags and no insurance, and that he had come home for his birthday a few days before the murder and would not have allowed anyone to drive the car while he was home. She acknowledged that the Nova was capable of being driven and that Petitioner did at times drive it, but said he never did so without Albert's permission. Mrs. Duncan's only testimony at trial about Petitioner's background was that he had worked off and on ever since dropping out of school. Contrary to Ligon's apparent assumption, nothing about Mrs. Duncan's testimony was necessarily discredited by Petitioner's conviction.

Mrs. Duncan testified at the post-conviction hearing that Ligon never talked to her about the possibility of testifying at the sentencing hearing and asking the jury to spare her son's life, and that she thought she would have done so if she had known that she could. (Doc. No. 10, Add. 2 vol. 1, Tr. at 146:1-14.)

Petitioner testified at the post-conviction hearing that he did not testify during the sentencing phase because Ligon "said it mostly wouldn't do no good. He said that if there was anything that had to be said that he would say it." (Doc. No. 10, Add. 2, Tr. at 110:12-14.) Petitioner further testified that although he had dropped out of school without finishing the ninth grade, he had never had any mental problems and had never seen a psychiatrist or other mental health professional. ( Id., Tr. at 111:8-12, 126:22-127:2.)

Finally, Petitioner's appointed appellate counsel, Edward Yarbrough, testified at the first post-conviction hearing as follows about his opinion of the defense strategy at trial generally:

I think that's what disturbs me the most and what jumped out at me when I first read the transcript. There was no strategy. And now that I've learned that this was Mr. Ligon's first jury trial ever it's apparent why there was no strategy. Mr. Ligon, a very nice fellow, was out of his league. He had no business being in this courtroom defending a capital case with the experience that he had.... He had no idea what he was doing. And I don't say he's a bad person for that. I just think it should have been stopped. He should not have been permitted to do that given the fact that he had no experience and really didn't understand what he was about.

(Doc. No. 10, Add. 2 vol. 2, Tr. at 167:19-168:10.)

In its ruling from the bench denying relief on the first post-conviction proceeding, the court made a single reference to counsel's handling of the sentencing phase of Petitioner's trial:

And another reason that the defendant did not testify according to Mr. Ligon on his sentence [sic] hearing is because neither the defendant nor his family could accept or did accept the verdict of guilt and could show no remorse and would not be such a state of mind to impress the jury in any way because of the lack of remorse.

(Doc. No. 10, Add. 2 vol. 2, Tr. at 247:17-22.) In its written order, the trial court rejected this claim as follows:

No proof was offered at the hearing of this Petition as to what testimony was available to be offered by trial counsel at the sentencing hearing. Trial counsel has testified that no proof was, in fact, available that could have been offered at the sentencing hearing. The Court finds this testimony to be credible and the record supports it. This allegation is without merit.

(Doc. No. 10, Add. 14, at 4 ¶ 15.)

In his appeal from this dismissal, Petitioner quoted testimony by Yarbrough to the effect that trial counsel should have called Petitioner's mother as a witness to plead for his life during the sentencing phase, and should perhaps have called Petitioner himself or other people familiar with him, although he "won't debate the judgment call of whether to call the defendant at the sentencing hearing." (Doc. No. 10, Add. 15, at 23-24.) The Tennessee Court of Criminal Appeals affirmed the holding that Petitioner's trial counsel was not ineffective, without specifically addressing the alleged ineffectiveness during sentencing, and both the Tennessee Supreme Court and the United States Supreme Court denied review. Duncan v. State, No. C.C.A. 87-6-III, 1988 WL 10072 (Tenn. Ct. Crim. App. Feb. 9, 1988).

b. Second Post-Conviction Proceeding

Petitioner maintains that claims in subparagraphs 13(b) and 13(d) were exhausted during his second state post-conviction action, in which he was represented by his current counsel.[4] (Doc. No. 242, at 4-5.) In one of many amendments to his second petition for post-conviction relief, Petitioner asserted that trial counsel ineffectively failed to present mitigating evidence at the penalty phase of his trial as "the result of a complete failure to investigate the Petitioner's background, character and life circumstances, " and that the failure "was manifestly not the result of any informed, legitimate strategic or tactical choice made by counsel upon adequate preparation." (Doc. No. 40, Add. 26 vol. 1, T.R. at 53-55.) Petitioner further asserted that this issue had not been fully and fairly heard during his first post-conviction proceeding because his previous post-conviction counsel, William Vest, "inexplicably failed to present the full range of mitigation evidence which could have been presented at trial had trial counsel done adequate investigation and preparation, " as "the result of Mr. Vest's inadvertence, inexperience and/or failure to fully investigate the Petitioner's life history."[5] ( Id. at 55-56.)

Petitioner presented evidence relevant to this claim at a second post-conviction hearing on April 7, 1993, despite argument by the state and acknowledgment by Petitioner that the issue had been "ventilated somewhat" during the first post-conviction proceeding. (Doc. No. 40, Add. 26 vol. 1, Tr. at 12:14-15, 15:8-17.) Counsel at the second post-conviction hearing expressly stated that the purpose of some of the evidence offered was to demonstrate the "very substantial mitigation evidence" that could have been presented at trial, but which previous counsel had failed to develop at the first post-conviction hearing, and the trial court permitted him to proceed. (Doc. No. 40, Add. 26 vol. 1, Tr. at 127.)

To that end, Petitioner again called his trial attorney, William Ligon, who testified that he "had no doubt" from the beginning of the case that if the jury convicted the Petitioner, he would be sentenced to death. (Doc. No. 40, Add. 26 vol. 1, Tr. at 79.) Ligon testified that because Petitioner is black and the victim was white, "I kind of anticipated that a Sumner County jury, in light of the situation, there was probably going to give a capital penalty. I just - You know, we knew it all along. We knew it prior to when we went out and started the case." ( Id., Tr. at 80:21-25.) He testified to the effect that he believed an effective case at sentencing was foreclosed by the guilt-phase theory that Petitioner was not involved with the crimes:

Granted, I knew that if we took a posture that we took going into the trial of no involvement, no involvement whatsoever, not on the scene, that we were going to have a really difficult time during the penalty phase of switching gears and turning around and seeking to avoid the death penalty based on the - our theory of defense, a theory I knew we probably weren't going to be able to put before the jury. If we did not have a discernible theory that we could pretty much turn around and argue, it was going to be all done on cross-examination with a slim hope of being able to establish an alibi, and if we failed at that, I kind of knew that we were going to be out there. And I explained that to my client and also explained it to his family that it was going to be very, very tough to avoid what the General was asking for, which would be the death penalty, based on the theory that we were taking into - taking into the trial.

( Id., Tr. at 79-80.) In terms of his focus in trial preparation, Ligon testified to the effect that he really only concerned himself with the guilt stage:

Q. So, your primary focus was overwhelmingly on the guilt phase of the trial?
A. Well, sir, my primary focus is overwhelmingly on the guilt phase of the trial. As I stated earlier, we knew if we were found guilty they were going to give us the - the electric chair. They was going to give us the electric chair regardless of who we trooped in there on the sentence hearing. If I had had somebody that I thought could have stood the heat, we'd have put them in there, but I don't really think anybody involved in this thing, then or now, realizes how very little we had to go on. Mr. Herbison, we did not have anything.

( Id., Tr. at 94:9-20.)

Ligon testified that during the course of his investigation he spoke to Petitioner's previous employers, his family, friends and associates. (Doc. No. 40, Add. 26 vol. 1, Tr. at 85-86.) Ligon had known Petitioner's family his entire life, and "didn't really have to make a whole heck of a lot of investigation" into Petitioner's family history or his relationship with his father, because he had known them for some time and "knew pretty much everything." ( Id., Tr. at 99, 109-10.) Ligon was not aware of anything unusual about Petitioner's relationship with his father, although he knew that the father "was not above taking a drink." ( Id., Tr. at 110, 120-21.) Similarly, Ligon testified that he "really didn't have to do anything to investigate" Petitioner's family's financial circumstances while he was growing up, because "everybody's financial circumstances were pretty much the same, " and "I did not think, to me, at that particular time, that Mr. Duncan's poverty was any different than anyone else's poverty growing up." ( Id., Tr. at 110-11.) He knew Petitioner's mother's reputation to be excellent, and testified that she was a soft-spoken, very articulate woman who cared very much about her son, and about whom nobody ever said anything negative to him. ( Id., Tr. at 99.) He testified to the effect that he chose not to present character witnesses because he was concerned they would open the door to facts "that I did not want to go into because I didn't think it would sit well with a Sumner County jury on a case of this manner, " including Petitioner's marriage to a white woman, a previous rape charge that was dismissed, and Petitioner's drinking and recreational drug use. ( Id., Tr. at 86-91.)

Ligon testified that he never requested a psychological examination of Petitioner. (Doc. No. 40, Add. 26 vol. 1, Tr. at 92:2-4.) He explained why he did not pursue that evidence:

Were you - Are you intimating to the fact we should have gotten some kind of psychological test or psychological evaluation there? I did not think of that based on the posture and the approach that Mr. Duncan himself and me as a defense attorney were forced into taking. We were saying we were not there, didn't have anything to do with it. Therefore, I had no reason to think that a psychological evaluation or any particular type of experts in and outside would have helped us. We would have had to have changed our approach or posture as far as this case was concerned, in my opinion, at that time in order to benefit from some expert testimony regarding his psychological state of mind or something to that effect.

( Id., Tr. at 93:7-19.) On cross-examination, he reiterated:

I really saw no reason to do so in light of the posture that Mr. Duncan was taking in regard to his involvement in the very first trial. Our approach and his information to me was that he had not been on the scene, did not participate in this particular crime, and knew nothing about it.

( Id., Tr. at 119:13-18.) When asked if he ever saw anything that would indicate that Petitioner might have any psychological or psychiatric problems, he responded:

No. There was no indication either from the family or from Mr. Duncan himself. Like I said, based on the fact that we were looking at kind of a double-barreled shotgun, I understood people's reluctance at the time. Very few people at the time that hired me trusted me; therefore, there was a large reluctance to sit down and tell you a lot about some of the things we talk about now, that people talk about a lot more freely than they did at that particular time. They were not the type people that were going to sit down and give me specific details about a family-life-type circumstances. I just didn't get that. I didn't get any particular indication.

( Id., Tr. at 120.)

Ligon testified that Petitioner's first post-conviction counsel, William Vest, did not interview him before calling him to testify at the first post-conviction hearing. (Doc. No. 40, Add. 26, Tr. at 85.)

Petitioner also presented the testimony of a Dr. Malone, who was a neighbor and owner of the home in which Petitioner's family lived when he was a child. Dr. Malone testified that Petitioner's family, consisting of two parents with their six children and one grandchild, lived in a small three-room house, and at times Petitioner's mother had to borrow money from her to buy milk for the children. (Doc. No. 40, Add. 26 vol. 1, Tr. at 128-29.) Dr. Malone felt that the Duncan family's poverty was a little worse than others in the community, because she viewed having to borrow money for milk for children to be "extreme." ( Id., Tr. at 138.) She testified that Petitioner's mother was well-regarded in the community, was an outstanding church member who never missed a service and was active in the choir and auxiliaries. ( Id., Tr. at 129.) Petitioner's mother was soft-spoken and close to all of her children. ( Id. )

Dr. Malone testified that Petitioner's father, however, was "very abusive verbally" to his children, and would fly into a rage over very minor things and "say what he was going to do to them." (Doc. No. 40, Add. 26 vol. 1, Tr. at 130.) She testified that she smelled alcohol on his breath on weekends and heard from Mrs. Duncan that he drank on weekdays as well. ( Id., Tr. at 131.) Two or three times a month Petitioner's sister would go to Dr. Malone's house to get away from their father "and she would say I want to come over here until he gets through ranting and raging because he's on a drunk again." ( Id., Tr. at 133.) Petitioner visited Dr. Malone's home almost every day, and his mother told Dr. Malone that it was because he was "tired of his father ranting and raging at him." ( Id., Tr. at 136.) A half dozen times a year, Petitioner's mother would come with all of the children to Dr. Malone's home, saying "we're going to stay here until he cools down a little bit." ( Id., Tr. at 137.) At times Petitioner's father would deny being his father, and he was reputed to gamble away money needed to care for the children. ( Id., Tr. at 134.) Dr. Malone never saw him physically abuse his children. ( Id. Tr. at 140.)

Dr. Malone also described witnessing an incident when Petitioner was a preschooler, approximately three or four years old, and fell down some concrete steps on his head. She explained that she remembered it very well because he did not breathe for so long after the fall that she thought he was dead. "After that I knew he wasn't because he screamed and yelled for a long time." (Doc. No. 40, Add. 26 vol. 1, Tr. at 132:5-15.) She testified that once he started school, she helped him almost daily with homework, and that he was either slow academically or just did not do his work, and that she had "many discussions and many paddles" with him about that. ( Id., Tr. at 132:16-23.) Dr. Malone testified that at one point Petitioner told her that he was not going to go to school anymore because other children always teased him about having one eye that was smaller and "a little bit off-focus, " and that Petitioner also had a stutter when he was young. ( Id., Tr. at 135.)

Dr. Malone testified that nobody associated with Petitioner's original defense team ever contacted or interviewed her in connection with his defense, although she would have been willing to talk to them and to testify on Petitioner's behalf at trial if she had been asked. (Doc. No. 40, Add. 26 vol. 1, Tr. at 126, 137.) For his part, Ligon testified that his reason for not interviewing or even approaching Dr. Malone about assisting the defense was that she was the cousin of the victim in a separate murder charge then pending against Petitioner, and he did not want to give her the chance to "bury us" on the witness stand. ( Id., Tr. at 97:14-19, 98:16-18.)

Elizabeth Carter, who lived around the corner from the Petitioner when he was young, testified that when Petitioner visited he was always nice, a "perfect gentleman, " and that he did errands and chores for her like carrying in her groceries. (Doc. No. 40, Add. 26 vol. 1, Tr. at 141-43.) She said that she spoke to Ligon before the trial about appearing as a character witness, and that she went to the courthouse for that purpose, but that Ligon never called her as a witness and never explained why. ( Id., Tr. at 143-44.)

Rosie Jenkins testified that she knew Petitioner's mother and had known him since his birth, and that he had lived in her home for a period of two to three years while he was dating her daughter, after he left school and was working for Mid-Tenn Building Maintenance. (Doc. No. 40, Add. 26 vol. 1, Tr. at 146-48.) While he lived in her home, he was nice to her family, contributed to the household food and never caused any trouble. ( Id., Tr. at 147-48.) As far as Ms. Jenkins knew, Petitioner "got along all right" with his family. ( Id., Tr. at 147-48.)

Petitioner's sister, Alice Duncan, also testified at the second post-conviction hearing. She said that Ligon never interviewed her to discover Petitioner's family background or social history, and that she would have told him if he had asked. (Doc. No. 40, Add. 26 vol. 2, Tr. at 152.) She testified to the effect that when she was young her family "got along with one another fine, " but that later her father became violent when he drank, leading to fights between her and her father that caused injuries to both of them. ( Id., Tr. at 152-54.) Her father was also physically violent with her mother, which she testified upset Petitioner. ( Id., Tr. at 157.) She testified that Petitioner started drinking when he was around 16 or 17, and sometimes drank heavily, although she could not say how often or how much he typically drank. ( Id., Tr. at 155-57.) She believed he quit school in or after the 6th grade because kids in school were teasing him about an abnormality with one of his eyes. ( Id., Tr. at 157-58.) After leaving school, he always worked to support himself and was known as a hard worker. ( Id., Tr. at 158-59.) His family was supportive and maintained close contact with Petitioner after his arrest, and she did not know of any discipline problems he had in jail. ( Id., Tr. at 159.) She testified that none of Petitioner's previous lawyers, including his post-conviction counsel Vest, had ever asked her about any of the facts to which she testified. ( Id., Tr. at 159-60.)

Herschel Adams testified that Petitioner worked with him on a construction site and for Middle Tennessee Building Service for approximately seven years before Petitioner left to work for Job Corps about a year and a half before his arrest. (Doc. No. 40, Add. 26 vol. 2, Tr. at 160-61, 169.) He described Petitioner as an excellent worker who was reliable and punctual. ( Id., Tr. at 162.) Adams and Petitioner were also social friends, and he knew Petitioner to get along well with people and never knew him to be in any trouble prior to his arrest. ( Id., Tr. at 163.) He was not aware that Petitioner had been indicted for rape before his arrest for the Burgess murder. ( Id., Tr. at 170.)

Geneva Utley testified that she lived near the Petitioner's family home when he was a child, and that he was frequently in her home. (Doc. No. 40, Add. 26 vol. 2, Tr. at 171-72.) She did not know of any trouble he had with his family, and she heard that Petitioner's father drank but did not know of any effect that had on Petitioner. ( Id., Tr. at 172-73.) When they were in their 20s, Petitioner and Utley's sons worked and rode to work together, and she presumed Petitioner went to work. ( Id., Tr. at 173.) She testified that Petitioner's trial attorney Ligon never had a "serious conversation" with her, although she and members of Petitioner's family did meet around a conference table with him and have some conversation, and that she went to the courthouse during the trial to serve as a character witness if needed, but that Ligon never called her to testify and never explained why. ( Id., Tr. at 173-75, 177.) She did not recall ever being contacted by Petitioner's first post-conviction counsel Vest. ( Id., Tr. at 175-76.)

Petitioner also testified at the second post-conviction hearing. He maintained his innocence of the crimes at issue, as he said he had done consistently throughout his trial. (Doc. No. 40, Add. 26 vol. 2, Tr. at 183.) He testified that he and Ligon had discussed possible mitigation evidence "a little bit, " and described Ligon's questioning of him on that topic as follows:

He asked me, you know, various things, you know, as, you know, my work, you know, uh, a little bit about my own life, my own life, as to how I grew up myself, you know, as far as, you know, my family, treatment, things like that. Wasn't in depth like you went into today.

( Id., Tr. at 190:11-191:1.)

At the time of the murder, Petitioner was 19 years old. (Doc. No. 40, Add. 26 vol. 2, Tr. at 191.) At the time of his trial, he did not have any adult criminal convictions, although he had been on probation as a juvenile for driving without a license, failing to yield to an emergency vehicle and possession of a controlled substance. ( Id., Tr. at 191-92.) He had been charged with rape, but the charge had been dismissed. ( Id., Tr. at 192.)

Petitioner testified that until he was 11 or 12 years old, his family, which grew to 9 people before they moved, lived in a small house on Bledsoe Street that consisted of a living room, kitchen, one bedroom and a back porch, with no indoor plumbing or bathroom. (Doc. No. 40, Add. 26 vol. 2, Tr. at 196.) He testified that his father drank, and that when he drank he would direct foul language at the entire family and sometimes hit his mother, which upset him. ( Id., Tr. at 193-94.) When he was upset about his father's behavior, and felt like there was nothing he could do about it because his father was bigger than he was, he would run to a woodshed and just sit by himself. ( Id., Tr. at 194.) He testified that both his parents "whopped us, " but that his father only did so about once a year, and that his father did not strike blows but rather cursed and did things like turning off the television when the children were watching it. ( Id., Tr. at 195-96.) He had not known until the day of his testimony that his father had struck his sister. ( Id., Tr. at 195.)

According to Petitioner's testimony, he started drinking before his family moved from the Bledsoe Street house. ( Id., Tr. at 197.) He did not limit his drinking to weekends, but he drank a lot on weekends, to the point that he passed out. ( Id., Tr. at 198.) He had no memory of being at the Short Stop Market three to four blocks from his mother's house the morning of the murder, and had no idea how his fingerprints came to be on a juice bottle there. ( Id., Tr. at 198-99.)

Petitioner testified that he went to the seventh grade in school and quit because he "was just young and just didn't know no better." (Doc. No. 40, Add. 26 vol. 2, Tr. at 200.) He testified that he used to "get looks" and be criticized and called names because of his roving eye, bottom lip and stutter, and that "[y]ou get tired of people just picking at you, and I guess that was one of the reasons that I left school." ( Id., Tr. at 200-01.) Petitioner started working after he quit school and worked all of his adult life before his arrest. ( Id., Tr. at 201.) He did not recall whether Ligon ever asked him about his work history. ( Id., Tr. at 202.)

Petitioner testified that he did not have any discipline problems or problems getting along with anyone in jail after his arrest, but that Ligon never asked him about that. (Doc. No. 40, Add. 26 vol. 2, Tr. at 202.) At the time that Ligon advised him that his testimony would not be useful at trial, Petitioner did not understand that guilt and sentencing would be determined separately. ( Id., Tr. at 203-04.)

Finally, Petitioner attempted to present the testimony of a clinical psychologist about Petitioner's psychological background and condition. The prosecutor objected to admission of her testimony, arguing that "As I understand, this goes to the issue of whether or not testimony should or should not have been introduced at the sentence hearing, .... And it's further irrelevant inasmuch as this issue has been previously raised by William Vest, who represented Mr. Duncan on the first post-conviction proceeding all the way to the Court of Appeals. That was addressed by Mr. Vest and has been previously determined by Your Honor in Your Honor's decision in that case as well as the Court of Appeals." (Doc. No. 40, Add. 26 vol. 2, Tr. at 227-28.) Agreeing that "this question has certainly been decided, " the trial court sustained the objection but allowed Petitioner to proceed with the following offer of proof of the testimony of clinical psychologist Dr. Gillian Blair, who evaluated Petitioner after seeing him five times from December 1990 through May 1991. ( Id., Tr. at 229, 231-32.)

Dr. Blair administered Petitioner a standard battery of psychological tests, a number of neuropsychological tests because of the possibility of residual damage from Petitioner's history of drug and alcohol abuse and possible dependence and from his childhood head injury. (Doc. No. 40, Add. 26 vol. 2, Tr. at 232.) She stated that based on records she reviewed, Petitioner's academic functioning during his employment with Job Corps before his arrest was around the fourth grade level. ( Id., Tr. at 236.) His intellectual functioning at the time of her assessment was low-average, with no particular areas of strength or weakness, and his memory was consistent with his intellectual functioning. ( Id., Tr. at 236-37.)

Based on information provided by Petitioner, Dr. Blair said it was clear that he was a heavy binge user of alcohol and drugs since he was a teenager. (Doc. No. 40, Add. 26 vol. 2, Tr. at 238.) She described him as having "a very severe substance abuse slash dependence disorder, " including the use of alcohol, marijuana and LSD. ( Id., Tr. at 253.) Asked about the effects of binge consumption of alcohol, she stated that people who drink heavily may have blackouts, leaving them with no memory of events during the blackout but with other memories unaffected. ( Id., Tr. at 238.) She said Petitioner could also be diagnosed with polysubstance abuse and probably dependence, although he was in remission during incarceration, and that he has an underlying chronic depressive disorder known as dysthymia. ( Id. ) She stated that although he is not mentally ill, Petitioner "has problems, " including dependent and passive aggressive personality traits. ( Id. )

Dr. Blair's report, included in the offer of proof, included the following results:

Intellectually, Mr. Duncan functions within the low-average range (Verbal IQ 80; Performance IQ 84; Full Scale IQ 80). Scaled scores on the individual subtests of the WAIS-R have a mean of 10, with a standard deviation of 3. Thus, scaled scores between 8 and 12 fall within the average range. Scaled scores achieved by Mr. Duncan ranged from 6 to 9. His performance was flat with no significant strength or weaknesses demonstrated.
Academic achievement was consistent with measured intelligence. Standard scores ranged from 79-85. His academic achievement was within the sixth to eighth grade range. Memory functions were similarly commensurate with intellectual level, with no evidence of significant deficit.
Word knowledge was within normal limits. Tracking and sequencing skills were low average. Higher cognitive functioning was not well developed. In part, this was consistent with intellectual/educational level. However, motivation appeared to have some impact.
Mr. Duncan endorsed items on the BDI consistent with depression. This appeared mild and situational in nature. Projective data and direct observation was not consistent with a significant depressive disorder. Mr. Duncan has rigid views, and an immature cognitive style. He does not demonstrate well developed problem solving strategies. However, a need to achieve was evident, and failure may lead to disappointment and frustration. Emotional control appeared tenuous, and Mr. Duncan's avoidance of emotional situations may reflect an awareness of this problem.
The MMPI-2 validity scales indicated symptom exaggeration. This was supported by significant elevations on a number of clinical scales. The MCMI-II profile indicated endorsement of paradoxical symptoms in that Mr. Duncan attempted to present himself in a good light, and as significantly troubled. Mr. Duncan has conflicts between his need for dependence and his desire to withdraw. He is resentful of those who fail to support him appropriately. His distrust of others is deep, and he responds to rejection and disillusionment in a moody and passive aggressive fashion.
Diagnostic impressions are as follows:
Polysubstance abuse/dependence Dysthymia Personality Disorder with dependent and passive-aggressive traits.

(Doc. No. 40, Add. 26 vol. 2, Tr. Ex. 10, at 3-4.)

On cross-examination during the offer of proof, Dr. Blair acknowledged that "I'm not suggesting that this person is mentally ill or is paranoid schizophrenic or anything that goes completely against the grain of his history." (Doc. No. 40, Add. 26 vol. 2, Tr. at 246:5-8.) She testified that Petitioner agreed for her to talk to his family after some initial reluctance, but that because her findings were consistent with the social history that had already been provided to her, she ultimately determined that it was not necessary for her to interview his family members. ( Id., Tr. at 246-47.) With regard to the reported head injury, she stated that "Even if David had sustained a serious head injury as a young child, there is no residual damage from that.... No damage that I could tell.... All I can tell you is that there is nothing on psychological or neuropsych testing to suggest that he has any residual effects from a head injury[.]" ( Id., Tr. at 251:18-252:5.) She further acknowledged that Petitioner had no history of psychiatric or psychological problems, no prior psychiatric evaluation or treatment, and was not mentally ill. ( Id., Tr. at 252-53.)

At the conclusion of the offer of proof, the trial judge - noting that "The last position I will be in will be cross-examining a witness, but I have to be fair and ...


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