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Kendricks v. Phillips

United States District Court, E.D. Tennessee, Chattanooga

September 30, 2019




         Before the court is a pro se prisoner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 [Doc. 1]. Respondent has filed a response in opposition [Doc. 15], as well as the state court record [Doc. 14]. Petitioner filed a reply [Doc. 30]. After reviewing all of the relevant filings, the Court has determined that Petitioner is not entitled to relief under §2254 and no evidentiary hearing is warranted. See Rules Governing § 2254 Cases, Rule 8(a) and Schirro v. Landrigan, 550 U.S. 465, 474 (2007). For the reasons set forth below, the §2254 Petition is DENIED and this matter will be DISMISSED.


         In 1994, a Hamilton County jury convicted Petitioner of first-degree murder for shooting and killing his wife [Doc. 14 Attachment 1 at 24]. Petitioner appealed on several grounds including that the evidence was insufficient to support the finding of guilt by the jury, that the trial court erred in allowing and disallowing various pieces of evidence, and that the State had violated Brady v. Maryland by failing to disclose exculpatory information [Doc. 14 Attachment 9]. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed his conviction [Doc. 14 Attachment 11]. Petitioner then applied for permission to appeal to the Tennessee Supreme Court, but his application was denied [Doc. 14 Attachments 12, 15].

         Next, Petitioner filed a motion for post-conviction relief alleging various grounds of ineffective assistance of counsel and various instances of prosecutorial misconduct [Doc. 14 Attachment 15 at 3 - 12]. His petition was summarily dismissed [Doc. 14 Attachment 16 at 63 - 64]. Thereafter, Petitioner amended his petition for post-conviction relief which was dismissed as untimely filed [Doc. 14 Attachment 16 at 65 - 81; 84]. Petitioner immediately appealed and the TCCA reversed in part and remanded for further proceedings on Petitioner's ineffective assistance of counsel claims, with specific instructions for the post-conviction court to allow Petitioner to amend his petition [Doc.14 Attachment 20].

         Petitioner filed an amended petition in 2000, and over the next several years filed various amendments, with and without the assistance of counsel [Doc. 14 Attachments 21 at 5 - 114; 21 at 115 - 131; 21, at 140 - 141; 22 at 127 - 23 at 87; 23 at 88 - 123; 28 at 71 - 106; 28 at 107 - 29 at 5[1]. In 2011, after hearings spanning various days in February and March, the post-conviction court dismissed the petition [Doc. 14 Attachment 29 at 6 - 72]. Petitioner then appealed to the TCCA again, which resulted in the TCCA reversing the judgment of the post-conviction court, vacating Petitioner's conviction, and remanding for further proceedings, based on two of Petitioner's ineffective assistance of counsel claims: (1) failure to adduce expert proof about a defective trigger mechanism design in Petitioner's rifle, and (2) failure to use the excited utterance exception to hearsay to admit the prior statements of an officer in the case [Doc. 14 Attachment 48].

         The State appealed to the Tennessee Supreme Court (“TSC”), which found no ineffective assistance of counsel on either claim, reversed the TCCA's judgment, and remanded the case to the TCCA to address Petitioner's pretermitted claims [Doc. 14 Attachments 49, 60]. Petitioner then moved for a rehearing in the TSC which was denied [Doc.14 Attachments 61, 62]. He also filed a writ of certiorari with the United States Supreme Court which was also denied [Doc. 14 Attachments 63, 64]. Later, the TCCA evaluated Petitioner's remaining claims as directed by the TSC and affirmed the judgment denying petitioner post-conviction relief [Doc. 14 Attachment 72]. Petitioner filed an application for permission to appeal with the TSC, which was denied [Doc. 14 Attachments 73, 75]. Finally, in 2016 Petitioner filed for a writ of habeas corpus with this Court [Doc.1].


         A. Trial

         On Direct Appeal, the TCCA summarized the facts of this case as follows:

On March 6, 1994, at approximately 10:00 p.m., the defendant drove to the gas station at which Lisa Kendrick, his wife and the victim, worked. With him in the car were their four-year-old daughter and three-year-old son. These children were sitting in car seats in the back seat of the station wagon the defendant was driving. Also in the car, on the front passenger floorboard, was the defendant's loaded 30.06 hunting rifle.
The defendant pulled into the station, parked, and went into the market portion of the station where his wife worked as a cashier. He asked her to come outside, which she did. She and the defendant went to the car where she spoke briefly to the children. The defendant retrieved the rifle from the front passenger floorboard and carried it to the back of the car. At that point, the weapon fired once, the bullet striking the victim in her chest and killing her almost instantly.
After the victim fell to the parking lot, the defendant briefly bent over her body, put the gun back in the car, and drove toward the airport a short distance away. On the way, he threw the rifle out of the car. Once he arrived at the airport, he called 911 and reported that he had shot his wife. Before the defendant left the gas station, he took no action to assist the victim in any way.
Timothy Shurd Benton, a customer, was in the market when the defendant entered. He testified that the defendant had asked the cashier “to step outside, he had something to show her.” Benton left the market, got in his car and started to leave the parking lot. He testified that, as he had begun to leave, he heard an “explosion.” He looked over his shoulder out the window of his car and saw the defendant holding a rifle “pointed straight up in the air.” He also saw the victim lying on her back on the parking lot. After deciding that another person in the market was aware of the situation and would call for help, Benton followed the defendant to the airport, where he contacted an airport police officer.
Lennell Shepheard was also in the market at the time the defendant entered. He testified that he had seen the defendant and his wife leave the store, that the defendant had not appeared angry or hostile, and that the victim had shown no signs of fear when she went outside at the defendant's request. Shepheard remained in the store until he heard the rifle shot. At that point, he opened the market door and looked outside to see what had happened. He testified that he had seen the defendant shut the back passenger door and then lean over the victim's body and state, “I told you so” approximately six times.
Endia Kendrick, the defendant's four-year-old daughter, testified on direct examination that she had seen her father shoot her mother and that her mother had had her arms up at the time. However, on cross-examination, Endia admitted that she hadn't actually seen the shooting.
Dr. Frank King, the Hamilton County Medical Examiner, testified that the victim had died of a single gunshot wound to the chest that entered her body in the left chest at forty-nine inches above the heel and exited her body at the left back at forty-nine and one-half inches above the heel.
The defendant testified that he had been moving the rifle from the front of the car to the back at the request of the victim and that it had discharged accidentally. He testified that he had been shifting it from one hand to the other when it went off. He testified that he had not pulled the trigger. He steadfastly denied that he had intended to shoot the victim, and claimed that he had been carrying the rifle in the car because he sometimes cleaned apartments near an area where he felt a gun was necessary for personal protection. He also denied making any statements as he bent over the victim, and testified that he had taken no action to assist her because he knew she was dead. The defendant also testified that he and the victim had agreed on an irreconcilable differences divorce, that an attempted reconciliation had recently failed, and that he suspected that she had had or was having an affair. He denied that he was upset or angry at his wife about the status of their relationshiat
In support of his contention that the rifle fired accidentally, the defendant relied on the testimony of Officer Steve W. Miller. Officer Miller testified that he had shot himself in the foot with the rifle when he was removing it from the trunk of his car after recovering it from where the defendant had thrown it. Officer Miller testified that he had shot himself accidentally. He further testified that he could not recall whether or not his finger had been on the trigger of the gun when it fired.
[The state's expert witness, ] Kelly Fite, a firearms examiner, testified that he had examined and tested the rifle and that, in his opinion, “[t]he only way that you can fire this rifle without breaking it is by pulling the trigger.”
After the defense closed its proof, the State called Martha Kay Maston as a “rebuttal” witness. Maston testified that she had been working as a public safety officer for the Chattanooga Metropolitan Airport Police on the night of the shooting. On finding the defendant at the airport, she saw the two children in the back seat of the car. She testified that she had gotten the children out and that they were both “very upset and hysterical.” She further testified that “when I got [the little girl] out of the car, she just put her arms around me and she stated that she had told daddy not to shoot mommy but he did and she fell.” Maston testified that the defendant's daughter had not made any other statements and that his son had not said anything.

State v. Kendricks, 947 S.W.2d 875, 878 - 79 (Tenn. Crim. App. 1996).

         B. Post - Conviction

         As stated above, the post-conviction trial court conducted hearings over several days in February and March of 2011. In its second opinion addressing the dismissal of Petitioner's post-conviction petition, the TCCA summarized the evidence adduced at these hearings as follows:

Henry Jackson Belk, Jr., a gunsmith, testified that, earlier that morning in the clerk's office, he examined the gun, a Remington Model 7400 30.06 autoloading rifle, that shot and killed the victim. He stated that he was familiar with the trigger mechanism inside the rifle, describing it as “a common trigger mechanism that is contained within a wide variety of firearms, shotguns, rim fires and center fire rifles.” He added, “Generally speaking, all pumps and automatics manufactured after 1948 by Remington contain this trigger mechanism.” Belk testified that the trigger mechanism is referred to as the “Remington Common Fire Control” (“the Common Fire Control”).
Belk stated that the Common Fire Control was first used in the automatic shotgun in 1948, then in the pump shotgun in 1950, and then in the automatic rifle in 1951. The Common Fire Control is currently used in 23 million firearms. Because the Common Fire Control is used in different firearms, any “issue” with the trigger mechanism would not be limited to one specific type of firearm. According to Belk, the Common Fire Control is a “defective mechanism.”
As to the rifle in this case, Belk stated that it had “the normal dirt, dried oil and residue common to a gun that has not been cleaned.” After removing the trigger mechanism while he was on the witness stand, Belk examined the rifle and stated that “the action spring is sticky.” He explained that the “action spring . . . supplie[d] the energy for the bolt to return back forward.” Because the action spring was “sticky, ” the bolt was “not going forward as freely as it should.” Belk explained that the action spring's condition was consistent with a firearm that had not been cleaned.
Turning his attention to the trigger mechanism, Belk testified about how it could malfunction:
The general description here is this is a swing hammer mechanism; in other words, it fires by a hammer going forward and hitting a firing pin that's contained in the bolt inside the housing. The sear is the part that retains the hammer. The sear is what holds the hammer back, does not fire. On this particular mechanism, on all these Remington mechanisms, that sear is an independent part, is right here. That is an independent part, not on the end of the trigger like a Browning design is.
For that reason, and the fact that the safety only blocks the trigger, it does not block the action of the sear or the hammer, it only blocks the trigger, any debris that is captured between the sear and the slot that it is housed in, which is the housing, any debris that is caught between the bottom or the tail of the sear and the stock surface inside the housing, any debris that gathers there, any debris that gathers between the trigger yoke and the rear pivot pin and the trigger pusher arm and the bottom of the sear, any debris in any of those places, alone or in concert, can cause an insecure engagement between the hammer and the sear itself.
So even with a gun on safe, which it is now, it can still fire, which it just did. Without pulling the trigger, on safe.
Responding to questions by the court, Belk clarified: “I can pull the trigger and make it fire, just like that (indicating), or I can put it on safe without the trigger being pulled and fire it just by manipulation of the sear.”

         Belk continued:

The notch in the hammer determines how much debris it takes to make it fail. The notch in the hammer is about 18, 000 of an inch deep, about the thickness of a matchbook cover. . . . [A]nything that totals that amount of distance can make a gun fail. . . . .
Any of those other locations, it takes about 18, 000ths in order to interfere with the secure engagement of the hammer and the sear.
Belk clarified that there were five locations in the trigger mechanism that made the mechanism “weak” and that could collect the requisite amount of debris to cause a misfire. Moreover, of the five “weak spots, ” “the clearance between the sear and the housing itself is usually about 4, 000ths, so it would take less debris captured between those places to retard the proper motion of the sear and would also cause it to fail. So it wouldn't necessarily take as much as 18, 000ths.”
Belk also testified that “[t]he Remington Common Fire Control has a history of firing under outside influences other than a manual pull of the trigger. Vibration is one way that can happen. Impact. Even in one case the simple act of grabbing the gun by [the forward part of the stock] caused it to fire.” Belk reiterated that the Common Fire Control “fires without the control of the trigger. It can fire out of the control of the shooter. It can discharge without any hand being on the stock.”
Belk stated that, if debris caused the gun to fire unintentionally, the debris could be dislodged during the discharge. He added,
On this semi-automatic, each time the gun is fired, the hammer goes forward, and then under great pressure and speed, the hammer is forced back again into position. So there's a lot of cycling going on. There's also the disconnector here, there's a lot of movement in the mechanism itself during firing and during manipulation after firing. And that movement, many times, dislodges the debris that actually was the causation.
Belk acknowledged that debris also can be dislodged through a gun being dropped or “banged around.” He acknowledged that a drop test “many times[] destroys any evidence that was there.” He explained that the standardized tests of dropping a firearm “on a hundred durometer rubber pad from a certain distance in certain orientations . . . does nothing whatsoever to analyze the mechanism and how it can fail. So the . . . drop test in itself can be destructive [by dislodging debris] without actually showing anything.” He added, “[T]his particular mechanism has what is called a recapture angle. So, impact, as in dropping it on the floor, will actually recapture the sear engagement rather than dislodge it. So the . . . drop test on this particular gun is pretty much useless.”
Belk opined that the rifle which shot and killed the victim “is capable of firing without a pull of the trigger, whether the safety is on or off.”
Belk testified that he was first hired to work on a case involving the Common Fire Control in 1994, and he agreed that, “if someone had done some research, they would have potentially been able to find [him].” He also testified that problems with Remington firearms could be reported to the manufacturer, which maintained “some” records of complaints. According to Belk, people were complaining prior to his initial involvement. He testified that he “first identified the problem with the Remington Common Fire Control in 1970.” When a “co-shooter” on a skeet-range complained of trigger problems, Belk disassembled the trigger mechanism and “found a section of lead shot debris stuck in the sear notch of the hammer.” He added, “That was the first identification that [he] had of a bad mechanism, that it could fire without a trigger being pulled.” Since then, he had consulted with “many, many attorneys.” One case involved a Remington 7400 that fired while it was being cleaned with an air hose. The safety on that gun had been engaged. Another gun fired while being wiped with a rag. Another gun fired when the butt-end of the stock was placed on the floor.
On cross-examination, Belk admitted that, while the trigger assembly was in the Petitioner's rifle, the rifle had not misfired during Belk's handling of it. He also admitted that he could not opine about the cleanliness of the gun in March 1994. He stated that he testified in a case involving a Remington 7400 in 1997 or 1998.
On redirect examination, Belk testified that he was familiar with a case in which a Remington shotgun containing the Common Fire Control fired while it was in a locked case and with the safety engaged. The gun was strapped to the handlebars of an ATV that had been left idling. The vibrations caused the gun to fire. Belk stated that he had been consulted on “probably two dozen” cases involving the Common Fire Control in which the gun discharged and injured someone.
On re-cross examination, Belk maintained that he had previously been able to induce a misfire by “artificially introducing” debris in “any” of the previously identified “weak spots.” He clarified that he induced these misfires in “cutaway” guns.
Sergeant Steve Miller of the Chattanooga Police Department (“CPD”) testified that, on the night the victim was killed, he was assigned to the case as a crime scene investigator. He testified that the firearm was not located at the scene of the shooting. When a “[c]all came across the police radio that a gun had been located down Airport Road, ” Sgt. Miller went to locate the firearm. He located the rifle on the side of Airport Road and noted that there was no clip in it. He photographed the rifle and collected it for evidence, placing it in the trunk of his patrol car. Sgt. Miller transported the rifle back to the police service center on Amnicola Highway.
Sgt. Miller agreed that he was handling the rifle carefully in order to preserve fingerprints. He also acknowledged that he testified at trial that he had a jacket in his left hand and that he “grabbed” the rifle from the trunk of his patrol car with his right hand and “pointed it in a downward motion” towards the pavement. When Sgt. Miller pointed it in the downward motion, the rifle discharged, injuring his left foot. Sgt. Miller testified that he “can't say with a hundred percent accuracy” whether his fingers were anywhere near the trigger but stated that “[t]hey shouldn't have been.” Sgt. Miller acknowledged his signature on the bottom of a report prepared by Michael Taylor on March 7, 1994 (“the Taylor report”). The Taylor report, admitted into evidence, reflected that James Gann was the first officer to respond to Sgt. Miller's injury, and Sgt. Miller's recollection at the post-conviction hearing was consistent: that Officer James Gann came out of the service building to see what had happened after Sgt. Miller shot himself. Sgt. Miller also acknowledged that the Taylor report indicated that he told the “initial officer that he had both hands on the rifle and did not have his finger near the trigger.” Sgt. Miller testified that he suffered “a massive foot injury” that was “extremely painful.” Sgt. Miller agreed that the wound also was stressful.
On cross-examination, Sgt. Miller agreed that he was called by the State as a witness at the Petitioner's trial. He agreed that defense counsel questioned him at the trial and asked questions about where his fingers were with respect to the trigger when he shot himself. He also remembered that defense counsel's cross-examination was “tough.”
On redirect examination, Sgt. Miller testified that defense counsel did not interview him prior to the trial.
Glenn Sims, retired from the CPD, acknowledged that he prepared a police report in connection with Sgt. Miller's incident, but he did not recall speaking with Sgt. Miller. He acknowledged that, according to his report, Sgt. Miller “was taking the firearm . . . that he had collected into evidence, out of the truck of the vehicle [and] it discharged[.]” The report further reflected that “the rifle swung down, [Sgt. Miller] wasn't sure if it hit his foot or the ground, but it went off, hitting Miller in the left inside foot.” Sims agreed that the report reflected that the rifle “just went off.”
James A. Gann testified that he was employed by the CPD in 1994 and that he was one of the officers who investigated Sgt. Miller's incident. He stated that he was in the office when he heard “a loud recoil of a gun.” Gann went outside to investigate and saw that Sgt. Miller was shot in the foot. Gann radioed for an ambulance and alerted the appropriate people who “had to be advised on a shooting.” Gann stated that Sgt. Miller was “in a lot of pain, bleeding, and starting to go into shock.” Gann could not recall whether he spoke to Sgt. Miller about what had happened, explaining that he “was more concerned with his foot, he was bleeding.” Referring to a police report that Sgt. Glenn Sims had prepared, Gann acknowledged that Sgt. Miller had told Gann that, while Sgt. Miller was taking the rifle out of the trunk, the gun “just went off.” Gann also testified that he was not contacted by anyone from the public defender's office before the Petitioner's trial.
Officer Michael Holbrook of the CPD testified that he was dispatched to Erlanger Hospital to respond to an accident involving Sgt. Miller. Officer Holbrook spoke to Sgt. Miller at the hospital and prepared a report regarding their conversation. Officer Holbrook testified that Sgt. Miller told him that “as he was taking the rifle out of the trunk of his patrol car, the rifle went off and shot him in the foot.” Sgt. Miller also told Officer Holbrook that his hands were not on the rifle's trigger. Officer Holbrook's report was consistent with his testimony and contained the following narrative: “As he was lifting out the rifle, the weapon went off and struck him in the left foot. [Sgt.] Miller states that he picked it up with both hands and his finger was not near the trigger.” Officer Holbrook's report, dated March 7, 1994, was admitted as an exhibit.
The Petitioner's trial lawyer (“Trial Counsel”) testified that he worked for the public defender's office in 1994 and represented the Petitioner at trial. He stated that two investigators assisted him in investigating the case. Trial Counsel agreed that the Petitioner's appointed counsel in general sessions waived the preliminary hearing in exchange for “an open file policy.”
Trial Counsel testified that, from the beginning, the Petitioner maintained that the rifle accidentally discharged. He also testified that Sgt. Miller had made statements indicating that “he was not holding the gun anywhere near the trigger housing and it discharged, shooting him in the foot.” Trial Counsel stated that he never looked for an expert witness to support the Petitioner's accidental discharge claim. He testified that the public defender's office informally consulted with a gunsmith who was a former Red Bank police officer, but he did not remember whether he spoke to him about this case. Trial Counsel also agreed that he performed no research regarding the trigger mechanism in the Remington 7400 rifle. He added, “[a]s a matter of fact, when I heard on NPR, a year or so ago, that the Remington trigger mechanism was faulty and [there had] been several apparent accidental deaths as a result of it, you're the first person I contacted, because I thought, I remembered it was a Remington and I thought it was something very important.” Trial Counsel generally recalled that the State's expert, Kelly Fite, performed a “drop test” on the rifle. He agreed that Fite's report did not indicate that Fite inspected the trigger mechanism.
Asked whether it would have been beneficial for an expert to testify on the Petitioner's behalf about the trigger mechanism, Trial Counsel answered, “In hindsight, especially with the knowledge now that there have been so many problems with the Remington trigger mechanism, yeah.” Asked about his knowledge of any discussions in the industry regarding the trigger mechanism misfiring, Trial Counsel responded:
I wasn't aware of any. And I will point out, at the time, I was the only public defender in Division II, and in that period of time in little over four years, I probably tried, literally, 40 first degree murder cases, settled another 40 to 50, and I will concede I didn't put nearly as much time in on his case or any other cases that I tried as I do now in my private practice, because I've got a lot more time. My average caseload every Thursday for settlement day was between 20 and 30 defendants. My average month included at least 2 if not 3 trials. So I wasn't aware of the issue with the trigger pull.
Trial counsel also added that, although he had “a fundamental knowledge of firearms, [he] was not aware of it and . . . [he] didn't know it and [he] didn't get an expert.” He also explained,
I thought [Sgt.] Miller would testify consistently with what I knew to be his statements, and I thought that would come in and I thought that when that did come in, I could use that very effectively to say, okay, if [the Petitioner] can't accidentally have that gun [go] off, neither can [Sgt.] Miller, so, therefore, you got to presume that [Sgt.] Miller shot himself in the foot on purpose. That was my whole line of reasoning in this case.
Trial Counsel testified that he “was not prepared for [Sgt.] Miller to say he couldn't remember, because there was not any doubt in [Trial Counsel's] mind, at least, when [they] started trying this case, that he was going to stick to his prior statements.” Accordingly, Trial Counsel had no “backup plan” to call other officers to testify about what Sgt. Miller had told them after he shot himself. Trial counsel felt “sandbagged” by Sgt. Miller's trial testimony. He recalled the trial court refusing to allow him to introduce one of the reports generated about Sgt. Miller's injury in which Sgt. Miller reported that his hands had not been near the rifle's trigger when it misfired. He did not request to make an offer of proof. He also did not attempt to introduce Sgt. Miller's statements as excited utterances, explaining, “[i]n the heat of the trial, I didn't see that.”
Trial Counsel agreed that both Lennell Shepheard and Sgt. Miller's testimony at trial differed from their statements that the State provided the defense during discovery. Trial Counsel stated that the first time he heard Shepheard claim the Petitioner stated “I told you so” was during Shepheard's testimony. Trial Counsel agreed that he was never provided notice by the State prior to these two witnesses testifying that the substance of their pretrial statements had changed materially. Trial counsel also stated that, although he was not the Petitioner's counsel at the preliminary hearing stage, he would expect “in exchange for the waiver of a preliminary hearing, especially in a first degree murder case, that there would be some extra benefit to come to the defendant through the discovery process.” He added, “if [Sgt.] Miller was going to change his story, we should have been made aware of that, if Mr. Shepheard was going to add to his story, we should have been made aware of that.”
On cross-examination, Trial Counsel stated that he began practicing law in Tennessee in April 1978 and had been in continuous practice since that time. At the time of the Petitioner's trial, Trial Counsel had been practicing law for sixteen years, primarily in criminal defense. Trial Counsel also stated that he was employed at the public defender's office at the time of the Petitioner's trial and had worked in that capacity for approximately five years. Trial Counsel had tried at least sixty to seventy cases by 1994, including murder cases, less-serious cases, and death penalty cases. He stated that he tried in excess of forty murder cases prior to this case. Trial Counsel testified that he was assigned this case at arraignment.
Before meeting with the Petitioner, Trial Counsel stated that the Petitioner completed an “intake sheet” wherein he wrote out his “side of the story.” Trial Counsel testified that the Petitioner was on bond when he was assigned to the Petitioner's case and that he remained on bond throughout his representation of him. The offense occurred in March 1994, and the Petitioner's trial was in November 1994. Trial Counsel agreed that this was a “little quick.” Trial Counsel could not recall whether the Petitioner had desired that the case proceed to trial quickly.
Trial Counsel acknowledged that he and the Petitioner discussed the strategy in the case. He stated, again, that the Petitioner maintained from the beginning that the rifle accidentally discharged and that there was “no real animosity” between him and the victim. Trial Counsel also stated that, in his preparation for the trial, he reviewed documents provided to the defense by the State. Trial Counsel testified that he typically would meet at the district attorney's office to review documents the State provided him in a case. He could not recall particularly whether he had a meeting in the district attorney's office in this case but stated that was his “standard operating procedure.” He added, “I'm sure we met on it several times, not just one time.” Trial Counsel stated that he was “confident” that the standard discovery motions were filed in this case although he could not specifically recall filing them. He stated that he filed the “standard motions” with every appointment he received. Pursuant to those discovery motions, Trial Counsel stated that he received documents from the State in this case and that he reviewed them to prepare for the trial. He also stated that the documents included the names of witnesses, and he agreed that the documents also included witness statements “in theory.”
Trial Counsel recalled discussing the Petitioner's testimony with him prior to trial. He was “pretty confident” that he and the Petitioner “went through sit-downs where [Trial Counsel] cross-examined” the Petitioner. He added that, for every trial in which the defendant was going to testify, he would “sit down and grill them” so that they could anticipate what cross-examination would be like.
Trial Counsel did not recall specifically “familiarizing [him]self with the schematic of the [rifle]” prior to the trial, but stated that he was “relatively familiar with guns.” Although Trial Counsel could not recall specifically looking at the rifle before the trial, he stated, “I'm sure I did. . . . I'm sure I looked at it in your office too.” Trial Counsel also could not recall specifically his cross- examination of Sgt. Miller. However, he stated, “I try to be vigorous [in cross-examination] especially when I think somebody's not telling the truth, and I thought that he wasn't telling the truth.” He also recalled calling Sgt. Miller to testify during the defense's proof. He acknowledged that he recalled Sgt. Miller with the purpose of trying to impeach him with prior inconsistent statements.
Richard Mabee testified that, as of the time of the post-conviction hearing, he had been an assistant public defender for approximately nineteen years. He represented the Petitioner at the Petitioner's preliminary hearing. Mabee testified regarding the “one-time sheet” for the Petitioner's case, which was admitted as an exhibit at the hearing. According to Mabee, a one-time sheet lists basic information about the defendant, identifies the judge and the charges, and the disposition of the case at the general sessions level. According to Mabee, the disposition on the Petitioner's one-time sheet provided, “waived to grand jury, $50, 000 bond. DA agreed to show everything.” Mabee testified that this latter notation indicated that he had talked to the district attorney assigned to the case, and the district attorney had said, “[I]f you'll waive preliminary hearing, we'll show you everything in our file.” Mabee stated that he then would have presented this information to the Petitioner and that it would have been up to the Petitioner to decide whether to waive the preliminary hearing.
On cross-examination, Mabee agreed that the notations on the Petitioner's one-time sheet appeared to be his handwriting. Mabee explained that, when public defenders get appointed in general sessions, they “open up a one-time sheet” which means that the public defender represented that defendant one time at the preliminary hearing. Mabee also clarified that the judge previously would have signed the order of appointment at the bottom of the one-time sheet prior to the public defender's notations regarding the disposition of the case.
On re-direct examination, Mabee stated that he made the notation, “[W]e'll show you everything in our file, ” because “that's exactly the words the [district attorney] said to [him].” Mabee added that, after his representation of someone, he would take the one-time sheet back to the public defender's office where it was placed in a “big drawer of one-time sheets.” He stated, “[A]fter someone [was] appointed in a higher court, they may or may not get that one-time sheet.”
The Petitioner testified that the first time Trial Counsel met with him was at the county jail. During this initial meeting, the Petitioner completed an “intake sheet” and told Trial Counsel that the rifle had “accidentally discharged.” Trial Counsel informed the Petitioner that Sgt. Miller had shot himself with the Petitioner's rifle and told the Petitioner that Sgt. Miller's incident supported the Petitioner's account of what had occurred.
The Petitioner recalled only two meetings with Trial Counsel after he was released on bond: one meeting occurred on or around June 1, 1994, and the second meeting occurred two or three months before trial. The Petitioner agreed that they discussed “trial strategy” during these meetings and their defense that the rifle accidentally discharged. During one of their meetings, Trial Counsel asked the Petitioner what had happened on the day of the incident, and the Petitioner informed him what he did that day. The Petitioner denied that Trial Counsel ever told him “that any evidence in this case would be damning to [him], ” including the fact that he threw the rifle out of his car window. He also did not recall that Trial Counsel “went through a cross-examination of [him].”
The Petitioner stated that he got the rifle at least ten years before the killing and that he had shot it numerous times. The Petitioner testified that, although he wiped down the outside of the rifle, he never did “any maintenance in regards to the inside” of it because he did not know he was supposed to. He agreed that he testified at trial that he had never had a problem with the rifle accidentally discharging during the time he owned it.
The State asked the Petitioner whether it was Trial Counsel's “idea to use accidental discharge as the theory of the case[.]” The Petitioner responded, “I mean he's the lawyer, I mean he makes the ultimate decision, so I guess I have to say so, yes, based upon . . . his investigation and everything, yeah, I'd say it was.”

Kendrick[2] v. State, No. E2011-02367-CCA-R3-PC, 2013 Tenn. Crim. App. LEXIS 539, at *7 - 31 (Tenn. Crim. App. 2013). Due to the extraordinary length of the record in this case, many of the facts relevant to Petitioner's claims are not discussed here and will instead be addressed in the analysis below.


         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28 U.S.C. §2254, a district court may not grant habeas corpus relief for a claim that a state court adjudicated on ...

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