Shelton v. Osborne

Filing 19

MEMORANDUM: Petitioner is not entitled to an evidentiary hearing, and his § 2254 petition will be DISMISSED (Court File No. 2 ). A judgment will enter. Signed by District Judge Curtis L Collier on 9/18/2013. (BJL, )***Mailed to William A Shelton.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
WILLIAM A. SHELTON
v.
DAVID R. OSBORNE, WARDEN

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)
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)
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1:10-cv-236
Chief Judge Curtis L. Collier

MEMORANDUM
William A. Shelton (“Petitioner”), a prisoner confined at Morgan County Correctional
Complex in Wartburg, Tennessee, filed a pro se petition for the writ of habeas corpus pursuant to
28 U.S.C. § 2254 (Court File No. 2). Following a jury trial, Petitioner was convicted of one count
of first degree murder for stabbing and killing Brian Hyatt, the man whom he believed was having
an affair with his wife; three counts of false imprisonment (of Charlene Hyatt, Brian Hyatt, Jr., and
Shera Holt); and two counts of vandalism of property [Addendum No. 1, Vol. 5, pp. 463-464].
Petitioner received a total effective sentence of life imprisonment in the Tennessee Department of
Corrections. Petitioner’s convictions and sentence were affirmed by the Tennessee Court of
Criminal Appeals on November 9, 2006. See State v. Shelton, No. E2005-02014-CCA-R3-DC, 2006
WL 3246100 (Tenn. Crim. App. Nov. 9, 2006), app. denied, (Tenn. March 12, 2007). Petitioner
petitions this Court for review of those Bradley County convictions and that sentence, basing his
effort for relief on four alleged instances of denial of effective assistance of counsel.
David R. Osborne, (“Respondent”) Warden of the facility where Petitioner is housed, filed
an answer to the petition pursuant to Rule 5 arguing the petition should be dismissed because the
state court’s conclusion that Petitioner was not denied effective assistance of counsel is not contrary
to, or an unreasonable application of, clearly established federal law.

After considering the filings of Petitioner and Respondent, the record of the state
proceedings, and the applicable law, the Court will DISMISS Petitioner’s § 2254 petition (Court
File No. 2).
I.

STANDARD OF REVIEW
A state criminal defendant may obtain federal habeas relief if he can demonstrate he is in

custody pursuant to the judgment of a state court in violation of the Constitution or laws or treaties
of the United States. See Title 28 U.S.C. § 2254. Under Rule 8 of the Rules Governing Section
2254 Proceedings in the United States Districts Courts, the Court is to determine, after a review of
the response, the transcript, record of state court proceedings, and the expanded record, whether an
evidentiary hearing is required. If a hearing is not required, the district judge may dispose of the
case as justice dictates. After carefully reviewing the required materials, the Court finds it
unnecessary to hold an evidentiary hearing
Federal courts, pursuant to 28 U.S.C. § 2254(d) which is a part of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), review decisions of the state courts. This statute
limits a federal district court’s jurisdiction to review habeas claims on the merits. In particular, a
court considering a habeas claim must defer to any decision by a state court concerning that claim
unless the state court’s judgment (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States” or (2) “resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1)
and (2).

2

Ordinarily when state courts issue orders denying relief without discussing the applicable
law, this Court must “‘conduct an independent review of the record and applicable law to determine
whether the state court decision is contrary to federal law, unreasonably applies clearly established
law, or is based on an unreasonable determination of the facts in light of the evidence presented.’”
Brown v. Pitcher, 19 Fed.Appx. 154 (6th Cir.2001) (unpublished table decision), available in 2001
WL 700858, at *2,) (quoting Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000), cert. denied, 532
U.S. 947 (2001)), cert. denied, 534 U.S. 1057 (2001. “‘That independent review, however, is not
a full, de novo, review of the claims, but remains deferential because the court cannot grant relief
unless the state court’s result is not in keeping with the strictures of the AEDPA.’” Palazzolo v.
Gorcyca, 244 F.3d 512, 516 (6th Cir. 2001),(quoting Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.
2000), cert. denied, 532 U.S. 947 (2001)), cert. denied, 534 U.S. 828 (2001). De novo review is
required, however, when a state court incorrectly frames its legal analysis of a claim in light of
clearly established Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 396-98 (2000)
(analyzing de novo the prejudice prong of the Strickland test in relating to counsel’s errors at
sentencing); Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001)(engaged in de novo review of
ineffective assistance of counsel claim because court concluded state court’s legal formulation of
defendant’s burden of proof to prove prejudice was not just a reasonable probability but an absolute
certain the outcome of the proceedings would have been different).
Credibility findings made by state courts are entitled to the presumption of correctness.
McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997),
overruled on other grounds by In re Abdur’Rahman, 392 F.3d 174 (6th Cir. 2004); Smith v. Jago,
888 F.2d 399, 407 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). A habeas petitioner may rebut

3

the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can disagree with a state court’s credibility
determination and, when guided by AEDPA, conclude the decision was unreasonable or that the
factual premise was incorrect by clear and convincing evidence”).
II.

PROCEDURAL HISTORY
Petitioner was indicted in a multi-count indictment charging him with the October 20, 2003,

especially aggravated kidnaping of Charlene Hyatt; vandalism of Charlene Hyatt’s automobile in
a amount between $500.00 and $1,000.00; the especially aggravated kidnaping of Brian Hyatt, Jr.;
the especially aggravated kidnaping of Shera Holt; the especially aggravated kidnaping of Melissa
Proctor; the especially aggravated kidnaping of Bobby Holt; the especially aggravated kidnaping
of Robin Holt; the vandalism of Sue Hyatt’s automobile in an amount between $500.00 and
$1,000.00; and the October 21, 2003, premeditated first-degree murder of Brian Hyatt, his wife’s
alleged boyfriend [Addendum No. 1, Vol. 1, pp. 1-4]. Petitioner was convicted of three counts of
false imprisonment, two counts of vandalism, and one count of premeditated first degree murder by
a Bradley County jury on October 7, 2004 [Addendum No. 1, Vol. 1, pp 40-48]. Petitioner was
sentenced on November 15, 2004, to an effective sentence of life imprisonment [Addendum No. 1,
Vol. 2, pp. 29-39].
Petitioner’s motion for new trial was denied on July 29, 2005 [Addendum No. 1, Vol. 2, at
p. 57]. Petitioner then filed a direct appeal to the Tennessee Court of Criminal Appeals. On
November 9, 2006, the Tennessee Court of Criminal Appeals affirmed the judgments of the trial
court. State v. Shelton, E2005-00214-CCA-R3-CD, 2006 WL 3246100 (Tenn. Crim. App. Nov. 9,
2006), perm . app. denied (Tenn. March 12, 2007).

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Petitioner subsequently filed a state post-conviction petition on November 16, 2007 (Court
File No. 10, p. 3), which was amended on November 4, 2008, after counsel was appointed
[Addendum No. 3, Vol. 1, p. 10-11]. Following an evidentiary hearing on four alleged instances of
ineffective assistance of counsel, the post-conviction court denied relief on February 12, 2009
[Addendum 3, Vol. 1, pp. 17-26]. On December 28, 2009, the Court of Criminal Appeals of
Tennessee affirmed the denial of post-conviction relief. Shelton v. State, E2009-00582-CCA-R3-PC,
2009 WL 5083495 (Tenn .Crim. App. Dec. 29, 2009), perm. app. denied (Tenn. May 12, 2010). On
or about August 11, 2010, Petitioner filed the instant habeas federal petition (Court File No. 2).
III.

FACTUAL BACKGROUND
The facts of the crime will be taken from the appellate court’s opinion on direct review. The

facts presented in the state post conviction hearing will be taken from the appellate court’s opinion
affirming the denial of petitioner’s state post-conviction petition.
A.

Facts from Criminal Trial

The facts as to the conviction which is before this Court are taken from the appellate court’s
opinion affirming the convictions and sentence:
The State’s proof at trial revealed that Melissa (Missy) Proctor, who was the
appellant’s cousin, and her boyfriend, Robert Holt, lived at 1341 Overhead Bridge
Road in Cleveland with their two minor children, Robin and Bobby.1 On the night
of October 20, 2003, Proctor and her children were home, and Robert was at work.
Robert’s daughter, Charlene Hyatt (hereinafter “Mrs. Hyatt”), brought her two minor
children, Shera Holt and Brian Hyatt, Jr., to visit. Thereafter, the appellant and his
wife, Natalie Shelton (hereinafter “Mrs. Shelton”), also came to visit. The appellant
repeatedly asked the whereabouts of Mrs. Hyatt’s husband, Brian Hyatt. The
appellant thought Brian might be there because two vehicles Brian typically drove,
one of which he owned with his wife and the other his mother owned, were parked

1

Some of the witnesses in this case share a surname. Therefore, for clarity, we have
chosen to utilize their first names. We mean no disrespect to these individuals.
5

in front of Proctor’s mobile home. Proctor told the appellant that Brian was still at
work with Robert. The appellant said that he had been told that his wife and Brian
were having an affair, “and he had come to hurt him real bad” or “mess [him] up.”
During the conversation, Mrs. Shelton appeared scared and was crying. The
appellant was “pacing back and forth, going in and out of the trailer.” He told
everyone present that they must stay in the home. The appellant would occasionally
check to make sure everyone remained in the home. Those inside did not feel free
to leave.
Robert came home at approximately 9:00 or 9:30 p.m. The appellant was outside,
pacing. Robert did not see the appellant’s car. When Robert asked about the car, the
appellant explained that he had hidden it at the mobile home behind Robert’s. The
appellant told Robert that he was going to kill Brian. The appellant vandalized
Brian’s vehicles, rendering them inoperable so Mrs. Hyatt could not leave. The
appellant then called the house of Mrs. Hyatt’s mother and stepfather, where Mrs.
Hyatt and Brian were living at that time. The appellant left a message for Brian,
advising that Mrs. Hyatt’s car was “messed up,” and Brian needed to pick her up at
Robert’s home. Afterward, a neighbor, Audrey Conner, and Robert talked to the
appellant, attempting to calm him. The effort seemed to work. The appellant left with
his wife at 11:00 or 11:30 p.m. Robert’s other two daughters came by the mobile
home to take Mrs. Hyatt and her children home.
The next morning, at 6:10 or 6:20 a.m., the appellant, accompanied by his wife and
two children, returned to Proctor’s home. The appellant said that he was waiting for
Brian to arrive, believing Brian would be riding to work with Robert. The appellant
again threatened to kill Brian. Robert left for work at just after 6:30 a.m., but the
appellant stayed until 8:30 a.m. While there, he paced constantly across the floor and
would not sit. When the appellant got ready to leave, he told Proctor, “We are going
up on the hill.”
The appellant went to Brian’s house and beat on the kitchen door and windows.
Brian got out of bed, picked up a pair of bolt cutters, and started out of the bedroom.
Mrs. Hyatt told Brian to put the bolt cutters down, and he complied. Brian went into
the yard, with no weapon in his hands. The appellant was standing in the yard, and
his wife was in the driveway, sitting in the driver’s side of the appellant's car.
Brian asked the appellant what he was doing there. The appellant said, “You know
what I’m doing here.” The appellant hit Brian on the side of his head with a baseball
bat then stabbed him in the chest. Brian fell back into the open kitchen door. The
appellant told Mrs. Hyatt “[k]ind of in a smart aleck way” to call 911. The appellant
left when he heard sirens approaching. Brian died as a result of his injuries.
The defense proof at trial was substantially similar to the proof adduced by the State.
The only difference was the testimony of Natalie Shelton which reflected that the
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appellant told her that Brian came toward him with a knife prior to the stabbing. Mrs.
Shelton was unsure of whether Brian had a weapon during the fight. The appellant
did not testify at trial.
Based upon the foregoing, the jury found the appellant guilty of first degree
premeditated murder; the false imprisonment of Charlene Hyatt, Brian Hyatt, Jr., and
Shera Holt; and two counts of vandalism of property in an amount less than $500.
On appeal, the appellant challenges the trial court’s denial of a motion to sever the
kidnapping counts from the murder count, the trial court’s failure to admit Mrs.
Shelton’s “complete” statement to police, and the sufficiency of the evidence
supporting his conviction for first degree premeditated murder. We will address each
of these issues in turn.
State v. Shelton, 2006 WL 3246100, at *1 -2.
B.

Facts from Post-Conviction Hearing

A summary of the evidence from Petitioner’s state post-conviction proceedings is set forth
in the opinion of the Tennessee Court of Criminal Appeals affirming the post-conviction court’s
denial of his petition as follows:
On November 16, 2007, the petitioner filed a timely petition for post-conviction
relief alleging that he had been denied the effective assistance of counsel, primarily
because his trial counsel “was laboring under a conflict of interest.” An amended
petition for post-conviction relief filed by post-conviction counsel specified that trial
counsel “failed to present proof of [the petitioner’s] previously diagnosed mental
illness in an effort to negate the element of pre-meditation,” that trial counsel “failed
to present significant proof of [the petitioner’s] intoxication through both drugs and
alcohol at the time of the killings [sic] in an effort to negate the appropriate mental
capacity to form premeditation,” that trial counsel “failed to object to the [trial
court's] charge that intoxication did not apply to First Degree Murder and failed to
raise this issue on appeal,” that trial counsel “failed to have [the petitioner] sign a
written waiver of conflict as to his representation of the alleged victim,” and that trial
counsel “failed to properly prepare the record on [the petitioner’s] appeal thereby
waiving crucial issues.”
At the November 6, 2008, evidentiary hearing, the petitioner’s maternal aunt,
Marlene Boles, testified that she raised the petitioner after his mother passed away
when he was five years old. She recalled that the petitioner had difficulty processing
his mother’s death, which had occurred at the hands of his stepfather while he and
his younger brother were present. She stated that her mother initially gained custody
of the two boys, and she and her mother took the petitioner to a psychiatrist.
7

According Ms. Boles, the psychiatrist explained that the petitioner’s “mind, when he
was eight-year-old, had froze; it was still what it was at five. He could not face the
fact and say that his mother was deceased.” Ms. Boles recalled that the petitioner
claimed that his mother played with him. She stated that the petitioner had received
some kind of mental health treatment consistently since 1978. She testified that she
explained the petitioner’s mental health history to trial counsel.
Ms. Boles testified that although trial counsel subpoenaed her to trial, she was never
called as a witness. She recalled that as she sat outside the courtroom, she observed
trial counsel speaking with members of Brian Hyatt’s family on one occasion during
the petitioner’s second trial.2 During cross-examination, Ms. Boles admitted that
trial counsel spoke to the Hyatt family only after she told him that members of the
family had threatened the petitioner’s wife.
The petitioner testified that trial counsel told him that trial counsel “was representing
Brian Hyatt on a burglary charge, but that wouldn’t be any problem.” The petitioner
stated that he “had a problem with” trial counsel’s having represented Brian Hyatt
and with what he deemed trial counsel’s friendly rapport with Mr. Hyatt’s family.
The petitioner recalled that after his first trial ended in a mistrial, he asked the trial
court to appoint different counsel “because of ... the way things [were] unfolding.”
He added, “So he denied it. When he did, I decided right then that I wasn’t gonna
testify until I got a post-conviction, because I felt that, ... to be perfectly honest, I felt
I was getting screwed.” According to the petitioner, when he brought his concerns
to the attention of the trial court, the court told him that “if [he] couldn’t hire an
attorney right then, that [he] was keeping the attorney that [the trial court] gave
[him].”
The petitioner testified that he submitted to a mental health evaluation prior to trial.
He stated that he never discussed his previous mental illness with trial counsel. The
petitioner stated that he informed trial counsel that he had been drinking alcohol and
smoking crack cocaine on the night of the kidnapping. Despite this information, trial
counsel failed to call witnesses to support the petitioner’s claim of voluntary
intoxication. The petitioner admitted, however, that “[a]in’t nobody knowed [sic] that
but me and Audrey Conner, and we was in her house.” The petitioner added that trial
counsel failed to object when the trial judge instructed the jury that “[i]ntoxication
does not apply to the first degree murder charge.”

2

Apparently, the petitioner’s first trial ended in a mistrial. (This was footnote number
one (1) in the state appellate court opinion).
8

Additionally, the petitioner testified that his counsel failed to preserve an evidentiary
issue for appeal regarding the admission of a pretrial statement given by his wife to
police. He also claimed that counsel failed to object to the prosecutor’s inflammatory
closing argument and also failed to raise the issue on appeal. The petitioner claimed
that the prosecutor told the jury, “[I]f I came to his house at seven o’clock in the
morning, beating on his doors and windows, that a steak knife would be the least of
my worries because I would be looking down the barrel of a .12 gauge shotgun, and
he would separate me from my body with lethal force, and have no remorse doing
so.”
Trial counsel, District Public Defender for Bradley County, testified that he began
representing the petitioner following his appointment to the case in general sessions
court. Trial counsel stated that at the time of Brian Hyatt’s death, Mr. Hyatt “was
u d ri dcmn. i Ba l yC u t f ra. t ef[]t ai v l e hsf t e-nl w a dt at ep bi d f n e’ ofc h db e a p i t dt r pee thmA c r i g
n e n i t e t n r de o ny o h t h tn ov d i ah ri -a ” n h th u lc ee d rs fi e a e n p one o e r s n i . c odn
to trial counsel, although he had previously represented Mr. Hyatt on a charge of felony vandalism,
he “had not personally spoken to Mr. Hyatt” about the pending theft charge. Trial counsel recalled
that “there was an outstanding capias for [Mr. Hyatt’s] arrest at the time that he was killed.” He
testified that he informed the petitioner of his previous representation of Mr. Hyatt and of his
office’s appointment to Mr. Hyatt’s pending case. Trial counsel stated that although the petitioner
appeared “very suspicious of the quality of his representation by the Public Defender,” trial counsel
did not believe that a conflict of interests existed because “[t]here was no connection at all” between
the two cases. Trial counsel testified that even though he was aware of the information from the
outset of their relationship, the petitioner raised no objection until the second day of trial. Counsel
recalled that the petitioner filed a disciplinary complaint with the Board of Professional
Responsibility regarding the alleged conflict and that the Board ruled “that no conflict existed at the
time this case was tried.”
Trial counsel testified that he met with Ms. Boles and that she informed him that the
petitioner “had been treated for some mental health difficulties.” He stated that as a
result of this information, he asked for a mental health evaluation for the petitioner.
Trial counsel recalled that the petitioner did not want to undergo the evaluation
alone, so trial counsel attended the examination with the petitioner. Trial counsel
stated that despite the petitioner’s having been diagnosed with post-traumatic stress
disorder, trial counsel “never had any concerns about his competency to stand trial.”
He explained, “I knew from sitting in on the evaluation that a defense of insanity
could not be supported. I knew they could not support a defense of diminished
capacity. I did not seek an independent expert.” Trial counsel testified that he knew
that the petitioner had been drinking on the night of the kidnapping but said that he
did not recall the petitioner’s telling him that he had “ingested anything further”
before returning to Mr. Hyatt’s residence the following morning. Trial counsel stated
that
he did not believe that neither the petitioner’s mental health issues nor his voluntary
intoxication rose to the level of a defense to Mr. Hyatt’s homicide.
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Trial counsel testified that he and the petitioner made the decision together to pursue
a theory of self-defense and that the petitioner’s decision, made during trial, not to
testify “undermined that defense.” Trial counsel stated that he told the petitioner that
it was “very important” that he testify and that because the State had not filed notice
of any convictions with which it intended to impeach the defendant, “[t]here was no
reason for him not to testify.” Trial counsel recalled that he found out on the second
day of trial that the petitioner did not intend to testify. Trial counsel stated that the
petitioner’s decision forced the defense to rely on the testimony of the petitioner’s
wife. He testified that Ms. Shelton’s testimony was weakened by her pretrial
statement to police, which he characterized as “good and bad” and “contradictory in
places.”
Trial counsel testified that, with the petitioner’s decision not to testify, the defense
lost any testimony regarding the petitioner’s level of intoxication at the time of Mr.
Hyatt’s murder. Counsel recalled that he questioned Ms. Conner, with whom the
petitioner claimed to have been drinking and using cocaine, about the use of drugs
and alcohol but that Ms. Conner denied using either.
Trial counsel admitted that he made a mistake by failing to ask that Ms. Shelton’s
entire statement be made an exhibit to her testimony. He explained that the
prosecutor cross-examined Ms. Shelton with the most damaging portions of the
statement and that the prosecutor made those portions of the statement an exhibit.
Trial counsel stated that he did not similarly ask that the rest of the statement be
made an exhibit to satisfy the rule of completeness. He insisted, however, that he had
questioned Ms. Shelton about the substance of her statement. Nevertheless, he
admitted that because he had failed to exhibit the whole of the statement to Ms.
Shelton’s testimony, he failed to perfect any issue regarding the statement for review
on appeal.
During cross-examination, trial counsel again admitted his mistake in failing to
exhibit Ms. Shelton’s entire statement to her testimony, but he stated that he could
not say that “there was anything in the statement that wasn’t made part of the record
that ... would have altered the outcome of the case.” The bigger problem, in trial
counsel’s estimation, was the petitioner’s refusal to testify and “corroborate part of
the things that his wife testified to.”
Trial counsel reiterated that although he was aware of the petitioner’s previous
mental health issues, he was not “overly concerned about mental illness.” He stated
that the petitioner gave a very detailed account of the offenses, leading counsel to
believe that the petitioner suffered no problems with his memory. Trial counsel
stated that the petitioner’s excellent recall of the details belied any claim that he
suffered from diminished capacity due to voluntary intoxication. Trial counsel
testified that the murder of Mr. Hyatt followed the false imprisonment at Ms.
Connor’s residence by approximately nine hours. Trial counsel explained that
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although the petitioner told him that the petitioner had used drugs and alcohol on the
night of the false imprisonment, after Ms. Connor’s denial and the petitioner’s
refusal to take the stand, trial counsel had no way to get any further proof of the
petitioner's alleged intoxication into the record.
Trial counsel admitted that although he did not believe there was a conflict of
interests regarding his previous representation of Mr. Hyatt, “it would have been
better for [the petitioner’s] peace of mind if [trial counsel] would have brought that
to the [c]ourt’s attention.” Trial counsel explained that he was surprised when the
petitioner raised the issue on the second day of trial because he “thought we were
sort of beyond that issue.”
Shelton v. State, 2009 WL 5083495, at *2 -5.
IV.

ANALYSIS
Petitioner asserts the state court’s decision denying him relief on his ineffective assistance

of counsel claims was contrary to or involved an unreasonable application of clearly established
Federal law (Court File No. 2). Petitioner raises four specific instances of alleged ineffective
assistance of counsel.
A.

Ineffective Assistance of Counsel Claims

First, Petitioner claims counsel ineffectively failed to present proof of his previously
diagnosed mental illness, i.e., post traumatic stress disorder, in an effort to negate the element of
premeditation, even though counsel was aware to his mental health history. Second, Petitioner
claims counsel was ineffective for failing to present proof of his intoxication at the time of the
killing in an effort to demonstrate he was unable to form the culpable mental element of
premeditation, and for failing to object to the Court’s instruction that intoxication did not apply to
first degree murder. Third, Petitioner contends he was denied effective assistance of counsel due
to counsel’s prior representation of the victim. Finally, in his fourth claim, Petitioner contends
counsel failed to object to the prosecutor’s argument that “[i]f that was my house at 7:00 in the

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morning and somebody is out there beating on my door and my windows he would be looking down
the holes of a double barrel shotgun, not a paring knife. I would separate him from his head with
lethal force, and have no apology about it.” [Addendum No. 1, Vol. 5, p. 450].
After addressing the applicable law, the Court will address each alleged instance of
ineffective assistance of counsel.
B.

Applicable Law

In order to demonstrate ineffective assistance of counsel, a petitioner must show not only his
attorney’s representation fell below the standard of competence demanded of attorneys in criminal
cases but also a reasonable probability that, but for the attorney’s unprofessional errors, the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); McMann v. Richardson, 397 U.S. 759, 771 (1970). The Strickland test requires a defendant
demonstrate two essential elements: (1) counsel’s performance was deficient, i.e., counsel was not
functioning as counsel guaranteed the defendant by the Sixth Amendment, and (2) counsel’s
deficient performance prejudiced the defense, i.e., deprived the defendant of a fair trial rendering
the outcome of the trial unreliable. Id. at 687-88.
As the Sixth Circuit explained in United States v. Morrow, 977 F.2d 222, 229 (6th Cir.
1992), cert. denied, 508 U.S. 975 (1993): “Counsel is constitutionally ineffective only if
performance below professional standards caused the defendant to lose what he otherwise would
probably have won.” See also West v. Seabold, 73 F.3d 81, 84 (6th Cir.), cert. denied, 518 U.S.
1027 (1996). “An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the [ultimate] judgment.”
Id. (quoting Strickland, 466 at 691) (citing Smith v. Jago, 888 F.2d 399, 404-05 (6th Cir. 1989), cert.

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denied, 495 U.S. 961
(1990)). There is a strong presumption counsel’s conduct was within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689.
The Court cannot indulge in hindsight, but must instead evaluate the reasonableness of
counsel’s performance within the context of the circumstances at the time of the alleged errors.
Strickland, 466 U.S. at 690. Trial counsel’s tactical decisions are particularly difficult to attack.
O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). A defendant’s challenge to such decisions
must overcome a presumption that the challenged actions might be considered sound trial strategy.
O’Hara, 24 F.3d at 828. Effective assistance of counsel is presumed, and the Court will not
generally question matters involving trial strategy. See United States v. Chambers, 944 F.2d 1253,
1272 (6th Cir. 1991) (citing Strickland v. Washington, 466 U.S. at 692), cert. denied, 502 U.S. 1112
(1992).
Therefore, to prove deficient performance, a petitioner must demonstrate that counsel’s
representation fell below an objective standard of reasonableness under the then “prevailing norms
of practice.” Strickland, 466 U.S. at 688. When evaluating counsel’s performance, the Court is
mindful of the Strickland Court’s instructions that “[t]here are countless ways to provide effective
assistance of counsel. Even the best criminal defense attorneys would not defend a particular client
in the same way.” Id. In addition, the American Bar Association (“ABA”) Standards for Criminal
Justice are “guides to determining what is reasonable.” Rompilla v. Beard, 545 U.S. 374, 387
(2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003); Strickland, 466 U.S. at 688.

“[R]eviewing court[s] must remember that ‘counsel is strongly presumed to have rendered

13

adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.’” Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), (quoting Strickland v. Washington,
466 U.S. at 690).

The Court must make an independent judicial evaluation of counsel’s

performance, and determine whether counsel acted reasonably under all the circumstances. O’Hara,
24 F.3d at 828; Ward v. United States, 995 F.2d 1317, 1321-22 (6th Cir. 1993).
“Reviewing courts focus on whether counsel’s errors have undermined the reliability of and
confidence that the trial was fair and just.” Austin v. Bell, 126 F.3d 843, 847 (6th Cir. 1997) cert.
denied, 523 U.S. 1079 (1998) (citing, Strickland, 477 U.S. at 687; United States v. Cronic, 466 U.S.
648, 658, (1984)). To establish the prejudice prong, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
1.

Failure to Present Evidence of Petitioner’s Mental Health

Petitioner complains that counsel failed to present proof of his previously diagnosed mental
illness, i.e., post traumatic stress disorder, even though counsel was aware of his mental issues.3
Petitioner contends he has a documented history of mental problems going back to 1975 as the
forensic evaluation given in preparation for trial reflected the following:
TEAM Medical Records indicated that he [petitioner] was seen there in 1974 but his
records are unavailable. He received outpatient psychiatric treatment at Hiawassee
Mental Health Center from 6-25-01 to 12-14-01 and from 11-27-02 to 2-10-03. Mr.
Shelton [the petitioner] was diagnosed with Post Traumatic Stress Disorder and
Alcohol Dependence by Dr. Troy Gilson. He was hospitalized at Moccasin Bend

3

Petitioner witnessed his mother being shot and killed by his drunk step-father when
he was five years old. Sadly, one of Petitioner’s six year old twins and his four year old child were
in the car at the scene when the instant murder occurred.
14

Mental Institute once around 1995 for a suicide attempt. He was diagnosed with
Adjustment Disorder with Depressed Mood, Alcohol Dependence, Marijuana
Dependence, Major Depression without Psychotic Features, and Post Traumatic
Stress Disorder by Dr. Won Park. He was seen on 12-20-95 for a psychiatric
evaluation at Tennessee Dept. Of corrections – Dewberry and was diagnosed with
Polysubstance Dependence and PTSD.
(Court File No. 2, p. 3).
Respondent argues that trial counsel’s decision to pursue a claim of self-defense, with which
Petitioner agreed at the time, and the decision not to pursue a defense of insanity or diminished
capacity, is exactly the type of tactical decision which the Strickland Court held will not be second
guessed. Therefore, the state court decision was neither contrary to, nor an unreasonable application
of clearly established federal.
The state appellate court adjudicated the claim as follows:
The petitioner contends that trial counsel erred by failing to present proof of his
previously diagnosed mental illness to negate the element of premeditation. The
petitioner failed to present proof at the evidentiary hearing, however, to establish that
he suffered from a mental illness that would, in fact, have negated the mens rea
element of first degree murder. The petitioner’s aunt testified that he suffered from
post-traumatic stress disorder following the death of his mother when he was a young
child and that he had periodically been under the care of a physician for mental
illness. She did not testify, however, that the petitioner was under a doctor’s care at
the time of the murder of Mr. Hyatt. Further, trial counsel testified that he requested
a mental health evaluation based on Ms. Boles’s statements to him regarding the
petitioner’s mental health and that the evaluation confirmed his belief that the
petitioner’s capacity was not diminished by mental illness and that he was competent
to stand trial. The petitioner presented no proof at the evidentiary hearing to support
his claim that he was suffering from a mental disease or defect at the time of the
offenses that would have diminished his capacity to form the necessary mens rea for
the crimes. In consequence, he has failed to establish that trial counsel performed
deficiently by failing to present proof of his mental illness at trial.
Shelton v. State, 2009 WL 5083495, at *7.
During the post-conviction evidentiary hearing trial counsel explained that he was aware
Petitioner had been treated for some mental health issues as he had spoken with Ms. Boles, the
15

relative that testified during post-conviction that he had received mental health treatment as a result
of seeing his drunk step-father kill his mother when he was five years old. That was one of the
reason counsel had Petitioner evaluated. Counsel further explained:
Mr. Shelton, as he stated, did not want to undergo that mental evaluation by himself.
I was present with him when he was examined at Hiwassee Mental Health during the
entire interview. I will say, Your Honor, that during my represen - -, even though
I was aware that he had had some difficulties, that he’d been diagnosed with posttraumatic stress syndrome, that he’d had troubles with alcohol, I never had any
concerns about his competency to stand trial. I never had any concerns about his
ability to relay to me what did or did not happen. Mr. Shelton, during the entire
course of my representation, was very adamant, very specific about what did and did
not occur during the course of the entire event for which he was tried for. He
disputed the State’s proof, of course, and what the witnesses would say, but he was
very specific with me and Mr. Donaldson as to what occurred or didn’t occur. There
was never a period where he said, “I can’t recall,” or, “I blacked out,” or anything
of that nature, that he had any trouble recalling the events. He was able to recall the
events.
...
I knew from sitting in on the evaluation that a defense of insanity could not be
supported. I knew they could not support a defense of diminished capacity. I did not
seek an independent expert. I know that’s something that can be second guessed, but
the thrust of this case, the decision was made by me as trial counsel that it was not
a knowing homicide, that it was self-defense.
[Addendum No. 3, Vol. 2, pp. 74-79]. Trial counsel further explained that although he knew
Petitioner had mental health problems, he did not believe the problems “rose to the level of a
defense.” [Addendum No. 3, Vol. 2, p. 83].
The record clearly supports counsel’s strategic decision not to try to introduce evidence of
Petitioner’s previously diagnosed mental illness to negate the element of premeditation, but instead
to proceed with self-defense, as does the law. Although “evidence, including expert testimony, on
an accused’s mental state, is admissible in Tennessee to negate the elements of specific intent,
including premeditation and deliberation in a first-degree murder case,” State v. Phipps, 883 S.W.2d
16

138, 149 (Tenn. Crim. App. 1994), such evidence must “not be proffered as proof of ‘diminished
capacity.’ Instead, such evidence should be presented to the trial court as relevant to negate the
existence of the culpable mental state required to establish the criminal offense for which the
defendant is being tried.” Hall v. State, 958 S.W.2d 679, 690 (Tenn. 1997).
Petitioner’s medical and mental health records do not meet the Tennessee admissibility
requirements as there is nothing in them indicating Petitioner was unable to form the requisite intent
to commit first degree premeditated murder [Addendum No. 3, Vol. 3, Appendix E]. Indeed, the
October 28, 2003, Volunteer Behavioral Health Care System Crisis Assessment, which was
conducted seven days after the murder, indicates that, although Petitioner was having an episode of
reliving the murder situation while in jail requiring the calling of the crisis response team, he did not
meet the criteria for in-patient treatment. Moreover, there is noting in that report that indicates his
mental state prevented him from forming the requisite culpable mental intent for first degree
premeditated murder.
Thus, upon review of the record, the Court cannot say that the state court’s application of
Strickland standard was unreasonable in concluding Petitioner failed to establish trial counsel
performed deficiently by failing to present proof of his mental illness. Notably, during his postconviction evidentiary hearing, Petitioner failed to present any expert testimony that his mental
illness negated the existence of the culpable mental state required for premeditated murder, and the

Court has not located any such evidence in the record. Thus, even assuming counsel was deficient
in this regard, Petitioner has not demonstrated he suffered any prejudice.
Accordingly, because the state court’s decision was not based upon an unreasonable

17

determination of the facts in light of the evidence before it or an unreasonable application of
Strickland, the claim that counsel failed to present proof of Petitioner’s mental illness will be
DISMISSED.
2.

Failure to Present Evidence of Petitioner’s Intoxication

Next Petitioner claims trial counsel ineffectively failed to present proof of his voluntary
intoxication at the time of the murder to negate the element of premeditation and object to the trial
court’s instruction that the defense of intoxication did not apply to the first degree murder charge.
Respondent contends that no evidence of Petitioner’s intoxication at the time of murder exists; thus,
the state court decision is clearly supported by the record.
The state post-conviction appellate court resolved the issues as follows:
II. Petitioner’s Intoxication
The petitioner also claims that trial counsel was ineffective by failing to present
proof of the petitioner’s voluntary intoxication at the time of the murder in effort to
negate the element of premeditation. Again, however, the petitioner failed to present
evidence that he was, in fact, intoxicated at the time of the murder. The petitioner
testified that he and Audrey Connor consumed alcohol and crack cocaine on the
evening before the murder, but he admitted that this consumption preceded the
murder by several hours. In his brief, the petitioner points to his own testimony at the
evidentiary hearing as proof of his intoxication, but the petitioner had refused to
testify at trial. Further, Ms. Connor, with whom the petitioner claimed to be using
drugs and alcohol, denied using drugs with the petitioner. In consequence, there was
no evidence of intoxication that trial counsel could have presented. Trial counsel will
not be held responsible for failing to present proof that simply did not exist at the
time of trial.
III. Trial Court’s Instruction on Intoxication
The petitioner complains that trial counsel erred by failing to object to the trial
court’s instruction that its instruction on voluntary intoxication did not apply to the
charge of first degree murder. As discussed above, however, there was simply no
proof that the petitioner was intoxicated at the time he killed Mr. Hyatt, and there
was no proof that the petitioner’s earlier intoxication affected his mental capacity at
the time of the murder. Accordingly, the trial court correctly concluded that an
instruction on intoxication as to that offense was not warranted. Harrell v. State, 593
S.W.2d 664, 672 (Tenn.Crim.App.1979) (holding that any instruction on voluntary
18

intoxication is not warranted unless there is “evidence that the intoxication deprived
the accused of the mental capacity to form specific intent” and observing that “[t]he
determinative question” is what was the defendant's “mental capacity”). Because the
trial court’s instructions were a correct statement of the law as applied to the present
case, trial counsel did not perform deficiently by failing to object to the instruction
at trial or challenge it on appeal.
Shelton v. State, 2009 WL 5083495, at *7-8.
During the post-conviction evidentiary hearing, when asked whether he considered
Petitioner’s alcohol and drug use as a parallel defense with self defense, defense counsel explained:
I didn’t . . . I anticipated Mr. Shelton testifying. Maybe I relied too much on the fact
that I believed he was going to testify. And I knew when he took the stand, he was
going to be real specific about what occurred after he and his wife returned home.
They spent time around, I think a pond or a lake, reconciling, had sexual relations,
trying to have a good relationship with his wife. They went to bed a few hours. He
set an alarm to get up so that he could go confront Mr. Hyatt. His child was sick,
wanted to take the child to the doctor. I knew that’s what he was going to testify to
at trial. That’s what I thought he was going to testify to at trial. So I thought that,
at least to my thinking, that that [sic] would undermine a mental health defense,
because he was so specific about what happened and why. Obviously the concern
is he had a motive to kill the deceased, because he believed that the man was having
an affair with his wife. Obviously that was a grave concern. The State had a motive.
In hindsight, maybe I could have pursued a different defense, but all along it was that
he had no intention of killing him when the stabbing occurred. And because he was
able to be so specific about the events; he was always oriented in time and place
when these events happened that I thought - - I do not think that a jury would find
that as mitigation. There wasn’t a period where he had any loss of memory or
blackout or couldn’t recall. He was always very specific about what he did, that
witnesses were lying. “That’s not, that didn’t occur,” that, “I never made threats to
kill the deceased. I just was upset and wanted to confront him.” I mean, we had
many discussions about that. And my thinking is if he testified to that that [sic] it
would be, that a jury would see that he was, like I said, oriented in time and place
and rational, at least to some extent, when these occurrences occurred.
[Addendum No. 3, Vol. 2, pp. 102-103].
During trial, Audrey Mae Conner testified she knew Petitioner and saw him the night before
the murder at her house and he was acting “[h]igh” which was unusual. Petitioner left but then she
heard glass breaking and went outside where she found him near a car cutting the tires. She told him
19

to stop, he cussed her, and then she let him use her phone. After he used her phone, Petitioner
refused to give it back because he was afraid she would call the police. Although the Court is unable
to find this witness denied using drugs with Petitioner, as the state appellate court stated, Petitioner
failed to present this witness, whom he presumably alleges will confirm he was using drugs and
alcohol the night before the murder, during his state post-conviction evidentiary hearing [Addendum
No. 1, Vol. 3, pp. 154-166]. Although his wife testified he had been drinking on Saturday before
the murder, she did not testify he had been drinking on Monday, October 20, 2003, or the day of the
murder which occurred on Tuesday, October 21, 2003 [Addendum No. 1, Vol. 4, p. 342]. In her
statement to police after the murder, she denied her husband was “taking any drugs or anything like
that” on Sunday [Addendum No. 1, Exhibit 22, p. 6].
Nevertheless, because Ms. Conner testified he acted high on the night of the alleged
kidnapings, the court, over the State’s objection, gave a voluntary intoxication instruction in relation
to the crimes that were committed the day before the murder [Addendum No. 1, Vol. 5, pp. 381-82;
410-411]. The Court gave the following instruction:
Included in the defendant’s plea of not guilty to the charges of especially aggravated
kidnapping and the lesser included offenses therein is his plea of intoxication as a
defense. You have heard evidence concerning the alleged intoxication of the
defendant at the time of the alleged offense.
Intoxication itself is generally not a defense to prosecution for an offense. If a
person voluntarily becomes intoxicated and, while in that condition, commits an act
which would be a crime if he or she were sober, he or she is fully responsible for his
or her conduct. It is the duty of persons to refrain from placing themselves in a
condition which poses a danger to others.
“Intoxication” means disturbance of mental or physical capacity resulting from the
introduction of any substance into the body.
“Voluntary intoxication” means intoxication caused by a substance that the person
knowingly introduced into the person’s body, the tendency of which to cause
20

intoxication was known or ought to have been known.
Intoxication, whether voluntary or involuntary, is relevant to the issue of the essential
element of the defendant’s culpable mental state.
In this case, the state must prove beyond a reasonable doubt the required culpable
mental state of the defendant which is knowingly.
If you find that the defendant was intoxicated to the extent that he could not have
possessed the required culpable mental state, then he cannot be guilty of the offense
of especially aggravated kidnapping.
If you are satisfied beyond a reasonable doubt that the defendant possessed the
culpable mental state then you must find him not guilty of especially aggravated
kidnapping.
Intoxication does not apply to the first degree murder charge.
[Addendum No. 1, Vol. 5, pp. 409-411].
During post-conviction proceedings, trial counsel testified there was no proof Petitioner
consumed any alcohol between the time of the kidnaping and the murder [Addendum No. 3, Vol.
2, p. 124]. A careful review of the trial transcript reveals there is no evidence Petitioner ingested
any intoxicant between the time of the kidnapping and the murder the next day. There is no
testimony concerning this topic except Ms. Conner’s testimony that he was acting high on the
evening of the kidnaping [addendum No. 1, Vol. 3, p. 156, line 11].

Clearly, the state court’s rejection of this claim is supported by the record. There simply is
no credible evidence in the record that Petitioner was intoxicated at the time he committed these
crimes. Counsel believed there was sufficient credible evidence Petitioner was sober at the time
of the murder to justify not presenting this defense and pursued self-defense as Petitioner’s defense.
Counsel’s decision to forego the intoxication defense is not outside the ambit of strategic decision

21

recognized by Strickland.
Likewise, counsel’s failure to object to the Court’s jury instruction excluding the intoxication
defense from the murder charge is not deficient performance as such an argument would have been
groundless since there is no evidence of his intoxication at the time of the murder. Counsel does
not perform deficiently by failing to make a frivolous objection. See generally Smith v. Robbins,
528 U.S. 259, 282 (2000) (noting counsel has an ethical duty as officer of the court not to present
frivolous arguments); Green v. United States, 23 F.3d 406 (6th Cir. 1994), available at 1994 WL
144435, *2 (“Trial counsel is not required to make frivolous objections to avoid a charge of
ineffective representation.”) (citing Krist v. Foltz, 804 F.2d 944, 946-47 (6th Cir. 1986)).
Petitioner’s failure to present any credible evidence during his state post-conviction
evidentiary hearing he was intoxicated at the time of he commission of any these crimes is fatal to
these claims. Thus, even if counsel performed deficiently in failing to present evidence of his
intoxication or object to the instruction, which the Court does not find, Petitioner has failed to
demonstrate any resulting prejudice as there is no evidence before the Court from which it can
conclude there is a reasonable probability the jury would have accepted the voluntary intoxication
defense. The evidence clearly demonstrates Petitioner’s cognitive skills were not so impaired that
he was prevented from premeditating or forming the intent to kill,4 and that his motor skills were not
so impaired that the stabbing of the victim or hitting him in head with a baseball bat was not
intentional. The record supports this conclusion as there is no evidence Petitioner ingested any
intoxicant close to the time of committing the murder.

4

Petitioner’s wife statement to police reflected she told them the morning of the
murder Petitioner continued telling her he was going to kill the victim, and she believed he went
over there with the intent to kill the victim [Addendum No. 1, Vol. 4, pp. 349, 359].
22

Accordingly, because Petitioner has not demonstrated the Tennessee Court of Criminal
Appeals adjudication of these claims were contrary to, or involved an unreasonable application of
clearly established federal law, or was based upon an unreasonable determination of the facts in light
of the evidence before the state court, his claims that counsel was ineffective for failing to present
evidence of his intoxication and object to the jury instruction that intoxication did not apply to the
murder charge will be DISMISSED.
3.

Conflict of Interest

Petitioner alleges trial counsel was ineffective for failing to notify the trial court or obtain
a signed waiver of any conflict of interest in relation to counsel’s prior representation of the murder
victim, Brian Hyatt. Petitioner contends he was prejudiced by this “potential conflict.” (Court File
No. 2, pp. 4-5).
During post-conviction proceedings, Petitioner testified counsel advised him he had
represented the victim, Brian Hyatt on a burglary charge, but it would not be a problem. As the
Court understands Petitioner’s post-conviction testimony, during his first trial, which ended in a
mistrial, the State raised the issue of trial counsel’s prior representation of the victim and Petitioner
also filed a motion to dismiss counsel complaining counsel had spoken to Sue Hyatt and two other
individuals earlier. That motion, however, was denied [Addendum No. 3, Vol. 1, p. 25]. Petitioner
also testified he raised the issue on the second day of the second trial but the trial court refused to
appoint new counsel [Addendum No. 3, Vol. 1, p. 26.5

5

The record reflects that during the trial of this matter, Petitioner complained to the
court that counsel was speaking to the victim’s family, and that counsel “represent[ed] Brian Hyatt
at the time he took this case.” [Addendum No. 1, Vol. 3, p. 203]. Counsel responded he had not
talked to the victim’s family since the trial started, Petitioner retorted he had witnesses, and counsel
told the court he could put on this proof but he had not talked to the family and had no reason to talk
23

During post-conviction proceedings trial counsel explained his prior representation of the
victim as follows:
Brian Hyatt is the deceased in this case. Brian Hyatt was a, is, was a person who had
previously been represented by the Public Defender’s office at the time of his death.
The Public Defender’s office had a case that we were appointed on at the time of his
death. My recollection is that Mr. Hyatt had been found guilty of, I believe, a felony
vandalism; had been placed on probation. At some point, he’d been revoked on that
sentence and had to serve the sentence. So I personally did know him. I think I
actually represented him on that previous case. At the time of the homicide, Mr.
Hyatt was under indictment here in Bradley County for a, I believe it was a theft, that
involved his father-in-law, Robert Holt, who was a witness for the State in the
homicide case. Mr. Hyatt had been indicted; the Public Defender had been
appointed. I had not personally spoke to Mr. Hyatt about that case. I was not present
when he was arraigned. I did not discuss the case with him. At some point after the
Public Defender was appointed, he failed to appear in court, so there was a - - my
recollection is there was an outstanding capias for his arrest at the time that he was
killed.
[Addendum No. 3, Vol. 2, pp. 69-70]. Counsel testified he informed Petitioner of the prior
representation of Mr. Hyatt and that counsel did not believe there was any conflict of interest in
representing Petitioner as the cases were unrelated. Counsel testified Petitioner subsequently filed
a disciplinary complaint with the Board of Professional Responsibility regarding the alleged conflict
and the Board ruled that no conflict of interest existed at the time the case was tried because there
was no connection between the two cases [Addendum No. 3, Vol. 2, pp. 70-73].
The post-conviction appellate court rejected Petitioner’s claim as follows:
In his final claim, the petitioner asserts that he was denied the effective assistance of
counsel at trial because trial counsel, who had previously represented Mr. Hyatt in

to them about anything. At that time, Petitioner also complained, as best as the Court can discern,
that counsel did not file the same discovery motion Randy Rogers had filed in some other case and
that counsel had not gone over every single piece of evidence with him. Petitioner also complained
that he was concerned about the confidentiality of their jailhouse meetings. The trial court
concluded that unless Petitioner wanted to hire somebody that day to step in, the trial would resume.
The trial resumed [Addendum No. 1, Vol. 3, pp. 196-209].
24

a criminal case, was operating under an actual conflict of interests. In addition, he
claims that trial counsel’s failure to procure a written waiver of the conflict entitles
him to post-conviction relief.
Prejudice will be presumed in cases where the petitioner has established that his trial
counsel “ ‘actively represented conflicting interests’ and that ‘an actual conflict of
interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692,
104 S.Ct. at 2067 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct.
1708, 64 L.Ed.2d 333 (1980)). As the Court explained,
[I]t is difficult to measure the precise effect on the defense of representation
corrupted by conflicting interests. Given the obligation of counsel to avoid
conflicts of interest and the ability of trial courts to make early inquiry in
certain situations likely to give rise to conflicts, it is reasonable for the
criminal justice system to maintain a fairly rigid rule of presumed prejudice
for conflicts of interest.
Id. (citation omitted). “[A]n actual conflict of interest includes any circumstances in
which an attorney cannot exercise his or her independent professional judgment free
of ‘compromising interests and loyalties.’ “ State v. White, 114 S.W.3d 469, 476
(Tenn.2003) (citing State v. Culbreath, 30 S.W.3d 309, 312–13 (Tenn.2000) (quoting
Tenn. R. Sup.Ct. 8, EC 5–1)). “The proper focus is solely upon whether counsel’s
conflict affected counsel’s actions.” Netters v. State, 957 S.W.2d 844, 848 (Tenn.
Crim. App.1997).
Again, the petitioner failed to adduce any proof at the evidentiary hearing to support
his claim that trial counsel was burdened by an actual conflict of interests. Trial
counsel’s accredited testimony established that he had previously represented Mr.
Hyatt in a criminal case some years before he was killed by the petitioner. Trial
counsel also testified that his office had been appointed to represent Mr. Hyatt on a
criminal charge that was pending at the time of Mr. Hyatt’s death but that neither he
nor any other attorney from his office had met with Mr. Hyatt regarding the pending
charge. Trial counsel insisted that he did not believe there to be a conflict of interests
and that he revealed his previous representation of Mr. Hyatt to the petitioner as soon
as he was appointed to the petitioner’s case. Nothing suggests that trial counsel’s
representation of the petitioner was colored by his previous representation of Mr.
Hyatt. To the contrary, the record establishes that counsel zealously represented the
petitioner. Because the petitioner has failed to establish that trial counsel was
burdened by an actual conflict of interests that adversely affected his representation
of the petitioner, he is not entitled to relief on this issue.
Similarly, we fail to see how trial counsel’s failure to procure a written waiver of the
perceived conflict adversely affected the outcome of the trial. Although it might have
been preferable to obtain a written acknowledgment of trial counsel’s previous
25

representation of Mr. Hyatt, because the previous representation did not, in this
instance, rise to the level of a conflict of interests, no written waiver of the conflict
was necessary. As such, the failure to obtain a written waiver under these
circumstances did not render counsel’s assistance ineffective.
Shelton v. State, 2009 WL 5083495, at * 8.
First, Petitioner failed to demonstrate to the trial court or post-conviction court that counsel’s
previous representation of the victim gave rise to a conflict. Second, he failed to show the alleged
conflict of interest actually affected his lawyer’s performance. See Cuyler v. Sullivan, 446 U.S. 335,
349-350 (1980). In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court found that the
presumed prejudice standard of Cuyler v. Sullivan was clearly established only in the situation of
a conflict of interest due to multiple concurrent representation. Id. At 175; see also Stewart v.
Wolfenbarger, 468 F.3d 338, 351 (6th Cir., 2006) (The Sixth Circuit “has consistently held that, for
§ 2254 cases, the Sullivan standard does not apply to claims of conflict of interest other than
multiple concurrent representation; in such cases, including successive representation, the
Strickland, standard applies”).
Petitioner fails to demonstrate how his counsel’s previous representation of the victim
constitutes an actual conflict. While trial counsel previously represented the victim in an unrelated
proceeding where the victim was being criminally prosecuted, counsel did so years before his
representation of Petitioner. Although counsel had recently been appointed to represent the victim,
no meeting ever took place between them as the victim failed to show for his court appearance, and
Petitioner murdered him before he was ever arrested on the capias.
Petitioner argues he was prejudiced because counsel had contact with the victim’s family
during trial, and counsel was prohibited from disclosing information, such as the victim’s propensity
for violence, by the attorney client privilege (Court File No. 2). As previously noted, trial counsel
26

denied having any contact with the victim’s family at the time Petitioner brought it up during trial
[Addendum No. 1, Vol. 3, p. 203]. Petitioner’s witness, Marlene Boles (his maternal aunt) testified
during the post-conviction evidentiary hearing that during the first trial when she and Petitioner’s
wife were sitting on the bench, “a lot of the Hyatts were out here by this door, and they all came out
of the room, and Richard and everybody was talking together. It was all the Hyatts. I was sitting
there, and Natalie, and it was when they said it was a mistrial? [sic]” Ms. Boles also testified during
the second trial she told counsel the Hyatts’ had threatened Natalie and counsel and the witness
walked down to Natalie and he was taking to Natalie and the Hyatts came up behind her and “they”
started talking and the witness walked away [Addendum No. 3, Vol. 2, p. 19-20]. This vague, nonspecific testimony indicates, if anything, any conversation counsel had with the Hyatts’ was to
protect Petitioner’s wife. Nevertheless, this testimony amounts to nothing more than innuendo and
speculation. Petitioner’s claim of conflict is speculative and unconvincing. Moreover, Petitioner
has failed to present any evidence of anything counsel did or failed to do in the conduct of his
defense which demonstrates any conflict of interest arising from his prior representation of the
victim, Brian Hyatt, in two completely unrelated criminal matters.
The Sixth Circuit has instructed that “where the two representations were successive, the
conflict . . . is not actual, but rather attenuated.” Watkins v. Lafler, 517 Fed.Appx. 488, 498 (6th Cir.
2013). Once Petitioner killed the victim, counsel’s representation of the victim ended, although it
is questionable whether it ever actually began. Counsel subsequently was appointed to represent
Petitioner after the death of the victim. Thus, it appears the Strickland standard applies. Stewart v.
Wolfenbarger, 468 F.3d 338 (6th Cir. 2006) (for § 2254 cases, the Sullivan standard does not apply
to claims of conflict of interest other than multiple concurrent representation; in such cases,

27

including successive representation, the Strickland standard applies).
There is nothing before the Court demonstrating trial counsel was burdened with divided
loyalties between Petitioner and the victim. When the trial court inquired, Petitioner did not
demonstrate counsel had a conflict and the record does not reflect there was an actual conflict or that
counsel’s previous representation of the victim adversely affected him while representing Petitioner.
The Supreme Court has held “the possiblity of conflict is insufficient to impugn a criminal
conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must
establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v.
Sullivan, 446 U.S. at 350. This, Petitioner has failed to do.
In sum, Petitioner has failed to demonstrate counsel had a conflict under Cuyler. Even
assuming counsel’s failure to notify the court of his prior representation of the victim and obtain a
written from Petitioner was deficient, Petitioner has failed to demonstrate he suffered any prejudiced
as a result of the alleged deficiency under Strickland, as he has not demonstrated a reasonable
probability that, but for counsel’s alleged deficiency, the outcome of the trial would have been
different. Thus, Petitioner has failed to support his claim for ineffective assistance of counsel under
either Cuyler or Stickland. Accordingly, because the state court’s decision is not based upon an
unreasonable determination of the facts nor is it contrary to, or an unreasonable application of
federal law, Petitioner’s claims that counsel had a conflict and failed to have him sign a waiver will
be DISMISSED.
4.

Counsel’s Failure to Object to Prosecutor’s Arugment

In his fourth claim, Petitioner contends counsel was ineffective for failing to object to the
Prosecutor’s argument. During closing, the following argument was made by the Prosecutor:

28

And so you are in your house at 7:00 in the morning asleep and your are awaken, and
Mr. Donaldson says he come knocking on the door. He wasn’t out there knocking
on the door, he was pounding on the door and the window. And Ms. Hyatt knew
what was there, the threat to her safety and her children and her husband and she
begged him to stay in the bedroom, but you know, he had to be some measure of a
man, he went out to find out what the ruckus was about, and let me tell you
something, I don’t care if he did have the paring knife. If that was my house at 7:00
in the morning and somebody is out there beating on my windows he would be
looking down the holes of a double barrel shotgun, not a paring knife. I would
separate him from his head with lethal force, and have no apology about it. So I
don’t even care if their theory is right.
[Addendum No. 1, Vol. 5, pp. 449-450].
Petitioner did not raise this claim on post-conviction appeal. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners to exhaust their claims in state
court before raising them in federal court. 28 U.S.C. § 2254(b)(1)(A). To meet the exhaustion
requirement, a petitioner must “fairly present” his claims through “one complete round of the State’s
established appellate review process[.]” O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). To fairly
present a claim, the petitioner must clearly state the federal basis and federal nature of the claim,
along with relevant facts. Anderson v. Harless, 459 U.S. 4, 6-7 (1982).

Petitioner did not raise this claim in the Tennessee Court of Criminal Appeals.
Consequently, it is procedurally barred absent a showing of good cause for his failure to exhaust the
claim and prejudice from the purported constitutional violation, or a showing that failure to hear the
claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991). Petitioner has not alleged any cause for his default or any resulting prejudice or miscarriage

29

of justice. Accordingly, review of this claim is procedurally barred and it will be DISMISSED.6
V.

CONCLUSION
Petitioner is not entitled to an evidentiary hearing, and his § 2254 petition will be

DISMISSED (Court File No. 2).
A judgment will enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

6

Notably, to be cognizable, a prosecutor’s statement must have “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181 (1986). That is not what we have here. Nevertheless, even assuming for the sake
of discussion the claim is properly before the Court and counsel performed deficiently in his failure
to object to the argument, Petitioner has not raised a viable claim as he is unable to demonstrate
prejudice i.e., a reasonable probability, that but for counsel’s failure to object to the argument, the
outcome of the trial would have been different.
30