Rogers v. Colson

Filing 153

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 3/25/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIAM GLENN ROGERS,
Petitioner,
v.
BRUCE WESTBROOKS, Warden,
Respondent.

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NO. 3:13-cv-00141
CHIEF JUDGE CRENSHAW
DEATH PENALTY CASE

MEMORANDUM OPINION
Petitioner William Glenn Rogers, a prisoner on Tennessee’s death row at Riverbend
Maximum Security Institution, has filed a petition under 28 U.S.C. § 2254 for the writ of habeas
corpus. The operative petition under review is the amended petition filed by appointed counsel on
November 7, 2013. 1 (Doc. No. 14.) Respondent filed an answer (Doc. No. 29), in which he denied
that Petitioner is entitled to any relief, along with more than 9,600 pages of the state court records
pertaining to Petitioner’s conviction. (Doc. Nos. 24–26.) Both Petitioner and Respondent sought
permission to conduct discovery (Doc. Nos. 33, 34, 42, 83), which the Court granted to a large
degree. (Doc. Nos. 37, 75, 50, 89.) Respondent filed a motion for summary judgment on
September 29, 2016, along with a 232 page memorandum in support. (Doc. No. 95.) On February
28, 2017, Petitioner filed a 535 page response to the motion, accompanied by more than 12,700
pages of exhibits. (Doc. Nos. 111–129.) Respondent filed a reply in support of his motion on June
27, 2017 (Doc. No. 134), followed by Petitioner’s surreply on August 15, 2017. (Doc. No. 138.)
The motion is fully briefed and ripe for decision. For the reasons set forth below, the Court will

1

All references herein to the “petition” are to the November 2013 amended petition filed by
counsel.

grant Respondent’s motion.
I.

FACTS AND PROCEDURAL HISTORY

The Tennessee Supreme Court summarized the facts introduced at trial as follows:
At the guilt phase of the trial, the State presented proof that on July 3, 1996, nineyear-old Jacqueline (“Jackie”) Beard was playing with her twelve-year-old brother,
Jeremy Beard, and her eleven-year-old cousin, Michael Carl Webber, at a mud
puddle near her home in the Cumberland Heights area of Clarksville in
Montgomery County. The defendant, thirty-four-year-old William Glenn Rogers,
approached the children and introduced himself as “Tommy Robertson.” He said
he was an undercover police officer, offered the children fireworks, and invited
them to go swimming. Jackie went home and told her mother, Jeannie Meyer, about
the man. Mrs. Meyer took Jackie back to the mud puddle to investigate. While the
children played with the fireworks, Mrs. Meyer talked with Rogers, who continued
to identify himself as undercover officer Tommy Robertson. After approximately
thirty-five minutes, Rogers left in his car.
At around 1:30 p.m. on July 8, 1996, Rogers appeared at the Meyer residence
asking about a lost key. Jackie was with her mother when Mrs. Meyer spoke with
Rogers. Rogers was last seen walking down the road toward a nearby abandoned
trailer. A few minutes later, Mrs. Meyer gave Jackie permission to pick blackberries
to take to the doctor’s office where Mrs. Meyer had an appointment that afternoon.
Jackie changed her shorts immediately before leaving the house. At 1:55 p.m., Mrs.
Meyer was ready to leave and called for Jackie but could not find her. At around
2:00 p.m., a neighbor, Mike Smith, saw a car matching the description of Rogers’
car leaving the immediate area. Smith had seen the same car heading in the direction
of the Meyer residence about an hour or two earlier. Mrs. Meyer searched the area
by car and on foot to no avail. Jackie was never seen alive again.
Mrs. Meyer reported her daughter’s disappearance to the authorities. A composite
drawing of the suspect was published in the Clarksville newspaper. Several people
reported to the Montgomery County Sheriff’s Department that the person in the
drawing resembled Rogers.
On July 11, 1996, law enforcement officers questioned Rogers, who at first denied
being in the Cumberland Heights area. In his next interview, however, Rogers told
the officers that he had been in the area on July 3, 1996, shooting fireworks with
three boys. He later acknowledged that Jackie was one of the three children. Rogers
admitted speaking with Mrs. Meyer about his lost key on July 8, 1996, but denied
seeing Jackie that day. He said he walked to the abandoned trailer, went to the
bathroom there, and then left in his car to look for a job. As the questioning
continued, Rogers changed his story again and acknowledged that Jackie was
present during his conversation with her mother on July 8, 1996. Rogers ultimately
confessed that, after leaving the abandoned trailer, he accidently ran over Jackie as
he backed up his car. Rogers said he heard a thud, discovered the victim under the
2

car, and pulled her out. Her chest was moving as she tried to inhale, and blood was
coming out of her nose. Rogers saw tire tracks across her right calf, right shoulder,
and neck. He covered the victim’s head with a shirt that he removed from the trunk
of the car. Rogers placed the victim in the front passenger seat of the car, drove to
a bridge over the Cumberland River, and threw her body, along with a sandal that
had fallen from her foot, into the water. He stated that he did not touch her “in any
way sexually or abusive.” Rogers reduced this story to writing and signed the
statement. Rogers made a diagram depicting how his car had run over the victim.
He also signed the back of a photograph of the victim where he had written, “This
is the girl I hit.”
The following day, July 12, 1996, when officers asked Rogers about the possibility
that the victim’s fingerprints were in the car, Rogers changed his story yet again. In
a second written statement, Rogers corrected his earlier statement by adding that
the victim had gotten into the passenger side of his car and talked to him for about
five minutes before she left saying her mother had to go to the doctor. Later on July
12, 1996, Rogers went with officers and his court-appointed attorney to the sites
where he allegedly had run over the victim and thrown her body into the river.
Rogers re-enacted the events of July 8, 1996, in a manner consistent with his written
statements.
Investigation of the abandoned trailer showed that the victim’s home and yard were
visible from a bay window. A search of Rogers’ car revealed a handheld telescope,
a can of glass cleaner, and a map opened to the Middle Tennessee region, including
the Land Between the Lakes area. A floor mat was on the driver’s side but not the
passenger’s side. Although Rogers’ fingerprints were on loose items in the car,
officers found no fingerprints on the car’s interior surfaces. Divers searched in the
Cumberland River near the bridge where Rogers said he had thrown the victim’s
body, but nothing was found.
On November 8, 1996, four months after the victim’s disappearance, two deer
hunters discovered the victim’s skull in a remote, wooded area in Land Between
the Lakes in Stewart County. DNA analysis of the teeth established that the
mitochondrial DNA sequence matched the DNA sample from the victim’s mother.
The skeletal remains of the victim were scattered around the area, which was
several hundred yards from the Cumberland River and approximately forty-eight
miles from her home. Both of the victim’s sandals were found at the scene. The
clothing worn by the victim when she disappeared was strewn near the bones. Her
shirt had been turned completely inside out, and human semen stains were on the
inside crotch of her shorts. A DNA sequence could not be obtained from the semen
stains for comparison to the DNA sample provided by Rogers. FN2 However, fibers
consistent with carpet in Rogers’ house were found in his car and on the victim’s
shorts.
FN2: Meghan Clement, an expert in forensic serology and DNA
analysis, explained that there were four possible reasons that she
was unable to obtain a sequence from the stain: the DNA was too
degraded; the quantity of the DNA in the sample was insufficient;
3

the DNA in the sample came from multiple sources, either two
sources of semen or one source of semen and vaginal fluid from the
victim; or the chemical inhibitors from environmental contaminants
prevented the sequence from being obtained.
Dr. Murray K. Marks, a forensic anthropologist, examined the victim’s skeletal
remains. He testified that the remains had been in the area from three to ten months.
Dr. Marks explained that some of the victim’s bones—the hands, the feet, one entire
leg, and the lower part of another leg—were never recovered and probably had been
removed from the scene by animals. Dr. Marks could not determine the cause of
death but stated that he found no ante-mortem trauma to the bones such as would
be expected had a car run over the victim. Likewise, Dr. Robert Lee, the Stewart
County Medical Examiner, was unable to determine the cause or manner of the
victim’s death.
Rogers’ estranged wife, Juanita Rogers, testified that on July 4, 1996, she and
Rogers went to Land Between the Lakes. On the drive back, they stopped at a picnic
area off Dover Road about ten to fifteen miles from where the victim’s body was
found. After walking in the woods, Rogers remarked to his wife that “you could
bury a body back here and nobody would ever find it.” Mrs. Rogers also testified
that on July 8, 1996, the day of the victim’s disappearance, she did not see Rogers
from before lunch until after 6:00 p.m. When he appeared that evening, his pants
were muddy at the knees. The outside of the car also was muddy. Rogers told his
wife that he had been in a tobacco field on Dover Road. When she noticed a spot
of blood on his shirt, he told her that he had cut his finger, but she did not see a cut.
Although she had given Rogers money to put gasoline in the car earlier in the day,
the tank was almost empty. Mrs. Rogers also noticed small fingerprints on the
inside of the passenger side windshield. The muddy prints went down the
windshield. When asked by his wife if a child had been in the car, Rogers said no.
Mrs. Rogers further testified that on July 9, 1996, the day following the victim’s
disappearance, she accompanied Rogers to the garbage dump. She thought it was
unusual that Rogers took only one bag of trash all the way to the dump. She noticed
that the car had been cleaned since the day before, both inside and out, but Rogers
denied cleaning it. On July 11, 1996, after the police contacted Rogers, he told his
wife he had informed the police that he had been with her the entire afternoon of
July 8, 1996. She refused to support his alibi. On the evening of July 11, 1996, after
his arrest, Rogers called his wife and told her that he had confessed to vehicular
homicide and would be home in a couple of hours.
Rogers made several additional, sometimes contradictory, statements about his
involvement in the victim’s death. He called his wife numerous times from jail
seeking to speak with her and promising, if she would pick up the telephone, he
would tell her what really happened and where the victim could be found. Rogers
also wrote his wife a letter stating that the victim’s death had been an accident, had
not been planned or thought out, and had “just happened.” Rogers told his mother
and half-brother that he had run over the victim and informed his mother that she
should not worry because “all they could get him for was vehicular homicide.”
4

Rogers sent the victim’s stepfather a letter, in which he wrote that he did not hurt
the victim in any way. Rogers also contacted David Ross, a Clarksville reporter,
and denied ever hitting the victim with his car. Rogers told Ross that he had last
seen the victim on July 8, 1996, as she walked away from his car toward her house.
Rogers said he had told the police what they wanted to hear because he was
confused and frightened.
Rogers presented evidence that law enforcement officers had investigated three
other suspects in the case: Quinton Donaldson, Tommy Robertson, and Chandler
Scott. Rogers also tried to point out discrepancies and contradictions in the State’s
evidence and offered proof that he was looking for a job on the day the victim
disappeared. Three people testified that Rogers applied for a job at a service station
on Riverside Drive in Clarksville around 4:30 to 5:00 p.m. on July 8, 1996.
According to the witnesses, he was driving a blue pickup truck and wearing a
mechanic’s uniform.
On rebuttal, an investigator with the Montgomery County Sheriff’s Department
testified that Rogers had never mentioned wearing a mechanic’s uniform or
applying for a job at a service station on July 8, 1996. Furthermore, there was no
evidence that Rogers ever drove a blue pickup truck.
Based upon the above evidence, the jury convicted Rogers of first degree
premeditated murder, first degree felony murder in the perpetration of a kidnapping,
first degree felony murder in the perpetration of a rape, especially aggravated
kidnapping, rape of a child, and two counts of criminal impersonation. The trial
court merged the felony murder convictions with the premeditated murder
conviction. A sentencing hearing was conducted to determine punishment.
During the sentencing phase, the State presented proof that Rogers had pleaded
guilty to two counts of aggravated assault in Gwinnett County, Georgia, on April
12, 1991. A prosecutor from Gwinnett County testified that the statutory elements
of the offenses involved the use of violence to the person.
The victim’s mother, Jeannie Meyer, testified that she lost her job because she spent
so much time searching for the victim after she disappeared. Mrs. Meyer stated that
the victim’s brother, Jeremy, felt guilty that he had not been there to save his sister.
Following his sister’s murder, Jeremy had been placed in juvenile homes and
hospitalized for posttraumatic stress disorder, depression, and anxiety. His
treatment had cost thousands of dollars. The victim’s other brother, Joshua, was
angry and refused to discuss his sister’s death. Mrs. Meyer testified that she would
never get over the loss of her only daughter and felt powerless and devastated. Mrs.
Meyer said she felt an enormous amount of guilt. She described the victim as an
intelligent, musically talented, happy child with many friends.
In mitigation, Rogers presented the testimony of his older sister, his father and other
family members, and friends. Their testimony revealed that Rogers’ parents,
Cynthia and Lazarus Rogers, first divorced in 1961 when Rogers’ sister, Mildred,
was two years old. After Rogers was born on March 24, 1962, his parents remarried.
In 1964, his mother left again and took the children with her. She later told Lazarus
5

Rogers that he was not Rogers’ biological father.
When Rogers was a young child, his mother married Danny Schexnayder, by whom
she had two sons, Danny, Jr., and David. Rogers’ mother and stepfather would
argue and fight. The home was dirty and unkempt. Schexnayder also showed
marked partiality toward Danny, Jr. and David. Schexnayder shunned Rogers’
attempts to be close to him and physically and verbally abused Rogers. Mildred
Rogers told how Schexnayder would hold Rogers up in the air, spank him, and drop
him to the floor. She related that Schexnayder had beaten Rogers about the head
with a tether ball pole. Rogers also was chained to his bed for long periods of time.
When Rogers soiled his mattress, his stepfather would push his head into the soiled
area.
When Rogers and his sister went unfed, as they often did, Schexnayder would tell
them that their father had sent no child support. While not physically abusive
herself, Rogers’ mother would not intervene to protect Rogers and ignored the
children when Schexnayder was present. She would not allow Rogers’ father to
visit. Gifts sent by their father were taken away from Rogers and his sister. In
addition, Rogers witnessed his sister being sexually abused by Schexnayder’s
brother, who also may have abused Rogers. Rogers reported being sexually abused
by other persons, including a man who gave him a ride when he ran away from
home. Mildred Rogers also recounted that Rogers suffered eye and head injuries in
a serious automobile accident in 1980.
Rogers was described as withdrawn and friendless as a child. When chained to his
bed, he would howl like a wolf. He bit and hit other children at school, where he
was nicknamed “Wolfie.” His former elementary school principal, Victoria Meares,
described him as aggressive and a serious disciplinary problem. Rogers ran away
from home and stole. Eventually, Rogers was sent to a group home for boys, where
he was allegedly abused, and then to the Louisiana Training Institute (“LTI”), a
juvenile facility. Dr. Cecile Guin, a social worker from Louisiana, testified that at
the time Rogers entered LTI the facility was notorious for its poor conditions and
mistreatment of its occupants. Among some of the egregious acts reported were the
guards’ hitting the children with belt buckles, chaining them to beds, slamming
doors against them, and hanging them from clothes lines.
Lazarus Rogers confirmed that he had little contact with his son when Rogers was
young. Rogers had called several times complaining that his mother was not good
to him, but Lazarus Rogers claimed not to have known what was going on in the
Schexnayder household. When Rogers was in the seventh grade, he ran away to his
father’s house. He said that his stepfather had tried to beat him with a wire clothes
hanger. Lazarus Rogers further testified that Rogers’ wife, Juanita, was much older
than Rogers and very dominant. Lazarus Rogers recalled that he was present on
July 8, 1996, at approximately 12:30 p.m., when Rogers told Juanita that he was
going to a cabinet shop to look for work and she reacted angrily because she did
not want him to go.
Rogers was evaluated by two mental health experts for the defense. Dr. Thomas
Neilson, a clinical psychologist, testified that Rogers’ unstable childhood bred
6

insecurity and a sense of abandonment. Dr. Neilson opined that the physical,
emotional, and sexual trauma of Rogers’ childhood had permanently affected how
Rogers’ brain functioned and led to mood swings and violent behavior. Dr. Neilson
also recounted that, after leaving LTI in 1978, Rogers had been sent to the Oakley
Training School in Mississippi in 1979 and had been incarcerated as an adult in
Florida from 1981 to 1984, in Mississippi from 1984 to 1988, and in Georgia from
1990 to 1994. Dr. Neilson diagnosed Rogers as suffering from posttraumatic stress
disorder, depressive disorder not otherwise specified (i.e., mild to moderate
depression), dissociative disorder not otherwise specified, and personality disorder
not otherwise specified with antisocial and borderline features (i.e., mixed
personality disorder). Dr. Neilson explained that persons suffering from
dissociative disorder report having other personalities and will withdraw from
situations too traumatic to experience. This type of behavior indicates severe
childhood trauma. Rogers reported two other identities: Billy or William Little and
Roger. Letters written by Rogers’ other personalities were introduced into
evidence. According to Dr. Neilson, however, Rogers did not suffer from “full
blown” dissociative identity disorder, commonly known as split or multiple
personalities. Rogers had a Global Assessment of Functioning number of fifty,
which meant that he was severely impaired. Dr. Neilson reported that Rogers’
verbal IQ was 95, his performance IQ was 127, and his full-scale IQ was 108. Dr.
Neilson found no neuro-organic impairments.
Dr. Keith Caruso, a forensic and general psychiatrist, described Rogers’ life as a
downward spiral and diagnosed Rogers as having antisocial personality disorder
and borderline personality disorder. Dr. Caruso stated that Rogers exhibited all of
the common characteristics of antisocial personality disorder: engaging in criminal
behavior, deceitfulness, impulsiveness, irritability, aggressiveness, and lack of
regard for the danger of a situation. Dr. Caruso explained that borderline personality
disorder is a severe condition characterized by unstable emotions and relationships
and sensitivity to abandonment. Dr. Caruso opined that at the time of the offense in
this case Rogers was suffering from extreme emotional distress, was subject to
several stressors, and was in an “abandonment crisis” because his relationship with
his wife was in jeopardy and he feared losing his father. Dr. Caruso did not diagnose
Rogers with posttraumatic stress disorder and did not think that psychotic or
dissociative symptoms had any bearing on the offense. Dr. Caruso also had ruled
out a diagnosis of pedophilia and did not think that Rogers was malingering.
Dr. Mark Cunningham, a clinical and forensic psychologist, also testified for the
defense. Based on studies of various populations of prisoners, Dr. Cunningham
performed a violence risk assessment of Rogers to determine the likelihood of his
future violent behavior. Dr. Cunningham opined that Rogers’ potential for violent
behavior was below the base rate and that Rogers had an eight to seventeen percent
chance of perpetrating a violent act in prison. Dr. Cunningham stated that he had
factored in Rogers’ previous escape from prison in determining that the risk of
violence from Rogers was low in prison but high in the community.
In rebuttal, the State called Juanita Rogers to introduce a letter in which Rogers told
her that he would not plead guilty to something that he had not done and stated, “If
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I do get time, they will either kill me trying to escape or I’ll kill myself.” Both Mrs.
Rogers and Lisa Sanders, Rogers’ former wife, testified that Rogers had never
mentioned being physically or sexually abused as a child.
Dr. William Bernet, a psychiatrist, testified for the State that, based on his
evaluations of Rogers and his review of background information and interviews
with Rogers’ wife, Rogers suffered from a dissociative disorder not otherwise
specified, possible pedophilia, malingering, and antisocial personality disorder. Dr.
Bernet stated that, although Rogers suffered a mental disorder, he was able to
appreciate the wrongfulness of his misconduct. Dr. Bernet opined that no
connection existed between the offense and Rogers’ dissociative disorder or
difficult childhood. The crime, Dr. Bernet said, was driven by Rogers’ antisocial
personality disorder and pedophilia.
Based upon this proof, the jury found that the State had proven beyond a reasonable
doubt all four statutory aggravating circumstances: the murder was committed
against a person less than twelve years of age and the defendant was eighteen years
of age or older; the defendant was previously convicted of one or more felonies,
other than the present charge, whose statutory elements involve the use of violence;
the murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant or another; and the
murder was knowingly committed, solicited, directed, or aided by the defendant,
while the defendant had a substantial role in the committing or attempting to
commit, or was fleeing after having a substantial role in committing or attempting
to commit, any rape or kidnapping. See Tenn. Code Ann. § 39–13–204(i)(1), (2),
(6) and (7). The jury further found that the State had proven beyond a reasonable
doubt that the statutory aggravating circumstances outweighed any mitigating
circumstances. As a result, the jury sentenced Rogers to death for the murder of
Jackie Beard.
State v. Rogers, 188 S.W.3d 593, 598–604 (Tenn. 2006).
The Montgomery County jury convicted Petitioner on January 17, 2000, of first-degree
premeditated murder, two counts of first-degree felony murder, especially aggravated kidnaping,
aggravated kidnaping, rape of a child, and two counts of criminal impersonation. Id. at 597–98;
(Doc. No. 24-5 at 42–3, 118, 129–31). The jury unanimously sentenced him to death on January
21, 2000, for the first-degree premeditated murder. (Doc. No. 24-5 at 113–14, 118; Doc. No. 2517 at 39–41.) The trial court merged both felony murder convictions with the premeditated murder
conviction. Rogers, 188 S.W.3d at 598; (Doc. No. 24-5 at 118). It sentenced Petitioner to
consecutive prison terms of 24 years each for especially aggravated kidnapping and rape of a child,
8

and to a concurrent 6-month term for criminal impersonation, for a total effective prison sentence
of 48 years. 2 Rogers, 188 S.W.3d at 598; (Doc. No. 24-5 at 129–31). Petitioner moved for a new
trial, which the trial court denied. (Doc. No. 24-5 at 144–66.) The Tennessee Court of Criminal
Appeals and the Tennessee Supreme Court affirmed on direct appeal. (Doc. No. 26-3 at 14–42;
Doc. No. 26-6.) The United States Supreme Court denied certiorari on October 2, 2006. Rogers
v. Tennessee, 549 U.S. 862 (2006).
Petitioner filed a pro se petition for post-conviction relief in the trial court on November 2,
2006. (Doc. No. 26-7 at 6.) The court appointed counsel, and a first and second amended petition
were filed. 3 (Doc. No. 26-7 at 75, 106, 178.) The court held a full evidentiary hearing and denied
the petition on August 26, 2010. (Doc. No. 26-8 at 30–223.) The Tennessee Court of Criminal
Appeals affirmed (Doc. No. 26-17), and the Tennessee Supreme Court denied review on December
11, 2012. (Doc. No. 26-19.)
Petitioner filed his timely original petition for the writ of habeas corpus in this Court on
February 14, 2013. (Doc. No. 1.) This Court appointed counsel to represent Petitioner on August
9, 2013 (Doc. No. 8), and counsel filed the amended petition on November 7, 2013. (Doc. No. 14.)
II.

ISSUES PRESENTED

Petitioner asserts fifteen separate categories of alleged constitutional violations in this case,

2

The Court is unable to locate any judgment pertaining to the aggravated kidnaping conviction
and presumes that the trial court merged it with the especially aggravated kidnaping. The same
is true for the second count of criminal impersonation.
3

Throughout this Memorandum, the Court will cite Petitioner’s “Annotated Second Amended
Petition for Post-Conviction Relief” (Doc. No. 26-7 at 178–211) when discussing his postconviction petition, because the annotated version provides a clearer understanding of his claims
and the asserted bases for them.
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comprised of more than 250 total claims. The Court lists here only the fifteen broad categories of
claims as alleged by Petitioner and will address each individual claim as appropriate below:
Claim A – Petitioner was denied his right to due process and an impartial jury in violation of
the Sixth and Fourteenth Amendments to the United States Constitution.
Claim B – The state withheld material, exculpatory evidence in violation of Brady, and
presented and failed to correct false testimony in violation of Napue and Giglio, depriving
Petitioner of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.
Claim C – Petitioner’s counsel were ineffective in their investigation and preparation for trial,
in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
Claim D – Petitioner’s counsel were ineffective in their defense of him at trial, in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments.
Claim E – Petitioner’s counsel were ineffective in their defense of him at sentencing, in
violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
Claim F – Petitioner’s counsel were ineffective in presenting the motion for new trial and on
direct appeal, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
Claim G – The trial court’s errors violated Petitioner’s Fifth, Sixth, Eighth and Fourteenth
Amendment rights to due process and a fair trial.
Claim H – The state committed prosecutorial misconduct, in violation of the Fifth, Sixth,
Eighth and Fourteenth Amendments.
Claim I – Petitioner’s conviction and death sentence violate the First, Fifth, Sixth, Eighth,
Ninth and Fourteenth Amendments.
Claim J – Tennessee’s lethal injection protocol violates the Eighth and Fourteenth
Amendments, the Supremacy Clause, and Article VI, Clause 2 of the United States
Constitution.
Claim K – Petitioner was indicted by a grand jury from which women and African Americans
were systematically excluded as forepersons in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments, and counsel were ineffective for failing to raise this claim at trial
or on direct appeal.
Claim L – Petitioner’s sentence violates his right to substantive due process and the Eighth and
Fourteenth Amendments because it was automatic and mandatory, or because it was
arbitrarily and capriciously imposed.
Claim M – Petitioner’s sentence violates his rights under international law and treaties.
Claim N – Petitioner’s post-conviction counsel were ineffective, in violation of the Fifth, Sixth,
Eighth and Fourteenth Amendments.
Claim O – Petitioner’s conviction and sentence are unconstitutional due to the cumulative
effect of the errors addressed above.
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The Court organizes its analysis of Petitioner’s claims according to the standard of review
applicable to them: (1) exhausted claims; (2) defaulted claims other than ineffective-assistance
claims; and (3) defaulted claims of ineffective assistance of counsel.
III.

EXHAUSTED CLAIMS

A. STANDARD OF REVIEW
Under our federal form of government, “[t]he States possess primary authority for defining
and enforcing the criminal law,” and they “hold the initial responsibility for vindicating
constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128 (1982). States thus have a legitimate
“interest in the finality of convictions that have survived direct review within the state court
system.” Brecht v. Abrahamson, 507 U.S. 619, 635 (1993). Since 1867 federal courts have had
the statutory “power to grant writs of habeas corpus in all cases where any person may be restrained
of his or her liberty in violation of the constitution, or of any treaty or law of the United States.”
Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385, quoted in Williams v. Taylor, 529 U.S. 362, 374
(2000). But federal courts remained mindful that “[f]ederal intrusions into state criminal trials
frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to
honor constitutional rights.” Engle, 456 U.S. at 128. As the Supreme Court has repeatedly
instructed, “it is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 67–68 (1991).
Congress has codified that limitation on federal review of state criminal proceedings in 28
U.S.C. § 2254, which provides that a federal court may grant habeas relief to a state prisoner “only

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on the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) further limits federal courts’ authority to grant relief to a state prisoner. Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). “AEDPA recognizes a foundational principle of our federal
system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 134
S. Ct. 10, 15 (2013). It was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams, 529 U.S. at 436).
To that end, AEDPA “create[s] an independent, high standard to be met before a federal court may
issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10
(2007) (citations omitted). AEDPA embodies the rule that federal review of state criminal
proceedings serves as a “guard against extreme malfunctions in the state criminal justice systems,”
rather than “a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562
U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). Accordingly,
it imposes “a substantially higher threshold” for obtaining relief than a de novo review of whether
the state court’s determination was correct. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams v. Taylor, 529 U.S. at 410).
Under 28 U.S.C. § 2254(b) and (c), a federal court may not grant a writ of habeas corpus
to a state prisoner unless, with certain exceptions discussed below in section IV, the prisoner has
“exhausted the remedies available in the courts of the State” by presenting the same claim on which
he seeks federal relief to the state courts. 28 U.S.C. § 2254(b)(1)(A); Pinholster, 563 U.S. at 181.
Section 2254(d) provides the narrow standard of review for claims that have been so exhausted:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
12

was adjudicated on the merits in State court proceedings unless the adjudication of
the claim—
(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). “This is a ‘difficult to meet’ and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”
Pinholster, 563 U.S. at 181 (quoting Richter, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam)). The petitioner carries the burden of proof. Pinholster, 563 U.S. at
181.
The “clearly established federal law” required by § 2254(d)(1) refers to “the holdings (as
opposed to the dicta) of [the United States Supreme Court’s] decisions as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412; see Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir.
2000) (“[W]e may only look to decisions of the Supreme Court of the United States when
determining ‘clearly established federal law.’”). The “contrary to” and “unreasonable application”
clauses of Section 2254(d)(1) are independent tests. Hill v. Hofbauer, 337 F.3d 706, 711 (6th Cir.
2003) (citing Williams, 529 U.S. at 412–13).
A state court decision is “contrary to” federal law only “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at 412–13. This standard does not require the state
court to cite applicable Supreme Court cases “so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).

13

Even if the state court identifies the “correct governing legal principle,” a federal habeas
court may still grant the petition if the state court “unreasonably applies that principle to the facts
of the particular state prisoner’s case.” Williams, 529 U.S. at 413. A state-court decision involves
an unreasonable application if it unreasonably extends a legal principle from Supreme Court
precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply. Id. at 407; Hill, 337 F.3d at 711. See also AbdulKabir v. Quarterman, 550 U.S. 233, 260 (2007) (holding that a state court opinion is unreasonable
under § 2254(d) where the state court “ignore[d] [an] entire line” of controlling Supreme Court
case law).
As the Supreme Court has advised, “[t]he question under AEDPA is not whether a federal
court believes the state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(citing Williams, 529 U.S. at 410). “[E]ven a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Richter, 562 U.S. at 102.

The reasonableness of the

application of a particular legal principle depends in part on the specificity of the relevant rule.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). While the application of a specific rule may
be plainly correct or incorrect, courts may have more leeway in applying more general rules in the
context of a particular case. Id.
The Supreme Court reemphasized the very limited nature of review under Section
2254(d)(1) in Cullen v. Pinholster, 563 U.S. 170 (2011), and Harrington v. Richter, 562 U.S. 86
(2011). In Pinholster, the Court held that “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits” and that “evidence introduced
in federal court has no bearing on § 2254(d)(1) review.” Pinholster, 563 U.S. at 181, 185. The
14

Court further cautioned in Richter that AEDPA requires federal habeas courts to review state-court
decisions with “deference and latitude,” and that “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough, 541 U.S.
at 664).
In evaluating a claim for “unreasonable determination of the facts” under § 2254(d)(2), the
district court is also restricted to the facts that were before the state courts. See 28 U.S.C.
§ 2254(d)(2) (permitting relief only if the state’s adjudication of a claim “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”) (emphasis added); Pinholster, 563 U.S. at 185 n.7 (assuming without
discussion that review under § 2254(d)(2) is limited to the state-court record, in light of the clear
language of the statute). The Supreme Court has held that a “clear factual error” constitutes an
“unreasonable determination of the facts in light of the evidence presented.” Wiggins v. Smith,
539 U.S. 510, 528–29 (2003). In other words, a state court’s determination of facts is unreasonable
if its findings conflict with clear and convincing evidence to the contrary. See 28 U.S.C. §
2254(e)(1) (“The [habeas] applicant shall have the burden of rebutting the presumption of
correctness [of the state court’s factual finding] by clear and convincing evidence.”). The Supreme
Court has emphasized, however, that “a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion.” Wood v.
Allen, 558 U.S. 290, 301 (2010). Even if reasonable minds reviewing the record might disagree
about the state-court factual finding in question, “on habeas review that does not suffice to
supersede the trial court’s credibility determination.” Rice v. Collins, 546 U.S. 333, 341–42
(2006).

15

B. ANALYSIS
To the extent possible, the Court addresses Petitioner’s claims in the order in which they
appear in his petition. However, claims that are so related or intertwined that they should be
analyzed together, or were considered together in state court, are grouped together below. The
Court also takes some claims out of order as necessary to ensure a more thorough understanding
of their factual and legal predicates.
1. Claims A.2, G.9 — Excused Jurors
Petitioner asserts that potential jurors Marita Washington and Jeannie Green 4 were
improperly excused for voicing general objections to the death penalty, in violation of his Sixth
and Fourteenth Amendment rights to due process and an impartial jury. (Doc. No. 14 at 19–20,
56.) He exhausted this claim on direct appeal, and the state courts rejected it:
Prospective jurors Marita Washington and Jeannie Green were excused for cause
by the trial court based on their opposition to the imposition of the death penalty.
The defendant argues that the exclusion of these jurors violated his constitutional
rights. Specifically, the defendant contends that the state failed to meet its burden
of proving that these two jurors’ views would substantially impair their ability to
carry out the law as required by Wainwright v. Witt, 469 U.S. 412, 424 (1985).
In determining when a prospective juror may be excused for cause because of his
or her views on the death penalty, the standard is “whether the juror’s views would
prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” State v. Austin, 87 S.W.3d 447,
472–73 (Tenn. 2002) (citing Wainwright v. Witt, 469 U.S. 412, 424 (1985)).
“[T]his standard likewise does not require that a juror’s biases be proved with
‘unmistakable clarity.’” [Austin, 87 S.W.3d] at 473. However, the trial judge must
have the “definite impression” that a prospective juror could not follow the law.
4

In Claim A.2, Petitioner actually asserts that the improperly excused jurors “included, but are not
limited to” Washington and Green. (Doc. No. 14 at 20.) Petitioner uses expressions such as
“including” and “not limited to” throughout the Amended Petition. Such vague expressions are
inconsistent with Rule 2(c) of the Rules Governing Section 2254 Cases, which provides that “[t]he
petition must . . . specify all the grounds for relief available to the petitioner . . . [and] state the
facts supporting each ground.” Id. at § (c)(1)–(2). The Court will not conjure up un-pled factual
allegations implied by such vague expressions, nor will it treat them as open-ended assertions
subject to the addition of more claims in subsequent briefing.
16

State v. Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994) (citing Wainwright, 469
U.S. at 425–26). Finally, the trial court’s finding of bias of a juror because of his or
her views concerning the death penalty are accorded a presumption of correctness,
and the defendant must establish by convincing evidence that the trial court’s
determination was erroneous before an appellate court will overturn that decision.
State v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989), cert. denied, 493 U.S. 1036
(1990).
A. Prospective Juror Washington
Prospective juror Marita Washington expressed her views on the imposition of the
death penalty in responses to a juror questionnaire and during individual voir dire.
Ms. Washington stated on the juror questionnaire that she was opposed to the death
penalty but willing to consider its imposition under appropriate circumstances. Ms.
Washington also stated on the questionnaire that she was strongly opposed to the
death penalty and believed it should not be imposed, but she asserted that she could
set aside her personal feelings and follow the law as instructed by the court. Ms.
Washington further stated on the questionnaire that she thought the death penalty
should never be imposed, but as long as the law provided that punishment, she
could vote to impose the death penalty if she believed “it was warranted in a
particular case, depending on the evidence, the law, and what I learned about the
defendant.” Her questionnaire reflected that she did not believe that death was too
severe a punishment for any defendant convicted of first degree murder.
The following exchange took place between the court and Ms. Washington during
voir dire:
The Court: Okay. And you have already said now—the General
asked you to give an example of a kind of case where you think you
could vote for the death penalty and you couldn’t think of one, but
if the evidence in this case was such that you felt like yes, in this
case the State has proven beyond a reasonable doubt that there is
one or more aggravating circumstances and they have also
convinced you beyond a reasonable doubt that those—the
aggravating circumstance outweighs the mitigating circumstance,
okay? And you are saying to yourself, based on that, what this
instruction says is that the verdict of the jury shall be death? At that
point in time, if that’s how you see the case, are you going to then
be saying well, I know that’s what the law says and I know that’s
what the Judge says and we went through all these questions but I
just feel so strongly against the death penalty that I just couldn’t—I
could not sign off on a form and sentence somebody to death? Think
you could sign the form if you thought the proof was there?
Prospective Juror: No.
...
The Court: So in all honesty then, this is the last thing that I am
17

going to ask you, I promise you. Do you feel like your personal view
on capital punishment would either prevent or substantially impair
the performance of your duties as a juror in this case?
Prospective Juror: Substantially impair.
The Court: Substantially impair. Okay.
The defendant contends that Ms. Washington must have misunderstood the last
question asked by the court, but there is no proof in the record to substantiate this
allegation. Ms. Washington admitted that her personal views on the death penalty
would substantially impair the performance of her duties as a juror. Thus, Ms.
Washington’s responses to the voir dire questioning support her dismissal under
Wainwright. After reviewing the record, we conclude that prospective juror
Washington met the standard for dismissal. See Hutchison, 898 S.W.2d at 167.
B. Prospective Juror Green
Prospective juror Jeannie Green responded on the juror questionnaire that she was
strongly opposed to the death penalty, but she also responded that she could set
aside her personal feelings and follow the law as instructed by the court. Like
prospective juror Washington, Ms. Green responded that she could vote to impose
the death penalty if she believed “it was warranted in a particular case, depending
on the evidence, the law, and what I learned about the defendant.” During voir dire,
Ms. Green responded to questions regarding the imposition of the death penalty as
follows:
THE COURT: All right. So, if you’re a juror on this case, now, Ms.
Green, and the State convinces you beyond a reasonable doubt, first
of all, that the Defendant is guilty of first degree murder and that
there is one or more statutory aggravating circumstances—now,
that’s legal language, but that’s what I’m required to explain to you
at this time. And further that they convince you in your mind that
the statutory aggravating circumstance or circumstances outweigh
any mitigating evidence beyond a reasonable doubt, what the
instructions would say to you as a juror is your verdict shall be death.
You understand that’s what you’d be looking at on the jury
instructions?
MS. GREEN: Uh-huh. Yes.
THE COURT: Now, you’ve already told me that you have a
personal belief that I would say is against the death penalty.
MS. GREEN: Right.
THE COURT: Would your personal belief be so strong that it would
interfere with your ability to vote for a death sentence even if the
evidence and the law pointed in that direction?
MS. GREEN: I have to vote against it, sir.
18

THE COURT: All right.
MS. GREEN: I’m sorry.
THE COURT: All right. Can you think—you don’t have to
apologize at all. Like I said, it’s just—
MS. GREEN: Well, I will.
THE COURT: We just want to know what your view is. Would—
can you think of any circumstances where you’d be able to vote for
a death sentence?
MS. GREEN: If he actually come out and said he did it himself.
Nobody else. No newspaper; no nothing; just him then I’d go for the
death penalty.
THE COURT: Okay. So, in your mind what you’re—what you’re
basically saying is if the defendant himself said—
MS. GREEN: Uh-huh.
THE COURT:—I killed somebody,—
MS. GREEN: Uh-huh.
THE COURT:—then you could consider for the—
MS. GREEN: Right.
THE COURT: All right.
MS. GREEN: Uh-huh
THE COURT: And, of course, now, the law doesn’t say that a
defendant has to admit to it.
MS. GREEN: Right. Right. I realize this.
THE COURT: But you’re—I guess, we’ve got another little conflict
here between the law and what you—what your personal beliefs
might be?
MS. GREEN: Uh-huh.
THE COURT: That doesn’t mean that your personal belief is wrong,
but I just need to know if your personal belief would interfere with
your ability to follow the law. Do you think it would?
MS. GREEN: I think so, because I am not—I’m not for the death
penalty.
THE COURT: Okay.
MS. GREEN: I really am not.
19

...
THE COURT: We’ve got two more to go. I’ll tell you what we’re
going to do, Ms. Green, I’m going to let the lawyers ask you a few
questions.
MS. GREEN: Okay.
THE COURT: And you just keep answering them as honestly as you
have to me.
MS. GREEN: Okay.
THE COURT: And then I’ll figure out what to do in a few minutes;
okay?
MS. GREEN: All right. Fine.
THE COURT: General Brollier?
STATE: Ms. Green?
MS. GREEN: Yes.
STATE: You’ve said that you’re strongly opposed to the death
penalty, and you’re not for the death penalty. Is that based on a
matter of religious faith?
MS. GREEN: Yes, I’m Catholic.
STATE: Okay. And would you say that it would be difficult for you,
then, to—as the Court has told you the law in the—
MS. GREEN: Uh-huh.
STATE:—State of Tennessee does impose the death penalty in
some situations.
MS. GREEN: Uh-huh.
STATE: And as a Catholic you do not believe the death penalty
should be imposed, I assume?
MS. GREEN: Right.
STATE: Now, so, there’s a conflict between the law of Tennessee
and your faith.
MS. GREEN: Right.
STATE: And you may be asked if you’re a juror in this case to make
a decision that would bring that conflict right, just right up to you,—
MS. GREEN: Uh-huh.
STATE:—and you’d have to decide whether you’re going to follow
20

the law or are you going to follow your faith?
MS. GREEN: Uh-huh.
STATE: Do you see it in those terms?
MS. GREEN: Yeah, I’m still against the death penalty. If it’s—
STATE: Okay. That’s what I’m asking.
MS. GREEN:—against the State of Tennessee I’m sorry.
STATE: So, what you’re saying is you would follow the faith—your
faith, your Catholic faith—
MS. GREEN: Right.
STATE:—above the law of Tennessee?
MS. GREEN: Right.
STATE: Okay.
MS. GREEN: Sure would.
STATE: Ms. Green, as I understand it then, you said—okay. I’m
going to leave it at that, Your Honor. Thank you.
THE COURT: All right.
After reviewing the record, we conclude that Ms. Green met the standard for
dismissal. See Hutchison, 898 S.W.2d at 167.
State v. Rogers, 188 S.W.3d 593, 623–27 (Tenn. 2006) (appending opinion of the Tennessee Court
of Criminal Appeals).
Respondent has moved for summary judgment on the basis that the state court’s ruling on
this claim was reasonable. (Doc. No. 94 at 132–39.) Petitioner’s response addresses only juror
Washington, 5 and argues that Washington’s voir dire indicates that “although she had strong
feelings against the death penalty, she could, and would, consider it.” (Doc. No. 111 at 389.) He
then blames Washington’s disqualification on unethical behavior by the trial judge: “The judge’s

5

Petitioner acknowledges that the views expressed by Green, a devout Catholic, would have
required education and rehabilitation by counsel to avoid her exclusion. (Doc. No. 111 at 390
n.1864.) He thus effectively concedes that on the record as it existed, Green’s exclusion was not
constitutional error on the part of the trial court.
21

final leading question to Washington, presenting a Hobson’s choice – whether her views against
the death penalty prevented or substantially impaired her ability to sit as a juror – reflected bad
faith on the part of the trial judge, a lack of impartiality, and the instrumental use of legal terms to
achieve an unconstitutional end with respect to a citizen who was completely unfamiliar with legal
jargon.” (Id. at 389–90.) But, as the state court found, there is no evidence in the record that
Washington was confused by the question. The accusation that the trial judge acted in bad faith
and intentionally confused a potential juror to elicit an inaccurate response is stark and wholly
unsubstantiated.
Moreover, Washington’s response that her belief would substantially impair her ability is
in keeping with the rest of her voir dire. When asked if she could vote for each of the three possible
punishments, she answered: “Two of them, yes. The death penalty – that’s a tough one.” (Doc.
No. 24-11 at 29.) After the judge explained the capital sentencing scheme to her in some detail
and asked if she could vote for the death sentence under any circumstances, she replied with a
noncommittal “I guess so.” (Id. at 31.)

Asked about the perceived inconsistency in her

questionnaire responses indicating that she strongly opposed the death penalty and did not believe
it should be imposed, but could vote to impose it if she believed it was warranted in a particular
case, she explained “I wouldn’t give it easy. Okay? But not necessarily impossible.” (Id. at 34–
35.) And when the prosecutor later asked “But it really seems like you just would have a very
hard time if not impossible time, giving somebody the death penalty. Isn’t that really the truth?”
she said “I can agree with you, yes.” (Id. at 37.) She also was unable to provide any example of a
case in which she believed the death penalty would be justified. (Id. at 39.)
Accordingly, the state courts reasonably determined that Washington’s general opposition
to the death penalty would have substantially impaired her ability to serve as a juror. Petitioner is
22

not entitled to relief on this claim.
2. Claims A.5, G.4 — Venue
Petitioner alleges in Claim A.5 that extensive pretrial publicity so infected the jury pool
that it denied him a fair trial and rendered his convictions and sentence unconstitutional, and in
Claim G.4 that the trial court violated his constitutional rights by denying a change of venue on
that basis. (Doc. No. 14 at 23–25, 51–55.) Counsel for Petitioner filed a motion for change of
venue on April 3, 1998, asserting that extensive publicity and “undue excitement against the
defendant in Montgomery County” would prevent him from receiving a fair trial. (Doc. No. 24-1
at 46.) The motion was supported by counsel’s affidavit and more than 80 pages of news clippings
about the case from the Tennessean, the Nashville Banner, and the Clarksville Leaf-Chronicle
newspapers, dating from July 1996 (the month of the victim’s disappearance and Petitioner’s
arrest) to July 1997. (Doc. No. 24-2 at 45–59, 79–132.) The trial court took the motion under
advisement pending voir dire. (Doc. No. 122-23.) 6 On Petitioner’s motions, the trial court granted
permission to use questionnaires for prospective jurors, granted individual voir dire of prospective
jurors “with respect to the issues of Pre-Trial publicity,” and ordered sequestration during jury
selection, trial, and deliberation. (Doc. No. 24-2 at 150–53; Doc. No. 24-10 at 17.)
While the prospective juror questionnaire process was under way, the court also entered an
order restricting pre-trial publicity in the case, due in part to Petitioner’s own repeated contacts
and voluntary interviews given to members of the media, including his September 8, 1999 phone

6

The trial court’s order has been filed in this Court as an exhibit to Petitioner’s Response. (Doc.
No. 122-23.) Although it was omitted from the state court record filed by Respondent, this
document is properly part of that record, and does not constitute new evidence that would be
precluded under Cullen v. Pinholster, 563 U.S. 170 (2011).
23

call from jail to a television station that resulted in the cable broadcast of a telephone interview
with him. (Doc. No. 24-3 at 118.) 7 It also ordered a camera removed from the courtroom before
the beginning of voir dire. (Doc. No. 24-10 at 16.) Before voir dire began, Petitioner’s counsel
supplemented his motion for change of venue with new evidence of media coverage. (Doc. No.
24-4 at 117.) The trial court ultimately denied a change of venue, finding that an impartial jury
had been successfully seated. (See Doc. No. 24-5 at 144–45.) In its order denying a new trial on
this issue, the court also noted that a majority of the publicity was “a substantial period of time”
before trial. (Id.)
Petitioner exhausted a claim on direct appeal that the trial court’s refusal to grant a change
of venue violated his constitutional rights in light of the extensive pretrial publicity. (Doc. No. 261 at 86–90; Doc. No. 26-4 at 87–91.) The Tennessee Court of Criminal Appeals rejected that claim
in an analysis that the Tennessee Supreme Court later adopted:
The defendant contends that the trial court erred by refusing to change the venue of
the trial because of adverse pretrial publicity. A change of venue may be granted if
it appears that “due to undue excitement against the defendant in the county where
the offense was committed or any other cause, a fair trial probably could not be
had.” Tenn. R. Crim. P. 21(a). A motion for change of venue is left to the sound
discretion of the trial court and the court’s ruling will be reversed on appeal only
upon a clear showing of an abuse of that discretion. State v. Howell, 868 S.W.2d
238, 249 (Tenn. 1993); State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App.
1979). The mere fact that jurors have been exposed to pretrial publicity will not
warrant a change of venue. State v. Mann, 959 S.W.2d 503, 531–32 (Tenn. 1997).
Similarly, prejudice will not be presumed on the mere showing of extensive pretrial
publicity. State v. Stapleton, 638 S.W.2d 850, 856 (Tenn. Crim. App. 1982). In fact,
jurors may possess knowledge of the facts of the case and may still be qualified to
serve on the panel. State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991). The test is
whether the jurors who actually sat on the panel and rendered the verdict and
sentence were prejudiced by the pretrial publicity. State v. Crenshaw, 64 S.W.3d
374, 386 (Tenn. Crim. App. 2001); State v. Kyger, 787 S.W.2d 13, 18–19 (Tenn.
7

Unfortunately, the details of the court’s order are unknown, because the subsequent pages of it
(the pages of the state’s technical record bearing state bates numbers 000422 and 000423) are
either missing or buried out of order in the voluminous record of proceedings in state court. (See
Doc. No. 24-3 at 118, 119.)
24

Crim. App. 1989). Furthermore, the scope and extent of voir dire is also left to the
sound discretion of the trial court. State v. Smith, 993 S.W.2d 6, 28 (Tenn. 1999).
Jurors who have been exposed to pretrial publicity may sit on the panel if they can
demonstrate to the trial court that they can put aside what they have heard and
decide the case on the evidence presented at trial. State v. Gray, 960 S.W.2d 598,
608 (Tenn. Crim. App. 1997).
In State v. Hoover, 594 S.W.2d 743 (Tenn. Crim. App. 1979), this court set forth
the factors which should be considered to determine whether a change of venue is
warranted. The Hoover court listed the following seventeen factors: the nature,
extent, and timing of pretrial publicity; the nature of the publicity as fair or
inflammatory; the particular content of the publicity; the degree to which the
publicity complained of has permeated the area from which the venire is drawn; the
degree to which the publicity circulated outside the area from which the venire is
drawn; the time elapsed from the release of the publicity until the trial; the degree
of care exercised in the selection of the jury; the ease or difficulty in selecting the
jury; the venire person’s familiarity with the publicity and its effect, if any, upon
them as shown through their answers on voir dire; the defendant’s utilization of his
peremptory challenges; the defendant’s utilization of challenges for cause; the
participation by police or by prosecution in the release of the publicity; the severity
of the offense charged; the absence or presence of threats, demonstrations or other
hostility against the defendant; the size of the area from which the venire is drawn;
affidavits, hearsay or opinion testimony of witnesses; and the nature of the verdict
returned by the trial jury. Again, however, for there to be a reversal of a conviction
based upon a claim that the trial court improperly denied a motion for a change of
venue, the “defendant must demonstrate that the jurors who actually sat were biased
or prejudiced against him.” State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992).
The defendant contends that pretrial publicity concerning his criminal history,
including allegations of prior sexual abuse of children, was highly prejudicial and
inadmissible. The defendant also asserts that the community from which the jury
was drawn was a small community that had three cases of missing children, all
young girls, at the time of the victim’s disappearance, which caused a climate of
undue excitement. Most of the pretrial publicity concerning this case was published
during the victim’s disappearance. The selection of the jury included questions to
determine if any potential juror had been prejudiced by pretrial publicity. The
defendant does not cite to any area of the record to support an allegation that the
jury panel was prejudiced by pretrial publicity. In fact, he does not even allege that
any of the jurors who sat on his case were prejudiced by the pretrial publicity cited.
After our review of the record, we cannot find any proof that any of the jurors were
prejudiced. Mere speculation that some of the jurors may have been exposed to
pretrial publicity does not warrant a new trial. See Crenshaw, 64 S.W.3d at 386.
The record fails to support the defendant’s allegation that the jury panel was
prejudiced by pretrial publicity.
State v. Rogers, 188 S.W.3d 593, 621–22 (Tenn. 2006) (appendix adopting excerpts from the

25

Tennessee Court of Criminal Appeals’ Decision).

Respondent argues that this ruling was

reasonable. (Doc. No. 94 at 198–200.)
Petitioner complains that the state court did not cite federal authority to support its
determination. (Doc. No. 111 at 190–94, 412–15.) But Petitioner overlooks the fact that the
Tennessee Supreme Court cases applied in the state court’s opinion relied in turn on United States
Supreme Court opinions to guide their analyses of whether jurors’ exposure to pre-trial publicity
had rendered a defendant’s trial fundamentally unfair. See Mann, 959 S.W.2d at 531–33 (citing
Irvin v. Dowd, 366 U.S. 717 (1961), and Patton v. Yount, 467 U.S. 1025 (1984)); Crenshaw, 64
S.W.3d at 386–88 (citing Dobbert v. Florida, 432 U.S. 282 (1977), and Murphy v. Florida, 421
U.S. 794 (1975)). Petitioner’s appellate briefs clearly invoked his federal constitutional rights in
connection with this claim (Doc. No. 26-1 at 86–90; Doc. No. 26-4 at 87–91), and the state court’s
reliance on cases that expressly applied federal constitutional law indicates that it was ruling on
Petitioner’s federal claim. Johnson v. Williams, 568 U.S. 289, 304 (2013). Petitioner’s suggestion
that the lack of direct citation to federal case law in the state court’s opinion somehow runs afoul
of AEDPA has been expressly rejected by the Supreme Court:
First, the Ninth Circuit observed that the state court “failed to cite . . . any federal
law, much less the controlling Supreme Court precedents.” 291 F.3d, at 578. If this
meant to suggest that such citation was required, it was in error. A state-court
decision is “contrary to” our clearly established precedents if it “applies a rule that
contradicts the governing law set forth in our cases” or if it “confronts a set of facts
that are materially indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.” Williams v. Taylor, 529 U.S. 362,
405–06 (2000). Avoiding these pitfalls does not require citation of our cases indeed, it does not even require awareness of our cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.
Early v. Packer, 537 U.S. 3, 8 (2002).
Petitioner argues that the state court’s decision was contrary to federal law that focuses the
pretrial publicity inquiry on “the community and the patterns of thought in the community that
26

indicate that it is unlikely than an unbiased and impartial jury can be seated,” rather than requiring
prejudice in the form of an impact on the jurors who were actually seated. (Doc. No. 111 at 190–
94, 413.) Instead, he argues, prejudice must be presumed “[w]hen community attitudes are found
to be toxic.” (Doc. No. 111 at 172.) In support of this argument, he relies primarily on four
Supreme Court opinions: Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. State of La., 373 U.S.
723 (1963); Estes v. State of Tex., 381 U.S. 532 (1965); and Sheppard v. Maxwell, 384 U.S. 333
(1966).
Rideau, Estes and Sheppard are easily distinguishable from this case. In Rideau, law
enforcement officers participated in the 1961 creation and broadcast of “a moving picture film
with a sound track” of a suspect’s 20-minute “interview” with authorities, during which he
confessed in detail to robbery, kidnapping, and murder, in response to leading questions by the
sheriff and without a lawyer present. Rideau, 373 U.S. at 724–25, 727. The video was broadcast
by a local television station for three days in a row, with viewership for each broadcast ranging
from 20,000 to 53,000 in a parish with a population of 150,000 people. Id. at 724. The trial court
denied a change of venue, and refused to dismiss for cause three jurors who had seen and heard
the video and two others who were local deputy sheriffs. Id. at 724–25. “[W]ithout pausing to
examine a particularized transcript of the voir dire examination of the members of the jury,” the
Supreme Court held that the denial of a change of venue violated the defendant’s right to due
process because “[a]ny subsequent court proceedings in a community so pervasively exposed to
such a spectacle could be but a hollow formality.” Id. at 726–27. Noting “the onrush of an
electronic age,” the Court explained that “the people of Calcasieu Parish saw and heard, not once
but three times, a ‘trial’ of Rideau in a jail, presided over by a sheriff, where there was no lawyer
to advise Rideau of his right to stand mute.” Id. at 726–27. Two years later, the Court explained

27

that Rideau had “constructed a rule that the televising of a defendant in the act of confessing to a
crime was inherently invalid under the Due Process Clause of the Fourteenth Amendment even
without a showing of prejudice or a demonstration of the nexus between the televised confession
and the trial.” Estes, 381 U.S. at 538. It “did not purport to create a rule that the dissemination of
the fact of a defendant’s confession through some other, less dramatic and compelling medium, is
equally a violation of the Due Process Clause.” DeLisle v. Rivers, 161 F.3d 370, 384 (6th Cir.
1998). Accordingly, it does not control in this case, where the media merely reported Petitioner’s
statement (and his later recantation) about having accidentally killed the victim and dumping her
body, but did not broadcast a video of his “confession” itself or the interrogation that led to it.
Estes arose from the prosecution of a public figure for crimes so nationally notorious that
the matter elicited comment from President Kennedy and landed the defendant on the cover of
Time magazine. https://www.nytimes.com/2013/05/15/us/billie-sol-estes-texas-con-man-dies-at88.html. 8 Over the defendant’s objection, a pretrial hearing and portions of the trial itself were
broadcast live with sound by television crews. Estes, 381 U.S. at 536–38. The Supreme Court,
ruling on the case in 1965, observed that 48 states and the federal courts at that time prohibited
television coverage of courtroom proceedings, and that “[t]elevision in its present state and by its
very nature, reaches into a variety of areas in which it may cause prejudice to an accused,”
including its potential impact on jurors, for whom “the awareness of the fact of telecasting that is
felt by the juror throughout the trial” might be a distraction and aggravate the “intense public
feeling” created by pretrial publicity. Id. at 544–46. It acknowledged that some of the dangers
associated with television are also posed by other media coverage, but held that “the circumstances

8

Federal courts may take judicial notice of the fact of publicity or media coverage. Staehr v.
Hartford Fin’l Servs., 547 F.3d 406, 425 (2nd Cir. 2008).
28

and extraneous influences intruding upon the solemn decorum of court procedure in the televised
trial are far more serious than in cases involving only newspaper coverage.” Id. at 548.
Accordingly, the Court found that the televising of “only notorious cases, such as this one . . .
invariably focuses the lens upon the unpopular or infamous accused,” and thereby violates a
defendant’s right to a fair trial regardless of whether he demonstrates any “isolatable prejudice.”
Id. at 542–43, 549–50. Thus, Estes was concerned specifically with the effect of televising court
proceedings, rather than with the existence of negative community sentiment against the
defendant, who had already been granted a change of venue. See id. at 535.
Similarly, Sheppard involved a case so nationally notorious that it was described as the
“trial of the century” and “spawned countless articles, books, documentaries and movies,” as well
as a television series. https://www.nytimes.com/2003/10/27/business/mediatalk-a-50-year-oldmurder-with-choice-of-suspects.html. A coroner’s inquest into the murder of the defendant’s wife
was broadcast with live microphones and attended by “several hundred spectators,” including “a
swarm of reporters and photographers,” in front of whom the defendant was searched and
questioned for more than five hours without the assistance of counsel. Sheppard, 384 U.S. at 339–
40.

Before jury selection began, local newspapers published the names and addresses of

prospective jurors, who received letters and calls about the case from anonymous senders as well
as friends. Id. at 342, 353. During jury selection, the media published individual photos of
prospective jurors. Id. at 345. The court allowed the media to photograph the jurors in the jury
box, in the jury room, at lunch during deliberations, and at the scene of the crime, where the jury’s
visit was watched in person by hundreds of media representatives and others as a helicopter flew
overhead. Id. at 345, 347. The jurors’ photos were published more than 40 times in local papers
as the trial continued. Id. at 345. Media coverage during jury selection and trial was intense and

29

overtly hostile to the defendant. Id. at 345–49. Jurors were not sequestered during the trial and
were exposed to some of the coverage, but the trial court refused repeated requests from the
defense to impose any protections against having the jury affected by the ongoing reports,
including requests to ask the jurors about whether they had “read or heard specific prejudicial
comment[s] about the case.” Id. at 345–49, 357. The trial judge ‘suggested’ and ‘cautioned’ jurors
to avoid media coverage of the case, saying that such restraint would make them “feel very much
better as the trial proceeds,” but he did not actually order them not to read or listen to reports about
the case. Id. at 353. In the trial itself, “bedlam reigned,” with a press table inside the bar a few feet
away from the jury box, at which around 20 reporters sat “hounding most of the participants in the
trial, especially Sheppard,” and caused “constant commotion within the bar.” Id. at 355. The
jurors were sequestered during deliberations, but were allowed to call home daily even then. Id. at
349. The Supreme Court found that the “totality of circumstances” in the case amounted to an
inherent due process violation that did not require a showing of actual prejudice. Id. at 352–53. It
explicitly stated, however, that it “[could not] say that Sheppard was denied due process by the
judge’s refusal to take precautions against the influence of pretrial publicity alone.” Id. at 354.
Rather, the basis for its ruling was that the trial court failed to employ “procedures [that] would
have been sufficient to guarantee Sheppard a fair trial” even in light of the pretrial publicity. Id. at
358–63.
Petitioner’s trial was not televised, and he does not allege facts demonstrating that the
atmosphere in the courtroom was impacted by swarming media, as in Estes or Sheppard. As
illustrated above, “a review of those cases leaves no room for doubt that it was that chaos that
drove those decisions,” DeLisle at 384, and there is no evidence of such chaos in this case.
Moreover, the judge in Petitioner’s trial took precautions against undue jury influence that were

30

not taken in those cases. At the time the jurors filled out their questionnaires, and again months
later at the beginning of voir dire, the judge presiding over Petitioner’s trial unequivocally
instructed prospective jurors: “You are not to read, listen to or view any news reports concerning
the case.” (Doc. No. 24-10 at 32–33.) He reminded the prospective jurors that they would be
sequestered during trial, for “maybe a couple of weeks,” “to keep [them] from being exposed to
any publicity about this case while it is going on.” (Doc. No. 24-10 at 29–30.) After a jury was
empaneled, the trial judge again instructed the jurors that they “should not read, listen to or view
any news reports concerning this case.” (Doc. No. 25-2 at 98.) And as the state courts found, and
Petitioner acknowledges (Doc. No. 111 at 183), most of the pre-trial media coverage was published
closer to the time of the victim’s disappearance and had diminished by the time of the trial three
and a half years later; the state court record contains only a single article about the case published
in the week before voir dire began. 9 (Doc. No. 24-2 at 45–59, 80–132; Doc. No. 26-4 at 117–23.)
The media reports in the state court record clearly implicated Petitioner in the crimes and covered
facts that were not admitted at trial. However, they did not reflect a fraction of the open hostility
of the “editorial artillery” described in Sheppard, which pronounced the defendant to be a “liar”
“protected by a smart lawyer who has made monkeys of the police and authorities,” mocked him
with cartoons and disparaging headlines, and included public demands for an inquest, for the
defendant’s arrest and interrogation, and for “Justice to Sam Sheppard.” Sheppard, 384 U.S. at
339, 341–42, 346–47. Accordingly, the pervasive, frenzied circumstances that were presumed to

9

Because this claim was exhausted in state court, the Court has not considered any of Petitioner’s
new evidence offered in support of it. It does note, however, that Petitioner’s exhaustive search
for media coverage of his case revealed no print articles or televised reports in the two months
before prospective jurors were ordered to avoid any news of the case when they filled out their
questionnaires in September 1999, and only eight print articles and no televised reports between
then and the day voir dire began on January 5, 2000. (See Doc. No. 122-7 at 156–65; Doc. No.
122-21 at 10–11.)
31

impact the jury in Estes and Sheppard were not present at Petitioner’s trial.
But Rideau, Estes, and Sheppard are not just distinguishable from Petitioner’s case. The
Sixth Circuit has indicated that they do not reflect current Supreme Court jurisprudence:
Early in the 1960’s the Supreme Court recognized that some instances of pervasive
pretrial publicity may render the defendant’s trial fundamentally unfair regardless
of professions of impartiality on the part of jurors seated during voir dire. In Rideau,
a case where the defendant’s televised confession was broadcast to the community
shortly before his trial, the Court held that “it was a denial of due process of law to
refuse the [defendant’s] request for a change of venue.” 373 U.S. at 726 (1962). In
Estes v. Texas, the Court again reversed a conviction where “there had been a
bombardment of the community with the sights and sounds,” 381 U.S. 532, 538
(1965), of media coverage of an initial pretrial hearing involving the defendant. The
Court noted that a showing of actual prejudice “is not a prerequisite to reversal”
where “the circumstances [are] held to be inherently suspect.” Id. at 542, 544. And
in Sheppard, faced with what it called a “carnival atmosphere” wrought by
extensive media coverage both before and throughout the trial, the Court held that
“where there is a reasonable likelihood that prejudicial news prior to trial will
prevent a fair trial, the judge should continue the case until the threat abates, or
transfer it to another county not so permeated with publicity.” 384 U.S. at 363. The
Court held that “appellate tribunals have the duty to make an independent
evaluation of the circumstances,” and not defer to the state trial court. Id. at 362.
The Court said: “Given the pervasiveness of modern communications and the
difficulty of effacing prejudicial publicity from the minds of the jurors, the trial
courts must take strong measures to ensure that the balance is never weighed against
the accused.” Id.
This presumption of prejudice based on pervasive publicity continued into the
1980’s. In Patton v. Yount, 467 U.S. 1025, 1031 (1984), the Court acknowledged
a presumption of prejudice: the “jurors’ claims that they can be impartial should
not be believed.” These views concerning pretrial publicity and voir dire arose from
a concern that human nature is such that a juror may want to conceal his own bias
or may not be aware of it.
In Mu’Min [v. Virginia], 500 U.S. [415,] 433 [(1991)], and Skilling [v. United
States, 561 U.S. 358, 386] (2010), the Court replaced the presumption of prejudice
based on pervasive publicity and the need for extensive voir dire in such
circumstances with a constitutional rule of deference to the trial judge with regard
to voir dire and change of venue. Mu’Min, a death penalty case decided 5–4 on this
issue, rejected as a constitutional standard the Standards for Criminal Justice of the
American Bar Association § 8–3.5 (2d ed. 1980), which called for interrogation of
each juror concerning “what the prospective juror has read and heard about the
case.” 500 U.S. at 430 (internal quotation marks omitted). Rather, the Court
“stressed the wide discretion granted to the trial court in conducting voir dire in the
area of pretrial publicity and in other areas of inquiry that might tend to show juror
32

bias.” Id. at 427, 111 S.Ct. 1899. The trial court in Mu’Min had conducted the voir
dire with four prospective jurors in each group and did not allow counsel to ask
about the “content” of the publicity a juror had heard or read about the case. The
Supreme Court specifically approved this procedure.
...
In Skilling, a 2010 case, the Supreme Court revisited and reaffirmed Mu’Min in a
5–4 opinion. See 561 U.S. at 386, 395. The Court had before it massive, intense,
persistent pretrial publicity in Houston, Texas, about the Enron scandal and the
culpability of Enron’s officials. The defendant was the chief operating officer who
became the chief executive of Enron. In denying a change of venue, the Court
repeatedly cited and quoted Mu’Min with approval:
Jury selection, we have repeatedly emphasized, is “particularly
within the province of the trial judge.” . . . see, e.g., Mu’Min, 500
U.S. at 424.
...
When pretrial publicity is at issue, “primary reliance on the
judgment of the trial court makes [especially] good sense” because
the judge “sits in the locale where the publicity is said to have had
its effect” and may base her evaluation on her “own perception of
the depth and extent of news stories that might influence a juror.”
Mu’Min, 500 U.S. at 427. Appellate courts making after-the-fact
assessments of the media’s impact on jurors should be mindful that
their judgments lack the on-the-spot comprehension of the situation
possessed by trial judges.
...
In reviewing claims of this type, the deference due to district courts
is at its pinnacle: “A trial court’s findings of juror impartiality may
be overturned only for manifest error.” Mu’Min, 500 U.S. at 428
(internal citations and quotation marks omitted).
Id. at 386, 396.
Based on Skilling, there seems to be no doubt that the Mu’Min constitutional
standard represents the current Supreme Court law of due process that must be
applied by lower courts to problems related to change of venue and the questioning
of jurors. The older standards articulated in the 1960’s and repeated in the 1984
Patton v. Yount case no longer represent the current state of the law, and we are
constrained to apply the new standards of Mu’Min.
Jackson v. Houk, 687 F.3d 723, 732–34 (6th Cir. 2012). Any remaining presumption of prejudice
arising from extensive media coverage “attends only the extreme case.” Skilling, 561 U.S. at 381.
This is not such a case, due to the distinguishing factors discussed above.

33

The Sixth Circuit’s observation of the Supreme Court’s shift away from a presumption of
prejudice is corroborated by Chandler v. Florida, in which the Supreme Court arguably minimized
Estes to the point of silently overturning it. 449 U.S. 560 (1981). The prosecution of the defendants
in Chandler had attracted significant media attention because the defendants were all police
officers whose walkie talkie conversations during commission of a burglary was recorded by an
amateur radio operator. Id. at 567. The trial court permitted portions of the trial to be televised
over the defendants’ objections. Id. at 568. After being found guilty, the defendants argued in their
motion for new trial and subsequent appeals that, under Estes, the television broadcast of the trial
had violated their right to a fair and impartial trial. Id. at 568, 570. They did not offer any evidence
of actual prejudice. Id. at 568. The Supreme Court held that Estes “does not stand as an absolute
ban on state experimentation with an evolving technology, which, in terms of modes of mass
communication, was in its relative infancy in 1964, and is, even now, in a state of continuing
change.” 10 Id. at 573. Instead, the Court focused on whether the media presence actually impacted
the jurors hearing the case:
Any criminal case that generates a great deal of publicity presents some risks that
the publicity may compromise the right of the defendant to a fair trial.
...
A case attracts a high level of public attention because of its intrinsic interest to the
public and the manner of reporting the event. The risk of juror prejudice is present
in any publication of a trial, but the appropriate safeguard against such prejudice is
the defendant’s right to demonstrate that the media’s coverage of his case—be it
printed or broadcast—compromised the ability of the particular jury that heard
the case to adjudicate fairly.
10

Two concurring opinions in Chandler disagreed, and would have expressly overruled Estes. 449
U.S. at 583 (Stewart, J., concurring) (“I believe now, as I believed in dissent then, that Estes
announced a per se rule . . .. Accordingly, rather than join what seems to me a wholly unsuccessful
effort to distinguish that decision, I would now flatly overrule it.”); and at 586 (White, J.
concurring) (“I think Estes is fairly read as establishing a per se rule against televising any criminal
trial if the defendant objects. So understood, Estes must be overruled to affirm the judgment
below.”).
34

Chandler, 449 U.S. at 574–75 (emphasis added). Because the defendants had not shown “with any
specificity that the presence of cameras impaired the ability of the jurors to decide the case on only
the evidence before them,” they had not established a constitutional violation. Id. at 581.
Irvin v. Dowd, 366 U.S. 717 (1961), also supports the proposition that prejudice in the
form of actual juror bias is required to grant relief where a due process violation is alleged to have
arisen from pretrial publicity. The Supreme Court in Irvin discussed the “community pattern of
thought” and the “barrage of newspaper headlines, articles, cartoons and pictures . . . unleashed
against [the defendant] during the six or seven months preceding his trial.” Id. at 725. But it also
relied on the evidence that eight of the twelve empaneled jurors had testified during voir dire to
believing the defendant was guilty, with some saying it would take evidence to overcome that
belief, and one saying that he would not be able to “give the defendant the benefit of the doubt.”
Id. at 727–28. In that context, the jurors’ promise to be fair and impartial was entitled to “little
weight” in the calculation to determine whether they were actually biased. Id. The Court made
clear, however, that jurors’ initial impressions arising from pretrial publicity do not inherently
violate due process:
It is not required, however, that the jurors be totally ignorant of the facts and issues
involved.
In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the interest of the
public in the vicinity, and scarcely any of those best qualified to serve as jurors will
not have formed some impression or opinion as to the merits of the case. This is
particularly true in criminal cases. To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused, without more, is
sufficient to rebut the presumption of a prospective juror’s impartiality would be to
establish an impossible standard. It is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the evidence presented in court.
Irvin, 366 U.S. at 722–23. Accordingly, the state court did not proceed contrary to federal law
when it identified a standard that required a showing of actual prejudice in Petitioner’s case.
The Sixth Circuit applied such a standard in Jackson, which involved the murder of three
35

victims, including a teenaged girl and a three-year-old child. 687 F.3d at 727–28. The case
received “considerable media attention,” which “constantly identified the defendant and his
accomplice . . . as the sole suspects” and covered nearly every development in the case. Id. at 730.
The media showed photos of the defendant in a bullet proof vest, referred to the crimes as a “New
Year’s Massacre” and described the father of the youngest victim begging for his daughter’s life
before she was shot in the head, all of which resulted in “high running emotions surrounding the
case.” Id. During the accomplice’s trial, reports covered testimony that accused Jackson of being
the shooter. Id. Media interest in the case was so high that local television stations interrupted
scheduled programming to announce the verdict. Id. Eleven of the empaneled jurors for the
defendant’s subsequent trial acknowledged knowing about the case through the media, and the
twelfth knew one of the victims personally. Id. Nevertheless, the Sixth Circuit held that relief was
not warranted where there was no evidence to establish “what effect the publicity had” on the case.
Id. at 734. In other words, the court found that extensive pretrial publicity itself, even where jurors
had been exposed to it, was not sufficient to establish the prejudice necessary to overturn a verdict
pursuant to the prevailing constitutional standard of Mu’Min and Skilling.
The prosecutor in Petitioner’s case acknowledged that pretrial publicity had been “greater
than in most ordinary criminal cases.” (Doc. No. 24-3 at 5.) But the Supreme Court has instructed
that the sort of heightened publicity associated with particularly egregious crimes does not
automatically violate a defendant’s rights: “Any killing that ultimately results in a charge of capital
murder will engender considerable media coverage, and this one may have engendered more than
most,” but that alone did not establish a violation of due process. Mu’Min, 500 U.S. at 429–30.
Petitioner has failed to establish that he was tried in such an inflamed, circus-like atmosphere that
a fair trial was impossible, or that any of the jurors who decided his case had been actually

36

prejudiced by pretrial publicity. In light of the material differences between Petitioner’s case and
those in which the Supreme Court has found due process violations arising from media coverage
and related public sentiment, the state court’s rejection of this claim was not unreasonable.
Petitioner is not entitled to relief on this claim.
3. Claims C.10, C.12, C.29, C.30, D.30, D.33 — Semen/DNA Evidence
The state introduced testimony at trial that there was a semen stain on the inside crotch of
the victim’s shorts that did not produce a DNA sequence that could be compared to Petitioner, as
recounted in Section I, above. Petitioner alleges that trial counsel were ineffective for “fail[ing]
to sufficiently investigate the DNA evidence,” failing “to sufficiently investigate semen evidence”
(Doc. No. 14 at 34), and for failing to file motions to suppress DNA and semen evidence. (Id. at
35, 41.) Petitioner exhausted these claims in post-conviction proceedings, where he argued that
counsel failed to investigate serological and DNA evidence sufficiently to seek exclusion of or
factually challenge the evidence at trial. (Doc. No. 26-14 at 41–48.)
The Tennessee Court of Criminal Appeals explained the standard of review it used to
analyze claims of ineffective assistance of counsel:
The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution guarantee a criminal defendant the right to
representation by counsel at trial. See U.S. Const. amend. VI; Tenn. Const. Art. I,
§ 9; see also State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Indeed, the Sixth Amendment right to counsel is so
fundamental and essential to a fair trial that the Fourteenth Amendment renders it
obligatory upon the States. Gideon v. Wainwright, 372 U.S. 335, 342–45 (1963).
Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance
that falls “within the range of competence demanded of attorneys in criminal
cases.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Baxter, 523
S.W.2d at 936. The deprivation of effective assistance of counsel at trial presents a
claim cognizable under Tennessee’s Post Conviction Procedure Act. See Tenn.
Code Ann. § 40–30–103; Pylant [v. State], 263 S.W.3d [854,] 868 [(Tenn. 2008)].
“The benchmark for judging any claim of ineffectiveness must be whether
37

counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland, 466
U.S. at 686. See also, e.g., Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011).
A petitioner’s claim that his or her attorneys provided constitutionally deficient
assistance is governed by the following two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687; see also Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004) (“To determine whether appellate counsel was constitutionally effective, we
use the two prong test set forth in [Strickland]—the same test that is applied to
claims of ineffective assistance of trial counsel asserted under the Sixth
Amendment to the United Constitution.”). Stated simply, a petitioner must prove
both that counsel’s performance was constitutionally deficient, and that the
deficiency actually prejudiced the defense. See Burns, 6 S.W.3d at 461; Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996). A petitioner’s “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief.” Goad, 938
S.W.2d at 370. Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.”
Strickland, 466 U.S. at 697.
To establish the first prong of deficient performance, the petitioner must
demonstrate that counsel “‘made errors so serious that counsel was not functioning
as the “counsel” guaranteed by the Sixth Amendment.’” Felts, 354 S.W.3d at 276
(quoting Strickland, 466 U.S. at 687). That is, the petitioner must demonstrate that
his lawyer’s “acts or omissions were so serious as to fall below an objective
standard of ‘reasonableness under prevailing professional norms.’” Vaughn v.
State, 202 S.W.3d 106, 116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688). See
also Kimmelman v. Morrison, 477 U.S. 365, 386 (1986); King v. State, 989 S.W.2d
319, 330 (Tenn. 1999); Baxter, 523 S.W.2d at 936. In order to satisfy this prong of
the test, the petitioner “must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.”
Strickland, 466 U.S. at 690. Upon reviewing the identified acts or omissions, the
reviewing court must then “make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate
the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Additionally, a
reviewing court “must be highly deferential and ‘must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting
Strickland, 466 U.S. at 689). “[T]hat is, the [petitioner] must overcome the
presumption that, under the circumstances, the challenged action ‘might be
38

considered sound trial strategy.’” Strickland, 466 U.S. at 689 (emphasis added); see
also Felts, 354 S.W.3d at 277.
We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v.
State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that
“deference to tactical choices only applies if the choices are informed ones based
upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Finally, we note
that criminal defendants are “not entitled to perfect representation, only
constitutionally adequate representation.” Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). Therefore, “in considering claims of ineffective
assistance of counsel, ‘[w]e address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987)
(quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Notwithstanding,
we recognize that “[o]ur duty to search for constitutional [deficiencies] with
painstaking care is never more exacting than it is in a capital case.” Id. at 785.
The prejudice prong of the Strickland test requires the petitioner to establish that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694;
see also King, 989 S.W.2d at 330. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In
evaluating whether a petitioner has satisfied this prong of the test, a court must ask
“whether counsel’s deficient performance renders the result of the trial unreliable
or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372
(1993) (citing Strickland, 466 U.S. at 687). In other words, a petitioner must
establish that the deficiency of counsel was of such a degree that it deprived him of
a fair trial and called into question the reliability of the outcome. Pylant, 263
S.W.3d at 869. “A reasonable probability of being found guilty of a lesser charge
... satisfies the second prong of Strickland.” Id.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *32–34 (Tenn. Crim. App.
Aug. 30, 2012).
The court also summarized the relevant evidence presented at trial and at the postconviction hearing, including the testimony of Mark Squibb, a serologist formerly with the
Tennessee Bureau of Investigation (TBI), and Megan Clement, a forensic serologist at Lab
Corporation:
The State’s proof at trial that the Petitioner raped the victim was entirely
circumstantial and based on Squibb’s testimony. Our review of the trial record
reveals that Squibb’s entire testimony covers only thirty pages of transcript. On
direct examination, Squibb explained that, when testing an item for the presence of
39

semen, he first performed “an initial test.” If this preliminary screening test yielded
a positive result, he then performed “a confirmatory test.” Squibb did not explain
the background or details of either of these tests. When asked about testing the
victim’s shorts for semen, Squibb testified that he “found that semen was present
on the shorts.” He clarified that three areas in the crotch portion of the shorts yielded
“positive semen stains” while a fourth area “was inconclusive for semen.” He also
explained that, when he received the shorts, they “were very brittle and fell apart
eas[ily].” The following colloquy between the prosecutor and Squibb ensued:
Q: And in reviewing your—reports, you refer to semen fluid and
sperm, is there a difference between those?
A: Sperm is a component of semen fluid.
Q: Were both found on these shorts?
A: The presence of sperm indicates that semen was also present
since sperm is a component of semen.
Squibb’s “reports” were not admitted into evidence. FN5 Squibb testified that he
also tested the shorts for blood but his tests “failed to indicate the presence of
blood.”
FN5 Trial Exhibit 112, admitted during Squibb’s testimony, is a
single sheet of paper containing handwritten notes and two diagrams
of a pair of shorts. Squibb referred to this document as “a copy of a
work sheet that [he] generated in the lab.” At the post-conviction
hearing, a copy of Squibb’s “Official Serology Report” was
admitted into evidence as an exhibit.
In addition to testing the victim’s shorts, Squibb tested the victim’s sandals and
shirt for blood and semen. The tests were “inconclusive for the presence of blood”
and “failed to indicate the presence of semen.”
When asked on direct examination whether the semen on the shorts was human,
Squibb responded, “I could not tell. It appeared to be human sperm; however, there
are other species which are very close to it, but I did not see any difference between
the sperm that I viewed as opposed to a human sperm.”
On cross-examination, Squibb stated that he did not attempt to generate a DNA
profile from the semen stains on the shorts. He also explained the differences
between the three areas of the shorts that he concluded contained semen stains and
the fourth “inconclusive” area: “There was some possible sperm heads [in the
fourth area], they were not what I would call a ‘sperm head,’ so I left it as an
inconclusive. The other [three areas], I had sperm head present so I called it sperm
and therefore, semen is present.” Squibb also acknowledged that he tested the
Petitioner’s white Chevrolet car for semen and blood and that the tests “failed to
indicate the presence of blood and semen.”
On redirect, Squibb clarified that he tested the inside of the shorts. He also clarified
the difference between presumptive and confirmatory tests for semen:
40

The presumptive test is acid phosphatase, and that is like quick
screening of an exhibit to kind of concentrate on possible semen
stains, assuming there is a positive area. If it is negative, then no
further testing will be performed on the exhibit. But if I get a positive
reaction, I can then come in on that localized area and further test,
do my confirmatory tests.
Squibb added that, on the four areas of the shorts that he tested for semen, the
presumptive tests were all positive. The confirmatory test was positive on only three
of the four areas.
Squibb was not asked to describe what the “confirmatory test” consisted of or how
it was conducted. Nor was he asked any detailed questions about the science
underlying any of the tests or the level of reliability associated with any of the tests.
Meghan Clement testified at trial that she tested the cuttings from the shorts for
DNA but was unable to obtain a sequence. Therefore, she was unable to compare
any DNA on the shorts to the Petitioner’s DNA sample. She explained that there
were four possible reasons for the inability to obtain a DNA sequence: (1) the DNA
was “too degraded”; (2) there was an insufficient quantity of DNA on the cuttings;
(3) the samples contained “a mixture of more than one DNA . . . so we couldn’t get
a clean sequence”; and (4) there may have been “chemical inhibitors from
environmental insults such as dirt.” On cross-examination, Clement acknowledged
that, if her inability to obtain a DNA sequence was due to a mixture of sources, it
was possible that there were “two donors of semen.”
Id., 2012 WL 3776675, at *44–45.
[At the post-conviction hearing] Meghan Clement testified that she worked for Lab
Corp. as the technical director in the forensic identity testing department. She was
tendered and accepted without objection as an expert in serology and DNA
forensics. Clement testified that she was originally contacted by the State in this
case in early 1998. She was provided with samples for testing, including stains from
a pair of pants. She was provided with four pieces of fabric, designated on the
submittal form as “three semen stains and a possible semen stain.” DNA tests were
requested on the samples. Only one of the samples produced a small amount of
DNA, which was not sufficient to compare to any known reference sample.
In December 1999, she received a request for mitochondrial DNA testing, a
different type of test. She stated, “we often had very good luck in getting
mitochondrial DNA sequences where we couldn’t get nuclear DNA profiles.”
However, the new testing did not produce “any sequence information that could be
compared to any known reference sample.”
In 2008, she received a request to do additional testing on the Petitioner’s behalf.
This test was the Y chromosome test, and it was performed on the extract that had
originally been obtained from the fabric samples. The remaining extract had been
frozen and was available for further testing. The new testing resulted in a “zero
quantitation.” The cloth samples were subsequently returned to Lab Corp. They
41

again tried to extract DNA and develop a Y chromosome profile but were
unsuccessful.
In addition to trying to extract DNA from the cloth samples in 2009, Clement also
performed a “presumptive test for acid phosphatase as well as a test for the presence
of P30, which is an antigen found in seminal fluid and those revealed negative
results.” The laboratory also examined the cloth samples microscopically, but did
not find spermatazoa present.
Clement also examined microscopically three slides that had been prepared by
Mark Squibb in conjunction with trial preparation. Clement “determined that there
were very few visible sperm heads that were identified on the slides.”
When asked whether the presence of sperm necessarily implied the presence of
semen, Clement explained that tests had been performed demonstrating that sperm
heads could be transferred among items of clothing during a washing machine
cycle. Accordingly, a finding of spermatazoa did not necessarily imply the presence
of semen. Clement also explained that a positive acid phosphatase test did not
necessarily indicate the presence of semen. Rather, a weak positive test could be
caused by other factors.
...
The State’s last witness was Mark Squibb, the laboratory supervisor for the trace
and DNA sections of the Miami Valley Regional Crime Laboratory in Dayton,
Ohio, and the DNA Technical Leader for the DNA section. Squibb testified that he
was formerly a forensic DNA analyst at the Tennessee Bureau of Investigation
(“TBI”) laboratory in Nashville, Tennessee. While employed by the TBI, he
performed the original laboratory work on the shorts found with the victim’s
remains. He performed an “AP spray” test to the crotch of the shorts and obtained
a “weak positive” result. He explained that the result was a “weak” positive because
of the longer period of time it took for the testing substance to reach the color
purple. He took four cuttings from the area testing “weak positive.” He examined
extractions from the cuttings microscopically and found “rare sperm heads” on
three of the samples. Based on the weak positive AP (acid phosphatase) test and
the sperm heads in the crotch area of the shorts, he concluded that there was semen
on the shorts.
Squibb acknowledged that there was also a lot of dirt, discoloration, and debris in
the extractions. He also acknowledged that the AP spray test may result in a false
positive and that vaginal fluid can also produce a positive result. He further
acknowledged being aware of studies “which pertain to the persistence of sperm as
well as semen in washing.” Nevertheless, he testified that he stood by his trial
testimony.
On cross-examination, Squibb acknowledged that “rare” sperm heads meant that
“very few,” or less than ten, heads were found in the area being microscopically
examined. He also acknowledged that he ran a P30 test on the shorts, which tests
for an antigen produced by the male prostate gland and which is present in semen.
42

The P30 test result was negative for the antigen, meaning “either it wasn’t there or
it did not reach the level in which [the] test could detect it.”
Id. at 29–30, 31. The state court also summarized trial counsel’s post-conviction testimony about
his work regarding the semen and DNA evidence:
Upon being shown a 1996 article in a French Canadian forensic science journal
detailing the transfer of sperm on one article of clothing to other clothes washed
together in a washing machine, Converse testified that, had he known about the
article, “it probably would have been something we certainly would have
considered using” because there were other males living in the household with the
victim at the time of her death, including her older brother, Jeremy Beard. When
asked whether he recalled doing “any independent research” leading up to the
Petitioner’s trial “on potential semen evidence” like that discussed in the Canadian
article, Converse responded that he had, yet he admitted to not having found the
particular 1996 article presented to him at the hearing. Converse testified that, once
the DNA test results came back as inconclusive regarding the Petitioner’s being
linked to the sperm found in the victim’s shorts, he “wasn’t as concerned about [the
sperm evidence] at that point.” Converse also testified on cross-examination that
he was not sure he “could have gotten a jury to swallow” the theory posited in the
Canadian article regarding washing machine sperm transfer.
Converse testified that he recalled talking to Meghan Clement prior to trial
regarding the forensic work she did on the case. However, he had no specific
recollection of having talked to Mark Squibb prior to trial regarding his forensic
work on the case. When presented during his testimony with what was identified as
a copy of Squibb’s “bench notes” regarding the forensic testing he performed on
the case, Converse stated that he had no idea what the notations “AP spray” or
“p30” meant in the notes.
Id. at 24–25.
And finally, the Tennessee Court of Criminal Appeals addressed the trial court’s denial of
post-conviction relief and agreed that Petitioner had not established ineffective assistance:
In denying relief on the Petitioner’s claim that Trial Counsel was ineffective in
crossexamining these witnesses and failing to adduce proof that the sperm heads
found on the shorts could have been the result of laundering, the post-conviction
court relied on the following analysis:
The testimony of Ms. Clement and Mr. Squibb at the [postconviction] hearing reveals certain deficiencies in Mr. Warner’s
cross-examination of those witnesses at trial. Mr. Squibb’s testing
produced evidence favorable to the petitioner, but counsel did not
present some of this evidence to the jury. For instance, the jury did
not hear there were very few (or “rare,” the term used by the TBI lab
to denote fewer than ten) sperm heads found on the microscopic
43

slides developed from the victim’s shorts. Mr. Squibb was also not
asked about his testing for semen in great detail; the jury heard no
information about the mechanics of the acid phosphatase test (color
changes, timing, etc.) or that Mr. Squibb’s acid phosphatase test
yielded a “weak” positive result. The jury heard nothing about the
P30 antigen as it related to seminal fluid or that Mr. Squibb’s testing
yielded negative results for P30. The jury also did not hear that very
little DNA was derived from the stains taken from the victim’s
shorts. Perhaps most relevant, counsel for the petitioner did not
present evidence attacking Mr. Squibb’s conclusion that the
presence of sperm cells necessarily indicated the presence of semen.
Given Ms. Clement’s testimony and the publication of the washing
machine study in the Canadian forensic journal—an article
published some four years before the trial in the instant case—such
evidence was available to counsel.
However, although counsel rendered deficient performance in not
presenting this evidence to the jury, this deficiency did not prejudice
the petitioner. Counsel were still able to present to the jury that the
DNA and serology evidence in this case was largely inconclusive.
For instance, Mr. Squibb testified that no blood was found in the
victim’s shorts and that no blood or semen were found on the
victim’s shirt or inside the petitioner’s car. Ms. Clement testified
that no DNA sequence could be generated from the victim’s
shorts—thus, what little DNA evidence that existed could not be
connected conclusively to the petitioner. Mr. Squibb also testified
that while the sperm cells “appeared” to be human, he could not
conclude that the sperm cells were not animal in nature.
The petitioner’s attack on the evidence supporting the rape-related
offenses in this case was multi-faceted. Counsel argued that the
petitioner did not have enough time to commit the offenses, that
there was no evidence that he committed these offenses in
Montgomery County, and that there was no evidence conclusively
establishing that he was the person who committed any sexual
offenses against the victim. Although the petitioner’s case could
have been strengthened by the inclusion of the scientific and
technical evidence produced at the [post-conviction] hearing,
counsel still presented ample evidence attacking the entirely
circumstantial evidence regarding the rape-related offenses. Despite
this evidence, the jury still chose to convict the petitioner; even if
counsel had presented the additional evidence to the jury, there is
not a reasonable probability that the jury’s verdict in this case would
have been different.
We agree with the post-conviction court’s analysis. Certainly, Trial Counsel should
have done a more thorough job attacking Squibb’s testimony. However, the fact
remains that Squibb found sperm heads on the fabric samples taken from the crotch
44

area of the victim’s shorts. Clement agreed at the post-conviction hearing with
Squibb’s finding of sperm heads. The victim’s mother testified at trial that the
victim had put the shorts on right before leaving her house and disappearing. While
Clement’s testimony at the post-conviction hearing established that it is possible
for sperm heads to arrive on clothing while being laundered in a washing machine,
she also testified that the experiments in which such transfer occurred involved
washing new clothing with “a pair of underwear worn by someone who had
consensual relations.” Thus, proof of these experiments would not have been
relevant at trial unless the defense had also been able to establish at least some
probability that the victim’s shorts had been washed with an item containing semen.
No such probability was established at the post-conviction hearing. Therefore, we
cannot conclude that Trial Counsel’s performance in his cross-examination of
Squibb prejudiced the Petitioner.
In sum, Trial Counsel should have attacked the State’s proof regarding the
semen/sperm issue with more vigor. The Petitioner, however, has not established
that the jury’s verdicts are unreliable as a result of this failure because there has
been no showing that the defense would have been able to eliminate or completely
discredit the State’s proof that sperm heads were found in the crotch area of the
victim’s shorts. That proof, together with the substantial proof at trial that the
Petitioner was the last person to see the victim alive, leaves us confident in the
jury’s verdict. Accordingly, the Petitioner is not entitled to relief on this basis.
The Petitioner also asserts that Trial Counsel was ineffective in not challenging the
admissibility of the DNA testing and in not pursuing the theory that the DNA
testing was inconclusive “because the substance was not human biological
material.” This issue is without merit. As noted by the post-conviction court, “[t]he
inconclusive nature of the DNA evidence went to the evidence’s weight, not its
admissibility.” Moreover, Trial Counsel emphasized through Squibb the possibility
that the sperm heads were not human. The Petitioner is not entitled to relief on this
basis.
Id., 2012 WL 3776675, at *44–47.
Respondent moves for summary judgment on the basis that the state court’s rejection of
these claims was not unreasonable. (Doc. No. 94 at 139–40, 142–46, 153.) Petitioner does not
acknowledge that the claims are exhausted or identify any unreasonable aspect of the state court’s
ruling. 11 (Doc. No. 111 at 2–3, 158, 346–51.)

11

Petitioner’s briefs often fail to acknowledge state court rulings and or to convey whether any
particular claim was even exhausted in state court, and if so, how the state court’s ruling was
erroneous. (See, e.g., Doc. No. 111 at 398 (asserting that “[t]o the extent that Tennessee courts
purported to address” his claims, its decisions were “contrary to, and/or an unreasonable
45

The state court correctly identified and summarized the Strickland standard that applies to
federal claims of ineffective assistance of counsel. As indicated above, however, federal habeas
review of such a claim requires an even greater level of deference than ordinary Strickland review.
Relief may not be granted on an exhausted claim under 28 U.S.C. § 2254 unless the petitioner
shows that the earlier state court’s decision “was contrary to” federal law then clearly established
in the holdings of the United States Supreme Court, § 2254(d)(1); Williams v. Taylor, 529 U.S.
362, 412 (2000); or that it “involved an unreasonable application of” such law, § 2254(d)(1); or
that it “was based on an unreasonable determination of the facts” in light of the record before the
state court, § 2254(d)(2). Thus, when an exhausted claim of ineffective assistance of counsel is
raised in a federal habeas petition, the question to be resolved is not whether the petitioner’s
counsel was ineffective. Rather, “[t]he pivotal question is whether the state court’s application of
the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011). As
the Supreme Court clarified in Richter,
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be no different than
if, for example, this Court were adjudicating a Strickland claim on direct review of
a criminal conviction in a United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different. For purposes of §
2254(d)(1), an unreasonable application of federal law is different from an incorrect
application of federal law. A state court must be granted a deference and latitude
that are not in operation when the case involves review under the Strickland
standard itself.
Id. (internal quotation marks and citation omitted).
The Tennessee Court of Criminal Appeals’ ruling on this claim was not unreasonable.
Squibb was forced to acknowledge at trial that the sperm he found was similar to that of some

application of clearly established law, and/or reflect an unreasonable determination of the facts,”
and that his claims are either new or were deficiently presented in state court) (emphasis added).)
46

other species. (Doc. No. 25-8 at 173.) Moreover, the lack of any DNA match to Petitioner was
undisputed and apparent to the jury. Counsel could have forced Squibb to admit that he considered
his initial semen test results to be a “weak positive,” which he would have explained simply meant
that the chemical reaction produced a purple color within the positive time-frame, but not as
quickly as a positive control. 12 (See Doc. No. 26-10 at 111–12.) Counsel could also have forced
Squibb to acknowledge that he had achieved a negative result using the P30 test on the shorts. But,
according to Ms. Clement, a positive presumptive test can be confirmed through either a positive
P30 test or a microscopic examination for sperm. (Doc. No. 26-10 at 60, 92–93.) And no challenge
Petitioner’s counsel could have raised to the strength of the semen evidence would have refuted
the fact, confirmed by Ms. Clement at the post-conviction hearing, that there were visible sperm
heads on the slides prepared by Squibb from material on the inside of the victim’s shorts. In fact,
that evidence was further bolstered at the post-conviction hearing with testimony that Squibb’s
identification of sperm heads was contemporaneously confirmed by his section supervisor and
another analyst in his TBI section. (Doc. No. 26-10 at 145.) The state courts reasonably determined
that there was no factual foundation in the state record for the Canadian washing machine study, 13

12

Ms. Clement testified that her laboratory would designate even a light pink discoloration as a
weak positive, and that those lighter pink results could be caused by other body fluids, such as
vaginal fluid. (Doc. No. 26-10 at 59–60.) Her testimony indicated that she would only take issue
with Squibb’s conclusion that semen was present if he had relied on “just a light pink color.” (Id.
at 93.)
13

In an apparent attempt to overcome this ruling, Petitioner has presented new evidence that the
victim’s brother wiped himself with a pair of her shorts in the bathroom after masturbating. (Doc.
No. 130 at 347–48.) This attempt fails for at least two reasons. First, new evidence cannot be the
basis for granting relief on an exhausted claim. Pinholster, 563 U.S. at 181, 185. Second, even if
the Court could consider such evidence, it would not establish that the shorts the victim was
wearing when she disappeared had been recently laundered with the shorts containing her brother’s
semen, as required to make the Canadian study relevant.
47

and trial counsel doubted whether a jury would have been persuaded by the study even if he had
presented it. And Clement acknowledged that prolonged exposure to environmental conditions
outside could account for degradation of the sperm tails and of the level of acid phosphatase in
semen. (Id. at 90.) Finally, Petitioner has not established any basis on which counsel might have
succeeded in having the evidence of the DNA testing excluded, or any reason to believe that he
was prejudiced by evidence that investigators were unable to match DNA from the semen stain to
his DNA.
In essence, the state courts found that the scientific evidence regarding the semen results
could and should have been more thorough, but that such evidence would not have had any
reasonable probability of changing the balance of the evidence or the outcome of the case. This
Court agrees that trial counsel’s failure to contest the semen/DNA evidence as vigorously as he
could have constituted objectively deficient performance. But even if this or any another court
might disagree with the state court’s finding that Petitioner was not prejudiced by that deficiency,
that ruling is not erroneous “beyond any possibility for fairminded disagreement.” See Burt v.
Titlow, 134 S. Ct. 10, 16 (2013) (quoting Richter, 562 U.S. at 103).
Under this tightly constrained standard, Respondent is entitled to summary judgment on
these claims. However, the Court recognizes the likely significance of the semen evidence to the
jury’s verdicts regarding the rape count and the related aggravating factors. The Court also
believes it possible that reasonable jurists might place greater weight on the fact that the jury was
never informed that Squibb’s initial test results were “weak positive” and that one type of
confirmatory test yielded negative results. For those reasons, the Court will grant a certificate of
appealability with respect to claim C.12.

48

4. Claim C.11 — Soil Evidence
Petitioner alleges that counsel were ineffective for “fail[ing] to sufficiently investigate soil
evidence.” (Doc. No. 14 at 34.) He exhausted this claim during post-conviction, arguing to the
Tennessee Court of Criminal Appeals that the lack of a match between soil samples from the area
where the victim’s remains were recovered and samples from Petitioner’s cars, clothing or shoes
constituted “exculpatory forensic evidence” that trial counsel failed “to recognize and use.” (Doc.
No. 26-14 at 48.) The state court rejected his claim:
The Petitioner claims that Trial Counsel was ineffective in failing to adduce
“exculpatory soil evidence which excluded [him] as having been present at the
crime scene at Land Between the Lakes where the [victim’s] remains were found.”
This assertion is based upon an FBI Report of Examination prepared by Bruce W.
Hall on July 15, 1997, and which states, in toto, the following “Results of
Examinations”:
Among the soil samples collected from where the victim was last
seen, specimens K1 through K5, specimen K3 is characteristic of
soil recovered from the subject’s vehicle, specimen Q 1. Soil
representing the road associated with the body recovery site,
specimen K15 through K18, although seeming similar to the soil
recovered from the subject’s vehicle, is dissimilar. Soil recovered
from the subject’s shirt, shoes and sandals, specimens Q 13, Q 14,
Q 15 and Q27 respectively, is likewise dissimilar and cannot be
associated with any of the aforementioned known soil samples as
well as those collected from where the victim was found, specimens
K12 through K14.
Although this report is certainly intriguing, the Petitioner cannot ask either a postconviction court or an appellate court to draw from it the conclusion that it excluded
the Petitioner as the person who deposited the victim’s body where it was found in
Land Between the Lakes. The Petitioner called no one at the post-conviction
hearing to testify about this report or to explain its conclusions and/or other data
necessary for interpreting the significance of the results.
Thus, again, the Petitioner has failed to demonstrate that he was prejudiced by Trial
Counsel’s “failure” to utilize this information at trial. As noted by the State in its
brief to this Court, the soil samples collected by law enforcement personnel from
the Petitioner’s car were collected after the car had been cleaned, according to the
Petitioner’s wife’s testimony. The State therefore had a ready explanation had Trial
Counsel elicited the lack of a match between the soil samples collected from the
area in which the victim was found and the soil samples collected from the
Petitioner’s car. Also, absent proof that the Petitioner’s clothing from which
49

additional soil samples were collected was the same unwashed clothing that the
Petitioner was wearing during the afternoon of July 8, 1996, the lack of a match
would have been irrelevant. In this regard, we note that a typed report by the FBI,
made an exhibit to the post-conviction hearing, relates that, on July 11, 1996, during
the search of the Petitioner’s residence, the Petitioner’s wife “provided . . . clothing
she believes was worn by [the Petitioner] on July 8, 1996. A red ‘Nike’ T-shirt was
recovered from the dryer. [The Petitioner’s wife] advised the T-shirt had been
washed and dried. [The Petitioner’s wife] provided a pair of blue jeans from the
washer. The blue jeans were still wet from being washed.” Therefore, Trial
Counsel’s “failure” to adduce the proof about the soil samples does not render the
jury’s verdicts unreliable. The Petitioner is not entitled to relief on this issue.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *47–48 (Tenn. Crim. App.
Aug. 30, 2012).
Respondent moves for summary judgment on the basis that this ruling was not
unreasonable pursuant to § 2254(d). (Doc. No. 94 at 141–42.) As with Claim C.10, Petitioner has
not addressed the state court’s ruling. His only references to the soil evidence in his response are
the statement that “counsel also failed to thoroughly investigate and challenge the State’s forensic
evidence – soil, semen/DNA, fiber, and blood,” and the undisputed fact that “the soil taken from
[Petitioner’s] car and the site of the victim’s remains did not match.” (Doc. No. 111 at 350–51.)
This does nothing to refute the state court’s conclusion that Petitioner was not prejudiced by any
failure by counsel to make more of the soil evidence. For the reasons the state court explained,
the lack of matching soil samples did not exclude Petitioner’s presence at the site. Trial testimony
made clear that samples, including multiple soil samples (Doc. No. 25-8 at 136–37), had been
collected for analysis, but the prosecution voluntarily elicited an acknowledgment from Linda
Littlejohn, a forensic scientist in the microanalysis section of the TBI, that she did not find any
match:
Q.

Did you ever make any matches of any kind on items or debris found
from the victim’s clothing?

A.

No, I did not.
50

(Doc. No. 25-8 at 148.) Defense counsel later highlighted the absence of such a match in his
closing argument:
You remember everything we processed and forwarded to the FBI lab? Good Lord,
we’ve been over . . . soil samples . . .. All this, all this, and what have they shown
you? Nothing. Not a thing.
Linda Littlejohn, the microanalysis, or microanalysts, or whatever they call her,
from the TBI, we went over her list she had. She tested a lot of this stuff. Nothing.
Nothing matched up.
(Doc. No. 25-11 at 159–60.) Thus, the FBI report and any related testimony would have simply
been further confirmation of the lack of a match and would not have changed the balance of the
evidence.
Accordingly, the state court’s ruling on this claim was not unreasonable, and Petitioner is
not entitled to relief on this claim.
5. Claim C.13 — Fiber Evidence
Petitioner alleges now, as he did on post-conviction, that “Counsel failed to sufficiently
investigate fiber evidence.” (Doc. No. 14 at 34; Doc. No. 26-7 at 184.) The Tennessee Court of
Criminal Appeals summarized the relevant evidence and rejected the claim as follows:
TBI forensic scientists examined the articles of clothing found at the site, but fibers
from the clothing could not be matched to fibers taken from the defendant’s vehicle.
...
FBI scientist Max Michael Houck tested fiber samples vacuumed from the
defendant’s car and the defendant’s carpet at his residence and compared them with
fibers taken from the victim’s shorts. He identified light yellow carpet fibers in the
samples taken from the defendant’s car and residence that “exhibited the same
microscopic characteristics and optical properties” as fibers taken from the victim’s
shorts. Although he could not identify the source of the fibers, the fibers appeared
to have the same properties and characteristics as samples taken from the living
room carpet in the defendant’s residence. Agent Houck testified that either the
victim’s shorts had been in the defendant’s living room, or the fibers had been
transferred to the shorts through contact. He explained that the fibers could have
been transferred to the defendant’s car via the defendant’s shoes or clothing and
51

then transferred to the victim’s shorts if she came into contact with the defendant’s
car. Additionally, FBI chemist Ronald Menold tested the fibers forwarded to him
by Agent Houck. He found the fibers from the victim’s shorts and the vacuumings
of the defendant’s car and residence to be consistent in polymeric composition.
...
Converse explained that the defense hired an expert to look at the carpet fiber
evidence. However, her analysis uncovered evidence not noticed by the State’s
experts “that would have been a shot to the head for us, . . . a killer shot.” He
explained:
There was some question about the fibers from [the Petitioner’s]
living room floor carpet being consistent with some fibers found on
the victim or the victim’s clothing[.] And she said yea[h]—I
remember her looking at that but something that was—nobody else
took any further than here, but there were some stains on that
particular fiber—grease or dirt or something on that same fiber that
matched up.
Converse testified that, upon hearing this, he told the expert “thank you,” “[d]on’t
write that down,” and “have a nice day.”
...
The Petitioner contends that Trial Counsel was ineffective in failing to exploit
discrepancies in some of the State’s proof regarding fibers found on the victim’s
clothing and in the Petitioner’s cars and home. The Petitioner asserts in his brief to
this Court that “[t]hese discrepancies were not utilized in cross-examination of any
of the State’s witnesses, and the jury was left with the State’s unchallenged yet
dubious story of ‘fiber transfer’ which tied [the victim] to [the Petitioner’s] car.”
To the contrary, testimony by the State’s own witnesses during both direct and
crossexamination established discrepancies in the fiber evidence and created
questions about the fiber transfer. TBI Agent Linda Littlejohn testified at trial that
the fibers she found on the victim’s clothing did not match the fibers from the carpet
and seat standards taken from the Petitioner’s cars. FBI scientist Max Michael
Houck testified that fibers found in vacuumings from the Petitioner’s two vehicles
and on the victim’s shorts “exhibited the same microscopic characteristics and
optical properties as the known fibers from the [Petitioner’s] living room carpet.”
Trial Counsel conducted a thorough cross-examination of Houck, eliciting
testimony that established that the fibers on the victim’s shorts could have resulted
from a transfer that involved neither the victim’s presence in the Petitioner’s living
room or in either of his cars. Trial Counsel also attacked the reliability and validity
of the asserted consistencies by pointing out that the fibers from the Petitioner’s
living room carpet were not obtained until mid–1997. Trial Counsel also obtained
Houck’s admission that a fiber examination “is not like a fingerprint or a six probe
DNA match.” FBI chemist Ronald Menold testified that the fibers “were consistent
with each other in polymeric composition and that that composition was consistent
52

with polyethylene carasylate (phonetic), which is a sub-class of a polyester fiber.”
Trial Counsel also conducted a thorough cross-examination of this witness,
eliciting, among other things, Menold’s admission that the FBI’s Handbook of
Forensic Science stated that such consistency was “not positive evidence but good
circumstantial evidence.”
The Petitioner has failed to demonstrate how the absence of further attacks on the
State’s fiber proof renders the jury’s verdicts unreliable. We note, in particular, that
the Petitioner admitted to law enforcement officers that the victim had been in his
car. The Petitioner is not entitled to relief on this basis.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *8, 25–26, 48–49 (Tenn.
Crim. App. Aug. 30, 2012).
Respondent argues that he is entitled to summary judgment on this claim because the state
court’s rejection of it was not unreasonable. (Doc. No. 94 at 146–47.) Petitioner does not
acknowledge, or identify any flaw in, the state court’s ruling. His only mention of fiber evidence
in that section of his response amount to wholly unsupported assertions that counsel failed to
thoroughly investigate and challenge fiber evidence that he characterizes as “junk science.” His
only “factual” assertion in connection with that argument relates to a DOJ Task Force report that
is not in the state court record and does not pertain to the validity of the techniques or testimony
of anyone who gave evidence in this case. (See Doc. No. 111 at 350 n.1727; Doc. No. 43-2.) Even
if the Court were not prohibited by AEDPA from considering this new evidence, it would be
completely unpersuasive.
Later in his response, in connection with Claim C.24—his more generic claim that counsel
failed to effectively cross-examine prosecution witnesses—Petitioner argues that counsel “failed
to thoroughly investigate the State’s fiber evidence and thus failed to effectively cross examine
Max Houck.” (Doc. No. 111 at 357.) But in support of that allegation, he relies primarily on
testimony the jury heard about weaknesses in the evidence, and motions that defense counsel
diligently filed. (Doc. No. 111 at 357–58 and notes.) He argues that “counsel failed to capitalize
53

on the State’s inadequate and questionable testing methods” (Doc. No. 111 at 358), but there is
nothing in the record establishing that the methods employed in this case were inadequate or
questionable. He also refers to the fiber analysis’s “lack of accuracy” (id.), but never offered any
evidence to the state court that the analysis was inaccurate, or that trial counsel could have proven
it so through additional effort. To the contrary, the post-conviction record establishes that trial
counsel did retain their own expert in an effort to challenge the fiber evidence, and learned that a
more careful comparison of fibers was even more damaging to Petitioner than the analysis offered
by the State. 14 Finally, as the state court correctly suggested, attacking fiber evidence that the
victim had been in his car had no reasonable likelihood of changing the verdict, when Petitioner
had admitted that she had been in his car.
The state court reasonably rejected this claim, and Petitioner is not entitled to relief on it.
6. Claims C.19, E.6–E.11 — Caruso Claims
Petitioner asserts that, during the sentencing phase, counsel “failed to adequately
investigate defense expert mitigation evidence,” (C.19), and presented evidence that undermined
the adversarial process (E.6). (Doc. No. 14 at 34, 45.) Specifically, he claims that counsel was
ineffective at sentencing for: presenting testimony from Dr. Keith Caruso that was “inaccurate,
prejudicial, and presented a false and misleading picture” of Petitioner to the jury at sentencing
(E.7); “fail[ing] to sufficiently review Dr. Keith Caruso’s final report in advance of the sentencing
hearing in order to mitigate the damaging and inaccurate information contained within the report”
(E.8); and introducing inaccurate and prejudicial evidence that Petitioner had been diagnosed with

14

Converse’s testimony to that effect is corroborated by the trial court’s order to provide the
defense expert with the fiber and carpet samples for independent testing. (Doc. No. 24-3 at 23–
24.)
54

Antisocial Personality Disorder (E.9), that he was a child sexual abuser (E.10), and that he “was
not ‘very far along in the pattern or remorse or feeling sorry for what he has done yet.’” (E.11).
(Doc. No. 14 at 45–46.) In his state post-conviction petition, these allegations were presented as
two claims: (1) that “Counsel failed to adequately investigate defense expert mitigation evidence,
and presented evidence damaging to Petitioner at sentencing” (Doc. No. 26-7 at 185), 15 and (2)
that “Counsel presented at sentencing the expert testimony of Keith Caruso, M.D. whose opinion
was highly damaging to the petitioner’s defense.” (Id. at 190.) On post-conviction appeal, he
condensed these two claims into a single claim that “Trial counsel failed to adequately investigate
its own expert’s opinion, resulting in the introduction of evidence which supported the State’s case
for the death penalty.” (Doc. No. 26-14 at 4.) He supported that claim with argument about Dr.
Caruso’s diagnoses of Antisocial Personality Disorder and Borderline Personality Disorder, and
his testimony about the state of Petitioner’s remorse process. (Id. at 56–57.) 16
On post-conviction appeal, the Tennessee Court of Criminal Appeals summarized Dr.
Caruso’s trial testimony:
Dr. Keith Caruso, a forensic psychiatrist, testified . . . [that he] interviewed the
defendant, his sister, his father, his estranged wife, and his high school principal.
He also reviewed the defendant’s prison records, school records, medical records,
mental health records, military records, police reports, and witness statements. Dr.
Caruso diagnosed the defendant with anti-social personality disorder and borderline
personality disorder. Dr. Caruso testified that people with borderline personality
disorder are sensitive to abandonment with a tendency to feel empty. He testified
that the defendant felt abandoned by his biological father and rejected when his
sister left home. He said the defendant felt rejected when his first marriage ended
15

In support of this post-conviction claim, Petitioner relied on Dr. Caruso’s report. (Doc. No. 267 at 185.) Accordingly, the Court treats Claim C.19, which utilizes the same language, as a Caruso
claim.
16

The Court’s work has been complicated by Petitioner’s pattern of spiraling what amounts to a
single issue into two, three or—in this instance—seven claims for relief. That difficulty is
compounded by his response, which (as noted above) rarely directly addresses whether or when
he considers any particular claim to have been exhausted.
55

and feared his marriage to Mrs. Rogers was in jeopardy. At the time of the crimes
in this case, the defendant was in an abandonment crisis. Not only was the
defendant fearful of his marriage ending, he was fearful that he was going to lose
the renewed relationship he had built with his biological father. According to Dr.
Caruso, Mrs. Rogers, the defendant’s current wife, was a mother figure to him. At
the time of the crimes, the defendant was symbolically being abandoned by both
his mother and father again. Dr. Caruso theorized that the murder of the victim was
a response to feeling so abandoned, which caused the defendant to act out in ways
that had been modeled for him.
Dr. Caruso did not diagnose the defendant with post-traumatic stress disorder
because he did not exhibit all of the symptoms. Also, Dr. Caruso did not believe
that psychotic or dissociative symptoms played a role in the crimes committed in
this case.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *14–15 (Tenn. Crim. App.
Aug. 30, 2012). As relevant to Petitioner’s current claims, Dr. Caruso also testified that he did not
find in Petitioner the diagnostic criteria of lack of remorse:
Well, I think one of the things about remorse is that it is a process, it’s not an event.
. . . I saw at times that Mr. Rogers did not have remorse for things that he had done
in the past, but I also saw times when he did, and I was kind of surprised about one
example. He spoke of being remorseful and feeling badly about a fight that he had
gotten into with his stepfather when he became old enough to defend himself.
Apparently, he injured his stepfather and apparently they injured each other in the
fight but he actually hurt his stepfather and despite what we have heard here about
all the abuse that Mr. Rogers endured at his hands, he actually felt very badly about
having injured him. Well, he’s still my Dad, or Step Dad I think was what he had
said and I shouldn’t have done that and I was kind of surprised about that. I think
here also with regard to the instant offense or the offense that is here, I think Mr.
Rogers hasn’t been able to admit to himself that he did these things yet, so it is
difficult to say whether or not—I don’t see that he entirely lacks remorse. I don’t
see him as being very far long in the pattern or remorse or feeling sorry for what he
has done yet.
(Doc. No. 25-16 at 11–12.)
The Tennessee Court of Criminal Appeals also summarized trial counsel’s post-conviction
hearing testimony about using Caruso as a witness:
Converse testified that Dr. Keith Caruso, the defense psychiatrist who testified at
sentencing, was one of the witnesses “handled” primarily by attorney Warner at
trial. Converse had no “independent recollection of Dr. Caruso at all in the
sentencing hearing.” Converse also could not say what the defense team was
56

“thinking at the time, one way or the other” regarding any particular reason why
they chose Dr. Caruso to testify at sentencing. However, on cross-examination,
after reviewing Dr. Caruso’s written report, Converse testified that it was “certainly
. . . very possible” that the defense put Dr. Caruso on the stand in order to get before
the jury the following conclusions contained within his written report:
[A]t the time of the alleged offenses, the defendant was in a state of
extreme emotional disturbance brought on by his sensitivity to
abandonment and his fears that the two most significant persons in
his life were on the verge of rejecting him.
Should the jury determine that the defendant is guilty, it appears that
his crimes were committed in response to this extreme emotional
disturbance. In this scenario, it is likely that the defendant acted in a
manner that had previously been enacted on him: he victimized a
child sexually and violently.
Converse also testified on cross-examination that Dr. William Bernet had “brought
up pedophilia” as a possible motivating factor for the Petitioner’s crimes, a
conclusion ruled out by Dr. Caruso’s statement in his report that “gratifying
pedophilic desires with a child” failed to explain the Petitioner’s behavior at the
time of the crime.
Rogers, 2012 WL 3776675, at *27. The state court then analyzed and rejected Petitioner’s claim
on the merits:
Finally, the Petitioner contends that Trial Counsel “failed to adequately investigate
its own expert’s opinion, resulting in the introduction of evidence which supported
the State’s case for the death penalty.” The Petitioner refers to Dr. Keith Caruso’s
testimony and report presented by the defense during the sentencing phase of his
trial, particularly Dr. Caruso’s testimony, “I think [the Petitioner] hasn’t been able
to admit to himself that he did these things yet, so it is difficult to say whether or
not—I don’t see that he entirely lacks remorse. I don’t see him as being very far
long [sic] in the pattern of remorse or feeling sorry for what he has done yet.” The
Petitioner argues that Dr. Caruso impliedly endorsed the jury’s finding of guilt,
“thereby crippling any residual doubt argument as a mitigating factor.” He asserts,
“Surely it cannot be disputed that a careful reading of Dr. Caruso’s report,
particularly in light of the far more favorable report of Dr. Neilson . . ., would cause
a lawyer exercising reasonable professional judgment to decline to present Dr.
Caruso as an expert.”
To prove the prejudice prong of ineffective assistance of counsel during the capital
sentencing phase of the petitioner’s trial, the petitioner must establish that “there is
a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695. In determining whether defense
counsel was ineffective in its investigation of and/or presentation of mitigating
evidence, the reviewing court must “analyze[ ] the nature and extent of the
57

mitigating evidence that was available but not presented,” determine “whether
substantially similar mitigating evidence was presented to the jury during either the
guilt or penalty phase of the proceedings,” and consider “whether there was such
strong evidence of aggravating factors that the mitigating evidence would not have
affected the jury’s determination.” Goad, 938 S.W.2d at 371. When the petitioner
argues, as here, that prejudicial “mitigation” evidence was presented, we construe
the first of these factors as referring to the nature and extent of the allegedly
prejudicial evidence presented and the third factor as referring to whether the
evidence of the applicable aggravating factors was so strong that the absence of the
allegedly prejudicial mitigating evidence would not have affected the jury’s verdict.
After reviewing the trial testimony of both Dr. Caruso and Dr. Neilson, who also
testified in mitigation for the Petitioner at trial, the post-conviction court found that
Dr. Caruso’s assessment of the petitioner [was not] significantly less
favorable to the petitioner than Dr. Neilson’s assessment. Although
Dr. Caruso did not diagnose the petitioner with the same (or as
many) disorders as did Dr. Neilson, Dr. Caruso testified that the
petitioner’ actions were affected by—although if not caused by—
the extreme emotional distress resulting from the petitioner’s
upbringing.
Furthermore, the evidence of the four aggravating circumstances
was substantial, so even if Dr. Caruso’s testimony had not been
presented to the jury, Dr. Neilson’s testimony, standing alone,
would not have affected the jury’s sentencing decision.
We agree with the post-conviction court on this issue. Moreover, while the
Petitioner has couched this contention in terms of inadequate investigation, the real
thrust of his complaint is that Trial Counsel made a poor tactical decision in calling
Dr. Caruso to testify. The record, however, does not support the conclusion that
Trial Counsel’s strategic choice in this regard fell so far below the level of
reasonable performance as to constitute deficient performance. For instance, we
note that Converse testified that one of the reasons the defense called Dr. Caruso
was to counteract the State’s claim that the Petitioner suffered from pedophilia. The
Petitioner is not entitled to relief on this basis.
Id. at *50–51.
Respondent originally characterized some of these claims as defaulted due to the abovenoted multiplicity in their presentation here as compared to Petitioner’s state court filings, 17 but

17

See, e.g., Doc. No. 94 at 75, where Respondent first asserts that Claim E.6 was defaulted, but
goes on to state that “[i]t appears the petitioner takes issue with the mental health testimony
presented at the sentencing hearing,” and to rely on the state court’s determination that counsel
were not ineffective for calling Dr. Caruso as a witness.
58

now seeks summary judgment on all of Petitioner’s claims arising from Dr. Caruso’s testimony on
the basis that the state court’s rejection of the comprehensive Caruso claim was not unreasonable.
(Doc. No. 94 at 149–51, 176–79; Doc. No. 134 at 38–41.) Petitioner’s response ignores that the
state courts rejected his claim that counsel were ineffective for insufficiently reviewing Dr.
Caruso’s opinion and presenting his testimony, and he addresses all of the Caruso claims as
“meritorious new claims.” (Doc. No. 111 at 2–3, 309–26.) The Court considers the claims to have
been exhausted in Petitioner’s post-conviction proceedings.
The parties disagree about whether the Court may consider new evidence Petitioner has
submitted in support of his Caruso claims. Respondent expressly argues in his reply that,
“[b]ecause [the Caruso] claim was properly exhausted, this Court’s review of the state court’s
decision is limited to the record that was before the state court,” and that, pursuant to Pinholster,
“this Court may not consider the additional evidence the petitioner has presented in support of this
claim.” (Doc. No. 134 at 38.) In his surreply, Petitioner again ignores the collective exhaustion of
his Caruso claims, arguing in the abstract, without reference to any particular claim, that he is
permitted to present new evidence on procedurally defaulted ineffective-assistance claims
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012.) (Doc. No. 137.)
Martinez creates a narrow exception allowing some claims that were not raised in state
court to be reviewed by a federal habeas court. But, as explained in more detail in Section V.A,
the Sixth Circuit has repeated held that Martinez has no bearing on a petitioner’s attempt to present
new evidence on a claim that was exhausted in state court. See, e.g., West v. Carpenter, 790 F.3d
693, 698–99 (6th Cir. 2015) (“When the state court denies a petitioner’s ineffective-assistance
claim on the merits, Martinez does not apply.”); Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir.
2013) (“Pinholster plainly bans such an attempt to obtain review of the merits of claims presented

59

in state court in light of facts that were not presented in state court. Martinez does not alter that
conclusion.”). Accordingly, this Court must review Petitioner’s exhausted Caruso claims “through
the lens of AEDPA deference” to the state court’s ruling, and cannot consider any new evidence
in connection with that review. Moore, 708 F.3d at 758.
Viewed through that lens, there is nothing unreasonable about the state court’s rejection of
the Caruso claims. The Tennessee Court of Criminal Appeals correctly identified the applicable
Strickland standard. 18 It also reasonably concluded that there were strategic benefits to presenting
Dr. Caruso’s testimony, despite its potential for adverse impact. Although Petitioner views the
personality disorder diagnoses as devastating, Dr. Caruso’s testimony tied the severe physical and
emotional abuse Petitioner suffered as a child to the development of those disorders, and thus to
the extreme emotional disturbance he was experiencing at the time of the crimes. That Petitioner
or other experts might disagree with Dr. Caruso’s diagnoses does not, as he asserts repeatedly,
make them false or inaccurate, and does not detract from the possibility that a jury might have seen
the extreme emotional disturbance as a mitigating factor, particularly in the context of the abusive
background that contributed to it.
The rest of Petitioner’s argument about the Caruso evidence is flatly contradicted by the
record. Dr. Caruso did not, as Petitioner asserts, diagnose Petitioner with “pedophilic desires.”

18

The standard for ineffective assistance under United States v. Cronic, 466 U.S. 648 (1984), is
only implicated where: (1) there is a complete denial of counsel at a critical stage of the case; (2)
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”; or (3)
circumstances are such that competent counsel “very likely could not” render assistance. Bell v.
Cone, 535 U.S. 685, 695–96 (2002). For Cronic to apply, “the attorney’s failure must be
complete.” Cone, 535 U.S. at 696–97. It plainly does not apply here, where counsel retained and
presented multiple expert mitigation witnesses. Allegedly deficient performance is not the same
as the complete failure to perform. The Court therefore rejects Petitioner’s argument that Cronic
applies to his Caruso claims. (Doc. No. 111 at 309.)
60

(See Doc. No. 111 at 317.) To the contrary, he opined in his report that any such desires were not
the cause of the crimes:
Although one may seek to explain Rogers’ behavior simply as an Antisocial
individual gratifying pedophilic desires with a child, this fails to explain Rogers’
behavior in a manner consistent with his developmental history and the
psychosocial stressors that he was experiencing at the time of the crime.
(Doc. No. 25-24 at 87.) Petitioner’s assertion that his trial counsel “Larry Warner elicited
testimony from Dr. Caruso that Glenn had ‘pedophilic desires’” (Doc. No. 111 at 318) is likewise
inaccurate. The portion of the sentencing hearing transcript to which he cites is not from Warner’s
direct examination of Dr. Caruso, but part of the prosecution’s cross-examination. (Doc. No. 2516 at 25, 40.) Even then, Dr. Caruso still maintained that pedophilic desires did not explain
Petitioner’s behavior, while acknowledging that others might think it did. (Doc. No. 25-16 at 40.)
Finally, as quoted above, Dr. Caruso did not testify that Petitioner was incapable of or
completely lacking in remorse. To the contrary, Dr. Caruso testified that Petitioner exhibited a
surprising capacity for remorse at times. Petitioner now faults Dr. Caruso for stating that, at the
time of sentencing, Petitioner had not admitted to the crimes and begun to feel sorry for them. But
it is not likely that assessment had any impact on the jury because Petitioner himself maintained
(and in fact continues to maintain in the pending action) his actual innocence of the crimes.
Petitioner has not carried his burden of proving that counsel’s decision to present Caruso’s
testimony was not a reasonable strategy at the time it was made, or that the absence of Caruso’s
testimony would have had any likely beneficial impact on the jury’s decision. More importantly,
he has not established that the state court’s determination of those issues was so unreasonable that
it was beyond fair-minded debate. He is not entitled to relief on these claims.

61

7. Claim C.24 — Cross-examination
Petitioner alleges that “Counsels’ inadequate investigation compromised counsels’ abilities
to effectively cross-examine the State’s witnesses, and/or counsels’ ability to present a viable
defense.” (Doc. No. 14 at 35.) As pleaded, this claim is too vague and overly broad even to
determine the extent to which it is exhausted. It falls short of satisfying Rule 2(c) of the Rules
Governing Section 2254 Cases, which requires that a habeas petition must “specify” the grounds
for relief and “state the facts supporting each ground.” Rule 2(c)(1) and (2). Petitioner was
adamant about the form of his amended petition (Doc. No. 18), and the Court gave him a great
deal of leeway to present his claims in the manner he deems appropriate (see Doc. No. 21, Order
denying motion to require supplemental or second amended petition), but this Claim is simply not
amenable to review on its face.
In his Response, Petitioner identifies “for example” three failures by counsel relevant to
this claim: (1) failure to investigate and present “a more nuanced picture” of Petitioner at
sentencing through the testimony of his wife, mother and half-brother; (2) failure to thoroughly
investigate and properly challenge Squibb’s serology/sperm testimony; and (3) failure to
thoroughly investigate fiber evidence to cross-examine Houck. (Doc. No. 111 at 356–57.) The
exhausted serology and fiber evidence claims have already been considered above in Claims C.12
and C.13, and the defaulted claim of failures with regard to Petitioner’s family members is
addressed below in connection with Claims C.3 and C.4. In all other respects, this claim will be
dismissed as insufficiently pled.
8. Claims D.1, D.4, D.7–D.11, D.13–D.15, D.18–D.20, E.1 — Voir Dire/Jury Selection
In all of these claims, Petitioner asserts essentially that trial counsel were ineffective during

62

voir dire and jury selection. (Doc. No. 14 at 36–40, 44.) He raised a similar host of claims on postconviction, under the headings “Counsel rendered ineffective assistance with respect to the jury
selection process” and “Counsel Rendered Ineffective Assistance by Failing to Utilize Both
Counsel During Jury Selection.” (Doc. No. 26-7 at 178–81 (capitalization in original).) He also
raised those claims in his post-conviction appeal. (Doc. No. 26-14 at 3.) Because the jury selection
claims are exhausted, the Court’s review is confined to the state court record. Cullen v. Pinholster,
563 U.S. 170, 181, 185 (2011).
The Tennessee Court of Criminal Appeals analyzed the jury selection claims at great
length:
In his first issue on appeal, the Petitioner argues that the post-conviction court erred
in denying his claims that his trial lawyers (individually and collectively, “Trial
Counsel”) provided constitutionally ineffective assistance during the jury selection
process. The Petitioner alleges numerous deficiencies on Trial Counsel’s part
during the jury selection process, which he summarizes in his brief to this Court as
(1) failing to conduct an adequate voir dire; (2) failing to object to the trial court’s
voir dire process and juror excusals; (3) failing to meaningfully exercise
peremptory challenges; (4) failing to utilize both defense lawyers during voir dire;
and (5) failing “to object, preserve, raise, and appeal the voir dire issues stated
herein.” The post-conviction court determined that the Petitioner failed to carry his
burden of proving that he suffered prejudice as a result of Trial Counsel’s
performance during jury selection. We agree with the post-conviction court’s
conclusion and hold that the Petitioner is entitled to no relief on the basis of Trial
Counsel’s performance during jury selection.
Jury selection implicates an accused’s state and federal constitutional rights to a
competent, fair-minded, and unbiased jury. See Smith v. State, 357 S.W.3d 322,
347 (Tenn. 2011) (recognizing that “[b]oth the United States and the Tennessee
Constitutions guarantee a criminal defendant the right to a trial by an impartial
jury.”); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“[T]he right to jury trial
guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’
jurors.”); Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008) (“The Sixth and
Fourteenth Amendments guarantee a criminal defendant an impartial jury in state
court.”); State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993)
(recognizing that, under the Tennessee Constitution, every accused is guaranteed
“‘a trial by a jury free of . . . disqualification on account of some bias or partiality
toward one side or the other of the litigation’”) (quoting Toombs v. State, 270
S.W.2d 649, 650 (Tenn. 1954)). The process of voir dire is aimed at enabling a
63

defense lawyer (as well as a prosecutor) to purge the jury of members not meeting
these criteria. See United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) (
“[T]he principal way this right [to an impartial jury] is implemented is through the
system of challenges exercised during the voir dire of prospective jurors.”); Smith,
357 S.W.3d at 347 (recognizing that “‘[t]he ultimate goal of voir dire is to ensure
that jurors are competent, unbiased and impartial.’”) (quoting State v. Hugueley,
185 S.W.3d 356, 390 (appx) (Tenn. 2006); see also Tenn. Code Ann. § 22–3–101
(1994) (“Parties in civil and criminal cases or their attorneys shall have an absolute
right to examine prospective jurors in such cases, notwithstanding any rule of
procedure or practice of court to the contrary.”); Tenn. R. Crim. P. 24(b)(1) (“The
court may ask potential jurors appropriate questions regarding their qualifications
to serve as jurors in the case. It shall permit the parties to ask questions for the
purpose of discovering bases for challenge for cause and intelligently exercising
peremptory challenges.”). As emphasized by the United States Supreme Court,
The process of voir dire is designed to cull from the venire persons
who demonstrate that they cannot be fair to either side of the case.
Clearly, the extremes must be eliminated—i.e., those who, in spite
of the evidence, would automatically vote to convict or impose the
death penalty or automatically vote to acquit or impose a life
sentence.
Morgan v. Illinois, 504 U.S. 719, 734 n.7 (1992) (quoting Smith v. Balkcom, 660
F.2d 573, 578 (5th Cir. 1981)).
As the United States Court of Appeals for the Sixth Circuit has asserted, “[a]mong
the most essential responsibilities of defense counsel is to protect his client’s
constitutional right to a fair and impartial jury by using voir dire to identify and
ferret out jurors who are biased against the defense.” Miller v. Francis, 269 F.3d
609, 615 (6th Cir. 2001). By posing appropriate questions to prospective jurors, a
defense lawyer is able to exercise challenges in a manner that ensures the jury
passes constitutional muster. See United States v. Blount, 479 F.2d 650, 651 (6th
Cir. 1973).
Despite its significance, a trial lawyer is “accorded particular deference when
conducting voir dire” and his or her “actions during voir dire are considered to be
matters of trial strategy.” Hughes v. United States, 258 F.3d 453, 457 (6th Cir.
2001). Also, “[a] strategic decision cannot be the basis for a claim of ineffective
assistance unless counsel’s decision is shown to be so ill-chosen that it permeates
the entire trial with obvious unfairness.” Id. Thus, it is imperative for a petitioner
claiming ineffective assistance of counsel during jury selection to demonstrate that
the resulting jury was not impartial. See Smith, 357 S.W.3d at 348 (citing James A.
Dellinger v. State, No. E2005–01485–CCA–R3–PD, 2007 WL 2428049, at *30
(Tenn. Crim. App. Aug. 28, 2007)). We conclude that the Petitioner has failed to
make such a demonstration in this case.
In Smith, the Tennessee Supreme Court recently dealt with a post-conviction claim
of ineffective assistance of counsel during voir dire in another capital case. Smith,
357 S.W.3d at 346–49. The petitioner claimed that he was due a new trial because
64

his lawyer did not ask the jurors during voir dire about their past experiences as a
victim of crime or with a victim of crime. Id. at 346. One of the jurors who sat on
the petitioner’s trial testified at the post-conviction hearing that, shortly before the
trial, his daughter’s boyfriend had been murdered. Id. The juror also testified that
“the impact of [the victim’s] death on his own family had been great.” Id. at 347.
First noting that the “‘proper fields of inquiry [during voir dire] include the juror’s
occupation, habits, acquaintanceships, associations and other factors, including his
[or her] experiences, which will indicate his [or her] freedom from bias,’” id.
(quoting State v. Onidas, 635 S.W.2d 516, 517 (Tenn. 1982)), the Smith court then
emphasized that “potential bias arises if a juror has been involved in a crime or
incident similar to the one at trial.” Id. (citing Ricketts v. Carter, 918 S.W.2d 419,
422 (Tenn. 1996); Durham v. State, 188 S.W.2d 555, 558 (Tenn. 1945)).
Accordingly, the court held, “questions to cull the jury for persons who might be
biased due to their past experiences with the criminal justice system are a critical
part of a competent voir dire in criminal cases,” and “the failure to ask the
prospective jurors about their past experiences as victims or associates of victims
is objectively unreasonable.” Id. at 347–48 19 (citing Hughes, 258 F.3d at 460).
Clearly, then, it is possible for defense counsel to be deemed deficient in their
performance during voir dire based on a failure to ask critical questions aimed at
revealing bias against the defense, “absent a showing that counsel had a strategic
reason for not asking the question.” Id. at 347. We also note as significant, however,
that the record in Smith reflected that, not only did the petitioner’s lawyer fail to
ask these critical questions, but neither did the trial court or the prosecution. Id. at
346.
However, even if a petitioner is successful at demonstrating deficient performance
during voir dire, as was the petitioner in Smith, relief will not be granted unless the
petitioner also demonstrates “that the deficiency resulted in having a juror seated
who was actually biased.” Smith, 357 S.W.3d at 348 (citing James A. Dellinger,
2007 WL 2428049, at *30); see also Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.
1995). Recently, considering a claim of ineffective assistance of counsel during
jury selection, the United States Court of Appeals for the Sixth Circuit clarified that
[b]ias may be actual or implied. Actual bias is bias in fact—the
existence of a state of mind that leads to an inference that the person
will not act with impartiality. The doctrine of presumed or implied,
as opposed to actual, bias provides that, in certain “extreme” or
“exceptional” cases, courts should employ a conclusive presumption
that a juror is biased. We may presume bias only where the
relationship between a prospective juror and some aspect of the
litigation is such that it is highly unlikely that the average person
could remain impartial in his deliberations under the circumstances.
Examples of such a relationship are that the juror is an actual
employee of the prosecuting agency, that the juror is a close relative
19

The Westlaw version of this opinion inserts an extraneous “188 S.W.2d 555” here, which does
not appear in the actual Tennessee Court of Criminal Appeals opinion. (See Doc. No. 26-17 at 47.)
65

of one of the participants in the trial or the criminal transaction, or
that the juror was a witness or somehow involved in the criminal
transaction.
Treesh v. Bagley, 612 F.3d 424, 437 (6th Cir. 2010) (internal quotation marks and
citations omitted).
The Smith court denied the petitioner’s claim for relief on the basis of trial
counsel’s deficient performance during jury selection because the petitioner had
“introduced no evidence of actual bias or partiality.” Smith, 357 S.W.3d at 348.
Indeed, the subject juror in the Smith case testified at the post-conviction hearing
that he “recalled telling the trial judge in response to questioning that there was no
reason he could not give [the petitioner] a fair trial.” Id. The Tennessee Supreme
Court categorically rejected the petitioner’s claim that bias should be presumed
under the circumstances, holding that it had “never presumed bias absent either an
affirmative statement of bias, willful concealment of bias, or failure to disclose
information that would call into question the juror’s bias, and we decline to do so
now.” Id. Because the petitioner failed to adduce proof that his jury contained a
biased juror, the court held that he was “not prejudiced by counsel’s failure to ask
the . . . prospective jurors whether they or anyone close to them had ever been the
victim of a crime,” and denied relief on this basis. Id. at 348–49.
In this case, the Petitioner adduced no testimony at the post-conviction hearing
establishing juror bias. The Petitioner attempts to rely on responses to the jury
questionnaire, particularly the response by some of his jurors that the death penalty
“should be automatic for anyone who is convicted of murdering a child.” The
questionnaires were simply preliminary tools to foster appropriate voir dire,
however, and were not designed as mechanisms to eliminate potential jurors solely
on the basis of answers given without the benefit of legal instruction from a trial
judge. See State v. Sexton, 368 S.W.3d 371, 392–95 (Tenn. 2012). In Sexton, our
supreme court recognized that excluding jurors on the basis of a response to a single
question in a jury questionnaire was “not permissible.” Id. at 392–93. Instead,
“[p]rior to disqualification of a prospective juror, the trial court should develop a
process designed to definitively ascertain whether the juror is predisposed to a
certain result [in a capital sentencing trial] regardless of the law.” Id. at 393. And,
in conjunction with implementing such a process,
[o]nly a definitive answer that the prospective juror would either
always vote for the death penalty or never vote for the death penalty
regardless of the instructions of the trial court is the kind of
predisposition which might “prevent or substantially impair the
performance of [their] duties” as jurors and result in disqualification.
Id. (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)). In sum, our supreme
court has cautioned that,
eliminating prospective jurors based solely on an answer to one
written question may result in the exclusion of those who are entirely
capable of rendering a proper verdict, and, if a defendant is found
guilty in a capital case, imposing a sentence based on the law and
66

the facts. Thus, trial courts must consider all of a juror’s answers on
a questionnaire, rather than giving just one answer dispositive
weight, and should permit counsel to examine prospective jurors
who provide inconsistent responses to pertinent questions.
Id. at 395.
Thus, absent other proof adduced at the post-conviction hearing, a petitioner
claiming a biased jury must rely upon the transcript of the voir dire. See Holder v.
Palmer, 588 F.3d 328, 339 (6th Cir. 2009) (where defendant is alleging ineffective
assistance of counsel in jury selection, defendant “must show through a review of
voir dire testimony that a ‘fair trial was impossible”) (quoting Ritchie v. Rogers,
313 F.3d 948, 952 (6th Cir. 2002)). Our close review of the voir dire in this case
belies the Petitioner’s claim of a constitutionally infirm jury.
First, although the Petitioner claims in his brief to this Court that Trial Counsel was
ineffective by failing “to adequately voir dire prospective jurors regarding their
respective beliefs on capital punishment and the impact of pretrial publicity,” the
trial record reveals that the trial court questioned each of the jurors individually
about pretrial publicity and their commitment to consider each of the three potential
sentences should the Petitioner be found guilty of first degree murder. The
prosecutor asked further questions of each juror individually about their
commitment to consider each of the three potential punishments upon conviction.
Moreover, Trial Counsel also asked questions in these areas. Unlike defense
counsel in Smith, then, Trial Counsel in this case had adequate information upon
which to determine whether further questioning was necessary on these points and
whether to exercise challenges on these bases.
Moreover, our review of the voir dire of each of the twelve jurors who decided the
Petitioner’s case reflects that each juror met the constitutional standard of fairness
and impartiality, i.e., each could lay aside any prior opinion about the case he or
she may have held and render a verdict based on the evidence adduced in court. See
Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984) (citing Irwin, 366 U.S. at 723);
see also Wainwright, 469 U.S. at 424 (recognizing that the “proper standard for
determining when a prospective juror may be excluded for cause because of his or
her views on capital punishment . . . is whether the juror’s views would prevent or
substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath”) (internal quotation marks omitted). “A qualified juror
need not be ‘totally ignorant of the facts and issues involved.’” Miller v. Webb, 385
F.3d 666, 673 (6th Cir. 2004) (quoting Murphy v. Florida, 421 U.S. 794, 800
(1975)). “Rather, ‘[i]t is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence presented in court.’” Id. (quoting
Irwin, 366 U.S. at 723). While the Petitioner asserts that jurors Richardson, Brown,
Shuffield, Spangenberger, Baggett, and Milliken had each “provided written or oral
statements showing obvious bias regarding imposition of the death penalty and the
impact of cases with child victims,” the record of the actual voir dire demonstrates
that each of these jurors was ably rehabilitated through explanations of the relevant
law applicable to the imposition of the death penalty in Tennessee.
67

Richardson, who indicated on her jury questionnaire that she thought the death
penalty should be automatic for anyone convicted of murdering a child, told the
trial court that she had formed no opinion about guilt or punishment and that she
could keep an open mind and be fair to both the Petitioner and the State. She also
stated that she would be open to considering all three of the possible punishments
should the Petitioner be convicted. When the prosecutor asked if she could set aside
her earlier opinion that the death penalty should be automatic for the murder of
children on being told by the trial judge that that was not the law in Tennessee, she
answered affirmatively. She reiterated that she could consider all three possible
punishments.
Brown, who also indicated on the questionnaire her belief that the death penalty
should be automatic for the murder of children, likewise told the trial court that she
had not formed an opinion about the case and would follow the law regarding the
three possible penalties upon conviction of first degree murder. When the
prosecutor explained that Tennessee law did not provide for the death penalty solely
on the basis that a child was murdered, Brown stated that she would follow the law
and consider all possible punishments.
Shuffield, who also indicated on the questionnaire his belief that the death penalty
should be automatic for the murder of children, told the prosecutor that he could set
this opinion aside and follow the law requiring that all three possible punishments
be considered. He indicated to defense counsel that he would not automatically vote
for the death penalty just because the victim was a child.
Spangenberger, who also indicated on the questionnaire his belief that the death
penalty should be automatic for the murder of children, stated that he would follow
the law requiring that all three punishments be considered. He stated that he had
not formed any opinion about the case and noted that there were circumstances in
which each of the three punishments would be appropriate.
Baggett, who also indicated on the questionnaire his belief that the death penalty
should be automatic for the murder of children, stated during questioning that he
would approach the case with an open mind and decide it solely on the evidence
and the law. He asserted that he would consider all three possible punishments and
that he would set aside any personal feelings and follow the law.
Milliken stated during voir dire that she thought a case in which a life had been
taken should carry the death penalty. After being told by the prosecutor that
Tennessee law did not provide for the automatic imposition of the death penalty
upon a first degree murder conviction, Milliken stated that she understood and that
she could follow the law. She affirmed that she could be fair and impartial.
Trial Counsel challenged none of these jurors for cause. Moreover, the trial court
did not excuse any of these jurors for cause on its own motion. See David Robert
Ruderman v. Ryan, No. CV–09–0887–PHX–GMS, 2010 WL 2757282, at *5 (D.
Ariz. July 13, 2010) (recognizing that, “[i]n cases where neither counsel requests
that the juror be dismissed for cause, a trial court has a duty to dismiss the juror sua
sponte where ‘the evidence of partiality before the [trial] court’ is highly ‘indicative
of impermissible juror bias.’”) (quoting United States v. Mitchell, 568 F.3d 1147,
68

1151 (9th Cir. 2009)). Obviously, neither Trial Counsel nor the trial court was
concerned that any of these jurors was biased against the defense, and the record
before us does not demonstrate that any of these jurors was biased, either in fact or
impliedly. Moreover, a trial court’s assessment of a “juror’s ability to adhere to [his
or] her oath ..., based upon not only the answers to questions posed by counsel but
also nonverbal responses, is owed deference.” State v. Odom, 336 S.W.3d 541, 559
(Tenn. 2011) (citing Uttecht v. Brown, 551 U.S. 1, 9 (2007)). Also, where “the
record shows that jurors were duly elected, empaneled, tried, and sworn, it is
presumed that they were fair and impartial jurors, since the trial judge has the
exclusive right to pass on their selection.” Letner v. State, 512 S.W.2d 643, 649
(Tenn. Crim. App. 1974). “To overthrow this presumption of competency, a clear
case must be made out against it.” Id. We also note that the Tennessee Supreme
Court has already determined that the Petitioner’s jury was not prejudiced by
pretrial publicity. See Rogers, 188 S.W.3d at 622 (appx). The Petitioner has failed
to demonstrate that he is entitled to relief on this basis.
The Petitioner also argues that Trial Counsel was ineffective in failing to ask any
of the jurors about “any mitigation concepts.” While we acknowledge that Trial
Counsel did not pursue this line of inquiry during voir dire, this Court has
recognized that “[t]he failure to make certain inquiries to determine how receptive
the jury would be to specific mitigation factors during voir dire does not necessarily
constitute ineffective assistance of counsel.” Steven Ray Thacker v. State, No.
W2010–01637–CCA–R3–PD, 2012 WL 1020227, at *53 (Tenn. Crim. App.
Mar.23, 2012) (citing State v. Goodwin, 703 N.E.2d 1251, 1257 (Ohio 1999)). In
Thacker, rejecting a similar argument, this Court noted that the jurors had been
“questioned as to their ability to follow the law” and that “[t]he trial court instructed
the jury of the applicable legal burdens and on mitigating circumstances.” Id. This
Court emphasized that, “‘where a juror is not legally disqualified or there is no
inherent prejudice, the burden is on the [petitioner] to show that a juror is in some
way biased or prejudiced.’” Id. (quoting State v. Caughron, 855 S.W.2d 526, 539
(Tenn. 1993)). Because the petitioner had “offered no evidence to establish that the
jury ultimately empaneled was biased or unfair,” this Court denied relief. Id.; see
also Christa Gail Pike v. State, No. E2009–00016–CCA–R3–PD, 2011 WL
1544207, at *59 (Tenn. Crim. App. Apr. 25, 2011), perm. app. denied (Tenn. Nov.
15, 2011) (affirming trial court’s denial of post-conviction relief where petitioner
claimed trial counsel was ineffective in failing to inform the jury during voir dire
that the petitioner’s youth was a statutory mitigating factor, in failing to discuss
mitigation themes of mental illness, psychology, and mental health experts, and in
failing to question the venirepersons about their beliefs on interracial dating and
Satanism). The same result, for the same reasons, applies in this case.
The Petitioner also makes numerous assertions regarding Trial Counsel’s
performance during voir dire with respect to venirepersons who were not eventually
seated on the Petitioner’s jury. However, the obvious corollary to the prerequisite
that a post-conviction petitioner alleging ineffective assistance of counsel during
jury selection must prove that the eventual jury was biased, is that the trial lawyer’s
performance with respect to jurors who were not ultimately seated on the jury is
irrelevant.
69

Therefore, we emphasize that a post-conviction petitioner raising this issue must
focus the proof and argument on the jurors who actually sat and passed judgment
on the petitioner. In this case, the Petitioner makes numerous claims of ineffective
assistance of counsel during jury selection by pointing to Trial Counsel’s questions
(or lack thereof) and/or challenges (or lack thereof) to venirepersons who
eventually were eliminated from the jury pool. Trial Counsel’s voir dire and
challenges as to these venirepersons are simply irrelevant to the Petitioner’s claim
of ineffective assistance of counsel. The Petitioner cannot prove that he was judged
by a constitutionally infirm jury by reference to persons who were not on the jury.
Accordingly, we need not address the Petitioner’s specific claims in this case
arising from Trial Counsel’s performance regarding potential jurors who did not
actually sit in judgment of the Petitioner at trial.
The Petitioner also claims that Trial Counsel “wholly abandoned his role as an
advocate, and failed to act as an adversary during the voir dire process” such that
this Court should consider his performance ineffective per se. The Petitioner relies
on United States v. Cronic, 466 U.S. 648 (1984), for this proposition. We, however,
disagree that Cronic supports his position. Cronic makes clear that there are
exceptional circumstances “that are so likely to prejudice the accused” that a
violation of the Sixth Amendment right to counsel is presumed. Id. at 658. Such
exceptional circumstances include “the complete denial of counsel” during “a
critical stage of [the] trial,” id. at 659; the complete failure by counsel “to subject
the prosecution’s case to meaningful adversarial testing,” id.; the denial of the right
to cross-examination, id.; and where “counsel labors under an actual conflict of
interest,” id. at 662 n.31. The instant case does not present any such exceptional
circumstances. Contrary to the Petitioner’s claims, Trial Counsel actively
participated during voir dire, even to the extent of utilizing the services of a jury
consultant. The Petitioner is not entitled to relief on this basis.
To the extent that the Petitioner claims that Trial Counsel was ineffective because
only one of them participated in the jury selection process, allegedly in violation of
Tennessee Supreme Court Rule 13, section 3, we agree with the State that the cited
rule does not require the participation of both attorneys in all decisions related to
the representation. Rule 13, section 3(b)(1) simply states that the trial court “shall
appoint two attorneys to represent a defendant at trial in a capital case.” Moreover,
as noted earlier, post-conviction relief is warranted only when a petitioner
establishes that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40–30–103. As such, any
violation of Rule 13 arising from any failure on attorney Converse’s part to
participate in the jury selection process would not entitle the Petitioner to postconviction relief.
...
Although we have determined that the Petitioner is not entitled to relief on the basis
of Trial Counsel’s performance during jury selection because he has failed to
demonstrate the prejudice prong of his ineffective assistance of counsel claim, we
choose also to address his assertion that, “[i]nasmuch as ‘trial strategy’ is the state’s
70

defense to a claim of ineffective assistance articulated in a petition for postconviction relief, the burden of proving strategy is on the [State], not on the
[P]etitioner.” (Emphasis added.) Not surprisingly, perhaps, the Petitioner cites us
to no authority for this novel assertion, and we expressly reject the Petitioner’s
assertion on this point. It is well-established that a trial lawyer is presumed to have
represented his or her client pursuant to sound trial strategy. See Strickland, 466
U.S. at 689. Accordingly, “[j]udicial scrutiny of [an attorney’s] performance is
highly deferential,” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000) (emphasis
added), and a petitioner alleging deficient performance bears the heavy burden of
proving that his or her lawyer’s performance was not within the realm of competent
trial strategy. See Strickland, 466 U.S. at 689; Tracy F. Leonard v. State, No.
M2006–00654–CCA–R3–PC, 2007 WL 1946662, at *20 (Tenn. Crim. App. July
5, 2007). Thus, the fact that the State did not call attorney Warner to the stand to
explain his performance during jury selection does not accrue to the Petitioner’s
benefit.
Nor do we agree with the Petitioner that this Court’s decision in Timothy Terell
McKinney v. State, No. W2006–02132–CCA–R3–PD, 2010 WL 796939 (Tenn.
Crim. App. Mar. 9, 2010), perm. app. denied (Tenn. Aug. 25, 2010), supports his
argument. In McKinney, the capital post-conviction petitioner alleged ineffective
assistance of counsel at trial but was unable to adduce testimony from one of his
trial lawyers at the post-conviction hearing because the trial lawyer was ill. See id.
at *29. The petitioner nevertheless adduced proof through other sources that his
trial lawyers failed to utilize significant and substantial evidence at trial that they
“knew of or should have known of” and which was damaging to the State’s case,
thereby “fail[ing] to subject the prosecution’s case adequately to the adversarial
process.” Id. at *36. Noting that the evidence against the petitioner at trial “was not
overwhelming,” id., this Court concluded that trial counsel’s demonstrated
deficiencies “undermined confidence in the outcome of the trial.” Id. at 37.
Therefore, this Court granted relief. Id. at *56.
In McKinney, this Court determined that relief was appropriate based upon the
extensive testimony presented at the post-conviction hearing from one of the
petitioner’s trial attorneys, the owner of the private investigation firm and one of
his employees who were hired by counsel to assist the defense, and numerous lay
witnesses who testified at the postconviction hearing but not at trial on the subject
of whether others may have had motive for the crime and whether the eyewitness
descriptions of the perpetrator matched the petitioner. See id. at *5–18. In fact, the
attorney who testified at the post-conviction hearing in McKinney stated that the
defense theory in that case was that “the victim was shot and that there was very
little evidence as to who committed this crime, so the defense for the [defendant]
was mistaken identity or that essentially that he was not the person who committed
this crime.” Id. at *12. In other words, the combination of all the proof presented at
the post-conviction hearing, including one of the defense lawyer’s testimony,
negated the presumption that the identified deficiencies on counsel’s part were the
result of trial strategy. With regard to the claimed deficiency attributable only to
the attorney who did not testify at the post-conviction hearing in McKinney, this
Court noted that no proof had been presented “as to the basis of [that attorney’s]
71

decision,” and that, “[a]bsent such proof, this Court will not conclude that counsel
blindly refused to engage in the adversarial process.” Id. at *29. In sum, McKinney
clearly is distinguishable from this case and does not control the outcome of this
post-conviction proceeding.
In his reply brief, the Petitioner reiterates this approach, arguing that his burden is
limited to proving “by clear and convincing evidence the fact of counsel’s alleged
error” and that the post-conviction court must thereupon determine whether the
“alleged error” fell below an objective standard of reasonableness. Notably, the rest
of the Petitioner’s argument reveals his interpretation that, by simply proving that
trial counsel committed or omitted some action during trial preparations and/or at
trial and by then labeling same an “error,” the burden then shifts to the State to
demonstrate that the alleged “error” was reasonable trial strategy. Again, this is not
the law. A post-conviction petitioner must establish both that the action was taken
(commission) or not (omission) and that the same was erroneous within the context
of the proceeding. We acknowledge that a very few commissions or omissions by
trial counsel can be “objectively unreasonable” on their face. See, e.g., Smith, 357
S.W.3d at 347–48. Such errors are rare, however, and the Petitioner has identified
no such errors during the voir dire of his trial. Therefore, we hold that the postconviction court committed no error in its application of the burden of proof in this
case.
In summary, the Petitioner has failed to establish that any of the jurors who actually
sat on his case were biased, partial, or incompetent. The record before this Court,
including both the record from the Petitioner’s trial and the record of the postconviction proceeding, simply does not establish that Trial Counsel’s performance
during jury selection led to a constitutionally infirm jury. Accordingly, we hold that
the Petitioner has failed to establish that Trial Counsel rendered ineffective
assistance of counsel during jury selection, and he is entitled to no relief on this
basis.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *34–44 (Tenn. Crim. App.
Aug. 30, 2012).
Respondent moves for summary judgment on the basis that this ruling was not
unreasonable. (Doc. No. 94 at 155–66.) Despite characterizing these claims as new claims and
invoking Martinez (Doc. No. 111 at 2–3, 243), Petitioner acknowledges the state court’s decision
“affirming the dismissal of the IATC claims relating to voir dire,” and proceeds to challenge it as
contrary to clearly established law and an unreasonable determination of the facts. (Doc. No. 111
at 243–44.)

72

Because these claims are exhausted, Martinez is inapplicable, and the Court’s review is
confined to the state court record. On that record, the Court finds that there is no basis in § 2254(d)
to overturn the state court’s decision. “An attorney’s actions during voir dire are considered to be
matters of trial strategy . . . [that] cannot be the basis for a claim of ineffective assistance unless
counsel’s decision is shown to be so ill-chosen that it permeates the entire trial with obvious
unfairness.” Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001).
Petitioner’s first complaint about the state court’s decision is that it addressed only the
prejudice prong of Strickland. (Doc. No. 111 at 244.) Even if true, that would be accepted
procedure in reviewing ineffective-assistance claims. Strickland, 466 U.S. at 697 (“[T]here is no
reason for a court deciding an ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the defendant makes an insufficient
showing on one.”). But in this case the state court did not so limit its analysis. After determining
that Petitioner had failed to demonstrate prejudice, the state court continued its review, stating “we
choose also to address” whether counsel’s performance was properly deemed to be a matter of
strategy, and that “a petitioner alleging deficient performance bears the heavy burden of proving
that his or her lawyer’s performance was not within the realm of competent trial strategy.” Rogers,
2012 WL 3776675, at *42 (emphasis in original). The state court went on to conclude that
Petitioner had not identified any objectively unreasonable errors by counsel during jury selection,
id. at *43, thus rejecting the argument that counsel’s performance was deficient.
Petitioner now disagrees with his counsel’s approach to jury selection, but it was clearly
an approach adopted consciously, with the advice and assistance of an expert jury consultant. (See
Doc. No. 26-9 at 36–37, 39.) In fact, Petitioner acknowledges that it was defense counsel who
successfully moved to conduct the individual voir dire of potential jurors in the first place. (Doc.
73

No. 111 at 239.) Where a seasoned attorney has affirmatively sought special voir dire and has
retained and utilized a jury expert, there is no basis to presume that he subsequently took a certain
course in voir dire due to neglect, rather than strategy. 20 Indeed, the presumption should be that
counsel’s actions during voir dire are matters of trial strategy. Miller v. Francis, 269 F.3d 609, 615
(6th Cir. 2001); see also, e.g., Knese v. Roper, No. 4:03CV1082 CEJ (TIA), 2006 WL 2506005,
at *6–8 (E.D. Mo. Aug. 28, 2006) (method of voir dire is a matter of trial strategy). To the extent
Petitioner claims that counsel should have raised the state’s aggravating factors himself during
voir dire to ask prospective jurors what they thought of them, or gone into detail about potential
mitigation evidence to gauge their responses, his own Response concedes that such an approach is
a matter of “strategy.” (Doc. No. 111 at 237, referring to the “strategy” of frontloading mitigation).
For Petitioner to prevail with this argument would require the Court to hold that any strategy other
than “frontloading” sentencing issues during voir dire in a capital case is objectively deficient
performance. He does not cite any Supreme Court precedent for that position, and this Court will
not adopt it in this case. Moreover, the jury questionnaires did address at some length the
prospective jurors’ views on potential sentencing issues, including brain injury, mental illness and
child abuse (see, e.g., Doc. No. 120-1 at 15–18), so counsel could have already obtained whatever
information he wanted from the jurors about those topics before voir dire began. The state court’s
conclusion that counsel’s performance was not objectively deficient was not unreasonable.

20

Even if the Court were to consider the 2016 statement of attorney Warner that Petitioner has
submitted, it does not defeat the presumption that counsel was prepared and making strategic
decisions about how to approach voir dire. In the affidavit, Warner states that he reviewed every
juror’s questionnaire and prepared notecards for each juror, noting issues including the juror’s
views on the death penalty, psychological evidence and mitigation. (Doc. No. 119-4 at 3.) During
voir dire, he utilized those cards and took suggestions from the jury expert who was there to assist
with jury selection. (Id. at 3–4.) That he believes in hindsight that he “should have” made different
choices does not outweigh all the evidence indicating that his choices were deliberate and strategic
at the time he made them.
74

Moreover, it was also not unreasonable for the state court to determine that any alleged
deficiencies did not result in prejudice to Petitioner. When a petitioner claims that his counsel was
ineffective on voir dire for “failing to examine [the venire] more carefully,” he must demonstrate
that one of the jurors seated was actually biased against him in order to establish prejudice. Tinsley
v. Million, 399 F.3d 796, 804–05 (6th Cir. 2005).

Petitioner asserts that the state court

unreasonably “discounted” the jury questionnaire evidence in order to find his jury impartial. (Doc.
No. 111 at 245.) But the court did not, as Petitioner maintains, hold that the questionnaires “had
no weight”; it simply observed that the questionnaires alone could not be the basis for excusing a
juror for bias, and that the only other evidence in the record regarding potential bias was in the
transcript of voir dire. Petitioner does not cite any Supreme Court precedent to the contrary. All
but one of his citations in this section of the argument pertain to jurors’ allegedly dishonest
questionnaire responses, which is a separate issue not implicated by these claims. Petitioner cites
only United States v. Shepard, 739 F.3d 286 (6th Cir. 2014), as precedent for reversal of a
conviction “triggered by questionnaire response” suggesting bias (Doc. No. 111 at 245), but
Shepard involved far more than a potentially biased questionnaire response. In that case, a seated
juror informed the court by phone message that “there [was] just no way” he could bring himself
to view the evidence in the case due to his personal aversion to child pornography, and later
testified that he would close his eyes rather than look at the evidence and that he did not think he
could be a juror on the case. Id. at 290. The Sixth Circuit found that the record reflected an
“indication by Juror 29 that he could not decide the case fairly and impartially, as well as a clear
indication that he could not perform his constitutional duty to ‘lay aside his impression or opinion
and render a verdict based on the evidence presented in court.’” Id. at 293–94 (quoting Irvin, 366
U.S. at 723) (emphasis in Shepard). Petitioner has not pointed to any equally clear indications in

75

the state court record in this case.
Next, Petitioner claims that the Tennessee Court of Criminal Appeals unreasonably relied
on the jurors’ voir dire responses as proof of their impartiality, because they were in response to
questions that were “general, untethered to the prospective juror’s questionnaires.” (Doc. No. 111
at 245–46.) That assertion is plainly contradicted by the record. During the individual voir dire
of Rebecca Sue Brown, the only juror Petitioner addresses “as an example” in his Response (Doc.
No. 111 at 246–48), the prosecutor’s first request was that Brown turn to a particular page of her
questionnaire, saying “let’s start there and work through the questionnaire.” (Doc. No. 24-11 at
56–57.) He then proceeded to ask her follow-up questions about several specific questionnaire
responses, including questions about her exposure to pretrial publicity and her views on the death
penalty. (Doc. No. 24-11 at 56–62.) Petitioner’s counsel then followed with additional questions
about her exposure to pretrial publicity and knowledge that this was a death penalty case, and
elicited her agreement that “it takes a real big factor to condemn a man to death.” (Doc. No. 24-11
at 62–63.) The state court accurately summarized her responses to those questions, and its
determination that Brown was an impartial juror was not unreasonable.
The voir dires of Richardson, Shuffield, Spangenberger, Baggett, and Milliken all took a
similar tack, and all included questions tied directly to their questionnaire responses. 21 (Doc. No.

21

Petitioner has also listed Paula Jo Reynolds and Martin Logsdon among those who “expressed
bias in their questionnaires.” (Doc. No. 111 at 227.) Although he did not specifically identify these
jurors in his state court claim (see Doc. No. 26-14 at 28, listing only Richardson, Brown, Shuffield,
Spangenberger, Baggett and Milliken), the Court considers the claim exhausted as to both of them
in light of the state court’s conclusion that “the voir dire of each of the twelve jurors . . . reflects
that each juror met the constitutional standard of fairness and impartiality.” Rogers v. State, No.
M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *38 (Tenn. Crim. App. Aug. 30, 2012)
(emphasis added). Reynolds’s questionnaire indicated that: she strongly favored the death penalty,
but that she was open to considering all three available punishments (although she was unsure
about life with the possibility of parole); she believed whether the death penalty should be
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24-10 at 67–82, 180–90; Doc. No. 24-11 at 80–88; Doc. No. 24-15 at 181–95.) Petitioner faults
counsel for not asking certain questions (Doc. No. 111 at 247), but he fails to acknowledge that
the judge and prosecutor had already asked most of those questions, or that counsel had even
commented on his belief that little additional questioning was needed by the time it was his turn
on voir dire: “By going last, I get to ask the least amount of questions.” (Doc. No. 24-11 at 37.)
Information gathered through the questioning that preceded his own voir dire is relevant to the
sufficiency of counsel’s performance. Tinsley, 399 F.3d at 804. Moreover, counsel did follow up
with questions about specific questionnaire responses when he deemed it necessary. (See Doc. No.
24-10 at 78.) Petitioner’s assertion that “[i]n five days of voir dire, Warner obtained no information
from the seated jurors” about pretrial publicity or impartiality is simply false.
The Court observes that Petitioner’s response might be read to suggest that these jurors’
questionnaire responses cannot be credibly reconciled with their ability to consider the full range
of punishments as expressed during voir dire. But a juror’s initial opinion about what the law
should be does not establish that he or she is incapable or unwilling to follow the law as it is

“automatic” for the murder of a child depended on the circumstances of the case; she believed the
death penalty is appropriate in some, but not all, murder cases and could return a verdict of death
if the facts and the law warranted it; she could not determine which sentence to impose without
knowing the facts; and she could set aside her personal feelings and follow the law. (Doc. No. 2611 at 70–74.) Similarly, Logsdon wrote that: he strongly favored the death penalty, but that it
would not go against his nature to vote for a lesser penalty because “each case is different”; he
believed the death penalty is appropriate for some, but not all, murder cases and should not be
automatic for the murder of a child; he could consider all three punishments and believed them
each to be a severe punishment; and he would consider factors including the defendant’s childhood
in deciding the appropriate penalty. (Doc. No. 26-11 at 142–45.) Both jurors testified during voir
dire that they did not have any strong personal beliefs that would interfere with their ability to
consider all three punishments, and that they could be open-minded about the case. (Doc. No. 2413 at 43–44, 58.) The state court’s finding that neither juror was impermissibly biased based on
that record was not unreasonable.

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explained to him or her. Mr. Shuffield explained that distinction during his voir dire: “Before I
came in here not knowing what your rules and stuff were in Court, I have never been in a Court,
but if the law says I have to consider certain things, then I have to consider certain things.” (Doc.
No. 24-11 at 87.) And, as the Tennessee Court of Criminal Appeals pointed out, reviewing courts
owe deference to a trial court’s determination of a juror’s ability to be impartial. Uttecht v. Brown,
551 U.S. 1, 9 (2007). The Sixth Circuit has explained that such deference is appropriate because
“the transcript we review captures only the dire part of voir dire,” and because trial judges have
expertise in the jury selection process and the responsibility to assess the juror’s credibility. United
States v. Gabrion, 719 F.3d 511, 527 (6th Cir. 2013). The state court record contains no evidence
of jury bias so clear that it is beyond fairminded disagreement, so upending the state court’s
rejection of this claim is not warranted under AEDPA.
Petitioner is not entitled to relief on these claims.
9. Claim D.27 — More Cross-Examination
Petitioner asserts that “[c]ounsel failed to adequately prepare and present proper and
adequate cross-examination of State witnesses regarding DNA, bone, soil, and fiber evidence.”
(Doc. No. 14 at 40–41.) Respondent asserts that, to the extent this claim pertains to counsel’s
handling of the prosecution’s DNA, soil and fiber evidence, it is subsumed by Claims C.10–C.13
and does not constitute an independent claim. (Doc. No. 94 at 168.) Petitioner groups all of these
claims together in his response, incorrectly identifies them as new, unexhausted claims, and
discusses them without identifying which pieces of his argument are tied to which claim. (Doc.
No. 111 at 346–51.) The Court agrees with Respondent, and concludes that Claim D.27 has been
adequately addressed in the Court’s ruling above on Claims C.10–C.13 with regard to DNA, soil
and fiber evidence. The amended petition does not identify the bone evidence in question, and
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there is no mention of bone evidence anywhere in Petitioner’s response. To the extent this claim
raises any issues not denied on the merits in connection with other claims, the Court finds that it
is insufficiently pleaded in the amended petition and waived in the response. Accordingly,
Petitioner is not entitled to relief on this claim.
10. Claims G.21–G.24, G.26, G.44 — Jeremy Claims
All of these claims relate to evidence that Petitioner was not allowed to present at trial,
concerning reports of previous sexual activity between the victim and her brother Jeremy. In all
of these claims, Petitioner alleges in slightly different ways that the trial court erred in preventing
counsel from entering those reports into evidence and cross-examining the victim’s brother and
mother about them in the presence of the jury. (Doc. No. 14 at 57–58.) Petitioner exhausted his
claim about the exclusion of this evidence on direct appeal, when the Tennessee Supreme Court
recounted the relevant facts and ruled as follows:
During a pre-trial hearing in December 1999, the trial court agreed to order the
Harriet Cohn Mental Health Center and the Department of Children’s Services to
submit their records pertaining to Jeremy Beard to the court “under seal” so that the
parties could inspect, review, and copy them. Just prior to opening statements at
trial, the State informed the trial court of the existence of several reports in those
records indicating that Jeremy had “allegedly told psychologists that his biological
father taught him to have sex with his sister.” The State asked the court to extend
its prior ruling, restricting cross-examination of Jeremy about two incidents that
occurred after the victim’s death, to cover the allegations in the reports. The trial
court took the matter under advisement.
After direct and cross-examination of Jeremy Beard, the trial court conducted a
jury-out hearing for defense counsel to make an offer of proof regarding the
additional questions he wanted to ask Jeremy about the allegations in the reports.
Objecting to the hearsay nature of the reports, the prosecutor stated:
It’s going to be real easy to try and play games and confuse this
witness on this because a lot of these reports—there are tons of them.
There is a whole big box that the Court is aware of, all these records
from every different social agency you can think of, and a lot of
times they have repeated reports from some other social worker,
counselor or psychologist and [it] just keeps getting repeated in
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different places and a lot of times.
Defense counsel told the trial court that if Jeremy denied making the statements in
the reports, counsel intended to present the testimony of the persons to whom the
statements allegedly were made. FN5 Following a brief recess, the trial court ruled
that the defense would not be able to cross-examine Jeremy about the allegations
in the reports because, “based on the evidence that [the court had] heard so far in
the trial,” the alleged incidents were too remote in time and irrelevant. The trial
court advised the parties that its ruling might change based on additional legal
research or additional evidence.
FN5 At a subsequent jury-out hearing, Rogers presented testimony
of the victim’s mother concerning the statements. No other
witnesses testified about the statements.
...
Rogers asserts that the trial court violated his constitutional rights by limiting crossexamination of the victim’s brother, Jeremy Beard, regarding Jeremy’s alleged
sexual activity with the victim, his treatment for mental illness, incidents of
inappropriate sexual behavior, and solicitation of another to kidnap and rape him.
Rogers sought to introduce the evidence to show that someone other than himself
was responsible for the semen stain on the victim’s shorts.
Prior to trial, the State filed a motion seeking to limit cross-examination of Jeremy
Beard about two incidents: a letter Jeremy sent to Quinton Donaldson, one of the
early suspects in this case, asking Donaldson to kidnap and rape him; and contact
between Jeremy and an adult male he had met in an internet chat room. The State
argued that these incidents were irrelevant to the case because they occurred after
the victim’s murder. The trial court agreed and tentatively granted the State’s
motion. However, the trial court indicated that the court would reconsider its ruling
if the defense established relevance during the trial. As discussed earlier under the
supplementation issue, just before opening statements at trial, the State asked the
trial court to extend its ruling to include statements made by Jeremy that his
biological father had taught him to have sex with the victim. Rogers responded that
the evidence was relevant because it showed that Jeremy could have been the source
of the semen found on the victim’s shorts. The trial court withheld its ruling on the
issue.
During the jury-out hearing on this matter, defense counsel asked sixteen-year-old
Jeremy Beard FN7 if he had told mental health professionals during treatment at
certain facilities in February 1997 that his biological father had taught him how to
have sex with his sister and that his father had watched them engage in sexual acts.
Jeremy repeatedly stated that he could not remember if he had ever made such
comments. FN8 Jeremy testified at trial that he was living in a residential treatment
facility and previously had lived in several mental hospitals, detention centers,
group homes, and foster homes. Jeremy acknowledged numerous contacts with
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counselors and therapists at the various facilities where he had received treatment
following his sister’s murder, but he remembered only one time when he had talked
about his sexual behavior. He denied that he was prohibited from being placed in a
foster home where small children were present, but he admitted that during an April
1999 psychological evaluation he had stated that he thought about sex all the time.
He acknowledged that he had been accused of inappropriate behavior toward his
stepfather, but he did not remember the nature of the accusation. Finally, Jeremy
admitted writing the letter to Quinton Donaldson several months after the victim’s
murder. Although defense counsel specifically submitted the Donaldson letter as
an exhibit, no other documents were entered into evidence during the jury-out
hearing.
FN7 As noted earlier, Jeremy was twelve years old at the time of his
sister’s disappearance.
FN8 Rogers subsequently made an offer of proof as to the testimony
of the victim’s mother regarding the allegations. Mrs. Meyer
testified that Jeremy had told her that he had been taught by his
natural father how to have sex with his sister. Mrs. Meyer passed
this statement along to Jeremy’s therapists and social workers so that
they could determine if Jeremy was telling the truth. Mrs. Meyer
indicated that Jeremy had last made such a statement about six
months or a year after the victim’s death. She stated that although
Jeremy had not indicated when this alleged sexual activity occurred,
he had not seen his natural father since April of 1991. The trial court
ruled that Rogers would not be allowed to cross-examine Mrs.
Meyer about the allegations. Rogers has not appealed that ruling.
The trial court ruled that Jeremy could not be cross-examined about alleged sexual
activity with the victim because, even if it happened, it was “remote in time and
irrelevant and possibly confusing to the jury and inadmissible.”
...
[W]e next review the trial court’s exclusion of the evidence on relevancy grounds.
Evidence is relevant if it tends “to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. Evidence that meets the test
of relevance may yet be excluded, however, “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. 403. Generally, a trial court’s
exclusion of evidence based on irrelevance will not be overturned on appeal except
upon a clear showing of abuse of discretion. Powers, 101 S.W.3d at 395.
To the extent that the defense claimed that Jeremy Beard was a “third party”
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responsible for the semen stain on the victim’s shorts, evidence of Jeremy’s sexual
conduct with the victim would be relevant. Rogers offered no evidence, however,
substantiating a claim that Jeremy Beard had ever engaged in sexual relations with
his sister. When questioned during the jury-out hearing, Jeremy stated that he did
not recall telling mental health professionals that his biological father had taught
him how to have sex with his sister. Even if Rogers had offered evidence
confirming that Jeremy made the statements, such proof would not establish that
Jeremy had actually had sex with the victim versus simply reporting that he had.
Moreover, no proof connects Jeremy to the semen stain found on the victim’s
shorts. Rogers asserts that if Jeremy and the victim had engaged in sexual activity
the night prior to or the morning of the day she disappeared, then semen would have
remained inside her vagina and could have continued to seep out after she had
changed her shorts immediately before her disappearance. No such inference can
be drawn from the proffered evidence; the defense theory is mere speculation.
When given the opportunity outside of the presence of the jury to ask Jeremy
whether he had sex with his sister the evening before or the morning of her
disappearance, defense counsel did not pursue this crucial line of questioning.
Without some proof that the statements attributed to Jeremy resulted from actual
sexual activity with his sister and that such conduct continued until her
disappearance, it cannot be said that evidence concerning Jeremy’s alleged sexual
history with the victim makes the existence of any fact of consequence more or less
probable than it would be without the evidence. See Tenn. R. Evid. 401. We agree
with the trial court that this evidence was irrelevant. Furthermore, any probative
value of the evidence would be substantially outweighed by the risk of confusing
and misleading the jury. See Tenn. R. Evid. 403. FN10 Therefore, we conclude that
the trial court did not abuse its discretion in limiting cross-examination of Jeremy
Beard about his alleged sexual history with the victim.
FN10 Because we conclude that the evidence was inadmissible
under Rules 401 and 403, we need not determine whether the
statements attributed to Jeremy were inadmissible hearsay.
However, we note that, contrary to the State’s assertion, Powers did
not suggest that Rules 401 and 403, standing alone, are sufficient
bases upon which to determine the admissibility of third-party
defense evidence. Rather, admissibility is governed by all the Rules
of Evidence, including the rule against hearsay.
As we noted in Powers, an evidentiary ruling ordinarily does not rise to the level of
a constitutional violation. 101 S.W.3d at 397. In determining whether the
constitutional right to present a defense has been violated by the exclusion of
evidence, a court should consider whether: 1) the excluded evidence is critical to
the defense; 2) the excluded evidence bears sufficient indicia of reliability; and 3)
the interest supporting the exclusion is substantially important. Id.; see Chambers
v. Mississippi, 410 U.S. 284 (1973). In Chambers, the defendant was precluded
from introducing evidence that another person had confessed to the crime. Rogers’
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proffered evidence concerning Jeremy Beard’s alleged sexual activity with the
victim lacks sufficient indicia of reliability and falls far short of the type of critical
evidence considered in Chambers. We further hold, therefore, that even if exclusion
of the evidence constituted error, it would not amount to a constitutional violation.
Moreover, we are convinced that, even if a constitutional harmless error standard
were applicable, any error would be harmless beyond a reasonable doubt in light of
the overwhelming evidence of Rogers’ guilt.
Rogers also contends that the trial court erred in excluding testimony and evidence
of a letter written by Jeremy Beard asking Quinton Donaldson to kidnap and rape
him. In denying the motion for a new trial, the trial court concluded that the
Donaldson letter was inadmissible as irrelevant. FN11 The letter was sent in
January 1997, approximately two months after the victim’s body was discovered.
Upon receiving the letter, Donaldson contacted the authorities, who then questioned
Jeremy about it. The written record of that interview reflects that Jeremy heard
Donaldson’s name from his mother, Mrs. Meyer, and sent the letter because he was
angry at his parents. We agree that the letter was irrelevant under Tennessee Rule
of Evidence 401. The letter does not have any tendency to make the assertion that
Donaldson was involved in the victim’s disappearance and murder more probable.
Therefore, we conclude that the trial court did not abuse its discretion in limiting
cross-examination of Jeremy Beard about the Donaldson letter. We further
conclude that any error, constitutional or otherwise, from excluding this evidence
would be harmless.
FN11 The trial court also ruled that Rogers waived any argument
concerning admissibility of the evidence concerning Jeremy’s
relationship with the man from the internet chat room because
Rogers did not raise the issue at trial. Rogers has presented no
argument in this Court regarding that issue.
Finally, Rogers argues that the limitation on cross-examination of Jeremy Beard
deprived him of a constitutionally reliable sentencing determination. First, he
asserts that the absence of evidence that Jeremy might have been the source of the
semen “necessarily impacted” the sentence because two of the aggravating
circumstances depended upon a finding that Rogers had committed or attempted to
commit rape and lingering doubt that Rogers’ was guilty of rape would be a
mitigating circumstance. Second, he contends that the lack of evidence regarding
Jeremy’s history of sexual abuse prevented a proper evaluation of Mrs. Meyer’s
victim impact testimony which implied that Jeremy had no psychological and
emotional problems before his sister’s murder. Rogers did not present either
argument at the sentencing hearing. Furthermore, because we have concluded that
the trial court erred in supplementing the appellate record with Jeremy’s mental
health and social services records, these assertions are not supported by any
evidence properly before us. Moreover, even if these records had been offered as
evidence, any error as a result of limiting cross-examination about them would be
harmless beyond a reasonable doubt as to sentencing in light of the overwhelming
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evidence supporting the aggravating circumstances.
State v. Rogers, 188 S.W.3d 593, 608–09, 611–15 (Tenn. 2006).
Respondent moves for summary judgment on the basis that this disposition of Petitioner’s
claim by the state court was not contrary to, or an unreasonable application of, clearly established
Supreme Court precedent. (Doc. No. 94 at 201–05; Doc. No. 134 at 86–90.) In his response,
Petitioner acknowledges that his claim is “controlled directly by Chambers,” just as the state court
indicated. (Doc. No. 111 at 427.) But he argues that the state court’s decision was either contrary
to or an unreasonable application of Chambers. (Doc. No. 111 at 428.)
In Chambers, Gabe McDonald, a friend of the defendant’s, met with the defendant’s
lawyers and gave a sworn confession that he had shot the police officer for whose murder the
defendant was being prosecuted. Chambers, 410 U.S. at 287. The statement included a description
of the weapon McDonald claimed to have used and identified another friend to whom McDonald
said he had confessed. Id. McDonald later recanted his confession and was never prosecuted for
the officer’s murder. Id. at 288. At Chambers’ trial, there were conflicting eyewitness accounts of
whether Chambers had shot the officer, and Chambers was allowed to present testimony from
other witnesses about seeing McDonald shoot the officer and seeing McDonald holding a pistol
immediately after the shooting. Id. at 289. He was also allowed to call McDonald as a witness,
lay “a predicate for the introduction of his sworn out-of-court confession, had it admitted into
evidence, and read it to the jury.” Id. at 291. But on cross-examination, McDonald testified that
he was not involved in the shooting and that he had recanted his confession, and gave a plausible
explanation for why he had falsely confessed. Id. The trial court then ruled that Chambers’ counsel
could not re-examine McDonald as an adverse witness, and ruled that testimony from three other
witnesses about three separate occasions on which McDonald confessed to the crime was

84

inadmissible hearsay. Id. at 291–93.
The Supreme Court observed that McDonald’s testimony was clearly adverse to the
defendant’s:
The State’s proof at trial excluded the theory that more than one person participated
in the shooting of Liberty. To the extent that McDonald’s sworn confession tended
to incriminate him, it tended also to exculpate Chambers. And, in the circumstances
of this case, McDonald’s retraction inculpated Chambers to the same extent that it
exculpated McDonald.
Chambers, 410 U.S. at 297. Accordingly, the Court held that in not allowing Chambers to crossexamine McDonald as an adverse witness—not allowing him “to test the witness’ recollection, to
probe into the details of his alibi, or to ‘sift’ his conscience so that the jury might judge for itself
whether McDonald’s testimony was worthy of belief”—the trial court’s ruling had “plainly
interfered with Chambers’ right to defend against the State’s charges.” Id. at 295, 298.
The Court expressly did not decide that such interference alone warranted reversal of
Chambers’ conviction, but shifted its focus to the trial court’s refusal to let Chambers call his other
witnesses to testify about McDonald’s verbal confessions to them. Chambers, 410 U.S. at 298. It
observed that McDonald’s confessions were made spontaneously shortly after the murder and were
corroborated by his sworn confession, eyewitness testimony, and proof that he had owned a gun
of the same type that was used in the murder. Id. at 300. The confessions were also “in a very real
sense self-incriminatory and unquestionably against interest,” because McDonald had nothing to
gain from his verbal confessions and was risking disclosure and prosecution. Id. at 301.
Accordingly, the Court determined that the circumstances of the hearsay confessions “provided
considerable assurance of their reliability.” Id. at 300. Coupled with the refusal to allow adverse
cross-examination of McDonald, the exclusion of this testimony that “bore persuasive assurances
of trustworthiness” and “was critical to Chambers’ defense,” violated the defendant’s

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constitutional right to due process. Id. at 302.
The excluded evidence in Petitioner’s case is very different in several respects that are
material to its reliability. First, Jeremy’s reports of sexual activity with his sister were not made
by a grown man in control of his faculties. They were made by a 13-year-old boy known to be
suffering from mental illness. Second, the reports in question were not made close in time to the
events reported. Jeremy’s statements about past sexual behavior with his sister were made in
February 1997, seven months after his sister’s July 1996 murder. More importantly, they related
activity compelled by the children’s father, whom Jeremy had not seen since April 1991, more
than five years before Jackie disappeared and almost six years before Jeremy reported it. (Doc.
No. 25-4 at 215–16.) Petitioner argues repeatedly that Jeremy had an ongoing sexual relationship
with his sister until her death, 22 but not a single piece of evidence in the state record supports that
claim. At the time of the trial, Jeremy did not even recall having made the reports, and was never
even asked whether the reports were true or whether or when he had ever engaged in any sexual
activity with his sister. (Doc. No. 24-5 at 47–62.) Finally, it is not even clear that Jeremy’s 1997
reports could be considered statements against his interest. They referenced events occurring when
he was at most seven years old. Even assuming they were accurate, they were not confessions to
a crime; they were statements of a child to a parent and mental health providers that he had been
the victim of sexual abuse perpetrated by his father. Jeremy made the reports to his mother and
mental health professionals, all of whom had an interest in his well-being. Unlike McDonald in

22

See Doc. No. 111 at 420 (“It was known that Jeremy had been having sex with Jackie for years
before her death[.]”), 421 (“there is clear documentation that Jeremy admitted that he and Jackie
had sex, had done so for years”), 423 (“Jeremy started having sex with Jackie at least five (5) years
before Jackie’s death.”).
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Chambers, therefore, Jeremy had no reason to fear disclosure or prosecution for any crime. 23
Petitioner argues that Jeremy’s 1997 reports should be deemed reliable because his mother
considered them “to be highly credible and truthful,” as evidenced by her relaying them to mental
health providers. (Doc. No. 111 at 424.) But one could as easily argue that a concerned parent
would have considered Jeremy’s reports to be significant to his mental health treatment regardless
of whether she believed them to be true or to indicate delusional thinking. And his mother’s actual
testimony during a jury-out session at trial was that she had passed along the report to mental
health providers “[t]o see if he really had or, you know, if he was telling the truth.” (Doc. No. 254 at 213.) She was never asked whether she believed the report or had ever witnessed anything
that would corroborate it. (Id.)
The lack of “persuasive assurances of trustworthiness,” which were material to the outcome
in Chambers, is not the only thing that distinguishes this case from Chambers. The lapse of five
years and three months—at the minimum—between the reported sexual activity and the victim’s
death also greatly diminishes any “critical” value of the reports to the defense. Jeremy did not

23

Because these claims are exhausted, the Court’s review is confined to the state court record.
However, even if Petitioner’s newly submitted evidence were considered, it only supports the state
court’s determination. The records, which the state supreme court did not consider, confirm that
at the time Jeremy made the reports he was suffering from mental health problems, exhibiting
irrational, disturbing behavior, and was “obviously and understandably stunned and overwhelmed”
by grief over his sister’s death. (Doc. No. 81-10 at 6.) He acknowledged that he was suicidal and
having hallucinations, and was deemed to be a significant risk to himself. (Doc. No. 81-9.) His
diagnoses at the time included post-traumatic stress disorder and major depression. (Doc. No. 8111 at 3.) The records also confirm the number of years that elapsed between his last contact with
his father and his sister’s disappearance (Doc. No. 81-8 at 2 (“Ct. reportedly has had 0 contact with
his biological father in 7 years.”)), and make very clear that the father was present for the reported
sexual activity (Doc. No. 81-8 at 2 (“fr. made ct. and sister have sexual interactions and then fr.
would observe them”); Doc. No. 81-9 at 2 (father “had made him perpetrate sexual acts against
his sister while he watched them”); Doc. No. 81-11 at 2 (disclosed to mother “that his biological
father had taught him how to have sex with his sister and that his father watched while he had sex
with his sister”) (emphases added).) Finally, the records establish that Jeremy repeatedly recanted
the reports within days of making them. (Doc. No. 81-10 at 5; Doc. No. 81-11 at 6.)
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confess to the July 1996 crimes for which Petitioner was on trial, and his reports did not have
nearly the same level of significance to the case as McDonald’s confessions did in Chambers.
In light of all of these material differences in the facts, the state court’s determination was
clearly not “contrary to” Chambers for AEDPA’s purposes. See Williams v. Taylor, 529 U.S. 362,
412–13 (2000) (holding that a state court decision only fails this test “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts”). Petitioner can only prevail, therefore, by establishing that the state
court’s ruling was an “unreasonable application” of Chambers, meaning that the state court
unreasonably refused to extend Chambers to a new circumstance in which it should apply.
Williams, 529 U.S. at 413. Petitioner attempts to demonstrate that the Tennessee Supreme Court’s
ruling was unreasonable by comparing it to rulings in three other cases.
First, Petitioner argues that House v. Bell, 547 U.S. 518 (2006), establishes that “proof that
Jeremy was the victim’s sex partner was likewise highly relevant to whether Rogers was guilty or
whether, instead, Jeremy ‘could have been the murderer.’” (Doc. No. 111 at 425.) But new proof
of another sex partner was not the issue in House, where it was obvious at the time of trial that the
alternative suspect—the victim’s husband—had been her sex partner. The newly presented
“substantial evidence pointing to a different suspect” in House included DNA evidence
establishing that the semen found on the victim’s clothing when her body was discovered was her
husband’s (and not, as suggested by the evidence at trial, the defendant’s), coupled with several
verbal confessions by her husband to having killed her. House, 547 U.S. at 540–41, 549–50, 554.
There is no such DNA evidence or confession in this case tying Jeremy to the semen on the victim’s
clothing or to her murder. Reports of Jeremy or anyone else engaging in sexual activity with Jackie

88

years before her death simply does not rise to that level.
Next, Petitioner relies on Kubsch v. Neal, 838 F.3d 845 (7th Cir. 2016), which involved an
eyewitness statement, given four days after a multiple homicide, that two of the murder victims
were alive at a time that made the prosecution’s timeline for the defendant to commit the murders
impossible, and Lunberry v. Hornbeak, 605 F.3d 754 (9th Cir. 2010), which involved a hearsay
statement, made shortly after a murder, that partners of the declarant (who died before trial) had
committed the murder for which the defendant was convicted. (Doc. No. 111 at 428.) The
statements in both cases were timely and went directly to whether the defendants had committed
the murders in question. By contrast, Jeremy’s reports in this case were made months after his
sister’s death, pertained to events many years before her death, and had no direct connection with
her murder whatsoever.
Faced with these materially different circumstances, it was not unreasonable for the state
court to reach a different result in its application of Chambers. Petitioner is not entitled to relief
on this claim. The Court believes this outcome is dictated by the applicable federal law and by the
deference owed to the state court in applying it.
The Court recognizes, however, that the theory that rape was the motivation for the victim’s
abduction and murder was likely significant to the outcome of Petitioner’s case, and that the
exclusion of this evidence was a damaging blow to Petitioner’s efforts to refute that theory or to
contest the source of the semen at trial. Accordingly, reasonable jurists might debate whether this
issue warrants further consideration. The Court will therefore grant a certificate of appealability
on these claims.
11. Claims D.40, D.41, F.5 — Counsel’s Handling of the Jeremy Claims
Petitioner alleges that counsel was ineffective because: “Counsel [at trial] failed to
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introduce the DHS/DCS [Department of Human Services/Department of Children’s Services]
records for Jeremy Beard, the victim’s brother, into evidence” (D.40); “Counsel [at trial] failed to
make an offer of proof of Jeremy Beard’s prior statements regarding his sexual contact with the
victim” (D.41); “Counsel [on motion for new trial and on appeal] failed to introduce the DHS/DCS
records for Jeremy Beard, the victim’s brother, into evidence, thereby precluding appellate
review.” (F.5) (Doc. No. 14 at 42, 50.) Some background about Petitioner’s direct appeal is
relevant to these claims. As discussed in greater detail above, the trial court prohibited Petitioner’s
counsel from introducing or questioning the victim’s brother about DHS/DCS records that
included reports of deviant behavior, including prior sexual relations with the victim. When
Petitioner appealed the trial court’s exclusion of the evidence, the Tennessee Supreme Court
refused to consider the records themselves, because they had not been properly included in the
record on appeal. State v. Rogers, 188 S.W.3d 593, 610–11 (Tenn. 2006). However, it went on to
rule on the merits of Petitioner’s claim, based on the jury-out examinations of both the brother and
the mother. Id. at 611–15.
In post-conviction proceedings, Petitioner raised the claim that his counsel were ineffective
in connection with the failure to introduce the records or make an offer of proof about the reports
of the brother’s sexual contact with the victim. (Doc. No. 26-14 at 5.) The Tennessee Court of
Criminal Appeals summarized the relevant testimony and background and rejected his claim:
Converse testified that part of the defense theory at trial was that the source of the
semen found in the victim’s shorts was possibly the victim’s older brother or
Quinton Donaldson, a friend of the Petitioner’s who was considered a suspect by
law enforcement early in the investigation. Converse stated that, in order to support
the possibility that the victim’s older brother was the source, the defense attempted
to get before the jury some Department of Children’s Services (DCS)/Department
of Human Services (DHS) records in which there was a statement from Jeremy
Beard “to the effect that his father—natural father, had taught him—something
about taught him how to have sex with his sister or something to that effect.”
Converse testified that the statements were made “to some sort of case worker or
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something along that line.” Converse admitted that the defense tried to get these
records introduced into evidence at the Petitioner’s trial, but that the trial court ruled
that they were inadmissible. Converse also testified that the trial court’s decision
not to allow the records to be presented to the jury was raised as an issue in the
Petitioner’s direct appeal. However, Converse admitted that there was a problem
with the appellate issue because the records had never been made part of an offer
of proof at trial.
Post-conviction counsel then introduced under seal through Converse excerpts
from the DCS/DHS record on Jeremy Beard that defense counsel attempted to have
introduced during the Petitioner’s trial. A review of these documents makes clear
that they are from treatment Beard received in 1997, after the victim’s death. These
records contain statements from Jeannie Meyer, the victim’s and Jeremy’s mother,
indicating that Jeremy Beard “was close to his sister,” that Jeannie Meyer divorced
the children’s biological father after “the DHS investigated physical abuse reported
by the children,” and that Jeremy’s medical file indicated that his biological father
taught him “how to have sex with his sister and that his dad watched while he had
sex with his sister (who died 8 months ago).” The records contain the following
excerpts from a February 1997 psychological evaluation of Jeremy:
Jeremy maintained that he experiences guilt related to his sister’s
death, “I didn’t go over that day,” “I didn’t go with her” (he did not
explain the actual events that led up to his sister’s death, but he is
apparently referring to him not being with her and being unable to
prevent the murder). He said that if he had went with his sister, he
could have possibly prevented her death, but when asked how he
could have done that, he replied “I don’t know.” As one might
expect, Jeremy is experiencing extensive difficulty trusting others
and is particularly suspicious of others’ motives.
Information contained within Jeremy’s medical file suggested that
he has allegedly sexually acted-out with his sister and others. Jeremy
was asked if he has ever sexually acted-out to which he responded
(after a long pause), “I don’t know.” . . . When asked if he ever
sexually acted-out with Jackie (sister), he said “No”; when asked if
he can be trusted, he replied “Yeah.” Jeremy was asked if he has
experienced sexual abuse to which he answered “No.”
The records also contain the following excerpts from a psychological evaluation of
Jeremy in March of 1997:
According to Mrs. Meyer, Jeremy has disclosed to the family
therapist, Vonda St. Amant, that Mr. Beard taught Jeremy “how to
have sex with his little sister, Jackie.” It has not been determined if
any inappropriate activity occurred between Jeremy and Jackie,
although it is suspected based on what Jeremy disclosed. Mrs.
Meyer continued to say that on one other occasion, Jeremy told her
his father physically and sexually abused him. Jeremy refuses to
discuss this issue any further when it is brought into the open.
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...
With regard to Trial Counsel’s alleged failure to proffer the DCS records as an
exhibit during the jury-out hearing at trial, the post-conviction court determined
that Trial Counsel had made an offer of proof in the form of testimony from the
victim’s mother concerning the substance of the statements attributable to Jeremy
Beard as reflected in the DCS records. As such, the post-conviction court concluded
that the Petitioner could not prove prejudice to the outcome of his case resulting
from the asserted deficiency in Trial Counsel’s performance in not proffering the
DCS records containing the same statements from Jeremy Beard.
The record supports the post-conviction court’s conclusion in this regard. As the
supreme court noted in its opinion in the Petitioner’s direct appeal, the Petitioner
proffered testimony from Jeannie Meyer during a jury-out hearing concerning the
statements Jeremy Beard had made to her, which in turn she had reported to medical
personnel as reflected in the DCS records. See Rogers, 188 S.W.3d at 609 n.5.
Therefore, when the supreme court concluded on direct appeal that evidence from
Jeremy Beard confirming that he had made the statements “would not establish that
Jeremy had actually had sex with the victim versus simply reporting that he had,”
id. at 613, the supreme court had before it the proffer of Jeannie Meyer’s testimony
concerning the substance of the statements, see id. at 609 n.5, even though it
declined to consider as having been improperly included in the record on appeal the
DCS records which also included the statement. See id. at 611. As such, as the postconviction court concluded, there is no reasonable probability that the outcome of
the Petitioner’s direct appeal would have been different had the records themselves
been proffered. Accordingly, this entire issue is without merit.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *26–27, 58 (Tenn. Crim.
App. Aug. 30, 2012). Respondent argues that the state court’s determination of this claim was
reasonable. (Doc. No. 94 at 171–72, 185–86; Doc. No. 134 at 53.)
Petitioner’s response addresses Claims D.40 and D.41 along with sixteen others he
characterizes as his “meritorious new claims” and does not discuss or identify any error in the state
court’s determination. (Doc. No. 111 at 2–3, 346–51; Doc. No. 130 at 2–3, 346–51.) Specifically,
Petitioner does not dispute the conclusion that he was not prejudiced by the omission from the
record of additional evidence of the brother’s previous statements because there was already
testimony in the record about the same facts.
The Court cannot find any substantive discussion of Claim F.5 in Petitioner’s response. In
the portion of his response addressing Claims F.3–F.8 collectively, only a single clause of a single
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sentence might constitute a vague reference to this claim: “With respect to the Amended New Trial
Motion and the issues on direct appeal, Mehler acknowledges that among other things, he . . . did
not conduct adequate research or properly complete the record with information or evidence
presented at trial or seek to supplement the record with new evidence that needed to be included
in support of claims presented in the new trial motion and in the record on direct appeal.” (Doc.
No. 111 at 372–73.) This argument fails for two reasons: (1) Mehler’s “acknowledgment” is
outside the record that was before the state court when it reviewed this claim and is therefore barred
from consideration by Pinholster; 24 and (2) Petitioner’s argument does not raise any flaws in the
state court’s disposition of the claim.
In a separate section of his Response devoted to seventeen other claims, Petitioner asserts
that “[a]t a minimum, counsel should have submitted Jeremy Beard’s DCS/DHS records into
evidence via an offer of proof at trial for the jury’s consideration.” (Doc. No. 111 at 349
(emphasis added).) He argues that “[h]ad counsel presented this evidence to the jury – that Jeremy
had sexual contact with his sister and that Jeremy was the person who deposited semen on her
shorts – there is little question that the jury would have had reasonable doubt about Glenn Rogers’
guilt.” (Id. (emphasis added).) But counsel attempted and were prohibited by the trial court from
presenting the records to the jury, which is a completely separate issue from whether placing the
documents in the record as an offer of proof for appellate purposes would have had any likelihood
of affecting the outcome on appeal. The Tennessee Court of Criminal Appeals ruled on postconviction that there was “no reasonable probability” of such a result, and Petitioner does not make

24

Treating Claim F.5 as a separate, unexhausted claim pertaining only to the failure to introduce
the records as an exhibit to the motion for new trial would not benefit Petitioner. Even assuming
(without deciding) that such a defaulted claim could be reviewed pursuant to Martinez, Petitioner’s
failure to establish any prejudice with regard to Claims D.40 and D.41 applies equally to this claim.
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any effort to demonstrate that that ruling was unreasonable.
This Court easily concludes that counsel’s failure to introduce the excluded records as an
offer of proof so they could be reviewed on appeal was objectively deficient. But the state court
ruled that Petitioner was not prejudiced by that omission, because the substance of the information
in the records was presented through the jury-out testimony of the victim’s mother and was
considered on direct appeal. That ruling is not an unreasonable application of Strickland or an
unreasonable determination of fact. To the contrary, as the Court noted in its preceding analysis,
the records in question supported the state supreme court’s ruling on direct appeal. Petitioner is
not entitled to relief on these claims.
12. Claims D.42, D.44, E.15, E.16 — Collected Ineffective-Assistance Claims.
The Tennessee Court of Criminal Appeals rejected many of Petitioner’s ineffectiveassistance-of-trial-counsel claims on the basis that he had not offered trial counsel’s testimony
about his performance or strategy in connection with the claims. That ruling included claims raised
in the instant action that counsel was ineffective for: failing to object to “improper demeanor
evidence” (Claim D.42) (Doc. No. 14 at 42); conceding Petitioner’s involvement in the crimes
during closing argument of sentencing hearing (Claim D.44) (Doc. No. 14 at 42); and failing to
review Dr. William Bernet’s report and therefore failing to move in limine or object to his
testimony that Petitioner is a pedophile (Claims E.15 and E.16) (Doc. No. 14 at 47). The state
court found that Petitioner had failed to establish ineffectiveness in connection with these and other
claims:
In his fourth issue on appeal, the Petitioner argues that the post-conviction court
erred in denying his claims that Trial Counsel provided constitutionally ineffective
assistance during the course of trial. Specifically, the Petitioner alleges that Trial
Counsel: (1) failed to object to the trial court’s statement to prospective jurors
during jury selection to the effect that a finding of not guilty as to the murder counts
would result in no sentencing hearing; (2) failed to object to the victim impact
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testimony presented by the State at sentencing as unduly prejudicial; (3) failed to
object to and move for a mistrial based upon the State’s tactic of posing speaking
objections in the presence of the jury; (4) failed to object to and move for a mistrial
based upon the State’s asking leading questions of its own witnesses; (5) failed to
object to and move for a mistrial based upon the State’s mischaracterization of the
Petitioner’s statement to law enforcement as a “confession to murder”; (6) failed to
object to the State’s presenting improper evidence from the nurse who drew
Petitioner’s blood for forensic testing prior to trial concerning the Petitioner’s
demeanor as being “upbeat” and “joking” [Claim D.42]; (7) conceded the
Petitioner’s involvement in the crimes during closing argument at sentencing
[Claim D.44]; (8) failed to object with sufficient legal argument to the admissibility
of the pedophilia propensity testimony presented by Dr. William Bernet [Claims
E.15 and E.16]; (9) failed to proffer as an exhibit during the jury-out hearing at trial
the DCS records documenting that the victim’s brother, Jeremy Beard, had told
psychologists approximately six to twelve months after the victim’s disappearance
that his biological father had some years earlier “taught him to have sex with his
sister”; (10) failed to utilize the DCS records pertaining to Jeremy Beard during
cross-examination of the victim’s mother, Jeannie Meyer, at sentencing when she
attributed Jeremy’s mental health problems entirely to the victim’s disappearance
and death; and (11) failed to object to certain irrelevant and inconclusive evidence
and testimony introduced by the State at trial.
The post-conviction court denied all but one of these claims, in part, because the
Petitioner failed to question attorney Converse regarding these claims and thereby
present any evidence in support of these claims. The record supports the postconviction court’s findings in this regard. Converse did not testify at the postconviction hearing about any of the specific acts or omissions identified in this issue
and alleged by the Petitioner in support of his claims that Trial Counsel’s trial
performance amounted to ineffective assistance. We recognize that Converse was
questioned generally at the hearing regarding his belief in the overwhelming guilt
of the Petitioner and about Dr. William Bernet’s conclusion that the Petitioner had
pedophilic tendencies. However, the Petitioner never asked Converse why he
conceded the Petitioner’s involvement in the crimes during closing argument at
sentencing and never asked Converse to elaborate on his thought process regarding
the objection he made to Dr. Bernet’s pedophilia propensity testimony at
sentencing. In short, the Petitioner has failed to overcome the strong presumption
that Trial Counsel’s performance as to these matters was the result of a strategic or
tactical decision and has therefore failed to establish deficient performance as to
these allegations. See Gdongalay P. Berry, 366 S.W.3d 160, 2011 WL 5326280, at
*8.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *57–58 (Tenn. Crim. App.
Aug. 30, 2012). Respondent moves for summary judgment on these claims on the basis that this
determination was not unreasonable. (Doc. No. 94 at 173, 180.)

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In Petitioner’s response, his discussion of Claim D.42, about demeanor evidence, is
subsumed by a separate claim that “defense counsel were ineffective during closing argument.”
(Doc. No. 111 at 359–62.) The Response does not discuss the actual evidence referenced in Claim
D.42 or the state court’s analysis in rejecting the claim about counsel’s failure to object to the
evidence. Accordingly, Petitioner has failed to establish that there was anything unreasonable
about the state court’s determination, and Respondent is entitled to summary judgment on this
claim.
Similarly, Claim D.44 is nominally addressed along with sixteen other claims Petitioner’s
response groups together concerning counsel’s alleged failure “to conduct adequate voir dire.”
(Doc. No. 111 at 222–49.) But Petitioner does not address counsel’s closing argument concession
anywhere in this discussion, and limits his critique of the state court’s ruling to the separate portion
“affirming the dismissal of the IATC claims relating to voir dire.” (Doc. No. 111 at 244 and
n.1230.) Because Petitioner has failed to establish that the state court’s ruling on this claim was
unreasonable and effectively failed to respond to Respondent’s motion with respect to this claim,
Respondent is entitled to judgment on Claim D.44.
Petitioner does discuss Claims E.15 and E.16 in his response, but he does not address the
state court’s disposition of these claims; instead, he categorizes them as newly presented claims
subject to review pursuant to an exception to the procedural default bar. (Doc. No. 111 at 2–3,
331–34.) Consequently, Petitioner does not identify any unreasonable error in the state court’s
determination. His chief complaint seems to be that Dr. Bernet’s pedophilia opinion was based on
information that had been ruled inadmissible, but there is no federal constitutional requirement
that expert opinions be based only on admissible evidence. See Taylor v. Invacare Corp., 64 F.
App’x 516, 522 (6th Cir. 2003) (quoting Fed. R. Evid. 703 on the point that “the facts or data

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need not be admissible in evidence in order for the opinion or inference to be admitted”). 25
Moreover, in addition to the lack of evidence cited by the state court, its rejection of these claims
is supported by the fact that Petitioner’s trial counsel did, in fact, file a motion in limine before the
sentencing hearing began, seeking to exclude Dr. Bernet’s testimony about pedophilia. (Doc. No.
24-5 at 44–47.) The motion discussed Dr. Bernet’s report in detail. It complained that the report
“raises the specter of ‘pedophilia,’” which was “a horribly prejudicial term,” and argued that Dr.
Bernet’s “unsupported, unreliable and prejudicial accusations” would mislead the jury in violation
of his right to a fair hearing. (Doc. No. 24-5 at 46.) The trial court denied that motion. (Doc. No.
25-13 at 7–9.) Accordingly, the state court record establishes that Petitioner’s claims that counsel
had failed to review Dr. Bernet’s report or failed to move that his opinion about pedophilia be
excluded are without merit.
It is not unreasonable for a state court to reject ineffective-assistance claims where the
petitioner did not present evidence to support them. See Dorsey v. Steele, No. 4:08-CV-2005 CEJ,
2012 WL 966818, at *6 (E.D. Mo. Mar. 21, 2012) (state court decision that petitioner had failed
to present evidence of ineffective assistance where “petitioner did not ask trial counsel during his
post-conviction evidentiary hearing why he did not object” to certain testimony was reasonable).
Courts reviewing ineffective-assistance claims “will not presume deficient performance based on

25

Petitioner also insists repeatedly that the historical reports of his sexually abusing other minors,
which contributed to Dr. Bernet’s diagnosis of pedophilia, were “false” or “unsubstantiated” and
that he had been “falsely accused.” (Doc. No. 111 at 316, 332.) In support of that theory, he
submits new evidence, which the Court may not consider in connection with these exhausted
claims. But even if the evidence were properly before the Court, it simply does not prove
Petitioner’s point. Dr. Bernet relied on explicit details reported to him about multiple instances of
Petitioner’s sexual abuse of three different young victims. (Doc. No. 124-16 at 7–8.) Petitioner’s
evidence that one of those victims was ultimately found to have been molested by two other men
and apparently gave inconsistent accounts of whether Petitioner was involved (Doc. Nos. 124-17–
124-20) does not even call into question the accounts of the other two victims.
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a silent record because we presume counsel made reasonable strategic choices unless the defendant
presents evidence rebutting that presumption.” United States v. Traeger, 289 F.3d 461, 472 (7th
Cir. 2002) (citing Strickland, 466 U.S. at 689–90). Accordingly, Petitioner is not entitled to relief
on these claims.
13. Claim D.43 — Failure to Object During Guilt-Phase Closing
Petitioner alleges that counsel failed to object to improper closing argument by the
prosecutor at the guilt/innocence stage of trial. (Doc. No. 14 at 42.) The state courts rejected this
claim during post-conviction proceedings:
The Petitioner also includes in this claim that Trial Counsel was ineffective in
failing to object to improper remarks by the prosecution during opening statements
and closing arguments. The post-conviction court determined that the prosecution
did make some improper comments, to which Trial Counsel did not object. The
post-conviction court concluded that Trial Counsel’s performance was deficient in
this regard but that the Petitioner had failed to establish prejudice. We agree with
the post-conviction court’s determinations in this regard.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *59 n.8 (Tenn. Crim. App.
Aug. 30, 2012). The post-conviction court’s determination, which the Tennessee Court of
Criminal Appeals effectively adopted, addressed the claim in greater detail:
The petitioner identifies numerous examples of what he considers inappropriate
comments during the State’s closing argument during the guilt/innocence phase,
including: (1) references to the “little” victim; (2) vouching for the State’s
witnesses; (3) describing the petitioner as “confident,” “cocky,” and “arrogant”; (4)
statements that the petitioner was inclined to offer “half-truths” and “lies” and that
a diagram the petitioner included with one of his written statements to police was
“ridiculous”; (5) describing the victim’s mother identifying the victim’s clothing as
“powerful” evidence; (6) making improper comments regarding the petitioner
supposedly pointing the finger of blame at the victim’s mother and Quinton
Donaldson; (7) arguing facts not in evidence regarding tobacco harvesting; (8)
improper arguments regarding the law and facts; (9) improper reference to the
victim not testifying; and (10) comments that the defense was a “smokescreen” to
confuse the jury.
In reviewing the record, the Court notes that the State did make several improper
comments during its closing statement. For example, the State’s comment that the
petitioner’s claim that he had been in a tobacco field was untrue because tobacco is
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not harvested in July improperly referenced facts not in evidence, as there was no
testimony introduced at trial regarding the tobacco harvest. Also, it is well
established that the State may not use epithets to characterize a defendant, see
generally State v. Thomas, 158 S.W.3d 361, 414 (Tenn. 2005), so the State’s
describing the petitioner as “arrogant” and “cocky” was improper.
The petitioner identifies three instances in which the State vouched for the
credibility of its witnesses. In one instance, Mr. Baker said that FBI Agent Steven
Hooker “did a good job on the stand.” In another, Mr. Baker said that TBI agent J.
Russell Davis was a “good guy” and “honest as the day is long[.]” Finally, Mr.
Baker told the jury, “think about how powerful Juanita [Rogers] was. Do you think
she's going to get up here lie and perjure herself, subject herself to possibl[y] going
to prison herself just because she wants a divorce?” Such comments were improper,
given that a prosecuting attorney may not vouch for the credibility of State’s
witnesses. See Goltz. 111 S.W.3d at 7.
Regarding the petitioner’s assertions that the State’s references to the petitioner
telling “lies” and “half-truths” were improper, the Court notes that generally, “A
lawyer should not assert his personal opinion as to the credibility of a witness, or
as to the guilt or innocence of the accused.” Lackey v. State, 578 S.W.2d 101, 107
(Tenn. Crim. App. 1978); see also Goltz, 111 S.W.3d at 6. However, remarks of
counsel referencing “lying” defendants may be permissible if based upon evidence
in the record. See State v. West, 767 S.W.2d 3 87, 394 (Tenn. 1989); State v.
Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). Applying these principles to the
instant case, Mr. Baker’s comments that the petitioner was prone to offering “lies”
and “half-truths” was improper, but his references to several factual instances in
which the petitioner lied and changed his story to police were permissible in that
they were based upon evidence produced at trial.
Finally, the Tennessee Supreme Court has held that an argument in which the
prosecuting attorney told the jury “that defense counsel was ‘trying to throw sand
in the eyes of the jury’ and ‘blowing smoke in the face of the jury’[”] was improper.
West, 767 S.W.2d at 395. Similarly, the [sic] Mr. Baker’s comments that the
defense strategy was a “smokescreen” designed to confuse the jury was improper.
However, to any extent that trial counsel were deficient for not objecting to these
and other objectionable portions of the State’s closing argument, counsel’s decision
did not prejudice the petitioner. Mr. Baker’s lengthy closing argument on behalf of
the State was not composed exclusively of inflammatory or otherwise improper
statements. In fact, most of the State’s argument was temperate and focused on the
facts of the case, as is required. Furthermore, Mr. Converse was not asked about
the State’s guilt phase closing argument during the evidentiary hearing, so this
Court can only speculate as to why trial counsel did not object during the State’s
closing argument. If Mr. Converse’s strategy represented a trial tactic, this Court
cannot second-guess that strategy. Thus, the petitioner has not established that trial
counsel rendered ineffective assistance by not objecting to the State’s
guilt/innocence phase closing argument.
(Doc. No. 26-8 at 149–52.) Respondent argues that the determination of this claim in state court
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was not unreasonable. (Doc. No. 94 at 173–74.)
In his response, Petitioner confines his discussion of this claim to an argument of the merits
with regard to the prosecutor’s improper characterizations of Petitioner and vouching for the
credibility of prosecution witnesses. 26 (Doc. No. 111 at 359–62.) Incorrectly including this
argument under his heading about “meritorious new claims,” Petitioner fails to discuss or establish
any unreasonable error in the state court’s determination that he was not prejudiced by counsel’s
failure to object to these comments, or that counsel’s decision not to object during closing could
have been strategic.
Petitioner relies on Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005), in support of his
argument for relief, but a court of appeals decision is not “clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), and therefore
“cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. 37, 48–49
(2012). Moreover, a careful reading of Hodge does not support Petitioner’s position. Petitioner
is correct that the Sixth Circuit found in Hodge that counsel’s failure to object to improper
argument that attacked the defendant’s credibility and bolstered another witness’s credibility was
reasonably likely to have affected the jury’s verdict. Hodge, 426 F.3d at 387. But it did so for
reasons that are not present in this case. In Hodge, the testimony of the complaining witness was
“the only evidence sufficient to sustain a conviction,” and the outcome of the case “depended
primarily on the jury’s determination of whether Hodge—who took the stand in his own defense—
was more or less credible than his ex-girlfriend, Fenn, who testified against him.” Id. at 371, 386–

26

Even if Petitioner had continued to press a claim about the prosecutor’s use of allegedly improper
descriptors regarding the victim, the trial transcript indicates that counsel was conscious of the
prosecutor’s use of such language to “push [the jury’s] emotion button,” and strategically chose
not to object. (Doc. No. 25-3 at 57.)
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87. The court expressly explained that it only found the state court’s rejection of the ineffectiveassistance claim unreasonable because the trial outcome “depended almost entirely” on the jury’s
credibility assessment, and cautioned that “it might be a reasonable application of Strickland for a
state court to hold that statements such as these were not prejudicial in a case involving stronger
evidence of guilt.” Id. at 388–89. It noted:
Our conclusion that the state court’s application of Strickland was unreasonable,
rather than merely incorrect, is driven by the extremely close nature of the
credibility determination that was the key issue in this case. Had there been any
basis, other than Fenn’s eyewitness testimony, upon which a reasonable jury could
have found Hodge guilty, we would be more hesitant to conclude that the state
court’s application of Strickland was unreasonable.
Id. at 388 n.28.
Petitioner’s case, in contrast, did not depend on the credibility of any single witness and
did not depend exclusively on eyewitness testimony at all; fiber evidence and Petitioner’s own
admission that the victim had been in his car the day she disappeared also tied him to the crimes.
While the prosecutor’s characterizations of Petitioner were improper, it is not likely that they did
more damage to the jury’s view of Petitioner’s credibility than his own inconsistent versions of
events did. Thus, the improper remarks about which Petitioner complains did not bear on issues
as critical to the outcome of Petitioner’s case as those in Hodge. Under these circumstances, the
state court’s rejection of this claim was not unreasonable, even if another court might have decided
it differently. Accordingly, Petitioner is not entitled to relief on this claim.
14. Claims D.45(c)–(f), E.21 — Failure to Object to Jury Instructions
In his post-conviction proceedings, Petitioner exhausted claims D.45(c)–(f) that counsel
were ineffective for failing to object to the trial court’s instructions to the jury defining reasonable
doubt and defining “knowingly” in connection with several counts at the guilt/innocence phase of
trial. (Doc. No. 14 at 43; Doc. No. 26-14 at 6.) He also exhausted claim E.21 that counsel were
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ineffective for failing to object to the following instruction given to the jury at the sentencing phase
of his trial: “You can have no prejudice, or sympathy, or allow anything but the law and the
evidence to have any influence upon your verdict. You must render your verdict with absolute
fairness and impartiality as you think justice and truth dictate.” (Doc. No. 14 at 48; Doc. No. 24-5
at 108; Doc. No. 26-14 at 116–17.)
The state court rejected these claims:
In his fifth . . . issue[] on appeal, the Petitioner argues that the post-conviction court
erred in denying his claims that Trial Counsel provided constitutionally ineffective
assistance by failing to object to various jury instructions given by the trial court
during the Petitioner’s trial . . .. Once again, the post-conviction court denied these
claims, in part, because the Petitioner failed to present any testimony in support of
the claims at the postconviction hearing. As the State argues in its brief, the record
supports the post-conviction court’s findings in this regard.
During his testimony at the post-conviction hearing, Converse did not address any
of the specific acts or omissions the Petitioner refers to in his briefs to this Court
on these issues. Indeed, Converse was asked no questions during the postconviction hearing about any of the jury instructions given in the Petitioner’s trial.
. . . Accordingly, and once again despite his arguments to the contrary, the Petitioner
failed to prove any of the claims forming the basis of this issue on appeal. See
Gdongalay P. Berry, 366 S.W.3d 160, 2011 WL 5326280, at *8 (rejecting claim of
ineffective assistance of counsel where petitioner did not question his attorneys
about the claimed deficiencies, leaving the court to speculate as to their
performance). Therefore, the Petitioner is entitled to no relief on his fifth and sixth
issues.
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *59 (Tenn. Crim. App.
Aug. 30, 2012). Respondent has moved for summary judgment on the basis that this ruling was
not unreasonable. (Doc. No. 94 at 175–76, 182–83.)
Petitioner does not acknowledge or identify any error in the state court’s decision. He
categorizes these claims among his “meritorious new claims,” and asserts that he is entitled to an
evidentiary hearing pursuant to an equitable exception to the procedural default bar. (Doc. No. 111
at 2–3, 362–68, 370–71.) He has thus effectively failed to respond to Respondent’s motion with
regard to these claims. The state court’s finding that Petitioner had failed to prove ineffective
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assistance by not examining counsel about these issues is not unreasonable, see Dorsey v. Steele,
No. 4:08-CV-2005 CEJ, 2012 WL 966818, at *6 (E.D. Mo. Mar. 21, 2012) (state court decision
that petitioner had failed to present evidence of ineffective assistance where “petitioner did not ask
trial counsel during his post-conviction evidentiary hearing why he did not object” to certain
testimony was reasonable), and Petitioner is not entitled to relief on these claims. 27
15. Claim E.20 — Failure to Object to Closing at Sentencing
Petitioner alleges that counsel were ineffective for failing to object to the following
improper remarks by the prosecutor during closing argument of the sentencing phase:
(a) That Petitioner’s mitigation evidence was a “list of excuses” to blame his family, schools
and mental health providers;
(b) Comments about how the jury should weigh the aggravating factors against the
mitigation evidence;
(c) That the entire case boiled down to Petitioner’s motivation for “gratification from a nineyear-old child”; and
(d) That the death penalty was “the only reasoned, moral response to this crime . . . under
Tennessee law.”
(Doc. No. 14 at 47–48.)
As quoted above in connection with Claim D.43, the Tennessee Court of Criminal Appeals
simply adopted the post-conviction trial court’s determinations with regard to Petitioner’s claims
about counsel’s failure to object to the prosecutor’s arguments. Rogers v. State, No. M2010-01987CCA-R3-PD, 2012 WL 3776675, at *59 n.8 (Tenn. Crim. App. Aug. 30, 2012). The post-

27

Moreover, it appears that these claims would fail even if Petitioner had questioned counsel at the
post-conviction hearing about why he did not object, because the instructions were not improper.
See Austin v. Bell, 126 F.3d 843, 846–47 (6th Cir. 1997) (finding nearly identical reasonable doubt
instruction was constitutional); Greer v. Mitchell, 264 F.3d 663, 688 (6th Cir. 2001) (“no
sympathy” instruction was constitutional in capital sentencing hearing). The lack of objection to
proper instructions is not deficient performance and does not prejudice the defendant.
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conviction court’s determinations regarding failure to object to comments during closing at the
sentencing phase were:
[N]ot all errors in closing argument necessitate a new trial. When a prosecutor’s
argument goes beyond the latitude afforded, the test for determining if reversal is
required is whether the improper statement was so inflammatory that it “affected
the verdict to the prejudice of the defendant.” Harrington, 385 S.W.2d at 759; see
also State v. Gann, 251 S.W.3d 446,459 (Tenn. Crim. App. 2007). Factors relevant
to that determination include: (1) the disputed conduct viewed in light of the
circumstances and facts in the case; (2) any curative measures taken by the trial
court and the prosecution; (3) the prosecutor’s intent in making the improper
statements; (4) the cumulative effect of the prosecutor’s statements and other errors
in the record; and (5) the relative strength and weakness of the case. Gann, 251
S.W.3d at 460 (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.
1976)).
...
Regarding the State’s closing arguments during sentencing, the Court recognizes
that several parts of the State’s closing argument, particularly portions of Mr.
Brollier’s rebuttal argument, were improper. For instance, Mr. Brollier’s series of
comments that the petitioner’s mitigation evidence was merely a “list of excuses”
and a ploy to blame the petitioner’s family, schools, mental health providers
represented the prosecutor’s personal opinion and an appeal to the jury’s emotions,
both of which were improper. Mr. Brollier’s comments on how the jury was to
weigh the mitigating factors against the petitioner’s mitigation proof violated the
Tennessee Supreme Court’s prohibition against such practices. See State v.
Middlebrooks, 978 S.W.2d 872, 894 (Tenn. 1998). Furthermore, the State’s
assertion that the petitioner’s actions represented his “want[ing] his gratification
from a nine-year-old child” and the comment that the death penalty was “the only
reasoned, moral response to this crime as done by this man under Tennessee law”
was an inappropriate appeal to the jury’s passions or prejudices.
However, despite these instances of inappropriate conduct, the Court cannot
conclude that the State’s closing argument was so inflammatory that it “affected
the verdict to the prejudice of the defendant.” The closing argument was not
composed entirely of inflammatory or otherwise inappropriate statements. Mr.
Carney began the opening portion of the State’s closing argument by arguing that
the petitioner should be sentenced to death not based on the jury’s emotions or
sentiment, but because the law justified the sentence. Mr. Brollier’s comments that
the evidence did not support the petitioner’s proposed mitigating evidence, as well
as his comments that other members of the petitioner’s family with a similar
upbringing did not participate in criminal activity, were proper. Furthermore, the
trial court properly instructed the jury regarding the role of victim impact testimony
in the jury’s sentencing decision and the role of counsel’s arguments generally, and
the jury is presumed to follow its instructions. Finally, the Tennessee Supreme
Court concluded that the evidence supporting the four enhancement factors was
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sufficient—in fact, the petitioner did not challenge the “overwhelming” evidence
supporting the “age of victim” and “prior criminal history” enhancement factors—
and that
The sentence of death [was] not imposed arbitrarily, that the
evidence support[ed] the jury’s finding of the statutory aggravating
circumstances, that the evidence support[ed] the jury’s finding that
the aggravating circumstances outweigh any mitigating
circumstances beyond a reasonable doubt, and that the sentence is
not excessive or disproportionate.
Rogers, 188 S.W.3d at 617-18, 620.
In addition to finding that the State’s penalty phase closing argument, while
inappropriate at times, did not prejudice the petitioner, this Court also notes that
Mr. Converse was not asked during the evidentiary hearing about the State’s
penalty phase closing argument. This Court can only speculate as to counsel’s
reasons for not objecting to the State’s closing argument; perhaps counsel’s actions
represented a tactical decision. The Court therefore concludes that the petitioner
has failed to establish that counsel provided ineffective assistance by not objecting
to the State’s closing argument during the penalty phase.
(Doc. No. 26-8 at 148–49, 152–54.)
Respondent asserts that the state court’s rejection of this claim was not unreasonable. (Doc.
No. 94 at 180–81.) He reiterates the absence of prejudice to Petitioner in light of the fleeting nature
of the objectionable comments within an otherwise proper argument, the ameliorating instructions
to the jury, and the strong evidence of the aggravating factors. Petitioner does not address the state
court’s ruling or respond to Respondent’s argument about its reasonableness. (Doc. No. 111 at
368–70.) He also never identifies any prejudice arising from the failure to object during the
prosecution’s closing. (See Doc. No. 111 at 378–84.)
Where “fairminded jurists could conclude that it is not reasonably probable that the
outcome of the trial would have changed had . . . counsel objected,” a state court’s finding of lack
of prejudice from failure to object cannot be disturbed on habeas review. Wallace v. Sexton, 570
F. App’x 443, 457 (6th Cir. 2014). That is the case here, and Petitioner is not entitled to relief on
this claim.

105

16. Claims F.4, F.8 — Ineffective Assistance on Appeal
Petitioner alleges that appellate counsel rendered ineffective assistance on direct appeal
(F.4). (Doc. No. 14 at 50.) He raised the same claim in the post-conviction trial court (Doc. No.
26-7 at 194–95), and included it in his post-conviction appeal. (Doc. No. 26-14 at 6–7.) The state
courts rejected the claim:
[In his] sixth issue[] on appeal, the Petitioner argues that the post-conviction court
erred in denying his claims that Trial Counsel provided constitutionally ineffective
assistance . . . by failing to raise various issues on appeal during the Petitioner’s
direct appellate proceedings. Once again, the post-conviction court denied these
claims, in part, because the Petitioner failed to present any testimony in support of
the claims at the postconviction hearing. As the State argues in its brief, the record
supports the post-conviction court’s findings in this regard.
During his testimony at the post-conviction hearing, Converse did not address any
of the specific acts or omissions the Petitioner refers to in his briefs to this Court
on these issues. . . . With regard to the Petitioner’s direct appeal, Converse testified
that Brock Mehler, his co-counsel on the appeal, handled most of the work,
including the drafting of the amended motion for new trial. Converse testified no
further about the Petitioner’s direct appeal. Mehler did not testify at the
postconviction hearing. The Tennessee Supreme Court has made clear that, when a
petitioner alleges ineffective assistance of appellate counsel, factors for
consideration include (1) whether appellate counsel testified at the post-conviction
hearing “as to his appeal strategy and, if so, were the justifications reasonable?”;
(2) whether the petitioner and appellate counsel met and discussed possible issues;
(3) whether the record establishes that appellate counsel reviewed all of the relevant
facts; and (4) whether appellate counsel’s decision to omit an issue was “an
unreasonable one which only an incompetent attorney would adopt.” Carpenter,
126 S.W.3d at 888. The Petitioner failed to adduce proof at the post-conviction
hearing on these factors. Accordingly, and once again despite his arguments to the
contrary, the Petitioner failed to prove any of the claims forming the basis of this
issue on appeal. See Gdongalay P. Berry, 366 S.W.3d 160, 2011 WL 5326280, at
*8 (rejecting claim of ineffective assistance of counsel where petitioner did not
question his attorneys about the claimed deficiencies, leaving the court to speculate
as to their performance). Therefore, the Petitioner is entitled to no relief on [this
issue].
Rogers v. State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *59 (Tenn. Crim. App.
Aug. 30, 2012).

Respondent asserts that this disposition of Petitioner’s claim was not

unreasonable. (Doc. No. 94 at 184–85.)
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Petitioner does not dispute that the evidence presented at the post-conviction hearing was
insufficient to prevail on the claim presented in state court. Instead, he responds that he never
raised his current claim on post-conviction at all. (Doc. No. 111 at 373.) Apparently, Petitioner
would construe the claim about ineffective appellate assistance raised at post-conviction to be
limited to attorney Converse, rather than attorney Mehler, who actually bore primary responsibility
for the appeal. (Id.) But that distinction does not exist in the record. Petitioner’s post-conviction
petition and post-conviction appellate brief referred to the failures of “counsel” on appeal (Doc.
No. 26-7 at 194–95; Doc. No. 26-14 at 6, 123–34), just as his amended petition in this case does.28
(Doc. No. 14 at 50.) There is no logical reason to assume that Petitioner limited his post-conviction
claim about ineffective appellate assistance to Converse when Mehler did most of the work on
appeal. Accordingly, this claim was exhausted in state court, and Petitioner is not entitled to have
this Court consider any evidence outside the state record in reviewing it. Cullen v. Pinholster, 563
U.S. 170, 181, 185 (2011).
As discussed above, reviewing courts must presume that attorneys have represented their
clients pursuant to sound strategy, and petitioners alleging deficient performance bear the heavy
burden of proving otherwise. See Strickland, 466 U.S. at 689. This rule applies equally to
counsel’s performance on appeal, where “it is clear that appellate counsel is not required to raise
every non-frivolous issue” and “[s]trategic and tactical choices regarding which issues to pursue
on appeal are ‘properly left to the sound professional judgment of counsel.’” Williams v. Lafler,
494 F. App’x 526, 533 (6th Cir. 2012) (quoting United States v. Perry, 908 F.2d 56, 59 (6th Cir.
1990)). The state court reasonably determined that, having failed to present any evidence at the

28

Moreover, even if Petitioner were correct that this claim was defaulted, Martinez does not apply
to claims of ineffective assistance on appeal. Davila v. Davis, 137 S. Ct. 2058 (2017).
107

post-conviction hearing about appellate counsel’s strategy with regard to the selection of issues on
appeal or his opinion of the relative merits of the issues Petitioner faults him for omitting,
Petitioner did not bear his burden. Accordingly, he is not entitled to relief on Claim F.4.
Petitioner also alleges that “[c]ounsel failed to raise, preserve and present on appeal the
errors complained of throughout this petition” (F.8). (Doc. No. 14 at 50-51.) To the extent that
this claim is not wholly subsumed by F.4, it is not a cognizable claim. This vague attempt at a
catch-all ineffective-assistance claim does not state a claim for relief as required by Rule 2 of the
Rules Governing Habeas Corpus Cases Under Section 2254, and will be dismissed on that basis.
See Clemons v. Luebbers, 212 F. Supp. 2d 1105, 1135 (E.D. Mo. 2002) (holding that “Ground 15
is a catch-all claim that any failure to preserve claims or exhaust remedies was caused by
ineffective assistance of counsel. This claim presents no grounds for habeas relief, and none will
be granted.”), rev’d in part on other grounds, 381 F.3d 744 (8th Cir. 2004); Griffey v. Hubbard, C
01-3483 FMS, 2004 WL 941234 (N.D. Cal. Apr. 29, 2004) (rejecting as “conclusory catchall”
petitioner’s claim that “To the extent defense counsel failed to further develop the factual basis
and to preserve the record with regard to the foregoing errors, petitioner was deprived of effective
assistance of counsel as guaranteed by the Sixth Amendment”).
17. Claim G.5 — Petitioner’s Statements to Law Enforcement
Petitioner alleges that the trial court violated his constitutional rights by not suppressing
the statements he made to law enforcement on July 11 and 12, 1996. (Doc. No. 14 at 55.) He
exhausted this claim on direct appeal, where the Tennessee Supreme Court analyzed it at length:
Rogers asserts that the admission into evidence of the oral and written statements
he gave law enforcement officers on July 11 and 12, 1996, violated his rights under
the federal and state constitutions. Specifically, he argues that his statements should
have been suppressed because of the failure to re-administer Miranda FN3 warnings
when he was subjected to custodial interrogation after a polygraph examination.

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FN3 Miranda v. Arizona, 384 U.S. 436 (1966).
The evidence at the suppression hearing showed that on July 11, 1996, Sergeant
Clifton Smith of the Montgomery County Sheriff’s Department spoke with Rogers
at his place of employment. Rogers agreed to go to the Montgomery County
Criminal Justice Center for an interview. Rogers drove himself to the Criminal
Justice Center, where he was questioned by Brett Murray, a special agent with the
F.B.I., and Billy Batson, an investigator with the Montgomery County Sheriff’s
Department. Sergeant Smith also was present in the interview room. Soon after
arriving, Rogers stated that he was the person they were looking for, i.e., the person
in the composite drawing published in the newspaper. Sergeant Smith advised
Rogers of his Miranda rights and, at 11:18 a.m., Rogers signed a form waiving
those rights. Rogers also signed forms consenting to a search of his vehicle and a
search of his residence. After further questioning, Rogers went with Agent Murray
and other officers to his residence for the search. While at his residence, Rogers
consented to take a polygraph examination. Rogers then accompanied Agent
Murray to an F.B.I. office in the federal building in Clarksville for administration
of the polygraph examination.
The polygraph examiner, F.B.I. Special Agent Steven Hooker, obtained Rogers’
written consent for the examination but did not re-administer Miranda warnings.
Agent Hooker testified that he did not advise Rogers of his Miranda rights before
the examination or during the interview afterward because Rogers was not in
custody and had been advised of his rights earlier that day. Agent Hooker conducted
the polygraph examination at approximately 2:35 p.m. After the examination,
Agent Hooker informed Rogers that some of his answers indicated deception.
Rogers then made a statement that he “had hit [the victim] with [his] car and driven
over her and killed her.” At that time, Agent Hooker called in Agent Murray and
Investigator Batson to question Rogers. During the interrogation that followed,
Rogers made further incriminating statements. He said that he had accidently run
over the victim, that she was breathing when he placed her in the passenger side of
his car, and that he had driven to a bridge over the Cumberland River where he
threw her body into the water. At around 4:00 p.m., Rogers reduced these oral
statements to writing and signed the document. No additional Miranda warnings
were given before the statements were made. Investigator Batson testified that he
had felt that Rogers fully understood his Miranda rights based on the warnings
given four to five hours earlier.
On July 12, 1996, the day after the polygraph examination, Agent Murray and
Investigator Batson interviewed Rogers again. Agent Murray re-advised Rogers of
his Miranda rights. Rogers waived his rights and gave a second written statement.
He corrected his earlier statement by adding that the victim had been in his car for
about five minutes before the accident. Later that same day, accompanied by his
appointed attorney, Rogers showed officers the site where he had allegedly run over
the victim and the bridge where he had allegedly thrown her body into the river.
His account of the victim’s death was consistent with his written statement from
109

the previous day.
In denying the motion to suppress, the trial court stated that the evidence was clear
that Rogers had been advised of his Miranda rights and had signed a written waiver
of those rights and that there was no evidence indicating that Rogers’ statements
were involuntary. The trial court found that “maybe as much as five or even six
hours, at the outside,” could have passed between when Rogers waived his Miranda
rights and gave his statement, but that this was not “an unusual amount of time.”
The trial court concluded that the interrogation changed from non-custodial to
custodial when Rogers made incriminating statements to Agent Hooker after the
polygraph examination. The trial court ruled, however, that the attachment of
custody did not trigger a requirement for additional Miranda warnings.
A trial court’s findings of fact on a suppression issue are binding upon an appellate
court unless the evidence preponderates against those findings. State v. Sawyer,
156 S.W.3d 531, 533 (Tenn. 2005). We, however, review the trial court’s
conclusions of law de novo. Id.
The Self–Incrimination Clause of the Fifth Amendment to the United States
Constitution provides that “[n]o person . . . shall be compelled in any criminal case
to be a witness against himself.” FN4 The corresponding provision of the
Tennessee Constitution provides that “in all criminal prosecutions, the accused . . .
shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9.
Encompassed within these constitutional provisions is the right to the presence of
counsel during police-initiated custodial interrogation. See State v. Saylor, 117
S.W.3d 239, 244 n.3 (Tenn. 2003) (contrasting the Sixth Amendment right to
counsel which guarantees the accused the assistance of counsel after adversarial
proceedings have begun).
FN4 This privilege against self-incrimination applies to the states
through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1,
6 (1964).
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court
established procedural safeguards to protect an accused’s privilege against selfincrimination. These safeguards require that the police warn any person subjected
to custodial interrogation
that he has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to presence
of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.
Id. at 479. If the police fail to provide these warnings, any statement obtained as a
result of custodial interrogation will not be admissible at trial during the
prosecution’s case-in-chief. Although the warnings must be given prior to custodial
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interrogation, the Court did not indicate whether or when the warnings must be
renewed.
In Wyrick v. Fields, 459 U.S. 42 (1982), the United States Supreme Court rejected
a per se rule requiring the police to re-advise a suspect of his Miranda rights before
questioning him about results of a polygraph examination. Such a rule would be
“an unjustifiable restriction on reasonable police questioning.” Id. at 49. A valid
waiver of Miranda rights remains valid unless the circumstances change so
seriously that the suspect’s answers to interrogation are no longer voluntary or
unless the suspect is no longer making a knowing and intelligent waiver of his
rights. Id. at 47. Courts must examine the totality of the circumstances to determine
whether renewed warnings are required. Id. at 48.
Factors to be considered when assessing the totality of the circumstances include:
1) the amount of time that has passed since the waiver; 2) any change in the identity
of the interrogator, the location of the interview, or the subject matter of the
questioning; 3) any official reminder of the prior advisement; 4) the suspect’s
sophistication or past experience with law enforcement; and 5) any indicia that the
suspect subjectively understands and waives his rights. See People v. Mickle, 814
P.2d 290, 305 (1991). Because of the infinite variety of circumstances a case may
present, the list of factors is by no means exhaustive. The weight to be accorded
different factors will vary depending on the particular facts of the case.
In this case, the custodial interrogation resulting in the first written statement
occurred approximately five hours after Rogers had been advised of and waived his
Miranda rights. Tennessee cases have upheld the admissibility of statements made
the day after administration of Miranda warnings. See Reaves v. State, 523 S.W.2d
218, 220 (Tenn. Crim. App. 1975); Mitchell v. State, 458 S.W.2d 630, 633 (1970).
Other jurisdictions have approved of time spans of similar lengths. See, e.g., United
States v. Rodriguez–Preciado, 399 F.3d 1118, 1128–29 (9th Cir. 2005) (sixteen
hours); People v. Dela Pena, 72 F.3d 767, 770 (9th Cir. 1995) (fifteen hours); State
v. Trostle, 951 P.2d 869, 879 (Ariz. 1997) (seven hours); Osborne v. State, 430
S.E.2d 576, 578–79 ( Ga. 1993) (next day); State v. Rowe, 479 A.2d 1296, 1299
(Me. 1984) (nine hours). We conclude that the five hours between the waiver of
Miranda rights by Rogers and his subsequent custodial interrogation did not
constitute a significant time lapse.
The custodial interrogation was conducted by Agent Murray and Investigator
Batson, the same two officers who had interviewed Rogers after the initial
advisement of Miranda rights. The change in the location of the questioning did not
mandate repeated Miranda warnings. See State v. Aucoin, 756 S.W.2d 705, 709–
10 (Tenn. Crim. App. 1988) (defendant made initial statement at scene following
waiver of Miranda rights and then gave subsequent statement at police station
without receiving additional warnings); State v. Pride, 667 S.W.2d 102, 104 (Tenn.
Crim. App. 1983) (same). Nor is it determinative that Rogers accompanied officers
to his residence for the search before the interrogation continued at the F.B.I. office.
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See Shane v. State, 615 N.E.2d 425, 427–28 (Ind. 1993) (holding that where
defendant had been advised of Miranda rights at police station before being
transported to hospital for taking of blood and hair samples, re-advisement of rights
was not required upon return to police station). The polygraph examination and
post-polygraph questioning were part of one continuous interrogation that had been
preceded by Miranda warnings and execution of a waiver. The questioning
throughout the day covered the same subject matter. Although Rogers received no
official reminder of the prior advisement, he was continuously in the company of
law enforcement officers. Rogers was familiar with the criminal justice system.
Nothing in the record indicates that Rogers was incapable of remembering the
advisement of his rights given just a few hours earlier.
Rogers asserts that new Miranda warnings were required when the interrogation
changed from non-custodial to custodial. The overwhelming majority view,
however, is that early, non-custodial Miranda warnings may be effective and that
re-warnings are not ipso facto required when formal custody attaches. See, e.g.,
Dela Pena, 72 F.3d at 769 (Miranda warnings given at night were effective the
following day, approximately fifteen hours later, and defendant’s subsequent
custodial status was not the “determining factor” in the analysis); Jarrell v.
Balkcom, 735 F.2d 1242, 1254 (11th Cir. 1984) (defendant’s rights were not
violated by the failure to reissue Miranda warnings at the time of arrest,
notwithstanding that defendant confessed approximately three hours after receiving
warnings when not in custody and by a different officer); Upton v. State, 36 S.W.3d
740, 744 (Ark. 2001) (Miranda warnings and waiver were continually effective
even though defendant’s status changed from that of voluntary, potential witness to
that of a suspect in custody); State v. Burge, 487 A.2d 532, 543 (Conn. 1985)
(defendant’s waiver of Miranda rights was adequate when he was neither a suspect
nor in custody, and his confessions which were made four hours later when he was
in custody were admissible); State v. Tolbert, 850 A.2d 1192, 1200 (Md. 2004) (a
defendant’s statements are not inadmissible merely because police did not reissue
properly administered Miranda warnings given to the defendant when the defendant
was not in custody); Commonwealth v. Colby, 663 N.E.2d 808, 810 (Mass. 1996)
(further Miranda warnings were not required after defendant failed a polygraph
examination and his status became custodial); State v. Monroe, 711 A.2d 878, 886–
87 (N.H. 1998) (pre-polygraph Miranda warnings were sufficient to protect
defendant’s Fifth Amendment right against self-incrimination even if the postpolygraph interrogation became custodial); State v. Rupe, 683 P.2d 571, 581 n.4
(Wash. 1984) (renewal of Miranda warnings was unnecessary where defendant
“was effectively advised of his rights shortly before becoming technically in
custody”).
A conclusion that good faith early warnings are per se ineffective, even when those
warnings are “sufficiently proximate” to actual custody to inform a suspect of his
constitutional rights, would elevate form over substance. Tolbert, 850 A.2d at 1198.
Once a suspect has made a knowing and voluntary waiver of his Miranda rights,
there is no per se requirement to continually re-advise him of those rights. Monroe,
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711 A.2d at 886. We join those jurisdictions holding that renewed Miranda
warnings are not required based solely on a change in a suspect’s status from noncustodial to custodial.
Rogers was advised of his Miranda rights and made a knowing and voluntary
waiver of those rights on the morning of July 11, 1996. The Miranda warnings were
sufficiently proximate to the custodial interrogation that afternoon to inform Rogers
of his constitutional rights. Neither the five-hour time lapse nor any intervening
event rendered Rogers incapable of remembering the prior advisement of his rights.
Under the totality of the circumstances, the failure to re-administer Miranda
warnings to Rogers upon the attachment of custody after the polygraph examination
did not render his subsequent statements on July 11, 1996, inadmissible. The July
12, 1996, statements were immediately preceded by the re-administration of
Miranda warnings and execution of a waiver. Nothing in the record indicates that
the statements from either day were involuntary. We hold, therefore, that the
admission into evidence of the oral and written statements obtained from Rogers as
a result of custodial interrogation did not violate his constitutional rights.
State v. Rogers, 188 S.W.3d 593, 604–08 (Tenn. 2006).
Respondent moves for summary judgment on the basis that this disposition of Petitioner’s
claim was not unreasonable. (Doc. No. 94 at 193, 200.) In the section of his response that discusses
Claim G generally, Petitioner does not address Claim G.5, the trial court’s ruling on his motion to
suppress, or the Respondent’s argument in favor of summary judgment on this claim at all. (Doc.
No. 111 at 404–41.)
The state court correctly identified Wyrick v. Fields, 459 U.S. 42, 47 (1982), as the
Supreme Court case establishing the federal law applicable to situations where there is a delay
between a Miranda warning and a custodial interrogation. Under Fields, “additional warnings are
only required if the circumstances seriously changed between the initial warnings and the
interrogation.” Treesh v. Bagley, 612 F.3d 424, 432 (6th Cir. 2010) (citing Fields, 459 U.S. at 47).
In this case, less than five hours passed between Petitioner’s Miranda warning and waiver at 11:18
a.m. on July 11 and the verbal and written statements he gave to the same officers later that day.
The first statement he gave on July 12 was immediately after being reminded of his Miranda rights,

113

and the second was in the presence of his attorney. The state court’s determination that there had
not been a serious change in circumstances between the warnings and the statements was not
unreasonable. Moreover, Petitioner has not offered any argument or Supreme Court precedent to
the contrary. Petitioner is not entitled to relief on this claim.
18. Claims G.39, I.5, I.8–I.11 — Evidence of Rape
Petitioner alleges that there is insufficient evidence to support his convictions for rape of a
child and felony murder in the course of a rape, or to support the jury’s finding of the aggravating
circumstance of murder in the course of rape or kidnaping. (Doc. No. 14 at 60, 65–66.) He further
alleges that, because there was insufficient evidence of rape, there was insufficient evidence to
support the jury’s finding of the aggravating factor that he murdered the victim to avoid arrest.
(Doc. No. 14 at 66.)
At the time of the victim’s murder, Tennessee defined rape of a child as “the unlawful
sexual penetration of a victim by the defendant or the defendant by a victim, if such victim is less
than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522 (1996).
In reviewing a claim of insufficient evidence, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). Reviewing such a claim in the habeas context adds a second layer of
deference to the analysis: “First, deference should be given to the trier-of-fact’s verdict, as
contemplated by Jackson; second, deference should be given to the [state court’s] consideration of
the trier-of-fact’s verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir.
2008). This review imposes a “standard . . . so demanding that ‘[a] defendant who challenges the
sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.’” Davis

114

v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (en banc) (quoting United States v. Oros, 578 F.3d
703, 710 (7th Cir. 2009)). Jurors have “broad discretion in deciding what inferences to draw from
the evidence,” and when there are “a number of plausible ways to interpret the record,” the state
court’s interpretation must not be disturbed by a habeas court as long as it is among those plausible
interpretations. Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam); Renico v. Lett, 559
U.S. 766, 778 (2010). The Supreme Court has explained how constrained a federal habeas court’s
review in these circumstances is:
The opinion of the Court in Jackson v. Virginia, 443 U.S. 307 (1979), makes clear
that it is the responsibility of the jury—not the court—to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside
the jury’s verdict on the ground of insufficient evidence only if no rational trier of
fact could have agreed with the jury. What is more, a federal court may not overturn
a state court decision rejecting a sufficiency of the evidence challenge simply
because the federal court disagrees with the state court. The federal court instead
may do so only if the state court decision was “objectively unreasonable.” Renico
v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted).
Because rational people can sometimes disagree, the inevitable consequence of this
settled law is that judges will sometimes encounter convictions that they believe to
be mistaken, but that they must nonetheless uphold.
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).
Petitioner exhausted these claims on direct appeal, and the state court rejected them on
their merits:
When a defendant challenges the sufficiency of the convicting evidence, the
standard of appellate review is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the offense charged beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Reid, 91 S.W.3d 247, 276
(Tenn. 2002). A guilty verdict by a jury accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State. State v.
Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). A conviction may be based on
circumstantial evidence when the facts are “so clearly interwoven and connected
that the finger of guilt is pointed unerringly at the Defendant and the Defendant
alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993) (citations omitted).
...
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Finally, Rogers challenges his convictions for rape of a child and first degree felony
murder in the perpetration of a rape on the ground that the evidence is entirely
circumstantial, consisting solely of unidentified semen on the victim’s shorts.
Rogers claims that the proof does not exclude the possibility that Jeremy Beard was
the source of the semen. By his own account, Rogers was the last person to see the
victim alive, and he carried her away in his car. Immediately before her
disappearance, the victim had changed into clean shorts. When the victim’s remains
were discovered in the woods, human semen stains were on the shorts. The source
of the semen could not be determined. Because the victim’s shorts were clean at
the time of her abduction, the reasonable conclusion is that Rogers, her abductor,
was the source of the semen. The record contains no evidence indicating that
Jeremy Beard could have been responsible for the semen stains. Statements
allegedly made by Jeremy, that his father had taught him how to have sex with his
sister, referred to a period of time several years before the victim’s disappearance.
No proof was presented that Jeremy Beard had ever actually engaged in sexual
activity with his sister or that any such conduct continued until her disappearance.
Consequently, Jeremy’s alleged statements do not cast doubt upon the conclusion
that Rogers was the source of the semen. In addition, the victim’s shirt was turned
completely inside out, which would suggest that it had been removed from her body
by a human rather than having been pulled off by animals or fallen off during the
decomposition process. Rogers’ removal of the victim’s shirt would be consistent
with sexual activity. This evidence is sufficient to support Rogers’ convictions for
rape of a child and first degree felony murder in the perpetration of a rape.
Viewing the evidence in the light most favorable to the State, we conclude that the
proof points the finger of guilt unerringly at Rogers and Rogers alone. Therefore,
we hold that his challenge to the sufficiency of the convicting evidence is without
merit.
State v. Rogers, 188 S.W.3d 593, 616–17 (Tenn. 2006). Having found the evidence sufficient to
support Petitioner’s convictions on the charges, the court found no merit in his claims that the
related aggravating factors were unsupported or “tainted by error.” Id. at 617–18.
Respondent argues that he is entitled to summary judgment on these claims because the
state court’s rejection of them was not contrary to or an unreasonable application of federal law.
(Doc. No. 94 at 216–21.)
Petitioner asserts that this ruling constituted an unreasonable determination of the facts and
an unreasonable application of Supreme Court law. (Doc. No. 111 at 508.) He argues that because
the victim’s body was too decomposed to provide physical proof of penetration, and because the
substance the state claimed was semen was not actually semen, or was not proved to be the
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Petitioner’s, “a reasonable juror could not exclude the possibility that the victim was not raped”
by Petitioner or anyone else. (Id.) In support of this argument, Petitioner cites State v. Keen, 31
S.W.3d 196, 218 (Tenn. 2000), which he says requires the State to “present sufficient evidence to
exclude all other reasonable hypotheses except the existence of the underlying felony.” (Doc. No.
111 at 508.)
Whether a defendant’s conviction runs afoul of state law is a matter for state courts to
determine; but neither Jackson nor any other United States Supreme Court precedent requires that
circumstantial evidence exclude all possibilities other than the defendant’s guilt. See Coleman v.
Johnson, 566 U.S. 650, 655 (2012) (“Under Jackson, federal courts must look to state law for ‘the
substantive elements of the criminal offense,’ 443 U.S., at 324, n.16, 99 S.Ct. 2781, but the
minimum amount of evidence that the Due Process Clause requires to prove the offense is purely
a matter of federal law.”). In fact, the Supreme Court expressly rejected that notion in 1954, and
it has been repeatedly rejected by federal courts ever since:
The petitioners assail the refusal of the trial judge to instruct that where the
Government’s evidence is circumstantial it must be such as to exclude every
reasonable hypothesis other than that of guilt. There is some support for this type
of instruction in the lower court decisions, but the better rule is that where the jury
is properly instructed on the standards for reasonable doubt, such an additional
instruction on circumstantial evidence is confusing and incorrect.
Circumstantial evidence in this respect is intrinsically no different from testimonial
evidence. Admittedly, circumstantial evidence may in some cases point to a wholly
incorrect result. Yet this is equally true of testimonial evidence. In both instances,
a jury is asked to weigh the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference. In both, the jury must
use its experience with people and events in weighing the probabilities. If the jury
is convinced beyond a reasonable doubt, we can require no more.
Holland v. United States, 348 U.S. 121, 139–40 (1954) (internal citations omitted); see also Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[W]e have never questioned the sufficiency of
circumstantial evidence in support of a criminal conviction, even though proof beyond a
reasonable doubt is required.”); United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006)
117

(“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not
remove every reasonable hypothesis except that of guilt.”).
The Tennessee Supreme Court concluded that the evidence was sufficient for the rape
conviction, and cited facts in evidence as support, including the presence of a substance a scientist
testified appeared to be human semen found inside shorts that were clean when the victim left the
house in them, and the apparent removal of the victim’s clothing suggesting sexual activity. There
are other ways Petitioner might have left semen on the victim’s shorts before or after her death
that did not involve penetration, but rape is certainly among that “number of plausible ways to
interpret the record,” which the jury and the state court were entitled to choose. See Coleman, 566
U.S. at 655. When a jury determines that a nine-year-old girl was taken by a grown man and later
found dead, with some of her clothing removed and sperm on the inside crotch of her shorts, rape
is not the only possible inference, but—when viewed in the light most favorable to the
prosecution—it is a reasonable one. The possibility that other courts or fact-finders, including a
reviewing federal court, might disagree about whether to make that inference does not make it
unreasonable. See Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995) (when reviewing a habeas
claim of insufficient evidence, “the reviewing court need not be convinced of [the] petitioner’s
guilt beyond a reasonable doubt”). The state court’s conclusion that the evidence supports
Petitioner’s rape conviction is not so clearly unjustified that the matter is “beyond any possibility
for fairminded disagreement,” as required by AEDPA to grant relief. Harrington v. Richter, 562
U.S. 86, 103 (2011).
Viewed through the exceedingly deferential lens of AEDPA, this set of claims fails on its
merits, and judgment will be entered in favor of Respondent. However, the Court believes it to be
debatable among jurists of reason whether any rational trier of fact could find evidence of

118

penetration beyond a reasonable doubt on this record. Accordingly, it will grant a certificate of
appealability with respect to these claims.
19. Claim I.6 — Evidence of Kidnaping and Murder
In his next exhausted claim, Petitioner alleges that there was insufficient evidence to
support his convictions for first degree premeditated murder, felony murder in the course of a
kidnaping, and especially aggravated kidnaping. (Doc. No. 14 at 65.) The Tennessee Supreme
Court accurately identified the Jackson standard for sufficient evidence, as quoted above, and went
on to reject these claims:
Rogers contends that the evidence is insufficient to prove premeditated first degree
murder because the condition of the victim’s remains does not rule out the
accidental homicide to which he confessed. However, there was no visible trauma
to any of the victim’s bones supporting Rogers’ claim that he ran over the victim
with his car. Instead, the evidence shows that Rogers approached the victim and her
playmates on July 3, 1996, and offered to take them swimming, that he returned to
the victim’s house on July 8, 1996, that he went to a nearby abandoned trailer from
which he could observe the victim’s house and see her come out alone to pick
blackberries, that she was alive when she was in his car, that she was raped, and
that she was driven 48.5 miles to the place where her body was found. This evidence
is sufficient to support Rogers’ conviction for premeditated first degree murder.
Rogers next asserts that the evidence is insufficient to prove murder in the
perpetration of a kidnapping because the proof does not exclude his theory that the
victim was already dead when he transported her to the bridge. Rogers claims that
the victim’s body could have been carried down the Cumberland River to a point
near Land Between the Lakes and then dragged inland by animals. However, the
evidence excludes this theory. The statement Rogers gave police indicates that the
victim was alive when he put her in his car. Although Rogers said that one of the
victim’s sandals came off and that he threw it into the water separately, both sandals
were found with the victim’s remains. Although Rogers claimed that he was
applying for a job during the afternoon of July 8, 1996, his pants and car were
muddy when he returned home that evening. The testimony of Rogers’ wife that
she saw small muddy fingerprints on the inside of the passenger side windshield of
his car that evening supports a finding that the victim was alive and struggling to
escape from the car when she was with Rogers. This evidence is sufficient to
support Rogers’ convictions for especially aggravated kidnapping and first degree
felony murder in the perpetration of a kidnapping.
State v. Rogers, 188 S.W.3d 593, 616–17 (Tenn. 2006).
Petitioner argues, as he did in connection with his claims about the sufficiency of the
119

evidence of rape, that the lack of direct, physical evidence tying him to the victim’s abduction and
murder, and the existence of other theories about what happened to her, make the evidence
insufficient to support his convictions pursuant to State v. Keen, 31 S.W.3d 196, 218 (Tenn. 2000).
(Doc. No. 111 at 501–03.) But again, Keen does not constitute clearly established federal law, as
required to grant relief on a claim that has been rejected by the state court. The evidence against
Petitioner was circumstantial, but it was strong, and his alternate theories strain credulity. For
example, the condition of the victim’s remains and the small muddy fingerprints inside Petitioner’s
car refute his claim that she was run over with a car and was unconscious or dead by the time he
got her in the car. The state court found that there was sufficient evidence for a rational trier of
fact to convict Petitioner of these crimes, and that finding is not unreasonable under the heightened
standard of § 2254(d). This claim is without merit, and Petitioner is not entitled to relief.
20. Claim G.42 — Unanimity Instruction at Sentencing
Petitioner alleges that the trial court’s instruction to the jury on unanimity at sentencing,
and the state statute that authorized or required such instruction, violated his constitutional rights.
(Doc. No. 14 at 60.) The state courts rejected this claim on direct appeal:
The defendant contends that T.C.A. § 39–13–204(f), providing that the jury must
unanimously agree that the aggravating circumstances do not outweigh the
mitigating circumstances in order to impose a life sentence, and T.C.A. § 39–13–
204(h), prohibiting the trial court from informing the jury as to the effect of a
nonunanimous verdict in the sentencing phase, violate his state and federal
constitutional rights to a fair trial. Further, the defendant argues that Tennessee’s
death penalty statutes violate the holdings of McKoy v. North Carolina, 494 U.S.
433 (1990), and Mills v. Maryland, 486 U.S. 367 (1988), in that they require the
jury to agree unanimously that the aggravating circumstances do not outweigh the
mitigating circumstances before providing for a sentence less than death. See
T.C.A. § 39–13–204(f)(1)–(2). These arguments have been rejected by the
Tennessee Supreme Court. State v. Keen, 31 S.W.3d 196, 233 (Tenn. 2000); State
v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994); State v. Hall, 958 S.W.2d 679, 718
(Tenn. 1997); State v. Cazes, 875 S.W.2d 253, 269 (Tenn. 1994); State v. Smith,
857 S.W.2d 1, 22–23 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 76–77 (Tenn.
1992); State v. Thompson, 768 S.W.2d 239, 250 (Tenn. 1989).
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State v. Rogers, 188 S.W.3d 593, 631 (Tenn. 2006) (incorporating the opinion of the Tennessee
Court of Criminal Appeals). Respondent asserts that this ruling was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent. (Doc. No. 94 at 211.)
Petitioner quotes portions of the sentencing instructions about which he complains, and
argues that they violated the constitutional requirements set forth in Mills v. Maryland, 486 U.S.
367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), by conveying that the jury had to
unanimously agree on the existence of mitigating circumstances in order to impose a sentence of
life rather than death. (Doc. No. 111 at 437–40.)

The portions of instruction about which he

complains are:
If you do not unanimously determine that a statutory aggravating circumstance has
been proved by the state beyond a reasonable doubt, the sentence shall be life
imprisonment.
If you unanimously determine that a statutory aggravating circumstance or
circumstances have been proven by the state beyond a reasonable doubt, but that
said statutory aggravating circumstance or circumstances have not been proven by
the state to outweigh any mitigating circumstances beyond a reasonable doubt, you
shall, in your considered discretion, sentence the defendant either to life
imprisonment without possibility of parole or to life imprisonment. . . .
If you unanimously determine that a statutory aggravating circumstance or
circumstances have been proven by the State beyond a reasonable doubt, and said
circumstance or circumstances outweigh any mitigating circumstance or
circumstances beyond a reasonable doubt, the sentence shall be death.
(Doc. No. 24-5 at 106–07.)
In his reply, Respondent correctly points out that the Sixth Circuit has repeatedly rejected
Mills challenges to instructions substantially similar to those quoted above, explaining that they
require unanimity only as to the results of the weighing of aggravating and mitigating factors,
rather than the existence of a mitigating factor. See Henley v. Bell, 487 F.3d 379, 390–91 (6th Cir.
2007); Coe v. Bell, 161 F.3d 320, 336–39 (6th Cir. 1998). (Doc. No. 134 at 82–83.) Petitioner has
not acknowledged or made any effort to distinguish those holdings.

121

Yet another point bearing on this claim lies in a portion of the sentencing instructions that
neither party discusses, quotes or even cites:
Any one or more of you may decide individually that a mitigating circumstance
exists and thus should be considered by you in reaching a penalty decision. While
you cannot find any aggravating circumstance to exist unless all twelve of you
agree, all twelve of you do not have to agree on the existence of any of the
mitigating circumstances. Therefore, under the law an individual juror must
consider a mitigating circumstance when determining penalty even if other jurors
believe that the mitigating circumstance does not exist.
(Doc. No. 24-5 at 105–06.) This instruction made perfectly clear to the jury that unanimity was
not required with respect to the existence of mitigating circumstances, and it was not contradicted
or rendered unclear by the subsequent instructions on unanimity required in weighing factors to
reach a verdict.
Accordingly, the state court’s rejection of this claim was not contrary to or an unreasonable
application of Mills or McKoy. This claim is without merit, and Petitioner is not entitled to relief
on it.
21. Claim I.12 — Proportionality Review
Petitioner alleges that he was unconstitutionally deprived of a meaningful proportionality
review by the Tennessee courts. (Doc. No. 14 at 66.) Specifically, he complains that the Tennessee
Supreme Court failed to fulfill its duty under state law to meaningfully determine whether his
death sentence is “proportionate to other sentences imposed under similar circumstances,” and
thereby violated his Eighth and Fourteenth Amendment rights. (Doc. No. 111 at 512, 515–16.)
Petitioner exhausted a claim on direct appeal that the alleged failure to apply meaningful
standards for the proportionality review mandated by state law violated his federal constitutional
rights. (Doc. No. 26-4 at 4.) The Tennessee Court of Criminal Appeals rejected that claim:
The defendant contends that the proportionality review mandated by T.C.A. § 3913-206 is inadequate because it fails to apply meaningful standards for assessing
whether a death sentence is disproportional. The [Tennessee] supreme court set
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forth the criteria for determining whether a sentence is proportional in State v.
Bland, 958 S.W.2d 651, 667–68 (Tenn. 1997). The defendant challenges the
adequacy of Tennessee’s proportionality review and the criteria set forth in Bland,
but the supreme court has rejected this challenge on numerous occasions. See [State
v.] Brimmer, 876 S.W.2d [75,] 87 [(Tenn. 1994)]; [State v.] Cazes, 875 S.W.2d
[253,] 270–71 [(Tenn. 1994)]; [State v.] Harris, 839 S.W.2d [54,] 77 [(Tenn.
1992)].
State v. Rogers, 188 S.W.3d 593, 631 (Tenn. 2006) (appendix adopting excerpts from the
Tennessee Court of Criminal Appeals’ Decision). The Tennessee Supreme Court did not address
the claim beyond adopting that portion of the lower court’s opinion, but it did explain the analysis
it conducted to determine whether Petitioner’s sentence was disproportionate to his crime:
Next, we must determine whether the sentence of death in this case is
disproportionate to the penalty imposed in similar cases, considering the nature of
the crime and the defendant. Tenn. Code Ann. § 39–13–206(c)(1)(D). We are
mindful of the following principles applicable to proportionality review:
In conducting a comparative proportionality review, we begin with
the presumption that the sentence of death is proportional with the
crime of first degree murder. A sentence of death may be found
disproportionate if the case being reviewed is “plainly lacking in
circumstances consistent with those in similar cases in which the
death penalty has been imposed.” A sentence of death is not
disproportionate merely because the circumstances of the offense
are similar to those of another offense for which a defendant has
received a life sentence. Our inquiry, therefore, does not require a
finding that a sentence “less than death was never imposed in a case
with similar characteristics.” Our duty “is to assure that no aberrant
death sentence is affirmed.”
State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998) (citations omitted). We have found
the following factors helpful in identifying and comparing similar cases: 1) the
means and manner of death; 2) the motivation for killing; 3) the place of death; 4)
the similarity of the victims and treatment of the victims; 5) the absence or presence
of premeditation, provocation, and justification; and 6) the injury to and effects on
non-decedent victims. See State v. Bland, 958 S.W.2d 651, 667 (Tenn. 1997). In
comparing defendants, we consider the following non-exclusive factors: 1) prior
criminal history; 2) age, race, and gender; 3) mental, emotional, and physical
condition; 4) role in the murder; 5) cooperation with authorities; 6) remorse; 7)
knowledge of helplessness of victim; and 8) capacity for rehabilitation. See id.
The proof in this case showed that Rogers kidnapped, raped, and murdered the nineyear-old victim. He had seen the victim five days earlier when she was with her
brother and cousin. Rogers returned to her home and waited for an opportunity to
capture her alone. Rogers drove the victim almost fifty miles away to a remote,
123

wooded area where he left her body to be scavenged by animals.
Rogers, a white male, was thirty-forty [sic] years old at the time of the murder and
had a prior criminal history including convictions for aggravated assault. Rogers
did not cooperate with authorities or express remorse for the crime. To the contrary,
he evaded responsibility by giving law enforcement officers conflicting statements.
He toyed with the victim’s family by contacting them but never disclosing where
the victim’s body was located. Rogers presented mitigating evidence that he was
subjected to neglect and abuse as a child.
Based upon an exhaustive review of the record and Supreme Court Rule 12 reports,
we conclude that the sentence of death imposed in this case is not excessive or
disproportionate when compared to the penalty imposed in similar cases. The
sentence of death has been upheld in numerous cases where the defendant raped
and murdered a child. See, e.g., State v. Keen, 31 S.W.3d 196 (Tenn. 2000) (murder
during rape of eight-year-old girl; (i)(1) and (i)(5) (heinous, atrocious or cruel)
aggravators); State v. Irick, 762 S.W.2d 121 (Tenn. 1988) (murder during
aggravated rape of seven-year-old girl; (i)(1), (i)(5), (i)(6), and (i)(7) aggravators);
State v. Coe, 655 S.W.2d 903 (Tenn. 1983) (kidnapping, rape, and murder of eightyear-old girl; (i)(1), (i)(5), (i)(6), and (i)(7) aggravators).
A search of Rule 12 reports reveals only two cases in which a sentencing hearing
was held and a sentence of life without parole was imposed for a murder involving
a sexual assault on a child. See State v. Paul William Ware, No. 03C01–9705–CR–
00164, 1999 WL 233592 (Tenn. Crim. App., Knoxville, Apr. 20, 1999) (defendant
raped and murdered four-year-old victim, but he was intoxicated at the time); State
v. James Lloyd Julian, II, No. 03C01–9511–CV–00371, 1997 WL 412539 (Tenn.
Crim. App., Knoxville, July 24, 1997) (defendant raped and murdered three-yearold victim, but he was under the influence of marijuana and alcohol). In addition, a
life sentence was imposed by the jury in State v. Bibbs, 806 S.W.2d 786 (Tenn.
Crim. App. 1991). In that case, the defendant murdered an eleven-year-old girl who
was a guest at the motel where the defendant worked as a security guard. The
defendant hit the victim with a toilet seat and his gun and then threw her off the
balcony of the motel. The jury did not find the (i)(1) and (i)(5) aggravating
circumstances, which were instructed at the sentencing hearing. The defendant’s
lack of any prior criminal record appeared to be the primary mitigating
circumstance.
We reiterate that our analysis does not require a determination of whether a given
case is subjectively “more or less” like other “death” cases or other “life” cases.
State v. Davidson, 121 S.W.3d 600, 623 (Tenn. 2003) (citation omitted). Instead,
our review requires that we identify an aberrant death sentence by determining
whether the case is plainly lacking in circumstances consistent with those in similar
cases in which the death penalty previously was imposed. Id. After reviewing the
cases discussed above and many others not specifically cited, we are of the opinion
that the sentence of death in this case is not excessive or disproportionate to the
penalty imposed in similar cases, considering both the nature of the crime and the
actions of the defendant.
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State v. Rogers, 188 S.W.3d 593, 618–20 (Tenn. 2006).
Thus, the Tennessee Supreme Court compared several factors of this case to those of at
least five other cases involving the rape and murder of a child and determined that Petitioner’s
sentence was not disproportionate. It observed that the defendant’s intoxication at the time of the
crimes, which was not asserted in this case, was a factor in both of the previous cases in which
sentences of less than death were imposed. Petitioner’s conclusory argument that this review was
a “farce” that violated his “property, liberty, and life interests in having a meaningful
proportionality review” does not make the state court’s analysis unreasonable. (Doc. No. 111 at
515.)
Moreover, although neither party mentions this, the Supreme Court has held that
“[p]roportionality review is not constitutionally required in any form.” Walker v. Georgia, 555
U.S. 979 (2008). To the extent that the constitution requires anything resembling a proportionality
review, “it only requires proportionality between the punishment and the crime, not between the
punishment in this case and that exacted in other cases.” Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 854 (6th Cir. 2017) (quoting Bowling v. Parker, 344 F.3d 487, 521
(6th Cir. 2003)). And the Sixth Circuit has held that Tennessee’s statutory proportionality review
requirement does not create any constitutional liberty interest in such a review. Coe v. Bell, 161
F.3d 320, 352 (6th Cir. 1998) (analyzing repealed statute using language identical to that in the
statute that has been in effect since 1993; compare Tenn. Code Ann. § 39-2-205(c)(4) (1982) with
Tenn. Code Ann. § 39-13-206(c)(1)(D)). 29

29

Specifically, the applicable statutes then and now require(d) the state court to review each death
sentence to determine, among other things, whether “[t]he sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering both the nature of the crime
and the defendant.”
125

Petitioner has not cited any Supreme Court precedent establishing that the constitution
requires the type of proportionality review he demands, or that the death penalty is disproportionate
to the rape, kidnaping, and murder of a child. This claim has no merit, and Petitioner is not entitled
to relief.
22. Claim I.14 — Discriminatory Imposition of Death Sentence
Petitioner alleges that the death penalty is administered in Tennessee in an
unconstitutionally discriminatory manner. (Doc. No. 14 at 66.) The state courts rejected this claim
on direct appeal:
Finally, the defendant contends that the death penalty is unconstitutional because it
is imposed in a discriminatory manner. The Supreme Court has rejected this
argument and held that the death penalty is not imposed in a discriminatory manner
as to economics, race, geography or gender. State v. Hines, 919 S.W.2d 573 (Tenn.
1995); Cazes, 875 S.W.2d at 269; Smith, 857 S.W.2d at 22–23.
State v. Rogers, 188 S.W.3d 593, 631 (Tenn. 2006) (incorporating opinion of the Tennessee Court
of Criminal Appeals).

Respondent moves for summary judgment on the basis that this

determination was not unreasonable. (Doc. No. 94 at 225.)
Petitioner does not acknowledge the state court’s ruling. (Doc. No. 111 at 516–20.) It is
clear from the first sentence of his argument that he does not rely on any specific or peculiar aspect
of Tennessee’s capital system, but attacks the death penalty itself as “a prohibited cruel and unusual
punishment.” (Doc. No. 111 at 516.) However, the primary opinion of the very case on which he
relies expressly reiterates the Supreme Court’s position that “it is settled that capital punishment
is constitutional.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015).
Petitioner’s argument also fails for many other reasons, including: his reliance on facts
outside the state court’s record, which cannot form the basis for relief under Pinholster; the
possibility that the significant reversal rate for Tennessee death sentences on which he relies

126

establishes that the system of judicial review of such cases is working to ensure that the death
sentence is not executed in an unconstitutional manner; and the fact that he relies largely on a
proportionality argument that, as discussed above, is not supported by any requirement of the
federal constitution. But most importantly, Petitioner’s argument fails because, in more than four
pages of argument, he does not cite a single Supreme Court opinion establishing a rule of federal
law to which the state court’s ruling was contrary, or which it unreasonably applied, as required to
prevail under § 2254(d). His reliance on a dissenting opinion in Glossip obviously misses that
mark.
Petitioner is not entitled to relief on this claim.
23. Claims I.15, I.16, J — Method of Execution
Petitioner alleges that Tennessee’s statutory methods of execution by electrocution and
lethal injection, and in particular the September 2013 pentobarbital-based lethal injection protocol
in place at the time he filed his petition, are cruel and unusual punishment in violation of the Eighth
Amendment, and further that the lethal injection protocol violates the Fourteenth Amendment and
the Supremacy Clause of the constitution. (Doc. No. 14 at 66–75.) But it is now clear, at least in
this circuit, that a constitutional challenge to a particular method of execution, as opposed to the
constitutionality of the death sentence itself, does not constitute an “attack [on] the validity of the
prisoner’s conviction or death sentence,” and must therefore be prosecuted in a civil suit pursuant
to 42 U.S.C. § 1983 rather than through a habeas action. In re Campbell, 874 F.3d 454, 462–64
(6th Cir. 2017).
Moreover, the Court takes judicial notice that during the pendency of this action, the
Tennessee Department of Correction announced a revised lethal injection protocol that eliminates
the pentobarbital method Petitioner challenges in his amended petition. Lethal Injection Execution

127

Manual: Execution Procedures for Lethal Injection, at 34 (Rev. July 5, 2018). Accordingly,
Petitioner’s Claim J is moot. And Petitioner acknowledges that his challenge in Claim I.16 to the
electrocution method of execution is not ripe, because that method has not been triggered under
Tennessee’s statutory scheme, 30 as the Tennessee Supreme Court has found. See West v. Scofield,
468 S.W.3d 482, 494 (2015) (holding that the inmates’ claims about electrocution “depend entirely
on future and contingent events that have not occurred and may never occur, and as a result, are
unripe and nonjusticiable”).
Accordingly, these claims are not cognizable as presented, and Petitioner is not entitled to
relief.
24. Claim L.13 — Arbitrary and Capricious Death Sentence
Petitioner alleges that his death sentence was imposed arbitrarily and capriciously in
violation of his constitutional rights. (Doc. No. 14 at 89.) In keeping with its statutory duty, the
Tennessee Supreme Court considered this issue on direct appeal and ruled against Petitioner:
We are bound by statute to review the application of the death penalty to determine
whether:
(A) The sentence of death was imposed in any arbitrary fashion;
(B) The evidence supports the jury’s finding of statutory
aggravating circumstance or circumstances;
(C) The evidence supports the jury’s finding that the aggravating
circumstance or circumstances outweigh any mitigating
circumstances; and
(D) The sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the nature of the
crime and the defendant.
Tenn. Code Ann. § 39–13–206(c)(1). Having thoroughly reviewed the record, we
find no indication that the sentence of death was imposed in an arbitrary fashion.
We also conclude that the evidence overwhelmingly supports the jury’s findings
30

Tenn. Code Ann. § 40-23-114(e) provides for electrocution as an “alternative method” to lethal
injection, to be employed if lethal injection is held to be unconstitutional or if the TDOC
commissioner certifies that one or more of the lethal injection ingredients is unavailable.
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with respect to the four aggravating circumstances. We further hold that the
evidence supports the jury’s finding that the aggravating circumstances outweighed
any mitigating circumstances beyond a reasonable doubt.
State v. Rogers, 188 S.W.3d 593, 618 (Tenn. 2006). As quoted above, the court went on to find
that Petitioner’s punishment was not disproportionate for the rape and murder of a child, in an
analysis that included factors such as Petitioner’s age, background, and circumstances of the
crimes.
Respondent argues correctly that the state court’s conclusion was not contrary to or an
unreasonable application of any Supreme Court precedent. (Doc. No. 94 at 230.) Petitioner
acknowledges that this claim is “subject to 28 U.S.C. § 2254(d)” (Doc. No. 111 at 485), but he
does not discuss or identify any error in the state court’s ruling, or cite any Supreme Court
precedent to which it is contrary or which it unreasonably applied. (Doc. No. 111 at 481–87.) He
relies on the general prohibition against mandatory, automatic death sentences (Doc. No. 111 at
481–82), but that high level of generality is unhelpful in analyzing specific issues under § 2254(d).
In interpreting the phrase “clearly established Federal law,” the Supreme Court has warned against
interpreting its cases so broadly. See Nevada v. Jackson, 569 U.S. 505, 512 (2013) (“By framing
our precedents at such a high level of generality, a lower federal court could transform even the
most imaginative extension of existing case law into ‘clearly established Federal law, as
determined by the Supreme Court.’”) (quoting § 2254(d)(1)).
Petitioner has not established that he is entitled to relief on this claim.

IV.

DEFAULTED CLAIMS OTHER THAN INEFFECTIVE-ASSISTANCE
CLAIMS

A. STANDARD OF REVIEW
As the Court explained above in Section III.A, habeas petitioners are generally required to
exhaust a claim in state court in order to be entitled to habeas review of that claim. This rule has
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been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509
(1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been
presented to the state courts. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824
F.2d 494, 496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and factual
substance of every claim to all levels of state court review”). In order to fully exhaust a claim,
“state prisoners must give the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate review process.” O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). By rule, Tennessee has eliminated the need to petition the
state supreme court for discretionary review in order to exhaust a claim. Tenn. Sup. Ct. R. 39;
Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). Accordingly, a Tennessee petitioner’s claim
is deemed exhausted “following an adverse decision of the Court of Criminal Appeals.” Tenn.
Sup. Ct. R. 39.
The procedural default doctrine is ancillary to this exhaustion requirement. See Edwards
v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the
procedural default doctrine). If a petitioner raises a claim in state court, but the state court rejects
the claim on an independent and adequate state ground, such as a procedural rule prohibiting the
state court from reaching the merits of the constitutional claim, the claim is considered
procedurally defaulted and not subject to federal habeas review. Wainwright v. Sykes, 433 U.S.
72, 81–82 (1977); see Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court will
not review a claim rejected by a state court if the decision of the state court rests on a state law
ground that is independent of the federal question and adequate to support the judgment”);
Coleman v. Thompson, 501 U.S. 722 (1991) (same). Alternatively, if a claim was never presented
to the state courts, but a state court remedy is no longer available (e.g., when an applicable statute

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of limitations bars the claim), then the claim is technically exhausted, but still procedurally
defaulted. Coleman, 501 U.S. at 731–32; see also Hicks v. Straub, 377 F.3d 538, 551 (6th Cir.
2004) (the procedural default doctrine prevents circumvention of the exhaustion doctrine), cert.
denied, 544 U.S. 928 (2005). Respondent in this case asserts that Petitioner no longer has any
state post-conviction remedies available, due to Tennessee’s one-petition rule and applicable
statute of limitations (Doc. No. 94 at 43), which Petitioner does not dispute.
If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The burden of showing cause and
prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412,
418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754).
A petitioner can establish cause in two ways. First, a petitioner may “show that some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). See also Coleman, 501 U.S. at 753;
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Objective impediments include an
unavailable claim, or interference by officials that made compliance impracticable. Murray, 477
U.S. at 488. Second, constitutionally ineffective assistance of counsel may constitute cause under
certain circumstances, but that ineffective-assistance claim itself must generally be exhausted as
an independent claim before it can constitute cause for the underlying default. 31 Murray, 477 U.S.

31

An exception to this rule applies where the underlying claim is itself a claim of ineffective
assistance at trial. That exception and the claims to which it applies are addressed below in Section
V.
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at 488–89; Broom v. Mitchell, 441 F.3d 392, 401 (6th Cir. 2006); Rust, 17 F.3d at 161.
A petitioner seeking to overcome procedural default must establish prejudice as well as
cause. To establish prejudice, a petitioner must demonstrate that the constitutional error “worked
to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995)
(quoting United States v. Frady, 456 U.S. 152, 170 (1982)). See also Ambrose v. Booker, 684 F.3d
638, 649 (6th Cir. 2012) (finding that “having shown cause, petitioners must show actual prejudice
to excuse their default”). “When a petitioner fails to establish cause to excuse a procedural default,
a court does not need to address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th
Cir. 2000). Likewise, if a petitioner cannot establish prejudice, the question of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has “probably resulted” in the conviction of
one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392
(2004) (citing Murray, 477 U.S. at 495–96); see also Lundgren v. Mitchell, 440 F.3d 754, 764 (6th
Cir. 2006).

Actual innocence in this context “means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (emphasis added). In Schlup
v. Delo, 513 U.S. 298 (1995), the Supreme Court held that a habeas corpus petitioner should be
permitted to argue the merits of defaulted underlying claims where he “presents evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional error.” Id. at 316. The
threshold inquiry is whether “new facts raised sufficient doubt about [Petitioner’s] guilt to
undermine the confidence in the result of the trial.” Id. at 317; Reeves v. Fortner, 490 F. App’x
766, 769 (6th Cir. 2012). “While Schlup does not require ‘absolute certainty’ about the innocence
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of a party in order to establish a credible claim of actual innocence, it is a ‘demanding’ standard
and ‘permits review only in the extraordinary case.’” Reeves, 490 F. App’x at 769 (quoting House
v. Bell, 547 U.S. 518, 538 (2006)). To satisfy this standard, Petitioner “must show that it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.” Schlup, 513 U.S. at 327.
In the capital-sentencing context, the miscarriage-of-justice exception applies where the
petitioner can show “‘by clear and convincing evidence’ that no reasonable juror would have found
him eligible for the death penalty in light of the new evidence.” Calderon v. Thompson, 523 U.S.
538, 559–60 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 348 (1992)); see also Dretke, 541
U.S. at 392 (holding that petitioner must show “by clear and convincing evidence that, but for
constitutional error, no reasonable juror would have found the petitioner eligible for the death
penalty under the applicable state law”).
B. ANALYSIS
1. Claim A.1 — Automatic-Death-Penalty Jurors
Petitioner alleges that he was deprived of a fair trial because multiple jurors (Baggett,
Reynolds, Shuffield, Richardson, and Spangenberger) expressed the view before they were
empaneled that they would automatically vote for a death sentence after deciding guilt in his case.
(Doc. No. 14 at 19.)
Petitioner did not raise any claim concerning “automatic death penalty jurors” on direct
appeal. (Doc. No. 26-1.) He raised a claim on post-conviction that the “[t]rial court erred in not
excusing for cause, those jurors who believed the death penalty should be automatic for persons
convicted of murdering a child,” and named Baggett, Shuffield, Richardson, Spangenberger, and
Brown; he did not name Reynolds. (Doc. No. 26-7 at 196.) The post-conviction trial court denied
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relief, observing that due process claims that were available but not raised on direct appeal were
waived pursuant to a state statute, Tenn. Code Ann. § 40-30-106(g). (Doc. No. 26-8 at 212–13.)
Petitioner did not raise this claim in his post-conviction appeal (Doc. No. 26-14 at 7, 134–38), nor
did he raise a claim on post-conviction appeal about his counsel’s failure to include the issue in
his direct appeal. (Doc. No. 26-14 at 6–7, 123–24.)
The Sixth Circuit has held that Tennessee’s waiver rule is an adequate and independent
ground to foreclose review of the merits of a claim in habeas proceedings. Hutchison v. Bell, 303
F.3d 720, 738 (6th Cir. 2002); Cone v. Bell, 243 F.3d 961, 969 (6th Cir. 2001), overruled on other
grounds by Bell v. Cone, 535 U.S. 685 (2002). And regardless of the reason for the trial court’s
rejection of the claim, Petitioner failed to raise it on post-conviction appeal. This claim is therefore
procedurally defaulted.
Petitioner argues that he can overcome default and obtain habeas review of this claim
because the “jurors’ misconduct” constitutes a “fundamental miscarriage of justice” and a
“structural error” requiring that his sentence be vacated. (Doc. No. 111 at 386–89.) But a juror’s
alleged bias against Petitioner does nothing to establish his actual innocence of the crimes, or to
establish that no reasonable juror without such bias would have found him eligible for the death
penalty under Tennessee law. As the Court has already found, the state court’s determinations that
there was sufficient evidence to support Petitioner’s convictions and the aggravating factors found
by the jury were not unreasonable, and the state court’s proportionality review identified several
other cases in which other juries imposed the death sentence on defendants found guilty of crimes
similar to Petitioner’s. State v. Rogers, 188 S.W.3d 593, 610–20 (Tenn. 2006). Moreover, an
alleged structural error alone is not sufficient to overcome the procedural default of his claim.
Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (“This circuit has accordingly declined to
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presume prejudice for the purposes of procedural default when considering structural error
claims.”).
Accordingly, and for the reasons explained above in connection with Claim D.18,
Petitioner has not established cause and prejudice or the miscarriage of justice necessary to
overcome default in connection with this claim. Judgment will enter in Respondent’s favor on
this claim.
2. Claim A.3 — Biased Jurors
Petitioner alleges that Juror Reynolds failed to disclose a personal matter that prevented
her from being impartial at trial, and that Juror Milliken failed to disclose relationships with the
prosecutor and other individuals that prevented him from being impartial. (Doc. No. 14 at 20.)
Respondent asserts that this claim is defaulted (Doc. No. 94 at 86), which Petitioner does
not dispute. (Doc. No. 111 at 391–92.) For the reasons set forth above in the analysis of Claim
A.1, Petitioner cannot establish that the omission of this biased-juror claim from habeas review
will result in a fundamental miscarriage of justice, and he has not asserted any other grounds to
overcome the default. Moreover, the Milliken claim appears to lack any factual basis, as discussed
below in connection with Claim D.22.
Accordingly, Respondent is entitled to judgment on this claim.
3. Claim A.4 — Extrajudicial Information
Petitioner alleges that several prospective jurors had extrajudicial prejudicial information
about his case, which they discussed during the jury selection process. (Doc. No. 14 at 20–23.)
Respondent asserts that this claim is defaulted (Doc. No. 94 at 86), which Petitioner does not

135

dispute. (Doc. No. 111 at 393.)
Petitioner has not established any cause or prejudice to overcome this default. (Doc. No.
111 at 392–97.) Moreover, he does not allege that any of the prospective jurors in question were
actually on the empaneled jury, and the only “evidence” he marshals for the proposition that the
prospective jurors discussed their knowledge of the case with other jurors is his statement that
“Anyone who has been called for jury duty knows that these are social occasions.” (Doc. No. 111
at 393.) Even if it were not defaulted, Petitioner’s rank speculation that any jurors were tainted
with information that prevented them from being impartial would not establish a constitutional
violation or any prejudice arising from it.
Judgment for Respondent will enter on this claim.
4. Claims B.1, B.2, B.24 — Brady Violations
Petitioner alleges that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by
withholding several pieces of evidence: (B.1) evidence of the investigation of Thomas Steven
Sanders, Quinton Donaldson, David La Bean, Christopher Scott Hall, Chandler Scott, William
Meyer, and Jeannie Meyer as suspects; (B.2) the results and report of a polygraph examination
administered to Jeannie Meyer; and (B.24) evidence of favorable consideration (specifically, an
immunity deal) it gave Quinton Donaldson for his testimony. (Doc. No. 14 at 26, 29.) Respondent
asserts that these claims are all defaulted, and that Petitioner has failed to establish facts necessary
to overcome the default. (Doc. No. 94 at 89–90.)
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence
favorable to the accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at
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87. Suppression of evidence that prevents a petitioner from bringing claims arising from that
evidence in state court can establish cause for the default of such claims. Hutchison v. Bell, 303
F.3d 720, 741 (6th Cir. 2002); Smith v. Bell, 381 F. App’x. 547, 552 (6th Cir. 2010), vacated on
other grounds sub nom. Smith v. Colson, 566 U.S. 901 (2012)). Because “the requirements for
showing cause and prejudice parallel the elements of the underlying Brady violation,” Hutchison,
303 F.3d at 741, if Petitioner is able to establish a Brady violation, he necessarily overcomes both
the statute of limitations and procedural default bars. Bies v. Sheldon, 775 F.3d 386, 396 (6th Cir.
2014) (explaining that cause and prejudice parallel two components of a Brady claim “with the
suppression of the evidence constituting cause and the materiality of the evidence resulting in
prejudice”). Accordingly, if Petitioner can establish that the state suppressed favorable evidence
that he only discovered after his state court proceedings concluded, he could overcome the default
of these claims.
In his response, however, Petitioner does not cite a single piece of material evidence
discovered after the conclusion of his state proceedings. The only alternative suspects about whom
he argues the state withheld information are the victim’s parents and Quinton Donaldson. (Doc.
No. 111 at 459–63.) It was a well-publicized fact long before trial that the victim’s parents had
been considered as suspects and that they had taken polygraphs; in fact, Petitioner’s proof of that
fact includes a 1996 newspaper article. (Doc. No. 111 at 460.) Accordingly, that fact was not
“suppressed,” and there was nothing preventing Petitioner from pursuing any claim arising from
that information during his state court proceedings. See Bell v. Bell, 512 F.3d 223, 235 (6th Cir.
2008) (holding that Brady does not apply when the factual basis for the claim was readily available
to the petitioner or his counsel from a publicly available source). He recounts portions of trial
testimony, but does not state that the facts contained in the testimony were a surprise at trial, what

137

beneficial use he might have made of those facts if they had been disclosed earlier, or why the
testimony did not provide him with the factual basis he needed to pursue any Brady claim related
to it in state court.
Likewise, Petitioner discusses generally the fact and reasons that Quinton Donaldson was
an early suspect, but he does not allege that those facts were withheld from him before trial. To
the contrary, he acknowledges knowing prior to trial that Donaldson’s residence had been searched
and that he had taken a polygraph. (Doc. No. 111 at 461–62.) Counsel testified at the postconviction hearing that he had the polygraph report prior to trial. (Doc. No. 26-9 at 109–10; Doc.
No. 26-13 at 149–51.) Counsel’s cross-examination of Donaldson at trial confirms that he had the
polygraph report that described Donaldson as sobbing and hyperventilating, which caused the
polygrapher to end the post-exam interview. (Doc. No. 25-9 at 36–37.) Although the trial judge
ruled the polygraph evidence itself inadmissible, counsel was allowed to elicit testimony from
Donaldson that an officer had accused him of lying after questioning him for hours about his
involvement in the crimes. (Id. at 41–43.) He also cross-examined the head TBI agent on the case
about reports identifying other suspects, including Donaldson and Chandler Scott. (Doc. No. 25-9
at 131–32.) And he included Donaldson’s emotional response to his interrogation and the reports
of other suspects in his closing argument. (Doc. No. 25-11 at 147–50.)
Petitioner’s suggestion that the defense was surprised by any significant information at trial
is belied by the testimony of trial counsel during the post-conviction hearing, when he was asked
“did you later become aware of anything that the prosecuting authority withheld from you that was
important, relevant[?]” (Doc. No. 26-9 at 142.) Counsel responded:
No, not that I can recall. I don’t ever remember going whoa –– wait a minute, I
didn’t have that. . . . I had a good enough working relationship with General Baker
that we were able –– that I felt like they handed over everything. I think he was so
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afraid that he would leave something out, he would just give me everything,
probably stuff I wasn’t even entitled to.
(Id. at 143.)
Petitioner also alleges that Donaldson was given an immunity deal in connection with this
case, which the prosecution withheld. (Doc. No. 111 at 463.) In support of that allegation, he cites
simply “supra,” and the Court has been unable to locate any evidence of such a deal in Petitioner’s
response or the record. Moreover, Petitioner does not specify when he became aware of the alleged
deal or otherwise explain why he failed to raise this claim in state court.
Because Petitioner has not identified any favorable information that was withheld from
him and that could not have been the basis for a claim during proceedings in state court, he fails
to establish cause to overcome the default of these claims. Moreover, he cannot establish prejudice
with regard to any additional undisclosed polygraph materials, because polygraph evidence is
inadmissible in Tennessee, State v. Sexton, 368 S.W.3d 371, 409 (Tenn. 2012), which prevents it
from being material evidence for Brady’s purposes unless a petitioner can establish—with more
than mere speculation—that it would have led to the discovery of admissible evidence. Wood v.
Bartholomew, 516 U.S. 1, 6 (1995). Petitioner has made no effort to do that in this case.
Respondent is entitled to judgment on these claims.
5. Claim B.11 — False Theory That Petitioner Acted Alone
Petitioner claims that the prosecution knowingly presented a false theory at trial despite
having evidence that more than one person was involved in the crimes. (Doc. No. 14 at 27.)
Respondent argues that this claim is procedurally defaulted because it was never raised in state
court, and that Petitioner cannot demonstrate cause or prejudice to overcome the default. (Doc.
No. 94 at 98–99.)
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Petitioner’s argument with regard to this claim branches into matters having nothing to do
with the involvement of other people in the crimes, but suggests vaguely that the victim’s parents,
Quinton Donaldson, and the Petitioner all “were connected.” (Doc. No. 111 at 464.) His support
for that theory is conclusory, speculative, and largely refuted by the very evidence he cites—much
of which was presented at trial, and therefore was not hidden proof of anything nefarious. It was
no secret at trial that Donaldson and the parents were investigated as suspects, including
questioning them and subpoenaing their phone records, but ruled out when authorities found their
statements were corroborated; counsel cross-examined investigators about that at trial. (Doc. No.
25-6 at 108–12; Doc. No. 25-7 at 49–52; 80–82.) But more importantly, Petitioner makes no effort
to overcome the default of this claim, beyond his general assertion of a “miscarriage of justice.”
(Doc. No. 111 at 454–55, 464–66.) Because he has not presented any evidence establishing such
a miscarriage in connection with this claim, he cannot overcome its default. Respondent is entitled
to judgment on this claim.
6. Claim B.12 — Mother’s False Testimony
Petitioner claims that the prosecution failed to correct false testimony by the victim’s
mother about having written in her diary just before the victim disappeared, when the mother
actually made the journal entry after the fact to bolster the state’s case. (Doc. No. 14 at 27.)
Respondent argues that Petitioner defaulted this claim by never raising it in state court, and that he
has not established cause and prejudice to overcome the default, or any facts necessary to support
the claim itself. (Doc. No. 94 at 99.)
Because an allegedly falsified diary entry could not establish that Petitioner is actually
innocent, Petitioner cannot establish a manifest injustice in connection with this claim. But in
addition to being defaulted, the claim is based on nothing but speculation and unsupported
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conclusion. Petitioner simply states that the timing of Ms. Meyer’s diary entries is “beyond belief,”
and then leaps from that opinion to the conclusion that the state presented the diary entries
“[d]espite knowing that Jeannie fabricated her diary entries.” (Doc. No. 111 at 460–61.) In order
to establish a constitutional violation in connection with false testimony, a petitioner must show
that the testimony was indisputably false, that the prosecution knew it was false, and that it was
material. Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000). Petitioner’s wholly speculative
insistence that Ms. Meyer’s diary testimony was false does not establish that it was in fact false,
much less that the prosecutor knew it was false.
Moreover, Petitioner’s account of the relevant procedural history is inaccurate. Petitioner’s
brief repeatedly asserts that “the State submitted the entries,” “the State presented them as
evidence,” and “the jury accepted the State’s false version of events,” while citing a portion of Ms.
Meyer’s cross-examination by defense counsel. (Doc. No. 111 at 460–61 and n.2009; 25-4 at
177.) Contrary to Petitioner’s assertions (see Doc. No. 111 at 460), there was no mention of Ms.
Meyer’s diary during her direct testimony, and the prosecution did not enter her diary into evidence
during her direct testimony. (Doc. No. 25-4 at 5, 82–134.) If the diary is in evidence at all,
Petitioner has not cited to it in the record. Defense counsel was the first to ask her whether she
kept a diary and to ask her if it was an accurate record (Doc. No. 25-4 at 176, 182), and the
particular diary testimony about which Petitioner complains was not elicited by the prosecution,
but by defense counsel on cross-examination. (Doc. No. 25-4 at 3 (testimony index); Doc. No. 254 at 176–78.) Counsel’s later use of those lines of her diary in closing argument reflects that he
believed they were useful to his trial strategy. (Doc. No. 25-11 at 129–30.)
Accordingly, this claim is defaulted and, alternatively, wholly without merit. Respondent
is entitled to judgment on this claim.
141

7. Claims B.13, B.21 — False Human Semen Theory
Petitioner claims that the prosecution knowingly presented the false testimony of TBI
Agent Squibb that the semen inside the victim’s shorts “appear[ed] to be human,” and knowingly
presented a false theory that there was human semen inside the shorts, even though evidence was
inconclusive about whether the sperm were human or animal. (Doc. No. 14 at 28, 29.) Respondent
argues that these claims are procedurally defaulted, and that Petitioner has not established that
Squibb’s testimony or the theory based on it was false. (Doc. No. 94 at 100–01, 104.)
Again, Petitioner makes no real effort to demonstrate that any external factor prevented
him from raising this claim in state court. He acknowledges that the prosecution disclosed that
one confirmatory test for the presence of semen was negative. (Doc. No. 111 at 466.) He argues
that Agent Squibb’s notes were withheld and “would have proven the falsity” of his testimony that
there was sperm on the shorts. (Id. at 469.) But Petitioner clearly had Squibb’s notes at a time
when he could have raised these claims in state court, as evidenced by his counsel’s use of the
notes to cross-examine Squibb at the post-conviction hearing. (Doc. No. 26-10 at 134–41; Doc.
No. 26-12 at 157.) 32 Moreover, the notes relate to the number of double- and triple-confirmed
sperm heads found and have nothing to do with their human or animal origin, which is the focus
of these claims. These claims are procedurally defaulted without cause.
Furthermore, the notes do not change that Squibb and two other analysts did confirm the
presence of a small number of sperm on the victim’s shorts, 33 or that the only scientific evidence

32

The Court cites the lab notes where they appear in the state court record of Petitioner’s postconviction hearing. Petitioner’s brief cites another copy of the same lab notes filed as an exhibit
to his response. (Doc. No. 111 at 467 n.2053; Doc. No. 125-19 at 2.)
33

Petitioner now complains that Squibb’s notes indicate that other analysts did not confirm sperm
at many of the possible coordinates Squibb had identified. (Doc. No. 111 at 467–68.) However,
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about their origin is Squibb’s testimony that they appeared to be human. (Doc. No. 25-8 at 159–
61, 171, 175; Doc. No. 26-10 at 145–46.)
The Court observes that, although Petitioner’s amended petition does not hint at this
argument, Petitioner repeatedly argues in his response that “five months prior to trial, the TBI
concluded that the semen did not match Glenn’s DNA,” and that the state presented its false semen
theory “[d]espite the fact that the semen did not match Glenn.” (Doc. No. 111 at 465, 472.) Those
assertions are unsupported by the record. It is perfectly clear from the record and from every
recitation of the semen evidence presented at trial and at post-conviction that the scientists were
unable to obtain any DNA sequence from the stains in the victim’s shorts to compare to
Petitioner’s. It would be accurate to state that there was no match established, and the prosecution
never argued otherwise. But to repeat that “the semen did not match” Petitioner is an objectively
inaccurate statement of the evidence.
Accordingly, Petitioner has failed to establish: (1) that Squibb’s testimony was
indisputably false; or (2) that the prosecutor knew the testimony (or any arguments he based on it)
to be false. These claims are defaulted and would fail on their merits even if they were subject to
review.
8. Claim B.14 — False Carpet Fiber Evidence
Petitioner alleges that the prosecution knowingly presented the false testimony of FBI
Agent Houck that carpet fibers found on the victim’s clothing matched carpet fibers from
Petitioner’s residence. (Doc. No. 14 at 28.) Respondent argues that this claim is procedurally

Squibb testified at the post-conviction hearing that he did not ask other reviewers to confirm every
single possible sperm head he identified. (Doc. No. 26-10 at 137.)
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defaulted and that Petitioner has not demonstrated that the testimony was false or that the state
knew it to be false. (Doc. No. 94 at 101.)
The Court cannot find any reference to Claim B.14 in Petitioner’s response. In connection
with some of his ineffective-assistance claims, he does assert briefly (but repeatedly) that the FBI
methods “amounted to little more than junk science.” (Doc. No. 111 at 350, 357.) But he does not
establish any cause to overcome the default of this claim.
Moreover, Petitioner does not support his “junk science” assertion with any facts pertaining
specifically to the methods used by Agent Houck in this case or anything else that would refute
his results. Aside from Houck’s testimony, the only evidence in the state court record about fiber
analysis was defense counsel’s testimony at post-conviction that an expert he consulted found even
stronger evidence that the fibers matched than what the FBI had found. (Doc. No. 26-9 at 128–
30.) There does not appear to be any factual basis whatsoever for Petitioner’s claim that Houck’s
testimony was false, or that the prosecution knew that it was false. Accordingly, this claim is
defaulted, and would fail on its merits even if it were not defaulted.
9. Claims B.15, B.16 — False Evidence of Donaldson Alibi
Petitioner claims that the prosecution also knowingly presented the false testimony of
Quinton Donaldson about going to his cousin’s home around 4 or 5 p.m. the day the victim
disappeared and about the last time he had seen Petitioner. (Doc. No. 14 at 28.) Respondent asserts
that these claims are procedurally defaulted, and that Petitioner has not demonstrated that the
testimony was false. (Doc. No. 94 at 101–02.) Petitioner does not dispute that the claims are
defaulted, but simply argues their merits, apparently in an attempt to convince the Court of a
miscarriage of justice. (Doc. No. 111 at 454–63.)

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One of the reasons Donaldson had been considered a suspect early in the investigation was
that he was in the general area the day the victim disappeared. (Doc. No. 25-7 at 51.) He drove a
white Chevrolet with a black fender in July 1996, and was interviewed that evening at his cousin’s
nearby home by a detective who spotted the car in the driveway. (Doc. No. 25-9 at 30; Doc. No.
25-7 at 80–82.) But Donaldson testified that he was at home that day until he went to his cousin’s
home around 4 or 5 p.m. (Doc. No. 25-9 at 28–29), and a witness who saw a white car with a
“black front end” drive down into the hollow a bit before 2 p.m. identified photos of the car
Petitioner was driving that day as the car he saw. (Doc. No. 25-4 at 233–35.) Petitioner insinuates
that the car the neighbor saw was actually Donaldson’s and argues Donaldson had “ample
opportunity” to be involved in the crimes (Doc. No. 111 at 461–62), but that does not make his
trial testimony about his activities that day indisputably false, and does not establish that the
prosecution knew it was false.
The only testimony Donaldson gave about when he last saw Petitioner was elicited by
defense counsel on cross-examination. (Doc. No. 25-9 at 32–33.) In response to counsel’s
questions, he acknowledged that during one police interview he had said he last saw Petitioner in
mid-June 1996, and said he did not remember saying in another interview that he had last seen
Petitioner in April or May. (Id.) Counsel’s goal apparently was to impeach Donaldson’s credibility
with evidence of inconsistent statements. That may have been fine strategy with the jury, but
“inconsistencies in the testimony or discrepancies between the testimony and his version of the
facts, . . . is not enough to show the prosecution knowingly used perjured testimony or denied him
a fair trial.” Davis v. Burt, 100 F. App’x 340, 348 (6th Cir. 2004).
Moreover, none of the facts on which Petitioner bases his assertion that Donaldson testified
falsely were unknown to him at the time Donaldson testified. As explained above, a finding of
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miscarriage of justice must be based on new evidence. Schlup v. Delo, 513 U.S. 298, 317 (1995)
(issue is whether “new facts raised sufficient doubt about [Petitioner’s] guilt to undermine the
confidence in the result of the trial”); Calderon v. Thompson, 523 U.S. 538, 559–60, (1998) (in
capital sentencing context, petitioner must establish “‘by clear and convincing evidence’ that no
reasonable juror would have found him eligible for the death penalty in light of the new evidence”).
Accordingly, Petitioner has not demonstrated any cause for his default of these claims, or any
prejudice arising from the default.
10. Claim B.22 — False Theory About DNA
Petitioner alleges that the prosecutor knowingly presented a false theory to the trial court
during a jury-out proceeding when he argued that the substance found on the victim’s shorts could
contain DNA from several possible combinations of sources, which Petitioner alleges was
“inaccurate and based on junk science.” (Doc. No. 14 at 29.)
Respondent asserts that this claim is procedurally defaulted and that it fails to establish any
constitutional violation. (Doc. No. 94 at 104–05.) Petitioner includes B.22 in a list of claims about
which he responds, but his argument under that heading never mentions this particular allegation
or provides any basis to overcome default or to establish the merits of the claim. (Doc. No. 111 at
466–70.)
Forensic serologist Megan Clement testified at trial that she was unable to get DNA results
from the material on the victim’s shorts, and acknowledged on cross-examination that one possible
explanation for being unable to get a “clean sequence” for DNA analysis was the presence of two
sources of semen. (Doc. No. 25-8 at 193–95.) She went on to explain that other hypothetical
causes would include a combination of semen and vaginal fluid, or semen and saliva, or simply

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the presence of “environmental insults” like dirt or other contaminants. (Id. at 195–96.) Petitioner
has not offered any evidence to disprove that testimony or the prosecutor’s argument to the same
effect. Accordingly, even assuming the prosecutor’s argument to the judge outside the presence
of the jury could be material to the outcome of the trial, this claim is wholly unfounded in addition
to being defaulted.
11. Claims G.8, G.10–G.13, G.15, G.16 — Jury Selection Errors
Petitioner alleges that the trial court committed various constitutional errors during jury
selection. (Doc. No. 14 at 56–57.) Respondent argues that all of these claims are procedurally
defaulted because Petitioner did not raise them in either of his appeals in state court. (Doc. No. 94
at 107.) Indeed, the only claim of trial court error in jury selection that Petitioner raised on direct
appeal was that prospective jurors Washington and Green were wrongfully excluded, which the
Court has already addressed as Claims A.2 and G.9 above, and Petitioner did not raise these claims
of trial court error on post-conviction appeal. 34 (Doc. No. 26-1 at 3; Doc. No. 26-14 at 3–7.)
Petitioner responds generally that he “can overcome procedural default with regard to his
claims of trial court error,” in light of his “arguments below.” (Doc. No. 111 at 414–05.) But the
only argument he makes “below” for overcoming the default of these claims of trial court error is
the following:
For the reasons stated in Sections III.A(2)(a), (b) and (p) and IV.A(1)-(3), B, and
C(2)(a), supra, to the extent that the Tennessee courts addressed the above issues
expressly or by implication, their decisions were contrary to, and/or an
unreasonable application of clearly established law and/or an unreasonable
determination of the facts based on the record before them. To the extent that the
above issues or the factual predicate supporting these issues was not properly
presented to the Tennessee courts, the issue or facts are unexhausted and defaulted.
34

Petitioner did discuss Washington and Green’s exclusion in post-conviction proceedings, but in
the context of blaming their exclusions on the ineffective assistance of counsel. (Doc. No. 26-14
at 30.)
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Any default is excused under Strickland, [or] Martinez . . . by the IATC, IAAC
and/or IAPC of state court counsel based on the facts and the legal authority cited
in the sections referenced in the initial sentence of this paragraph. The underlying
IATC and IAAC claims are substantial for the same reasons. The IAPC claims are
also substantial and are within the letter of Martinez because they fall squarely
within the equitable rule, present a new claim, or reflect IAPC due to the failure to
raise, investigate, research or present the claim and/or the facts supporting the
claim.
(Doc. No. 111 at 417.) The more than 115 pages of his response to which he refers relate to other
claims including ineffective assistance of counsel and denial of change of venue, which are all
independently reviewed herein (to the extent that they are not themselves defaulted); none of his
arguments in connection with those claims provides any sufficient cause to overcome the default
of the claims at issue here. Similarly, neither Strickland, nor Martinez provides any support for
Petitioner’s effort to overcome the default of these claims, which—again—assert trial court error,
not the ineffective assistance of counsel. And finally, Petitioner’s vague, inconsistent reference to
possible contrary decisions by the Tennessee courts does nothing to overcome the default of claims
whose default he has not even refuted.
Accordingly, these claims are defaulted, and Petitioner has failed to establish cause and
prejudice to overcome their default.
12. Claim G.25 — Exclusion of Prosecutor’s Statement
Petitioner alleges that the trial court erred by preventing the defense from introducing
evidence of a statement by the prosecutor after discovery of the victim’s remains to the effect that,
without DNA evidence from her clothes, the state only had enough evidence to convict Petitioner
of aggravated kidnaping. (Doc. No. 14 at 58.) Respondent argues that this claim was never raised
in state court and is procedurally defaulted. (Doc. No. 94 at 107.) Petitioner’s response lists G.25
in a group of claims he addresses collectively, but that section of his argument never mentions the

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prosecutor’s statement, discusses its exclusion, or attempts to establish cause to overcome the
default of the claim. (Doc. No. 111 at 419–32.)
Defense counsel at trial sought to cross-examine the victim’s mother about a diary entry
she wrote about a statement a prosecutor had made to her during the investigation, which the trial
judge excluded as inadmissible hearsay. (Doc. No. 25-4 at 206–10.) Petitioner did not raise any
claim about that evidentiary ruling on appeal. (Doc. No. 26-1 at 3–4.) In the absence of any effort
by Petitioner to establish cause or prejudice, this claim is procedurally defaulted and not subject
to further review.
13. Claim G.27 — Impeachment of Victim’s Mother
Petitioner alleges that the “trial court erred in limiting the defense’s cross-examination of
Jeannie Meyer and thus prevented the defense from impeaching her credibility and her false
testimony.” (Doc. No. 14 at 58–9.) Respondent asserts that this claim is procedurally defaulted.
(Doc. No. 94 at 107.)
In connection with Claim G.44 and related claims, the Court has already considered
Petitioner’s exhausted claims about his being prevented from cross-examining Ms. Meyer
regarding the purported sexual relationship between the victim and her brother. It is not clear how
the current claim, with its reference to unspecified “false testimony,” relates to those other claims.
However, nothing in Petitioner’s amended petition or response provides any detail about Claim
G.27 that requires its separate consideration. In fact, his only reference to this claim is in the
portion of his brief devoted to the evidence of the sexual relationship, which never mentions any
false testimony by Ms. Meyer. (Doc. No. 111 at 419–32.) To the extent that this claim is distinct
from the claims already reviewed, Petitioner did not raise it on appeal in state court (Doc. No. 26-

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1 at 9–10) and has made no effort to establish cause to overcome its default. Respondent is entitled
to judgment on this claim.
14. Claim G.29 — Excluded Expert Testimony
Petitioner alleges that the trial court violated his right to due process and to trial by jury by
excluding expert testimony at sentencing due to insufficient notice to the prosecution. (Doc. No.
14 at 59.) He did not raise this claim on appeal in state court. (Doc. No. 26-1 at 9–10.) Respondent
asserts that this claim is procedurally defaulted. (Doc. No. 94 at 107.)
Petitioner does not mention Claim G.29 anywhere in his response. (See Doc. No. 111 at
404–41, covering other claims within Claim G.) He does not cite any ruling that excluded any
expert testimony, and the Court has not found any such ruling in the record. Petitioner asserts
elsewhere that trial counsel failed to give proper notice of experts Guin and Caruso, but as
discussed below in connection with Claim E.19, neither expert’s testimony was excluded or limited
as the result of imperfect notice.
The Court deems Petitioner to have waived consideration of Claim G.29. Alternatively,
Petitioner has failed to establish any basis to overcome the default of this claim, or that the claim
has any merit. Respondent is entitled to judgment on this claim.
15. Claim G.31 —Victim Impact Testimony
Petitioner alleges that the trial court’s admission of victim impact testimony by the victim’s
mother violated his constitutional rights. (Doc. No. 14 at 59.) He did not raise a claim about victim
impact testimony on appeal (Doc. No. 26-1 at 9–10), and Respondent asserts that the claim is
procedurally defaulted. (Doc. No. 94 at 107.)

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Petitioner argues the merits of this claim in his response. (Doc. No. 111 at 417–19.) He
does not, however, establish any basis to overcome his default of the claim. Accordingly, the
claim is not subject to federal habeas review.
16. Claims G.34, G.35, G.46 — Jury Instructions
Petitioner alleges that the trial court gave various jury instructions that violated his
constitutional rights. (Doc. No. 14 at 59, 61.) With the exception of the unanimity instruction,
which he challenged in state court and has been addressed above as Claim G.42, the Petitioner did
not exhaust any claims in state court about the instructions challenged in these habeas claims. (See
Doc. No. 26-1 at 9–10.) Respondent argues that they are procedurally defaulted. (Doc. No. 94 at
107, 214–15.)
Petitioner argues the merits of these claims in his response. (Doc. No. 111 at 432–41.)
Again, however, he does not establish any cause and prejudice to excuse their default. Respondent
is entitled to judgment on these claims.
17. Claims. G.38, G.43 — Definition of “Intentional”
Petitioner alleges that the trial court’s instruction defining the “intentional” mens rea
element of first-degree murder violated his constitutional rights. (Doc. No. 14 at 60.) He raised
that issue on direct appeal (Doc. No. 26-1 at 9, 63–4), but the Tennessee Supreme Court observed
that the issue had been waived at trial and applied plain error review in rejecting it:
During the guilt phase, the trial court instructed the jury that a “person acts
‘intentionally’ when that person acts with a conscious objective or desire either to
cause a particular result or to engage in particular conduct.” Relying on State v.
Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), Rogers argues that this instruction
lessened the State’s burden of proof because it allowed the jury to convict him
based on a finding that he acted with the conscious objective to engage in a
particular conduct, i.e., backing up his car, rather than with the conscious objective
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to kill the victim. The issue was not raised in the trial court. Rogers asserts,
however, that because Page was not decided until almost six months after the
motion for a new trial was heard, the issue was not waived. He also contends that
the Court should review the issue as plain error.
We recently rejected a similar argument in State v. Faulkner, 154 S.W.3d 48 (Tenn.
2005), also a capital murder case. Noting that we had not previously addressed the
holding in Page, a second-degree-murder case, we agreed that a proper instruction
defining “knowingly” or “intentionally” does not include the nature-of-conduct and
circumstances-surrounding-conduct language because second degree murder and
first degree premeditated murder are result-of-conduct offenses. Faulkner, 154
S.W.3d at 58. We found no authority, however, supporting the conclusion in Page
that the erroneous instruction lessened the State’s burden of proof. Faulkner, 154
S.W.3d at 59. We held that the inclusion of the nature-of-conduct language in
Faulkner’s case was not an error of constitutional dimension because the instruction
properly defined “intentionally” with regard to the result of conduct and any risk
that the jury relied on the wrong definition was eliminated by the finding of
premeditation which “requires a previously formed intent to kill.” Id. at 60 (citation
omitted). The instructional error was harmless because in finding that Faulkner
acted with premeditation, the jury necessarily found that his conscious objective
was to cause the result of his conduct, i.e., the victim’s death. Id. at 61.
We reach the same result in this case. The instruction properly defined
“intentionally” with regard to the result of conduct. The jury was instructed that
“[p]remeditation means that the intent to kill must have been formed prior to the
act itself.” The jury could not have convicted Rogers of premeditated first degree
murder unless it found that he acted with a previously formed intent to kill.
Therefore, contrary to Rogers’ assertion, even if the jury believed Rogers’ account
of the victim’s death, it could not have convicted him based solely on a finding that
it was his conscious objective to back up his car. In finding that Rogers acted with
premeditation, the jury necessarily found that he acted with a specific intent to
cause the victim’s death. Therefore, the inclusion of the nature-of-conduct language
was mere surplusage that did not affect the outcome of the trial. See Tenn. R. Crim.
P. 52(a). Because the erroneous instruction defining “intentionally” was harmless,
Rogers is not entitled to relief under the plain error doctrine. See Faulkner, 154
S.W.3d at 61.
State v. Rogers, 188 S.W.3d 593, 615–16 (Tenn. 2006).
Respondent argues that these claims are defaulted because the state court reviewed only
for plain error, having found the issue waived by failure to raise it in trial court. (Doc. No. 94 at
108–09.) The Sixth Circuit has held that “[a] plain error analysis is not tantamount to a review on
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the merits,” meaning the state appellate court’s review for plain error does not imply it overlooked
Petitioner’s procedural default, i.e. his failure to object at trial. Scott v. Mitchell, 209 F.3d 854,
865 (6th Cir. 2000); see also Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (holding that
plain error analysis is “viewed as a court’s right to overlook procedural defects to prevent manifest
injustice, but is not equivalent to a review of the merits”).
Petitioner has not established any basis to overcome the default of these claims. (Doc. No.
111 at 435–37.) Moreover, these claims would fail even if they were subject to review, because
Petitioner has not cited any United States Supreme Court precedent establishing that the Tennessee
court’s plain error ruling was unreasonable. (Id.) Respondent is entitled to judgment on these
claims.
18. Claim G.45 — Pedophilia Opinion
Petitioner alleges that the trial court violated his right to due process by failing to declare
a mistrial when the state presented Dr. Bernet’s testimony that Petitioner was a pedophile, when
that opinion was based on evidence that had been ruled inadmissible. (Doc. No. 14 at 61.)
Petitioner did not raise this claim on appeal in state court (Doc. No. 26-1 at 9–10), and Respondent
argues that it is procedurally defaulted. (Doc. No. 94 at 107.)
Petitioner does not mention Claim G.45 anywhere in his response, and he acknowledges
that he did not move for mistrial based on Dr. Bernet’s testimony. (Doc. No. 111 at 331–32.)
Accordingly, this claim has been waived in these proceedings, in addition to being procedurally
defaulted. Moreover, as discussed above in connection with Claims E.15 and E.16, the federal
constitution does not require that expert opinions be based only on admissible evidence, and
Petitioner has failed to discredit all of the underlying reports about Petitioner’s sexual misconduct

153

with children on which Dr. Bernet relied.
Accordingly, Respondent is entitled to judgment on this claim.
19. Claim G.47 — Discrimination in Selection of Foreperson
Petitioner alleges that his jury’s selection of a white male jury foreperson amounted to
unconstitutional discrimination. (Doc. No. 14 at 61.) He did not raise this claim in state court
(Doc. Nos. 26-1, 26-14), and Respondent asserts that it is procedurally defaulted. (Doc. No. 94 at
107.)
Petitioner’s response lists Claim G.47 in his discussion of other claims related to voir dire,
but he never mentions the substance of the petit jury foreperson claim 35 or otherwise establishes
any basis to overcome its default. (Doc. No. 111 at 415–16.) The Court considers Claim G.47 to
be waived, and alternatively finds that Petitioner has failed to overcome its default.
20. Claims H.1, I.3 — Statements to Third Parties
Petitioner alleges that the state violated his constitutional rights by arranging for and
encouraging Willie and Jeannie Meyer, David Ross, Juanita Rogers, Cynthia Schexnayder, and
David Schexnayder to record conversations with him while he was in jail without his counsel
present (H.1), and that his convictions based on statements to those same parties working on behalf
of the state violated his right to due process (I.3), both in violation of Massiah v. United States,
377 U.S. 201 (1964). (Doc. No. 14 at 61–62, 65.)
Petitioner exhausted a claim on direct appeal that the trial court’s admission of his

35

Petitioner’s claims about the grand jury that indicted him are addressed below as Claim K. (See
Doc. No. 14 at 75–9.)
154

statements to David Ross, Cynthia Schexnayder, and David Schexnayder violated his Sixth and
Fourteenth Amendment rights pursuant to Massiah. (Doc. No. 26-4 at 84–86.) The Tennessee
Supreme Court rejected that claim on its merits:
The defendant contends that the trial court erred in refusing to suppress statements
he made to his family, the victim’s family, and the press while he was in jail. He
asserts that members of his family, the victim’s family, and the press acted as agents
of the state in securing statements from him, and, accordingly, the statements
should have been excluded from the trial.
The proof shows that after defendant’s arrest, he made collect telephone calls to the
victim’s mother, Jeannie Meyer, and Ms. Meyer’s husband, Wilbur Meyer, from
jail. After the telephone calls began, the Meyers contacted the authorities to
determine if they could record the calls. There is no proof that the law enforcement
officials suggested that the Meyers record the conversations or even continue to
accept the collect calls. In fact, Ms. Meyer testified that two officers advised that
she did not have to talk with the defendant, and one of those officers even urged
her not to speak with the defendant. Ms. Meyer said she continued to accept the
calls because she wanted to locate her daughter’s body. The Meyers testified that
they gave the tapes to the authorities to help with the investigation. The state did
not introduce the tape recordings at trial. Additionally, the defendant sent a letter to
Wilbur Meyer in which he denied killing the victim.
The defendant also contacted reporter David Ross, who worked with the Clarksville
Leaf Chronicle. Mr. Ross interviewed the defendant and tape recorded the
interview. Mr. Ross testified that no one encouraged or requested him to speak with
the defendant. He did not contact any law enforcement authorities about his
interview until it was completed. He testified that he only turned over a transcript
of his interview to authorities for the purpose of helping to locate the victim’s body.
Mr. Ross admitted that he spoke with the Meyers and shared information with them.
The defendant asserts that Mr. Ross “through the Meyers, also became a state
agent.”
Finally, the defendant contends that his own mother and step-brother became state
agents when they drove to Tennessee from Louisiana to speak with him following
his arrest. The defendant’s step-brother testified that he met with the defendant in
an attempt to find out what had happened and to determine if he could help find the
victim. Cynthia and David Schexnayder did not contact the authorities until after
they had met with the defendant. After their meeting with the defendant, the
Schexnayders agreed to give authorities a statement about their conversations.
The Sixth Amendment guarantees the accused the right to rely on counsel as a
“medium” between the accused and the state following the initiation of formal
charges. Massiah v. United States, 377 U.S. 201 (1964). The United States Supreme
Court and this court have held that incriminating statements may not be deliberately
elicited from an accused by action of the state, as such action amounts to an
interrogation. Id.; State v. Webb, 625 S.W.2d 281, 284 (Tenn. Crim. App. 1980).
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This court determined in Webb that the authorities had subverted the accused’s
right to counsel when they placed an undercover agent in a jail cell with the accused
who elicited statements from the accused. Webb, 625 S.W.2d at 284. However, the
facts of this case are far different from the facts in Massiah and Webb.
The state did not direct, elicit, or otherwise attempt to procure statements from the
defendant through any of the subject persons. The defendant contacted the Meyers
and David Ross. Neither the Meyers nor David Ross were asked by the state to
elicit information from the defendant. Instead, the authorities discouraged Jeannie
Meyer from communicating with the defendant. The defendant’s family members,
Cynthia and David Schexnayder, visited the defendant in jail on their own in an
attempt to get information about the location of the victim’s body. The
Schexnayders did not go to the authorities with their information until following
their meeting. There is no proof in the record to substantiate the defendant’s
arguments that the Meyers, David Ross, or the Schexnayders acted as state agents.
Accordingly, the trial court was correct in concluding that the defendant’s
constitutional rights were not violated by the admission of statements the defendant
voluntarily made to the subject parties. This issue is without merit.
State v. Rogers, 188 S.W.3d 593, 622–23 (2006) (appendix adopting excerpts from the Tennessee
Court of Criminal Appeals’ Decision).
Respondent construes that decision to exhaust Petitioner’s Claim G.17 that the trial court
erred in admitting Petitioner’s statements to several third parties (except to the extent that the
habeas claim raises for the first time the statements made to Juanita Rogers). (Doc. No. 94 at 201.)
But for reasons unknown to the Court, Petitioner has affirmatively abandoned Claim G.17 (Doc.
No. 111 at 7, 524), and both parties have taken the position that the related prosecutorial
misconduct claims—H.1 and I.3—were never raised and are procedurally defaulted. (Doc. No. 94
at 111, 215; Doc. No. 111 at 441, 476.) Petitioner argues that he can overcome the default (Doc.
No. 111 at 441, 476), but the only bases he asserts to overcome the default are Martinez and
fundamental miscarriage of justice. (Doc. No. 111 at 454–55, 476.) Because these are not claims
of ineffective assistance of counsel, Martinez does not apply to them. See Hodges v. Colson, 727
F.3d 517, 531 (6th Cir. 2013) (explaining that Martinez exception is strictly limited to claims of
ineffective assistance of trial counsel). And a fundamental miscarriage of justice is presented only

156

where new evidence establishes either that a petitioner is probably actually innocent or that no
reasonable juror would have found him eligible for the death penalty. Dretke v. Haley, 541 U.S.
386, 392 (2004). These alleged violations, known to Petitioner since before his trial, does not
satisfy those requirements. Accordingly, Petitioner has failed to overcome the default of these
claims, and they are not subject to habeas review.
Respondent argues alternatively that if the pending claims are deemed exhausted, the state
court’s ruling above was not contrary to or an unreasonable application of state law. (Doc. No. 134
at 93.) In Petitioner’s response, he first asserts in conclusory fashion without any citation to the
record that the third parties gathered information from Petitioner “[a]t the State’s encouragement
and direction.” (Doc. No. 111 at 443.) Subsequently, however, he concedes that he cannot prove
that the state asked the third parties to gather information from Petitioner or that the state was “the
driving force” behind such gathering. (Doc. No. 111 at 478–79.) Accordingly, he cannot establish
that the state court unreasonably determined that “[t]he state did not direct, elicit, or otherwise
attempt to procure statements from the defendant through any of the subject persons.” 36
Petitioner argues that the state “exploited the opportunity,” and that its actions were
unconstitutional pursuant to opinions of the Seventh and Tenth Circuits. (Doc. No. 111 at 443,
477–78.) Court of Appeals decisions, however, do not constitute clearly established federal law
for the purposes of § 2254(d). Kernan v. Cuero, 138 S. Ct. 4, 9 (2017), reh’g denied, 138 S. Ct.
724 (2018) (“Finally, as we have repeatedly pointed out, “circuit precedent does not constitute
‘clearly established Federal law, as determined by the Supreme Court.’”). The only Supreme Court
precedents Petitioner cites are Massiah, in which the government used a co-defendant with a

36

Petitioner cites evidence that the state had advance knowledge of recordings made by the Meyers,
but those were not introduced at trial. (See Doc. No. 111 at 479–80.)
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hidden radio transmitter to listen to a defendant’s incriminating statements after his release on bail,
and United States v. Henry, 447 U.S. 264 (1980) which involved the use of a paid government
informant. Because those cases are easily distinguished from Petitioner’s, the state court’s
determination was neither contrary to nor an unreasonable application of those precedents. As the
Supreme Court has explained,
[T]he primary concern of the Massiah line of decisions is secret interrogation by
investigatory techniques that are the equivalent of direct police interrogation. Since
“the Sixth Amendment is not violated whenever—by luck or happenstance—the
State obtains incriminating statements from the accused after the right to counsel
has attached,” [Maine v. Moulton,] 474 U.S. [159,] 176 [(1985)], citing United
States v. Henry, supra, at 276 (POWELL, J., concurring), a defendant does not
make out a violation of that right simply by showing that an informant, either
through prior arrangement or voluntarily, reported his incriminating statements to
the police. Rather, the defendant must demonstrate that the police and their
informant took some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.
Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (finding no violation where jailhouse informant
agreed in advance with police to passively observe and report the defendant’s statements about the
crime). Accordingly, even if these claims were not defaulted, Petitioner would not be entitled to
relief pursuant to § 2254(d).
21. Claim H.3 — Prosecutor’s Misstatement of Law
Petitioner alleges that the prosecutor misstated the law during voir dire when he asked juror
Richardson and prospective juror Holleman whether they could “follow” or “apply” the law and
sentence Petitioner to death if the state proved that aggravating factors outweighed mitigating
factors. 37 (Doc. No. 14 at 62.) Petitioner did not raise this claim in state court (Doc. No. 26-1 at

37

Petitioner originally also raised this claim with respect to a third prospective juror, Johnson, but
he has affirmatively withdrawn that portion of his claim. (Doc. No. 111 at 7, 525, withdrawing
Claim H.3(c).)
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9–10; Doc. No. 26-14), and Respondent asserts that it is procedurally defaulted. (Doc. No. 94 at
111.)
Petitioner acknowledges that the issue of prosecutorial misconduct during voir dire was
never raised in state court. (Doc. No. 111 at 443–44.) He argues the merits of his claim (as well
as related claims not raised in his amended petition), but does not establish any basis for
overcoming the default of the claim. (Doc. No. 111 at 443–46.) Accordingly, the claim is not
subject to habeas review.
22. Claim H.11 — Improper Closing
Petitioner alleges that the prosecutor committed misconduct during closing argument of
the guilt phase of trial by vouching for the credibility of prosecution witnesses, and by describing
Petitioner as “cocky,” “arrogant,” and “confident.” 38 (Doc. No. 14 at 63.) Petitioner did not raise
this claim on direct appeal, and the state courts accordingly determined during post-conviction
proceedings that it had been waived. Rogers v. State, 2012 WL 3776675, at *59–60. Respondent
asserts, therefore, that the claim is defaulted. (Doc. No. 94 at 110.)
Petitioner does not dispute that the claim is defaulted, but argues that he can overcome the
procedural default. (Doc. No. 111 at 441.) Again, however, he offers no basis for overcoming
default aside from Martinez, which does not apply to prosecutorial misconduct claims, Myers v.
Osborne, No. 17-5284, 2018 WL 4215638, at *3 (6th Cir. Apr. 12, 2018), cert. denied, 139 S. Ct.
393 (2018) (“Martinez is limited to claims of ineffective assistance of trial counsel that were
procedurally defaulted by lack of or ineffective assistance of post-conviction counsel and does not

38

Petitioner has voluntarily dismissed a portion of this claim related to the prosecutor’s references
to the “little” victim. (Doc. No. 111 at 7, 525, withdrawing claim H.11(a).)
159

apply to Brady claims or claims of prosecutorial misconduct.” (punctuation and citation omitted)),
and a fundamental miscarriage of justice, which does not apply to guilt-phase claims that do not
present new evidence of Petitioner’s actual innocence of the crimes. (Doc. No. 111 at 454–55.)
Moreover, even if Petitioner had established cause to overcome default, he fails to establish
prejudice for the same reasons explained above in connection with Claim D.43. This claim is
defaulted and not subject to habeas review.
23. Claims H.12, H.14, H.17 — Prosecutor’s Eliciting Pedophilia Diagnosis
Petitioner alleges that that the prosecutor committed misconduct by eliciting improper
testimony about Petitioner’s pedophilia diagnosis during the sentencing hearing, despite the trial
court’s exclusion of the evidence underlying that diagnosis. (Doc. No. 14 at 64.) Petitioner
asserted in post-conviction proceedings that the state had improperly presented evidence during
sentencing that Petitioner was a pedophile without adequate support for that diagnosis. (Doc. No.
26-14 at 144.) The state courts determined that this and other claims of “prosecutorial misconduct
throughout the course of the trial” were waived by the failure to raise them on direct appeal. Rogers
v. State, 2012 WL 3776675, at *59–60. Respondent argues that these claims are procedurally
defaulted. (Doc. No. 94 at 110–11.)
Petitioner’s response argues the merits of these claims, but does not dispute that they are
defaulted. (Doc. No. 111 at 441, 449–52.) Instead, he asserts that he can overcome the default
pursuant to either Martinez or the fundamental miscarriage of justice standard. (Doc. No. 111 at
441, 454–55.)
As explained above, Martinez does not apply to prosecutorial misconduct claims. Myers,
2018 WL 4215638, at *3. This claim is not based on new evidence, and there is no real likelihood

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that an expert’s diagnosis of Petitioner as a pedophile had a significant impact on a jury that had
already convicted him of raping a nine-year-old girl. Accordingly, Petitioner cannot establish a
fundamental miscarriage of justice at his sentencing hearing in connection with these claims.
Petitioner fails to overcome the default of these claims, and they are not subject to further review.
Alternatively, these claims would fail on their merits because Petitioner’s disagreement
with evidence relied upon by the prosecution does not make such reliance misconduct. The trial
court permitted the state to offer expert evidence of Petitioner’s pedophilia, over Petitioner’s
objection. (Doc. No. 24-5 at 44–47; Doc. No. 25-13 at 7–9.) As explained above in connection
with Claims E.15, E.16, and G.45, an expert’s opinion is not inadmissible simply because it is
based on otherwise inadmissible facts. Petitioner argues that the prosecution “misled” the jury
into believing that he was a pedophile (Doc. No. 111 at 451), but a difference of opinion between
experts does not prove that the state expert’s diagnosis is indisputably “false,” or that the
prosecution knew it to be false. If that were the law, one side or the other would be guilty of
misconduct every time expert opinion conflicted. Petitioner has simply not demonstrated that the
prosecution made any misstatements or presented any false testimony in connection with these
claims that would constitute misconduct.
Respondent is entitled to judgment on these claims.
24. Claim H.15 — “Trivializing” Abuse
Petitioner alleges that the prosecution violated his right to present mitigation evidence by
“trivializing” evidence of childhood abuse suffered by his sister. (Doc. No. 14 at 64.) Respondent
moves for summary judgment on the basis that this claim was never raised in state court and is
procedurally defaulted. (Doc. No. 94 at 111.)

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As he has done with the rest of his defaulted claims under Claim H, Petitioner simply relies
on a blanket assertion that he can overcome default pursuant to Martinez and the fundamentalmiscarriage exception. (Doc. No. 111 at 452–55.) Once more, Martinez does not apply to claims
of prosecutorial misconduct. Myers, 2018 WL 4215638, at *3. And Petitioner’s argument
pertaining to trivializing abuse suffered by his sister amounts to two sentences:
The State objected to the testimony of Glenn’s sister’s friend: “[The witness]
keep[s] talking about Mildred, Mildred, Mildred. If she knows something about
William Glenn Rogers, fine, but this is not a mitigation evidence for Mildred
Rogers’ death penalty hearing.” However, witnessing abuse does constitute
mitigation.
(Doc. No. 111 at 453.) Petitioner omits the facts that defense counsel responded to that objection
by saying “we are establishing that there was child abuse in this house,” and that the trial court
overruled the objection and allowed the testimony to proceed. (See Doc. No. 25-15 at 54.)
Accordingly, the chance that this overruled objection, which did not limit the evidence heard by
the jury, made any difference in the jury’s sentencing determination is much too small to amount
to a fundamental miscarriage of justice at sentencing. And again, the claim is based on events that
happened in open court at trial, rather than new evidence, as required to overcome default based
on a fundamental miscarriage of justice. Petitioner has not overcome the default of this claim, and
Respondent is entitled to judgment on it.
25. Claim I.2 — Marital Privilege
Petitioner alleges that the admission of written and oral communications between him and
his wife, Juanita Rogers, violated the marital privilege. 39 (Doc. No. 14 at 65.)

Petitioner

affirmatively waived this claim at trial, where defense counsel acknowledged that he had no good

39

Petitioner’s defaulted claim that the use of these statements violated his constitutional rights
pursuant to Massiah has been addressed above in connection with Claims H.1 and I.3.
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faith basis to assert it under the circumstances of the case. (Doc. No. 25-8 at 257–58.) He never
raised the actual privilege claim in state court thereafter, although he did exhaust a claim on postconviction that trial counsel was ineffective for failing to assert the privilege. 40 (Doc. No. 26-14 at
4, 67–70.) Petitioner has not raised this ineffective-assistance claim in the present action, and
Respondent asserts that the underlying privilege claim is defaulted. (Doc. No. 94 at 111.)
In his response, Petitioner nominally combines this claim with Claim I.3 (about statements
to third parties), but he never mentions the marital privilege. (Doc. No. 111 at 476–81.) He also
relies solely on Martinez to overcome the default of the claim, but Martinez does not apply to
claims of trial court error for the reasons explained above. See Abdur’Rahman v. Carpenter, 805
F.3d 710, 713 (6th Cir. 2015) (finding that Martinez exception did not allow Petitioner to excuse
the default of claims of trial court error “because the Supreme Court limited [Martinez] to the
default of substantial claims of ineffective assistance of trial counsel”). Respondent is entitled to
judgment on this claim.
26. Claim I.4 — Prosecutorial Discretion in Seeking Death Penalty
Petitioner alleges that the prosecutorial discretion about when to seek the death penalty in
Tennessee’s criminal justice system amounts to the arbitrary infliction of the death penalty in
violation of Petitioner’s right to due process. (Doc. No. 14 at 65.) He did not raise this claim in
state court, and Respondent asserts that it is procedurally defaulted. (Doc. No. 94 at 111.)
Petitioner lists this claim under a heading about his “meritorious and exhausted claims.”

40

The state courts rejected the ineffective-assistance claim due to Petitioner’s failure to present any
proof about why counsel had not asserted the privilege, and also noted that the trial court had
determined that the privilege did not apply to Juanita Rogers’s testimony. Rogers v. State, No.
M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *52 and n.6 (Tenn. Crim, App. Aug. 30, 2012).
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(Doc. No. 111 at 6, 507, 510.) He asserts generally that this entire category of claims “were
addressed on the merits by the Tennessee courts, but because the state court determination was
based on an unreasonable determination of the facts in light of the record and/or contrary to and
an unreasonable application of clearly existing federal law, the state court determination is not
subject to deference by this Court.” 41 (Doc. No. 111 at 507.) But with regard to Claim I.4, he does
not refute Respondent’s assertion of procedural default by citing to any document in the record
establishing that he raised it in state court. (Doc. No. 111 at 510–12.) Nor does he cite or discuss
any state court ruling on the claim and explain what factual finding or legal conclusion therein
runs afoul of § 2254(d).
In his reply, Respondent reiterates that “[c]ontrary to the petitioner’s assertion, he did not
present this claim to the state court.” (Doc. No. 134 at 104.) Indeed, Petitioner’s state court briefs
reflect that he did not present this claim to the highest available court either on direct appeal or
post-conviction appeal. (Doc. No. 26-4 at 9–10; Doc. No. 26-14 at 3–7.) Accordingly, the Court
finds that this claim is procedurally defaulted, and that Petitioner has not established any basis to
overcome that default. Respondent is therefore entitled to judgment on this claim.
27. Claim K — Discrimination in Selection of Grand Jury Foreperson
Petitioner alleges that he was indicted by a grand jury from which women and AfricanAmericans were unconstitutionally systematically excluded as grand jury forepersons, and that
counsel’s failure to raise this claim at trial or on appeal constituted ineffective assistance. (Doc.
No. 14 at 75–80.) He alleged in his second amended post-conviction petition that the grand jury
was unlawfully constituted and that counsel was ineffective in connection with his motion to

41

This approach, which applies to a number of claims, of tossing out generic and alternative
arguments and leaving the Court to sort out which ones apply to which claims, is unhelpful.
164

dismiss the indictment, but he did not appeal the denial of relief on these claims. 42 (Doc. No. 267 at 181, 200; Doc. No. 26-14 at 3–7.) Respondent asserts that Claim K is defaulted. (Doc. No.
94 at 114.)
Petitioner does not dispute that the Claim K is defaulted, but argues that exhaustion is not
required because Tennessee does not provide an effective process to address his claim. (Doc. No.
111 at 403–04.) In support of this argument, Petitioner cites the rejection by the Tennessee
Supreme Court of a similar claim in a single opinion announced more than ten years before
Petitioner defaulted his claim. See State v. Bondurant, 4 S.W.3d 662 (Tenn. 1999). That lapse of
time easily distinguishes Petitioner’s case from the Tenth Circuit decision on which he relies, in
which the Court of Appeals observed that the Oklahoma Court of Criminal Appeals had
consistently rejected the same claim “both at the time it decided [the petitioner’s] direct appeal and
for several years thereafter.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011). In fact, the
Oklahoma court had rejected the same claim the same day it ruled on Selsor’s appeal. Id.
Petitioner is not excused from the exhaustion requirement simply because he presumes the
state courts to be “unsympathetic to the claim.” Engle v. Isaac, 456 U.S. 107, 130 (1982). As the
Supreme Court has explained, “[e]ven a state court that has previously rejected a constitutional
argument may decide, upon reflection, that the contention is valid.” Id. Claim K is defaulted, and
Petitioner has not established any basis for overcoming that default.
28. Claim L — Unconstitutional Death Sentence
Petitioner alleges that his death sentence is unconstitutional for a variety of reasons, many

42

Petitioner’s appellate claim of ineffectiveness in the motion to dismiss the indictment was limited
to a speedy trial issue. (Doc. No. 26-14 at 4.)
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of which have already been addressed above in connection with his claims about venue, jury
selection, bias, jury instructions, and prosecutorial misconduct. (Doc. No. 14 at 81–9.)
Petitioner is adamant that Claim L is separate and distinct from his other claims and “stands
on its own bottom” (Doc. No. 111 at 485), and he affirmatively maintains in paragraph L.14 that
it was never presented in state court. (Doc. No. 14 at 89.) Respondent asserts that the claim is
procedurally defaulted. (Doc. No. 94 at 119.) Petitioner attempts to avoid the consequences of
default in three ways: (1) he argues that Respondent did not raise a default defense, so the defense
is waived (Doc. No. 111 at 486); (2) he asserts that the claim presents a fundamental miscarriage
of justice in that he is “innocent of the death penalty” pursuant to Sawyer v. Whitley, 505 U.S. 333
(1992); and he alleges (3) that “[t]o the extent that this claim was not raised in the new trial motion
or on direct appeal, trial and appellate counsel were ineffective in failing to research, investigate
and present this claim and Glenn Rogers was prejudiced for the reasons discussed in more detail
with respect to related ineffectiveness claims in other paragraphs of this Amended Petition.” (Doc.
No. 14 at 89.)
Petitioner’s assertion that Respondent did not raise the procedural default of this claim is
incorrect. (See Doc. No. 94 at 119.) And nothing about Claim L relies on new evidence that would
prevent any reasonable juror from finding him eligible for death, as required to establish a
fundamental miscarriage of justice in the capital sentencing context. Finally, for ineffectiveness
of counsel to constitute cause to overcome default, the ineffectiveness claim itself must be
exhausted. Murray v. Carrier, 477 U.S. 478, 488–89 (1986). Petitioner has not cited any evidence
in the record for such exhaustion in connection with Claim L. 43 Accordingly, he has not

43

As Petitioner acknowledges, his unspecified “related ineffectiveness claims” are already
addressed separately.
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demonstrated cause and prejudice to overcome his default of Claim L.
Alternatively, the Court concludes that Claim L is merely an assertion of cumulative error
in connection with Petitioner’s sentence, which does not state a claim for habeas relief for the
reasons explained below in connection with Claim O.
Under either approach, Respondent is entitled to judgment on this claim.
29. Claim M — Violation of International Law and Treaties
Petitioner alleges that his death sentence violates his rights under international law and
treaties. (Doc. No. 14 at 89–94.) Petitioner never raised this claim in state court, and Respondent
asserts that it is procedurally defaulted. (Doc. No. 94 at 120–21.)
Petitioner devotes two sentences to this claim in his response, and does not address its
default. (Doc. No. 111 at 520.) He categorizes it as one of his “meritorious and exhausted claims,”
along with Claim I.14, which the Court has already addressed above. (Doc. No. 111 at 6, 516–20.)
Accordingly, Petitioner has not established any basis to overcome the default of this claim, and
Respondent is entitled to judgment on it.
30. Claim O — Cumulative Error
Petitioner claims that the cumulative effect of errors in his case amounts to a constitutional
violation that mandates relief. (Doc. No. 14 at 95.) Petitioner raised this claim in his postconviction appeal, but the state court of appeals found it was waived due to his lack of citations to
the record, pursuant to Tenn. R. App. P. 27(a)(7) and Tenn. Ct. Crim. App. R. 10(b). Rogers v.
State, No M.2010-01987-CCA-R3-PD, 2012 WL 3776675, at *60 (Tenn. Crim. App. Aug. 30,
2012). The Sixth Circuit has confirmed that those state procedural rules constitute “an independent

167

and adequate state ground for denying [a] claim.” Middlebrooks v. Bell, 619 F.3d 526, 538 (6th
Cir. 2010), vacated on other grounds sub nom. Middlebrooks v. Colson, 566 U.S. 902 (2012).
Accordingly, this claim is procedurally defaulted, and Petitioner has not established any basis to
overcome that default. (Doc. No. 111 at 487–88.)
Moreover, the Sixth Circuit has repeatedly held that “post-AEDPA, not even constitutional
errors that would not individually support habeas relief can be cumulated to support habeas relief.”
Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (citing Scott v. Elo, 302 F.3d 598, 607 (6th
Cir. 2002); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002)). Accordingly, this claim would
not raise a basis for habeas relief even if it were not defaulted.
V.

DEFAULTED CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

A. STANDARD OF REVIEW
The Court has explained above that procedurally defaulted claims are not generally subject
to habeas review unless a petitioner establishes cause and prejudice to overcome the default. In
the past it was firmly settled that ineffective assistance in state post-conviction proceedings could
never establish such cause, because there is no constitutional right to effective assistance of counsel
in such collateral proceedings. Coleman v. Thompson, 501 U.S. 722, 742–54; Ritchie v. Eberhart,
11 F.3d 587, 590 (6th Cir. 1993); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
But in 2012, the Supreme Court found it “necessary to modify the unqualified statement in
Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not
qualify as cause to excuse a procedural default.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). It held
in Martinez that the ineffective assistance of post-conviction counsel may, under some
circumstances, qualify as cause for the default of claims of ineffective assistance of counsel at trial.
Id. at 9; see also Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (holding that Martinez applies
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in Tennessee). The Court addressed the “precise question” about overcoming the default of “a
claim of ineffective assistance at trial,” Martinez, 566 U.S. at 9, and relied on the significance of
the right to effective representation at trial as the basis for treating these claims differently than
others:
A prisoner’s inability to present a claim of trial error is of particular concern when
the claim is one of ineffective assistance of counsel. The right to the effective
assistance of counsel at trial is a bedrock principle in our justice system. It is
deemed as an “obvious truth” the idea that “any person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him.” Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Indeed, the right to counsel
is the foundation for our adversary system. Defense counsel tests the prosecution’s
case to ensure that the proceedings serve the function of adjudicating guilt or
innocence, while protecting the rights of the person charged. See, e.g., Powell v.
Alabama, 287 U.S. 45, 68–69 (1932) (“[The defendant] requires the guiding hand
of counsel at every step in the proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because he does not know how to
establish his innocence”).
Martinez, 566 U.S. at 12. Accordingly, the Court emphasized the narrowness of its holding: “This
opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9.
The Supreme Court again emphasized that narrowness when it rejected the argument that
Martinez applied to claims of ineffective assistance on appeal:
Petitioner’s primary argument is that his claim of ineffective assistance of appellate
counsel might never be reviewed by any court, state or federal, without expanding
the exception to the rule in Coleman. He argues that this situation is analogous to
Martinez, where the Court expressed that same concern about claims of ineffective
assistance of trial counsel. But the Court in Martinez was principally concerned
about trial errors—in particular, claims of ineffective assistance of trial counsel.
Ineffective assistance of appellate counsel is not a trial error. Nor is petitioner’s rule
necessary to ensure that a meritorious trial error (of any kind) receives review.
Davila v. Davis, 137 S. Ct. 2058, 2066 (2017) (emphasis in original). The Davila Court elaborated
on the special significance of effective representation at trial, as distinct from other stages of
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criminal litigation:
The criminal trial enjoys pride of place in our criminal justice system in a way that
an appeal from that trial does not. The Constitution twice guarantees the right to a
criminal trial, see Art. III, § 2; Amdt. 6, but does not guarantee the right to an appeal
at all, Halbert v. Michigan, 545 U.S. 605, 610 (2005). The trial “is the main event
at which a defendant’s rights are to be determined,” McFarland v. Scott, 512 U.S.
849, 859 (1994) (internal quotation marks omitted), “and not simply a tryout on the
road to appellate review,” Freytag v. Commissioner, 501 U.S. 868, 895 (1991)
(Scalia, J., concurring in part and concurring in judgment) (internal quotation marks
omitted). And it is where the stakes for the defendant are highest, not least because
it is where a presumptively innocent defendant is adjudged guilty, see Ross v.
Moffitt, 417 U.S. 600, 610 (1974); Wainwright, 433 U.S., at 90, and where the trial
judge or jury makes factual findings that nearly always receive deference on appeal
and collateral review, see Jackson v. Virginia, 443 U.S. 307, 318–319 (1979); see
also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (under deferential
standard of review, “judges will sometimes encounter convictions that they believe
to be mistaken, but that they must nevertheless uphold”).
The Court in Martinez made clear that it exercised its equitable discretion in view
of the unique importance of protecting a defendant’s trial rights, particularly the
right to effective assistance of trial counsel. As the Court explained, “the limited
nature” of its holding “reflect[ed] the importance of the right to the effective
assistance of trial counsel,” which is “a bedrock principle in our justice system.”
566 U.S., at 12, 16 (emphasis added). In declining to expand the Martinez exception
to the distinct context of ineffective assistance of appellate counsel, we do no more
than respect that judgment.
Davila, 137 S. Ct. at 2066–67. Once a defendant has been found guilty and sentenced, he is no
longer a “presumptively innocent defendant” facing “the danger of conviction,” about whom
Martinez is concerned. See Martinez, 566 U.S. at 12; Davila, 137 S. Ct. at 2066–67. Accordingly,
Martinez does not apply to claims of post-trial ineffectiveness. Milam v. Davis, 733 F. App’x 781,
784, 786 (5th Cir. May 10, 2018) (applying Davila to hold that Martinez does not apply to claim
of ineffectiveness in motion for new trial and on appeal).
Another significant limitation on the scope of Martinez is that it only applies to claims that
were defaulted at the initial review stage of collateral proceedings:
The rule of Coleman governs in all but the limited circumstances recognized here.
The holding in this case does not concern attorney errors in other kinds of
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proceedings, including appeals from initial-review collateral proceedings, second
or successive collateral proceedings, and petitions for discretionary review in a
State’s appellate courts. See 501 U.S., at 754; Carrier, 477 U.S., at 488. It does not
extend to attorney errors in any proceeding beyond the first occasion the State
allows a prisoner to raise a claim of ineffective assistance at trial, even though that
initial-review collateral proceeding may be deficient for other reasons.
Martinez, 566 U.S. at 16. So Martinez does not apply to claims that were raised in a postconviction petition but not raised on post-conviction appeal. West v. Carpenter, 790 F.3d 693, 698
(6th Cir. 2015).
The Court must address one final limitation of Martinez in light of Petitioner’s argument
in his response and surreply that “Martinez and Trevino apply not only to the failure of postconviction counsel to raise the claim, but to all situations where the court denied a petitioner’s
opportunity to vindicate an IATC claim because counsel poorly presented it.” (Doc. No. 111 at
346; Doc. No. 137 at 3–4.) In support of this position, he relies primarily on Justice Breyer’s 2013
statement on the denial of certiorari, which acknowledges that no federal appellate court to that
point had found Martinez to apply to a situation where post-conviction counsel raised a claim but
failed to present evidence to support it. Gallow v. Cooper, 570 U.S. 933 (2013) (Breyer, J.,
statement respecting the denial of certiorari). Such a statement does not establish precedent in
support of Petitioner’s position, but rather illustrates the lack of it. Teague v. Lane, 489 U.S. 288,
296 (1989) (“[O]pinions accompanying the denial of certiorari cannot have the same effect as
decisions on the merits.”); Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 853 (6th
Cir. 2017) (“This statement regarding certiorari has no precedential effect, and only serves to
underscore the lack of clearly established Supreme Court law on precisely this point.”).
Petitioner also cites a Fifth Circuit opinion that applied Martinez to review new evidence
on a claim that was raised and rejected on its merits in state court. Newbury v. Stephens, 756 F.3d
850, 871 (5th Cir. 2014). But such an application of Martinez is contrary to AEDPA, to Cullen v.
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Pinholster, 563 U.S. 170 (2011), and to Sixth Circuit precedent. A federal habeas court’s review
of “any claim that was adjudicated on the merits in State court proceedings” is limited to the
evidence presented in the state proceeding, 28 U.S.C. § 2254(d); Pinholster, 563 U.S. at 181–82,
and the Martinez exception to enable review of procedurally defaulted claims simply does not
apply when a claim has been exhausted on its merits. Moore v. Mitchell, 708 F.3d 760, 785 (6th
Cir. 2013) (“Moore is not asking that we afford a Martinez-like review of a procedurally defaulted
claim, but rather that we turn Martinez into a route to circumvent Pinholster. As explained above,
though, Pinholster plainly bans such an attempt to obtain review of the merits of claims presented
in state court in light of facts that were not presented in state court. Martinez does not alter that
conclusion.”); West v. Carpenter, 790 F.3d 693, 699 (6th Cir. 2015) (“When the state court denies
a petitioner’s ineffective-assistance claim on the merits, Martinez does not apply.”) The sole
purpose of Martinez is to permit habeas petitioners an opportunity to overcome the bar against
federal review of claims that “no state court at any level” has heard because they were procedurally
defaulted. Martinez, 566 U.S. at 10–11. Accordingly, Martinez does not apply to claims that were
not actually defaulted, or were defaulted at some stage other than initial review, even when
Petitioner claims they were presented poorly at initial-review proceedings.
Where Martinez applies, a petitioner may establish “cause” to overcome default by
showing that (1) he had ineffective assistance of post-conviction counsel during the “initial-review
collateral proceeding,” Martinez, 566 U.S. at 8, 9; and (2) the defaulted claim is “substantial,” that
is, “that the claim has some merit.” Id. at 14. The Sixth Circuit has explained in relevant part that
“to constitute cause to overcome procedural default under Martinez, a petitioner must show that:
(1) he has a substantial claim of IATC [ineffective-assistance-of-trial-counsel]; (2) counsel on
initial state collateral review was nonexistent or ineffective; [and] (3) the state collateral review

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proceeding was the initial review proceeding as to the IATC claim alleged.” Atkins v. Holloway,
792 F.3d 654, 658 (6th Cir. 2015) (citing Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)). The
court went on to describe the proper framework for evaluating claims under Martinez:
As to these claims, the district court should determine . . . : (1) whether state postconviction counsel was ineffective; and (2) whether [Petitioner’s] claims of
ineffective assistance of counsel were “substantial” within the meaning of
Martinez, Sutton, and Trevino. Questions (1) and (2) determine whether there is
cause. The next question is (3) whether [Petitioner] can demonstrate prejudice.
Finally, the last step is: (4) if the district court concludes that [Petitioner] establishes
cause and prejudice as to any of his claims, the district court should evaluate such
claims on the merits. Under this framework, which is consistent with Supreme
Court precedent and our holding in Sutton, [Petitioner] has a long way to go before
the district court could even evaluate the merits of his claims. Moreover, even “[a]
finding of cause and prejudice does not entitle the prisoner to habeas relief. It
merely allows a federal court to consider the merits of a claim that otherwise would
have been procedurally defaulted.” Martinez, 566 U.S. at 17.
Atkins, 792 F.3d at 660 (some internal citations omitted). More recently, the court has elaborated
on what is required to satisfy those first three prongs:
First, [Petitioner] must establish that his underlying ineffective assistance of trial
counsel claims are “substantial,” “which is to say that . . . [they have] some merit.”
Martinez, 566 U.S. at 14 (citing Miller–El v. Cockrell, 537 U.S. 322 (2003)). Or,
in certificate of appealability parlance, it is “debatable among jurists of reason.”
Abdur’Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015); see also Atkins,
792 F.3d at 660 (“The Court in Martinez cited Miller–El v. Cockrell . . . for
purposes of defining a ‘substantial claim,’ and Cockrell describes the standard for
issuing a COA.”). . ..
Second, [Petitioner] must also establish he received ineffective assistance of
counsel during his initial-review collateral proceeding under the familiar Strickland
standards. Martinez, 566 U.S. at 13–14. Under Strickland v. Washington’s twoprong test, a person challenging his counsel’s representation must show (1)
deficient performance, i.e., that “counsel’s representation fell below an objective
standard of reasonableness” and (2) prejudice. 466 U.S. 668, 687–88, 691–92
(1984). Courts must “apply a ‘strong presumption’ that counsel’s representation
was within the ‘wide range’ of reasonable professional assistance.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). To establish
prejudice, a challenger must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A ‘reasonable probability’ is a probability
‘sufficient to undermine confidence in the outcome,’ but something less than a
showing that the outcome more likely than not would have been different.” Bigelow
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v. Williams, 367 F.3d 562, 570 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 693,
694). This “difference” is “slight and matters ‘only in the rarest case.’” Harrington
[v. Richter], 562 U.S. at 112 (quoting Strickland, 466 U.S. at 697).
Porter v. Genovese, 676 F. App’x 428, 431–32 (6th Cir. Jan. 17, 2017).
If Petitioner succeeds in satisfying the Martinez standard, he still does not necessarily
prevail on his claim; he simply overcomes the default bar. The underlying ineffective-assistance
claim is then subject to review on its merits under the ordinary Strickland standard. Where a claim
has not been adjudicated on the merits in state court, but is still subject to federal review despite
the bars of exhaustion and default, the federal court reviews the claim de novo. Moritz v. Lafler,
525 F. App’x 277, 282 (6th Cir. 2013) (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)); accord
Bies v. Sheldon, 775 F.3d 386, 395–96 (6th Cir. 2014) (“Because Bies’ Brady claim was never
‘adjudicated on the merits in State court proceedings,’ the limitations imposed by § 2254(d) do not
apply, and we review the claim de novo.”).
B. ANALYSIS
1. Claim C.1 — Visit to Alleged Disposal Site
Petitioner alleges that his first appointed counsel was ineffective for arranging for him to
go with law enforcement officers to visit the location where he claimed to have disposed of the
victim’s body, during which Petitioner made incriminating statements. (Doc. No. 14 at 31–33.)
He raised this claim in his post-conviction petition (Doc. No. 26-7 at 185), but did not raise it on
post-conviction appeal. (Doc. No. 26-14 at 3–7.) Respondent moves for summary judgment on
the basis that the claim is procedurally defaulted. (Doc. No. 94 at 48–49.)
Petitioner does not dispute that the claim was defaulted on post-conviction appeal. (Doc.
No. 111 at 338.) Accordingly, as explained above, Martinez does not provide any basis for
overcoming the default of this claim. West v. Carpenter, 790 F.3d 693, 698 (6th Cir. 2015).
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Petitioner quotes the post-conviction trial court’s rejection of his claim and argues that “because
[that] decision was based on an unreasonable determination of facts in light of the evidence
presented in state court, this Court can review the claims.” (Doc. No. 111 at 338.) In support of
that argument, he cites § 2254(d)(2), which provides a standard for reviewing an exhausted claim.
Petitioner completely disregards the prohibition on any such review of a defaulted claim, and does
not attempt to establish any cause or prejudice to overcome the default. If Petitioner believed the
post-conviction court’s determination to be unreasonable, his recourse was to include this claim in
his appeal to the Tennessee Court of Criminal Appeals. That appeal would have satisfied the
exhaustion requirement of § 2254(b)(1)(A) and enabled this Court to review the state appellate
court’s determination. Instead, he has circumvented that exhaustion and seeks a direct review of
the trial court’s opinion by this Court.
Petitioner’s argument that this Court is authorized to review the reasonableness of the postconviction trial court’s ruling, despite his failure to exhaust his claim by challenging that ruling on
appeal, is contrary to AEDPA, to the well-established doctrine of procedural default, and to the
reasoning of Martinez. See Martinez, 566 U.S. at 11 (explaining that the new exception would not
apply to alleged ineffectiveness outside the initial-review collateral proceeding because “[w]hile
counsel’s errors in these proceedings preclude any further review of the prisoner’s claim, the claim
will have been addressed by one court”); see also West v. Carpenter, 790 F.3d 693, 698–99 (6th
Cir. 2015) (holding federal review not available for claim rejected on the merits by post-conviction
trial court and not raised on post-conviction appeal); Wallace v. Sexton, 570 F. App’x 443, 453
(6th Cir. 2014) (holding alleged ineffectiveness of post-conviction counsel on appeal is not cause
to excuse procedural default). Petitioner does not identify any good faith basis for urging such a
departure from established law. This claim is defaulted and not subject to federal review.

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2. Claim C.2 — Failure to Control Petitioner
Petitioner alleges that counsel failed to adequately meet with him and take appropriate
action to control his communication with other parties. (Doc. No. 14 at 33.) Respondent asserts
that this claim was defaulted on post-conviction appeal. (Doc. No. 94 at 48–49.)
As he did with Claim C.1, Petitioner acknowledges that this claim was defaulted on postconviction appeal and argues that this Court should review the post-conviction trial court’s ruling.
(Doc. No. 111 at 338.) He does not offer any basis to overcome the default of the claim. For the
same reasons set forth above in connection with Claim C.1, this claim is defaulted and not subject
to habeas review.
3. Claims C.3, C.4 — Delay in Hiring Investigator and Developing Narrative
Petitioner alleges that counsel was ineffective for failing to secure a fact investigator until
more than three years after his arrest, and for failing to develop a defense narrative before trial.
(Doc. No. 14 at 33.) He did not raise any claim about the delay in hiring an investigator or failure
to develop a “defense narrative” in his post-conviction petition (Doc. No. 26-7 at 178), and
Respondent asserts that these claims are defaulted. (Doc. No. 94 at 51–54.) Respondent also
asserts that Petitioner has not satisfied the requirements of Martinez to overcome the default. (Id.)
In his response, Petitioner provides evidence that sometime before Jerome Converse’s
appointment in November 1997, his first appointed attorney had a private investigator working on
the case, but that the investigator had not prepared any written work product. (Doc. No. 111 at
340–41; Doc. No. 118-24 at 2.) A new investigator began working on the case in June 1999 (Doc.
No. 111 at 341), approximately seven months before trial began in January 2000. Petitioner argues
that, as the result of the delayed investigation, counsel never developed a defense theme, and that
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these circumstances “defied community standards.” (Id.) He identifies three ways in which lack
of investigation affected his defense: (1) the defense team did not visit the mud hole or the woods
where the victim’s remains were found until the fall of 1999, “canvassing these areas more than
three years after the crime”; (2) the defense did not establish a relationship with Petitioner’s thenwife, Juanita Rogers, who testified for the prosecution; and (3) they did not “timely reach out” to
Petitioner’s mother and brother, who also testified for the prosecution. (Doc. No. 111 at 342–43.)
Petitioner’s argument fails to establish that his underlying ineffective-assistance claim is
substantial enough to warrant further development pursuant to Martinez. Even assuming that
seven months is an objectively insufficient period of investigation, Petitioner has not demonstrated
that the delayed investigation prejudiced his defense in any way. He does not identify any
beneficial evidence that an earlier visit to the mud hole or recovery site would have produced. He
also does not explain why the delayed fact investigation had any impact on the defense team’s
failure to establish favorable relationships with Juanita Rogers or the Schexnayders, as those
witnesses’ connection to Petitioner did not require any investigation to discover.
Moreover, his unsupported argument that counsel could have “softened the blow” of
Juanita Rogers’s testimony or “presented a more nuanced, less harsh picture” of Petitioner through
the Schexnayders if they had approached those witnesses more or earlier than they did is pure
speculation that is contradicted by the record. Petitioner’s defense mitigation specialist, Frank
Einstein, had conducted interviews with Petitioner’s mother, Cynthia Schexnayder, prior to August
26, 1999. (Doc. No. 123-19 at 6.) He feared that she would appear “completely erratic and
irresponsible” to the jury and that it would be “dangerous” to use her as a witness, and advised
against doing so. (Doc. No. 123-19 at 6.) Nevertheless, Einstein wrote to her in early December
1999 asking to meet with her. (Doc. No. 123-23 at 2.) One of Petitioner’s expert witnesses at trial,
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Cecile Guin, indicates that Ms. Schexnayder did have a “brief and unhelpful” meeting with Einsten
that December, but that a desired second meeting with Dr. Guin never happened. (Doc. No. 11510 at 7.) Dr. Guin says that Ms. Schexnayder refused to testify on Petitioner’s behalf, and describes
her as “openly hostile,” “highly volatile,” and “[q]uite simply . . . crazy.” (Id.) On the record
during trial, when an issue arose about whether Ms. Schexnayder intended to ignore a subpoena to
testify for Petitioner at sentencing, she was indeed openly hostile over being required to remain in
Tennessee, and expressed more concern about the possibility of losing her truck than the outcome
of Petitioner’s trial. (Doc. No. 25-7 at 107–14.) More recently, Petitioner’s mother told members
of his current legal team that she loves him but does not “like” him, and she refused to meet with
them again or sign a declaration for use in this case. (Doc. No. 111-6 at 15, 16.) A relative
describes Ms. Schexnayder as bearing “such hatred” toward Petitioner. (Doc. No. 111-11 at 3.)
There is simply nothing about this evidence, or the impression Petitioner has conveyed of his
mother both at his sentencing hearing and in this case as a detached, uncaring mother who allowed
him to be brutally abused in her home for years, that would suggest that earlier contact with her
after Petitioner’s arrest would have produced testimony materially benefitting Petitioner. Nor is
there any reason to believe that earlier or additional contact with the defense team would have
altered the Schexnayders’ brief, straightforward testimony about how Petitioner had told them the
victim had died. (Doc. No. 25-7 at 100–02, 105–06.)
Similarly, Juanita Rogers refused to speak to Einstein, and it was clear to the defense fact
investigator and legal assistant working on the case that she “had long turned against” Petitioner.
(Doc. No. 123-4 at 4.) Petitioner apparently blames lack of contact with the defense team for Ms.
Rogers’s negativity, but his own psychiatric expert testified at trial that Petitioner was already
distressed that his marriage was in jeopardy at the time of the crimes. (Doc. No. 25-16 at 14, 20;

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Doc. No. 25-24 at 86.) From the time Petitioner informed her that he had confessed to vehicular
homicide, Ms. Rogers had no further contact with Petitioner despite his many attempts to contact
her by phone and mail. (Doc. No. 25-9 at 70–75.) She was so annoyed by his frequent calls that
she repeatedly blocked his calls and ultimately changed her phone number. (Doc. No. 25-9 at 94–
95.) Within a year after Petitioner’s arrest, he had also been accused of molesting Ms. Rogers’s
granddaughter. (E.g., Doc. No. 124-17 at 2.) Regardless of the veracity of that accusation, it
certainly provided reason—completely unrelated to any lack of contact from the defense team—
to expect Ms. Rogers to have an even more unfavorable view of Petitioner than she did before or
even shortly after his arrest. She initiated divorce proceedings against Petitioner in February 1997,
less than a year after his arrest and almost three years before trial, and was angry that Petitioner
was contesting the divorce. (Doc. No. 25-9 at 93.) Neither common sense nor any evidence
suggests that the defense could have “softened” her testimony at trial by more promptly retaining
an investigator or doing anything else.
Finally, Petitioner’s allegation that defense counsel had no trial strategy at all is also
contradicted by the record. Counsel testified at the post-conviction hearing that their goal was to
create enough reasonable doubt during the guilt phase to avoid the death penalty at sentencing.
(Doc. No. 26-9 at 116–19.) That strategy was apparent from the opening statement, when counsel
told the jury that the proof would show it was “almost physically impossible” for “one man [to]
have done what the State claims he did in the time period that the State claims he did,” and
suggested that someone else was involved in the crimes and that police simply had stopped
investigating the other person. (Doc. No. 25-3 at 61–62.) He also emphasized the lack of any DNA
evidence tying Petitioner to the crime or proving whose semen was on the victim’s shorts. (Id. at
63–64.) That a strategy was not successful does not establish that there was no strategy. Moreover,

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Petitioner has not identified any strategy that would have been revealed by earlier fact investigation
and would have had any likelihood of changing the outcome of the trial.
Petitioner has not carried his burden of establishing that these defaulted ineffectiveassistance claims are substantial. Accordingly, there is no need to develop evidence about why
post-conviction counsel did not raise these claims. Petitioner fails to overcome the default of
Claims C.3 and C.4, and Respondent is entitled to judgment on them.
4. Claims C.6, D.25 — Failure to Investigate Other Suspects
Petitioner alleges that counsel failed to investigate and present evidence of the following
other suspects: Thomas Steven Sanders, Quinton Donaldson, David La Bean, Christopher Scott
Hall, and Chandler Scott. (Doc. No. 14 at 33, 40.) He raised a claim in his post-conviction petition
about counsel’s failure to sufficiently investigate Donaldson’s alibi (Doc. No. 26-7 at 185), but he
did not repeat the claim in his post-conviction appeal. (Doc. No. 26-14 at 3–7.) He did not raise a
claim in state court about the failure to investigate the other named individuals. Respondent asserts
that these claims are defaulted. (Doc. No. 94 at 54, 67–68.)
Because Petitioner defaulted the claim with regard to Donaldson on post-conviction appeal
rather than at post-conviction initial review, Martinez cannot provide any basis for overcoming its
default. West v. Carpenter, 790 F.3d 693, 698 (6th Cir. 2015). And the argument in Petitioner’s
response with regard to these claims never mentions Sanders, La Bean, Hall, or Scott. (Doc. No.
111 at 351–54.) Accordingly, Petitioner has failed to establish that his defaulted claims with regard
to those individuals are substantial for Martinez purposes or otherwise establish cause and
prejudice to overcome the default. These claims are defaulted and not subject to federal review.

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5. Claim C.7 — Failure to Investigate Brother’s Mental Health Treatment
Petitioner alleges that “[c]ounsel failed to investigate Jeremy Beard’s mental health records
in order to ascertain what type of treatment he received based on his reported behavioral issues
and disorders.” (Doc. No. 14 at 33.) Respondent asserts that this claim is defaulted. (Doc. No. 94
at 55.)
Petitioner’s response combines his argument regarding this claim with sixteen other claims.
(Doc. No. 111 at 346–51.) The argument is largely devoted to semen evidence and other forensic
evidence in the case. (Id.) Petitioner never mentions the “type of treatment” Jeremy Beard received
or explains why evidence about the type of treatment would have benefited him at trial. (Id.)
Accordingly, he has failed to establish that this defaulted claim is substantial for Martinez
purposes, and this claim is not subject to federal habeas review.
6. Claims C.8, D.26 — Failure to Investigate Brother as Source of Semen
Petitioner alleges that counsel failed to investigate, develop and present evidence that
Jeremy Beard was the source of the semen on the victim’s shorts. (Doc. No. 14 at 34, 40.) As
discussed above in detail, one of the theories defense counsel attempted to present at trial was that
Jeremy Beard’s semen was on the victim’s shorts because they had engaged in sexual activity
before her death. The trial court excluded the evidence that counsel argued supported that theory,
and Petitioner exhausted claims arising from that ruling. The Court analyzed those claims above
as Claims G.21–24, 26, and 44. Petitioner also exhausted a broad claim that counsel failed to
sufficiently investigate semen 44 evidence, including the possibility that sperm might be

44

Petitioner changed the word “semen” in his post-conviction petition to “serological” in his postconviction appellate brief, but the substance of the claim remained the same, including weaknesses
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transplanted onto clothing in the laundry, which the Court has analyzed above as Claim C.10.
Although it was not apparent from the habeas petition itself, Petitioner’s response to Respondent’s
summary judgment motion suggests that Claims C.8 and D.26 might be intended to assert that
counsel should have developed yet another theory about how sperm came to be on the victim’s
shorts: Jeremy wiped himself with them after masturbating. (Doc. No. 111 at 347–49; Doc. No.
130 at 347–49.) That theory was never raised in state court. 45
To the extent that these are indeed new claims (as opposed to new evidence in support of
an exhausted claim that counsel was ineffective in failing to prove that Jeremy was the source of
the semen), they are not substantial for at least two reasons. First, Petitioner’s new evidence simply
does not prove what he asserts it proves—that the semen on the victim’s shorts was Jeremy’s.
Jeremy testified at his deposition that at some point before his sister disappeared — “quite
possibly” three or four days before — he masturbated in the bathroom and wiped himself with
what he is “pretty certain” was a pair of shorts, the color of which he cannot remember. (Doc. No.
129 at 71, 73.) But the victim’s mother testified at trial that just before she left the house, the
victim retrieved clean clothes from her bedroom and changed into them in the bathroom. (Doc.
No. 25-4 at 100.) Her mother later found the shorts the victim had previously been wearing
discarded in the bathroom. (Doc. No. 25-4 at 128–29.) Accordingly, Petitioner’s new theory does
not conflict with or disprove the evidence at trial that the victim left the house in clean shorts.

in the state’s proof that semen was present on the victim’s shorts and the theory about the Canadian
washing machine study. (Compare Doc. No. 26-7 at 182 with Doc. No. 26-14 at 3, 41–46.)
45

Respondent’s assertion that these claims were raised in Petitioner’s post-conviction petition and
defaulted on post-conviction appeal (Doc. No. 94 at 56–59) appears to the Court to be incorrect,
but it put Petitioner on notice that the claims could be deemed defaulted and that Petitioner needed
to either cite the record establishing that they were exhausted or establish cause and prejudice to
overcome the default.
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Second, there is no reason to believe that trial counsel could have obtained this evidence
in advance of trial even if they had tried. Jeremy was twelve years old when his sister disappeared,
and sixteen when he testified at trial. (Doc. No. 25-4 at 10–11.) In the interim, he was struggling
with serious mental health problems, including post-traumatic stress disorder and major
depression, and was considered to be a significant risk to himself. (Doc. Nos. 81-9, 81-10 at 6, 8111 at 3.) Petitioner has not demonstrated any likelihood whatsoever that his counsel would have
been permitted to interview Jeremy. 46 And in the improbable event that counsel had spoken with
Jeremy during that time, Petitioner has not demonstrated any likelihood that he would have shared
the facts contained in his 2013 statement or his 2016 deposition. According to his February 1997
psychological evaluation, in the period between his sister’s death and the trial, Jeremy was
“experiencing extensive difficulty trusting others,” and was reticent to discuss sensitive issues,
including whether he had ever “sexually acted-out,” even with the mental health professionals who
were trying to help him. (Doc. No. 81-10 at 2, 5, 7.) The statement from the foster mother with
whom he lived for part of that period confirms that he was “defensive and withdrawn” when
questioned. (Doc. No. 125-6 at 3.)

Petitioner obtained Jeremy’s statement during these

proceedings by having a member of his habeas team meet Jeremy late at night when he was
admittedly under the influence of drugs (Doc. No. 129 at 69–70), and had to obtain a subpoena
and order to show cause to depose him. (Id. at 7.) These facts in the record strongly suggest that
Jeremy would not willingly have shared any personal details with defense counsel before trial.
Because Petitioner’s underlying defaulted claims are not substantial, additional review of
the Martinez factors is unwarranted. These claims are not subject to federal habeas review.

46

Tennessee criminal rules permit the deposition of witnesses only in extraordinary circumstances
when it is necessary to preserve a witness’s testimony for trial; not for general discovery of
uncooperative witnesses. Tenn. R. Crim. P. 15.
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However, for the reasons explained above in connection with Claim G.21, the Court will grant a
certificate of appealability for these claims.
7. Claim C.18 — One Attorney
Petitioner alleges that his representation by only one attorney for the majority of the time
between his arrest and trial violated his right to effective counsel in a capital case. (Doc. No. 14 at
34.) He raised this claim in his post-conviction petition. (Doc. No. 26-7 at 185.) The postconviction trial court rejected the claim on the basis that Petitioner had the benefit of two lawyers
for nearly eight months preceding his trial, and that there was no evidence that any problems
encountered before that point had prevented counsel from adequately preparing for and performing
at trial. (Doc. No. 26-8 at 117–18.) Petitioner did not raise the claim in his post-conviction
appeal. 47 (Doc. No. 26-14 at 3–7.) Respondent asserts that the claim is procedurally defaulted.
(Doc. No. 94 at 48–49.)
Petitioner responds that he can overcome the default pursuant to Martinez because postconviction counsel did not raise the claim “sufficiently.” (Doc. No. 111 at 346.) The Court has
already explained above that Martinez does not apply to claims that were raised in state court and
about which Petitioner simply wants to add new evidence. However inept post-conviction counsel
might be in the development of a factual record, that ineptitude does not cause a default of the
claim. A rejection of the merits of a claim by the post-conviction trial court is not the application

47

Petitioner’s only claim on post-conviction appeal about representation by a single attorney was
limited to the presence of only one of his lawyers during voir dire, which has already been
addressed above as Claim D.19. (Doc. No. 26-14 at 137.) He expressly disavowed any claim to a
general right to two attorneys: “This Court should find the circumstances presented by Mr. Rogers
distinguishable from those presented in State v. Hester, 324 S.W.3d 1, 35 (Tenn. 2010), which
found no constitutional basis for the appointment of two attorneys in a capital case, in that Mr.
Rogers presents a procedural due process challenge which was not considered in Hester.” (Id. at
137–38.)
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of a procedural bar to its review. Accordingly, the allegedly ineffective handling of this claim in
initial review proceedings would not excuse the actual default of this claim, which occurred on
post-conviction appeal: “[e]ven if the post-conviction trial court had ruled erroneously, and its
error were traceable directly to counsel’s deficient advocacy, the . . . claim would not have been
procedurally defaulted at the post-conviction trial proceeding because [Petitioner] retained the
right to preserve the claim by appealing.” West v. Carpenter, 790 F.3d at 699 (emphasis in
original).
Petitioner has failed to overcome the default of this claim, and it is not subject to federal
habeas review.
8. Claim C.20–C.23, E.2–E.5 — Mitigation Evidence
Petitioner alleges that counsel “failed to investigate and develop an accurate mitigation
narrative in advance of trial” (C.20), and that they “failed to develop and present an accurate
mitigation narrative” (E.2). (Doc. No. 14 at 34, 44.) Those general claims appear simply to
summarize the following more specific claims: counsel failed to investigate and present evidence
that Petitioner had suffered permanent and significant brain damage in connection with his
stepfather’s torture of him (C.21 and E.3); counsel “failed to investigate that [Petitioner]
experienced Complex Trauma throughout his developmental years” (C.22 and E.4); counsel failed
to investigate and present evidence that Johnny Michelli is Petitioner’s biological father and that
the Michelli family history contains mitigating evidence (C.23 and E.5). (Doc. No. 14 at 35, 44–
45.)
In his post-conviction petition, Petitioner raised a claim that counsel had failed to present
available mitigation testimony and evidence during the sentencing phase of the trial. (Doc. No. 26-

185

7 at 190.) The post-conviction trial court denied relief on that claim:
The record reflects that trial counsel presented the testimony of several mitigation
witnesses. These included the petitioner’s family members, family friends, and
school principal, who detailed his difficult upbringing; Dr. Guin, a social worker
who detailed the abusive environment present in Louisiana youth correctional
facilities during the period in which the petitioner was held at such a facility; Dr.
Cunningham, who testified regarding the petitioner’s potential for violence in
prison; and Dr. Caruso and Dr. Neilson, who testified regarding their psychological
testing of the petitioner. The petitioner has raised specific issues regarding the
testimony of both Dr. Caruso and Dr. Guin; as stated earlier in this order, these
issues are without merit. Furthermore, no proposed mitigation evidence was
presented during the evidentiary hearing, as the only mental health expert who
testified, Dr. Auble, focused her testimony on the petitioner’s contention that his
initial statements to police were coerced. Thus, the Court can only speculate as to
the nature of any proposed mitigation evidence or the manner in which it would
have aided the petitioner. Thus, the Court finds that the petitioner has not
established that counsel rendered ineffective assistance as to this issue.
(Doc. No. 26-8 at 189–90.) Petitioner did not raise this claim on post-conviction appeal. (Doc.
No. 26-14.) Accordingly, Respondent argues that the current claims were defaulted on postconviction appeal. (Doc. No. 134 at 23–24.)
Petitioner relies on Martinez to overcome the default of these claims. (Doc. No. 111 at
309.) He submits mitigation evidence that he argues counsel should have presented in state court
(see Doc. No. 111 at 249–309) and argues that Martinez applies to these claims because “if postconviction counsel’s ineffectiveness is the reason that evidence was not developed in state court,
the petitioner is not at fault for failing to develop that evidence.” (Doc. No. 137 at 3.) But for the
reasons discussed above, Martinez does not provide an opportunity to present new evidence in
support of claims that were raised and addressed on the merits in state court or apply to claims that
were defaulted on post-conviction appeal. West v. Carpenter, 790 F.3d 693 (6th Cir. 2015).
Accordingly, Petitioner has failed to overcome the default of these claims, and they are not
subject to federal habeas review.

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9. Claim C.28 — Motion for Change of Venue
Petitioner alleges that counsel “failed to adequately follow through on the investigation,
presentation, and supplementation of evidence supporting a change of venue.” (Doc. No. 14 at 35.)
He raised this claim in his post-conviction petition. (Doc. No. 26-7 at 181–82.) The postconviction court rejected the claim on the merits:
The record reflects that Mr. Converse provided the trial court with extensive
information regarding the pretrial publicity the petitioner’s case received. In one
memorandum accompanying the petitioner’s initial change of venue motion, filed
in April 1998, the trial counsel attached copies of forty-five articles published in
the Clarksville newspaper, The Leaf-Chronicle, exemplifying the extensive pretrial
publicity this case received; in another memorandum, Mr. Converse attached copies
of eleven articles appearing in Nashville’s two newspapers, the Banner and the
Tennessean, and in the Knoxville News Sentinel. The trial court took the motion
under advisement until after voir dire of potential jurors; shortly before trial, Mr.
Converse filed a “late-filed” motion renewing his objection, to which he attached a
January 3, 2000 article published in the Leaf Chronicle focusing on the petitioner’s
upcoming trial.
The petitioner argues that trial counsel should have offered more examples of
pretrial publicity, but at the evidentiary hearing, the petitioner presented as an
exhibit a copy of only one article: an article entitled “Jackie Beard quilting days
scheduled for ’97.” The copy of the article does not indicate the source of the article
but does indicate that it was introduced as an exhibit at some judicial proceeding
on January 8, 1997. Furthermore, this Court has reviewed the individual voir dire
of the twelve jurors who deliberated in this case, and the record reflects no evidence
that the jurors were prejudiced by pretrial publicity. All of the jurors were asked
by either the trial court, the State, or Mr. Warner (and in some instance, all three)
about their exposure to pretrial publicity; the jurors’ answers indicate that none of
the jurors had formed any opinion of the petitioner’s guilt or innocence before trial
and that they were willing to consider the petitioner’s case based solely on the
evidence produced at trial.
The petitioner has produced no evidence to refute the Court of Criminal Appeals’
conclusion that the petitioner’s assertion regarding the change of venue motion was
without merit. The Court therefore finds that counsel did not render ineffective
assistance as to this issue.
(Doc. No. 26-8 at 84–85.) Petitioner did not appeal this ruling in his post-conviction appeal. (Doc.
No. 26-14 at 3–7.) Respondent moves for summary judgment on the basis that this claim was
defaulted on post-conviction appeal. (Doc. No. 94 at 48–9.)
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Petitioner acknowledges that this claim is “previously raised, but unexhausted,” and argues
that he “can overcome any procedural default because the state court’s decision . . . was contrary
to, or involved an unreasonable application of, clearly established federal law, or was based on an
unreasonable determination of the facts in light of the evidence presented in state court.” (Doc.
No. 111 at 385.) As the Court has explained above in connection with Claim C.1, the notion that
a federal habeas court may review the merits of a claim based on a state trial court’s ruling that
was not appealed is wholly unfounded and contrary to existing law. See West v. Carpenter, 790
F.3d 693, 698–99 (6th Cir. 2015) (holding federal review not available for claim rejected on the
merits by post-conviction trial court and not raised on post-conviction appeal). Petitioner has
failed to overcome the procedural default of this claim, and it is not subject to further review.
10. Claim D.17 — Leading Questions to Exclude Potential Jurors
Petitioner alleges that trial counsel was ineffective for failing to object to the court’s use of
leading questions intended to exclude jurors who expressed reservations about the death penalty.
(Doc. No. 14 at 38.) Petitioner raised this claim in his state post-conviction petition as claim 1.15.
(Doc. No. 26-7 at 180.) But on post-conviction appeal, he raised only the inverse claim that
counsel failed to object to the court’s leading questions to rehabilitate prospective jurors. (Doc.
No. 26-14 at 31–32.) Respondent asserts that the claim is procedurally defaulted. (Doc. No. 94 at
48–49.) Because this claim was defaulted on post-conviction appeal, Martinez cannot provide
cause for its default.
Petitioner does not dispute that the claim is defaulted, but asserts that this Court may
nevertheless review it because the lower state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established federal law, or was based on an unreasonable
determination of the facts in light of the evidence presented in state court.” (Doc. No. 111 at 385.)
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For the reasons explained above in connection with Claim C.1, that argument is legally
indefensible. See West, 790 F.3d at 698–99 (holding federal review not available for claim rejected
on the merits by post-conviction trial court and not raised on post-conviction appeal). This claim
is procedurally defaulted and not subject to federal habeas review.
Alternatively, for the reasons discussed above in connection with Claims A.2 and G.9, the
Court finds that Petitioner’s underlying claim is not sufficiently substantial to warrant further
review under Martinez.
11. Claim D.22 — Milliken Voir Dire
Petitioner alleges that counsel was ineffective for failing to question Juror Milliken about
the extent of his relationships with people who either were involved in or had knowledge of facts
relevant to the case. (Doc. No. 14 at 40.) Respondent moves for summary judgment on the basis
that Petitioner never raised this claim in state court and has not established cause and prejudice to
overcome that default. (Doc. No. 94 at 67.)
Petitioner lists Claim D.22 among a large number of claims purportedly addressed in
section III.A.2.b of his response, but he does not mention Juror Milliken or the specific allegations
of this claim anywhere therein. (Doc. No. 111 at 222–49.) The record reflects that the prosecutor
questioned Milliken about the relationships he had disclosed in his questionnaire; Milliken’s
responses indicated no close friendships with anyone involved in the case, and he stated that none
of his relationships would affect his judgment about the case. (Doc. No. 25-2 at 40–43.) Petitioner
has not specified what additional questioning counsel should have pursued, or how the lack of such
questioning caused him any prejudice. Accordingly, he has not demonstrated that this claim is
sufficiently substantial for further consideration pursuant to Martinez.

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12. Claim D.28 — Blood on Petitioner’s Shirt
Petitioner alleges that counsel failed to present evidence that blood his wife said she saw
on his shirt was not actually blood or was not the victim’s blood. (Doc. No. 14 at 41.) This claim
was never raised in state court, and Respondent asserts that it is procedurally defaulted. (Doc. No.
94 at 68–69.)
Ms. Rogers testified at trial that she observed a spot of blood on Petitioner’s shirt on the
day the victim disappeared, which Petitioner attributed to a cut finger that she did not see. (Doc.
No. 25-9 at 67.) Petitioner now characterizes Ms. Rogers’s testimony as “prejudicial false
testimony” and argues that if counsel had conducted a thorough examination they could have
located the shirt and submitted it for testing to demonstrate that there was no blood. (Doc. No. 111
at 350–51.) But counsel elicited testimony from Ms. Rogers on cross-examination that she
believed the shirt had been turned over to police (Doc. No. 25-9 at 96), and Agent Squibb testified
that his tests failed to indicate the presence of blood on shirts and other items of clothing retrieved
from Petitioner’s home. (Doc. No. 25-8 at 176, 178.) Additional evidence produced at the postconviction hearing indicated that the clothes Petitioner wore on July 8 had already been washed
by July 11, the day that he was arrested and his clothes were retrieved from his home. Rogers v.
State, No. M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *48 (Tenn. Crim. App. Aug. 30,
2012). Petitioner has not presented any evidence that there was anything counsel could have done
after that point to determine what, if anything, had been on his shirt on the day of the victim’s
disappearance.
Accordingly, Petitioner has not demonstrated that Ms. Rogers’s testimony was false, or
that counsel could have presented any better proof of the lack of blood on Petitioner’s shirt than
the state’s own tests. He has failed to establish that this claim is substantial for Martinez purposes,
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and it is not subject to federal review.
13. Claim D.29 — “Junk” Fiber Science
Petitioner alleges that counsel was ineffective for failing “to present evidence in the context
of an appropriate in limine motion, and failing that, to the jury to the effect that the State’s fiber
analysis testimony was based on junk science.” (Doc. No. 14 at 41.) Petitioner exhausted a claim
that counsel was ineffective for failing to investigate the fiber evidence, which the Court has
already addressed above as Claim C.13. However, Petitioner’s related post-conviction claim did
not specifically mention the failure to file a motion in limine 48 (Doc. No. 26-7 at 184), so
Respondent asserts that this claim is procedurally defaulted. (Doc. No. 94 at 69.)
Petitioner argues this claim along with his exhausted Claim C.13 and several others,
characterizing them all as “meritorious new claims.” (Doc. No. 111 at 2, 346–51.) Petitioner does
not clearly acknowledge whether this claim is defaulted, or whether he views it as simply a
repackaging of Claim C.13. Either way, Respondent is entitled to judgment on Claim D.29,
because Petitioner has never established that the state’s fiber evidence, which was corroborated by
his own expert’s analysis, was “junk science” or otherwise subject to exclusion. To whatever
extent Claim D.29 was not exhausted and adequately addressed above in connection with Claim
C.13, it is not substantial for Martinez purposes for the same reasons the Court has already relied
on to deny relief on Claims C.13 and B.14.

48

In his post-conviction appellate brief, Petitioner complained that counsel’s lack of investigation
lost the defense the opportunity to “seek exclusion of the so-called ‘fiber evidence’ due to an
apparent contamination of the sample” (Doc. No. 26-14 at 50), but that issue is distinct from the
current “junk science” claim. Petitioner does not raise any claim related to fiber contamination in
either his petition or his response in this court.
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14. Claim D.31 — “Junk” Soil Science
Petitioner alleges that counsel was ineffective for failing to “present evidence in the context
of an appropriate limine motion, and failing that, to the jury to the effect that the State’s soil
analysis testimony was based on junk science.” (Doc. No. 14 at 41.) Petitioner exhausted a claim
that counsel failed to investigate the soil evidence, which is discussed above as Claim C.11. He
also raised several post-conviction claims about counsel’s failure to seek exclusion of the soil
evidence. (Doc. No. 26-7 at 182.) But he did not appeal the denial of relief on those latter claims
in his post-conviction appellate brief. (Doc. No. 26-14 at 48 (complaining that the lower court had
“collapse[d]” the investigation claim into his “alternate claim that trial counsel was ineffective for
failing to seek exclusion of soil evidence).) Accordingly, Respondent asserts that this claim was
defaulted on post-conviction appeal and is not subject to further consideration under Martinez.
(Doc. No. 94 at 49 n.9, 71.)
Again, Petitioner argues this claim along with his exhausted Claim C.11 and others, all
described as “meritorious new claims.” (Doc. No. 111 at 2, 346–51.) Based on the record and
Petitioner’s failure to contest the issue, the Court deems this claim to be defaulted on postconviction appeal, as Respondent asserts. But again, the claim fails regardless of whether or when
it was defaulted, because, as suggested above in connection with Claim C.11, Petitioner has failed
to prove or even explain the basis for his allegation that soil evidence was based on “junk science.”
In fact, he has not even identified what soil evidence at trial is the focus of his concern. This is
not surprising, because the state presented no evidence at trial of any soil analysis that connected
Petitioner to the crimes or otherwise damaged his case. Petitioner’s underlying ineffectiveassistance claim is therefore without merit and is not subject to further review.

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15. Claim D.45(a) and (b) — Jury Instructions
Petitioner alleges that trial counsel was ineffective for failing to object to jury instructions
about sequential, acquittal-first consideration and about the definition of premeditation for first
degree murder. (Doc. No. 14 at 43.) Respondent asserts that both these claims are defaulted. (Doc.
No. 94 at 49, 72.)
Petitioner raised the claim about failure to object to sequential, acquittal-first consideration
in his post-conviction petition. (Doc. No. 26-7 at 191.) He did not raise the claim about that
particular instruction on post-conviction appeal. (Doc. No. 26-14 at 6.) Accordingly, Petitioner’s
invocation of Martinez as cause to overcome the default (Doc. No. 111 at 368) is unavailing, and
this claim is not subject to federal habeas review.
Petitioner never raised a claim in state court about counsel’s failure to object to the trial
court’s definition of premeditation. (See Doc. No. 26-7 at 190–94.) Petitioner asserts that Martinez
provides cause to overcome the default of the claim, but nowhere in his argument about Claim 45
does he cite, quote or otherwise identify the trial court’s premeditation instruction in question.
(Doc. No. 111 at 362–68.) Nor does he cite or discuss any law establishing that the instruction
was erroneous or that counsel had any basis for objection, or provide any reason to believe that an
objection would have had any likely impact on the outcome of his case. (Id.) Petitioner has not
carried his burden of establishing that his underlying ineffective-assistance claim is sufficiently
substantial to warrant further consideration pursuant to Martinez.
16. Claims E.12, E.13 — Future Dangerousness Testimony
Petitioner alleges that trial counsel was ineffective at sentencing for presenting the
testimony of Dr. Mark Cunningham regarding his risk of future dangerousness, which enabled the
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state to elicit otherwise inadmissible evidence about Petitioner’s criminal record and prison escape
attempt. (Doc. No. 14 at 46.) These claims were never raised in state court, and Respondent asserts
that they are procedurally defaulted. (Doc. No. 94 at 77–79; Doc. No. 134 at 41–43.) Petitioner
responds that post-conviction counsel’s ineffectiveness in failing to raise this claim constitutes
cause to overcome the default pursuant to Martinez.
Clinical and forensic psychologist Dr. Mark Cunningham testified that, based on factors
including Petitioner’s age and prior institutional record, he believed Petitioner’s potential for
violent behavior in prison was between eight and seventeen percent. (Doc. No. 25-16 at 88–91.)
On cross-examination, Dr. Cunningham acknowledged that Petitioner’s previous conviction for
escaping from prison was one of the factors he considered, but said that studies show prior escapes
are a “relatively weak predictor of future prison misconduct.” (Doc. No. 25-16 at 95.) He said that
he had not heard of Petitioner’s threat to escape or die trying, but that it did not alter his analysis
because he assumed anyone serving a life sentence in maximum security would escape if he could.
(Id. at 95–96.) He testified that Petitioner’s diagnosis of antisocial personality disorder combined
with his criminal history made him a significant risk in the community, but not in prison. (Id. at
97–98.) And he acknowledged that prisoners do “on rare occasions” escape. (Id. at 99.)
Petitioner’s counsel argued for the opportunity to present Cunningham’s testimony,
observing that it was a new field of evidence and citing other jury trials in Tennessee in which
Cunningham had been permitted to testify, before the state finally withdrew its objection to its
admissibility. (Doc. No. 25-16 at 46–58.) At a sidebar conference just before Dr. Cunningham
testified, the trial judge confirmed that defense counsel was aware that presenting evidence about
future dangerousness would “open up the counter strike, so to speak.” (Doc. No. 25-16 at 59.) The
prosecutor announced his intention to cross-examine Cunningham about the possibility of
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Petitioner’s getting out of prison, and about his prior escape conviction, and Petitioner’s attorney
acknowledged that he was aware of the escape conviction. (Id. at 60.) Counsel testified at the postconviction hearing that the purpose of presenting Cunningham’s testimony “was to basically tell
the jury look, if you don’t kill this guy, he can be of some use to somebody, essentially. . . that he
would be able to adapt to prison life and not be a danger to guards or other prisoners.” (Doc. No.
26-9 at 131–32.)
Dr. Cunningham’s testimony ultimately did not persuade the jury to spare Petitioner’s life,
but that does not mean that presenting his testimony constituted deficient performance by counsel.
Trial counsel’s arguments in favor of presenting the evidence in the trial court and his explanation
for it in the post-conviction hearing bolster the legal presumption that he made a strategic choice
to present the evidence, despite knowing its potential to be double-edged. Having already
convicted Petitioner of the kidnaping, rape, and murder of a child, and having already heard in the
sentencing hearing of Petitioner’s previous convictions for violent felonies, the jury likely already
shared Dr. Cunningham’s opinion that Petitioner posed a risk if he were free in the community.
Accordingly, any damage inflicted by that testimony was surely negligible. Petitioner’s prior
escape and his threat to escape posed more of a risk to his case, 49 but counsel clearly deemed that
risk to be outweighed by the benefit of Dr. Cunningham’s opinion that Petitioner was a very low
risk to commit any violence if he were allowed to live in prison. This Court must defer to that
strategic choice. Strickland v. Washington, 466 U.S. 687, 689 (1984).

49

After Dr. Cunningham testified, Juanita Rogers testified about the letter Petitioner wrote to her
in which he said that he would be killed trying to escape or kill himself if he were convicted. (Doc.
No. 25-16 at 100–03.) Petitioner did not object to that evidence, so it is not clear from the record
whether that testimony and the letter itself would have been admitted in the absence of Dr.
Cunningham’s future dangerousness testimony.
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Moreover, the clarity of the trial transcript regarding counsel’s arguments and
acknowledgments at the sidebar, as well as the discussion of Dr. Cunningham’s testimony at the
post-conviction hearing, strongly support the legal presumption that post-conviction counsel, too,
made a strategic choice not to raise this claim. See Porter v. Genovese, 676 F. App’x 428, 432 (6th
Cir. 2017), cert. denied, 138 S. Ct. 1178 (2018) (explaining application of Strickland standard to
post-conviction representation for Martinez purposes and instructing that “[c]ourts must apply a
‘strong presumption’ that [post-conviction] counsel’s representation was within the ‘wide range’
of reasonable professional assistance”). Accordingly, Petitioner has not demonstrated that his
underlying claim is substantial or that his post-conviction counsel performed deficiently in failing
to raise it. This claim is not subject to further review pursuant to Martinez.
The Court believes, however, that reasonable jurists might debate whether defense
counsel’s opening the door to evidence about Petitioner’s prior escape and his threat to attempt
another escape was objectively deficient and prejudicial in this case. Accordingly, it will grant a
certificate of appealability on these claims.
17. Claim E.17 — Failure to Move for Mistrial Over Pedophilia Testimony
Petitioner alleges that counsel was ineffective for failing to move for a mistrial in light of
Dr. Bernet’s testimony that Petitioner was a pedophile. (Doc. No. 14 at 47.) This claim is closely
related to Petitioner’s exhausted Claims E.15 and E.16, addressed above, which concerned
counsel’s alleged failure to review Bernet’s report and properly object to or move to exclude his
testimony about pedophilia. Respondent’s briefs are inconsistent with regard to whether this claim
should be considered exhausted or defaulted. (See Doc. No. 94 at 79 (asserting that E.17 is
defaulted), and Doc. No. 134 at 43 (stating that E.17 was “properly exhausted”).) Petitioner’s brief
addresses all of his Bernet claims together as “meritorious new claims,” and does not attempt to
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distinguish between the exhausted and defaulted claims. (Doc. No. 111 at 2–3, 331–34.)
As discussed above in connection with Claims E.15 and E.16, counsel tried to have Dr.
Bernet’s pedophilia testimony excluded, but the trial court denied their motion and ruled the
testimony was admissible. Petitioner has not provided any reason to believe that the trial court
would have granted a motion for mistrial arising from testimony that it had expressly found to be
admissible. Accordingly, he cannot demonstrate any prejudice arising from the failure to move
for mistrial, and this claim fails regardless of whether it is deemed exhausted or defaulted. The
state court reasonably rejected Petitioner’s claims that counsel were ineffective in connection with
Bernet’s testimony, and this particular prong of those claims is not substantial for Martinez
purposes. Respondent is entitled to judgment on Claim E.17.
18. Claim E.18 — Bernet Cross-Examination
Petitioner alleges that counsel failed to cross-examine Dr. Bernet effectively. (Doc. No. 14
at 47.) Respondent asserts that this claim was not raised in state court and is procedurally
defaulted. (Doc. No. 94 at 80; Doc. No. 134 at 45.) Petitioner, again, does not distinguish between
his properly exhausted and procedurally defaulted Bernet claims. (Doc. No. 111 at 331–34.)
Petitioner characterizes aspects of Dr. Bernet’s testimony, including his diagnoses of
antisocial personality disorder and possible pedophilia and his conclusions that Petitioner’s
difficult childhood did not have a direct or significant connection to his crimes, as medically
inaccurate and false. (Doc. No. 111 at 332–33.) But his argument boils down to a difference of
opinion among experts. Where Bernet’s opinions conflicted with those of defense experts—
regarding pedophilia and the connection between Petitioner’s childhood and his crimes—counsel
chose to rebut Bernet’s opinions with the testimony of their experts rather than through cross-

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examination. Counsel presented Dr. Caruso’s testimony that he did not find that Petitioner met
the criteria of pedophilia, and both Caruso and Dr. Neilson testified about the connection between
childhood trauma, psychological disorders, and dysfunctional behaviors.

Petitioner has not

established any reason to believe that additional cross-examination of Dr. Bernet would have
produced any better evidence about those points. It is apparent from the trial transcript that defense
counsel’s approach to Dr. Bernet’s cross-examination was to highlight to the jury that his opinions
were largely consistent with Dr. Caruso’s, thereby adding credibility to Caruso’s testimony, and
get Bernet off the stand without allowing him to add any damaging testimony. (Doc. No. 25-16 at
120–21.)
Moreover, as Petitioner acknowledges, Dr. Bernet’s diagnosis of antisocial personality
disorder was consistent with the opinions of at least three other mental health professionals,
including his own experts. (Doc. No. 111 at 112, 147–48, 320, 321.) Other experts’ disagreement
about that diagnosis does not establish that it is “false.” Rather than denying or challenging the
diagnosis, counsel attempted to use Petitioner’s psychological diagnoses as advantages by having
Dr. Neilson and Dr. Caruso testify about the connection between Petitioner’s disorders and a
traumatic childhood, and with his inability to function properly under stress. (Doc. No. 25-14 at
43–46, 70–74, 80–81, 104; Doc. No. 25-16 at 17.) That approach was not successful, but it was
not objectively unreasonable. “That a diagnosis of antisocial personality disorder has negative
characteristics or presents a double-edged sword renders it uniquely a matter of trial strategy that
a defense lawyer may, or may not, decide to present as mitigating evidence.” Morton v. Sec’y, Fla.
Dep’t of Corr., 684 F.3d 1157, 1168 (11th Cir. 2012); see also Fairbank v. Ayers, 650 F.3d 1243,
1254 (9th Cir. 2011) (rejecting habeas claim that counsel was ineffective for presenting evidence
of antisocial personality disorder). Where the defense strategy itself included diagnoses of

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psychological disorders, counsel had no reason to challenge the same diagnoses by the
prosecution’s witness.
The Court must presume that counsel’s approach represented a sound strategy, and
Petitioner has not carried his burden of proving otherwise. Nor has he established that further
cross-examination of Dr. Bernet would have had any likelihood of changing the jury’s decision in
light of the multiple aggravating factors they found.

Petitioner’s underlying claim is not

sufficiently substantial to warrant further consideration under Martinez.
19. Claim E.19 — Notice of Expert Testimony
Petitioner alleges that trial counsel “failed to give proper notice of expert testimony
relevant to sentencing, resulting in the exclusion of mitigating mental health evidence.” (Doc. No.
14 at 47.) In his state post-conviction petition, he asserted that “[c]ounsel failed to give proper
notice of expert testimony relevant to sentencing, resulting in the exclusion of mitigating mental
health evidence from Cecille Guin.” (Doc. No. 26-7 at 185.) On post-conviction appeal, he raised
a claim that appellate counsel had been ineffective for failing to appeal the exclusion of some of
Guin’s testimony (Doc. No. 26-14 at 7), but he did not reassert the claim that trial counsel
ineffectively failed to give proper notice of her testimony. (Doc. No. 26-14 at 3–6.)
Accordingly, Respondent asserts that Claim E.19 was defaulted on post-conviction appeal.
(Doc. No. 94 at 50.) Respondent argues correctly that Martinez cannot provide cause to overcome
the default of a claim that was not defaulted at the initial-review stage of post-conviction. (Id. at
51.) Accordingly, the Court finds that Claim E.19 is procedurally defaulted and not subject to

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further review. 50
In his response, Petitioner argues that Claim E.19 actually relates to counsel’s delayed
notice of Dr. Caruso’s testimony (Doc. No. 111 at 313, 318), which is a claim that was never
raised in state court. But Petitioner acknowledges that Dr. Caruso was ultimately permitted to
testify. (Id. at 318.) The state court record confirms that the trial court overruled the state’s latenotice objection to Caruso’s testimony. (Doc. No. 25-12 at 19–20.) Accordingly, even if E.19
does actually pertain to Dr. Caruso, Petitioner cannot establish that he suffered any prejudice from
counsel’s performance. The claim would therefore be insufficient to merit further review pursuant
to Martinez.
20. Claim E.22 — Reasonable Doubt Instruction at Sentencing
Petitioner alleges that counsel was ineffective for failing to object to improper instructions
about reasonable doubt at the sentencing hearing. (Doc. No. 14 at 48.) Petitioner raised this claim
in his post-conviction petition (Doc. No. 26-7 at 192), but in his post-conviction appeal he limited
his claim about reasonable doubt instruction to the instruction given in the guilt/innocence phase
of the trial. 51 (Doc. No. 26-14 at 111.) Accordingly, Respondent asserts that this claim was
procedurally defaulted on post-conviction appeal, and that Martinez cannot provide cause to

50

Even if this claim were subject to review, it is apparent from the state court record that it is
without merit. As counsel explained during a jury-out conference, Dr. Guin was called for the
narrow purpose of testifying to the factual conditions at institutions where Petitioner had
previously been incarcerated, the psychological effects of which were to be explained by other
experts. (Doc. No. 25-12 at 9–11, 17–18.) The limited purpose for which counsel retained Dr.
Guin is confirmed by her 2017 declaration that Petitioner has filed in this case. (Doc. No. 115-10
at 2, ¶ 1.) Dr. Guin was allowed to testify at trial despite counsel’s allegedly deficient notice (Doc.
No. 25-15 at 92–143), and there is no evidence that lack of notice limited her intended testimony
in any way. Accordingly, Petitioner cannot establish any prejudice arising from the allegedly
deficient notice.
51
That exhausted claim is addressed above as Claim D.45(c).
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overcome that default. (Doc. No. 94 at 50–51.)
In his response, Petitioner argues that he can overcome the default because the state court’s
rejection of it “was contrary to, or involved an unreasonable application of, clearly established law,
or was based on an unreasonable determination of the facts in light of the evidence presented in
state court.” (Doc. No. 111 at 385.) That argument is unfounded for the reasons explained above
in connection with Claim C.1.
This claim is procedurally defaulted and not subject to further review.
21. Claim F.3 — Motion for New Trial
Petitioner alleges that counsel was ineffective at the motion-for-new-trial stage of
proceedings. (Doc. No. 14 at 50.) This vague, sweeping allegation, without any facts alleged to
support it, does not state a claim for relief that satisfies Rule 2(c) of the Rules Governing Section
2254 Cases.
Moreover, as Respondent asserts, the claim was never raised in state court and is therefore
procedurally defaulted. (Doc. No. 94 at 84.) Petitioner responds that he can overcome the default
of this claim pursuant to Martinez. (Doc. No. 111 at 373.) Respondent counters that Martinez does
not apply to Claim F, because the Supreme Court has held in Davila v. Davis, 137 S. Ct. 2058,
2066 (2017), that Martinez does not apply to claims of ineffective assistance of appellate counsel.
(Doc. No. 134 at 74–75.)
Davila is not directly applicable to this claim, because it involved alleged ineffective
assistance in briefing on appeal, rather than in the post-judgment motion stage. Davila, 137 S. Ct.
at 2063. But even before Davila was decided, the narrow language of Martinez itself caused
federal courts to be skeptical about whether it applied to claims concerning counsel’s performance
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in post-trial proceedings. Chamblin v. Sec’y, Dep’t of Corr., No. 1:13-CV-25-MP-GRJ, 2015 WL
9701074, at *12 (N.D. Fla. Dec. 3, 2015), report and recommendation adopted, No. 1:13-CV00025-MP-GRJ, 2016 WL 164309 (N.D. Fla. Jan. 13, 2016) (“The narrow exception announced
in Martinez does not apply here because Petitioner's claim in this case asserts ineffective assistance
by his trial counsel in failing to file a motion for an arrest of judgment after trial.”); Esposito v.
Humphrey, No. 5:12-CV-163 CAR, 2014 WL 7003770, at *34 (M.D. Ga. Dec. 10, 2014)
(“[Petitioner’s] underlying claim is that counsel were deficient during the motion for new trial, not
during trial. It is unclear if Martinez and Trevino would even apply in such a situation.”). As the
Court explained in Section V.A above, Davila strongly reinforced the notion that Martinez was
based on the special significance of the right to counsel at trial, and that the exception it created
does not apply to claims arising after the trial is over. The Court concludes, therefore, that
Martinez does not apply to Claim F.3.
However, the Court will grant a certificate of appealability with regard to Claim F.3.
Neither the Supreme Court nor the Sixth Circuit has ever addressed whether Martinez applies to
claims that counsel was ineffective at the motion-for-new-trial stage. Moreover, Petitioner’s
complaints about his then-newly-appointed attorney’s handling of the motion for new trial relate
to issues of juror bias and misconduct (Doc. No. 111 at 372–73), in support of which he has
submitted new evidence in the form of recent juror declarations that no court will ever review if
he is unable to overcome the default of this claim. (See Doc. Nos. 119-19–119-21, 123-9–123-14.)
22. Claims F.6, F.7 — Motion to Dismiss
Petitioner alleges that counsel failed to have transcripts from three hearings on a motion to
dismiss included in the record (F.6) and “failed to preserve or present the written motion to dismiss
issue for appeal” (F.7). (Doc. No. 14 at 50.) Respondent asserts that Claim F.6 is procedurally
202

defaulted. (Doc. No. 94 at 85.) It appears from the record that Claim F.7 was raised in Petitioner’s
post-conviction petition (Doc. No. 26-7 at 181), but was omitted from his post-conviction appeal.
(Doc. No. 26-14.)
Petitioner appears to concede that these claims are defaulted, although he does so with
regard to an entire category of claims without ever specifically referencing either F.6 or F.7, and
without mentioning the motion to dismiss in question or explaining its significance to the outcome
of his case. (Doc. No. 111 at 371–73.) In fact, there is no discussion anywhere in Petitioner’s
response of the referenced “motion to dismiss issue.” The Court finds that Petitioner has waived
these claims by failing to provide any factual support for them in either his petition or his response.
Alternatively, the Court concludes that Petitioner has failed to establish cause and prejudice to
overcome the default of these claims.
23. Claim N — Ineffectiveness of Post-Conviction Counsel
Petitioner alleges that post-conviction counsel were ineffective for failing to raise any
claims that are raised in his amended petition but were not raised during post-conviction
proceedings. (Doc. No. 14 at 94.) This claim was never raised in state court, but more importantly,
it does not raise a basis for federal habeas relief. Title 28 U.S.C. § 2254(i) expressly provides that
“[t]he ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”
Petitioner apparently intends this claim to be a catch-all assertion of post-conviction counsel’s
ineffectiveness as cause to excuse the default of underlying claims. (See Doc. No. 111 at 490–
506.) The Court considers that argument where it applies throughout Section V. But Respondent
is entitled to judgment on Claim N as an independent claim for relief.

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VI.

VOLUNTARILY ABANDONED CLAIMS

Petitioner has affirmatively withdrawn all of his claims that are not addressed above. (Doc.
No. 111 at 6–7, 398, 523–25.) Those claims are: Claim A.6; Claim B.3, B.4, B.5, B.6, B.7, B.8,
B.9, B.10, B.17, B.18, B.19, B.20, B.23, B.25; Claim C.5, C.9, C.14, C.15, C.16, C.17, C.25,
C.26, C.27, C.31, C.32, C.33, C.34, C.35, C.36; Claim D.2, D.3, D.5, D.6, D.12, D.16, D.21, D.23,
D.24, D.32, D.34, D.35, D.36, D.37, D.38, D.39; Claim E.14, E.23, E.24, E.25; Claim F.1, F.2;
Claim G.1, G.2, G.3, G.6, G.7, G.14, G.17, G.18, G.19, G.20, G.28, G.30, G.32, G.33, G.36, G.37,
G.40, G.41; Claim H.2, H.3(c), H.4, H.5, H.6, H.7, H.8, H.9, H.10, H.11(a), H.13, H.16, H.18;
Claim I.1, I.7, and I.13. Petitioner concedes that these claims are either defaulted or that he cannot
establish the proof necessary to overcome Respondent’s motion for summary judgment.
Accordingly, judgment will enter for Respondent on these claims.
VII.

CONCLUSION

For the reasons stated above, Petitioner has not established that he is entitled to relief
pursuant to 28 U.S.C. § 2254. Accordingly, his petition will be denied, and judgment will enter in
favor of Respondent on all claims.
The Court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases. A petitioner
may not take an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22(b)(1). A COA may issue only if the petitioner “has made a substantial showing
of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). A petitioner makes a “substantial
showing” when he demonstrates that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues presented

204

were adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322,
336 (2003) (citations and internal quotation marks omitted). “[A] COA does not require a showing
that the appeal will succeed,” but courts should not issue a COA as a matter of course. Id. at 337.
In the course of its analysis, the Court has considered whether reasonable jurists could
debate the outcome with respect to each claim. Except where the Court has expressly indicated its
intention above to grant a COA, a COA will be denied. Petitioner may still seek a COA directly
from the Sixth Circuit Court of Appeals. Rule 11(a), Rules Governing Section 2254 Cases.
An appropriate Order shall enter.

____________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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