Williamson v. Steward

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 36 Report and Recommendation: In this matter, petitioner Derek Williamson has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Jeffery S. Frensle y has submitted a report and recommendation ("R&R") in which he recommends that the Court deny the application. Petitioner has filed timely objections to which respondent has not responded. IT IS ORDERED that Magistrate Judge Frensley' ;s R&R is hereby accepted and adopted as the findings and conclusions of the Court. Petitioner's objections are overruled. Signed by Senior Judge Bernard A. Friedman on 1/27/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEREK WILLIAMSON,
Petitioner,
vs.

Civil Action No. 3:13-cv-00219
HON. BERNARD A. FRIEDMAN

KEVIN GENOVESE,
Respondent.
_____________________/
ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION AND DENYING PETITIONER’S
APPLICATION FOR A WRIT OF HABEAS CORPUS
In this matter, petitioner Derek Williamson has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Jeffery S. Frensley has submitted
a report and recommendation (“R&R”) in which he recommends that the Court deny the
application. Petitioner has filed timely objections to which respondent has not responded.
Under Fed. R. Civ. P. 72(b)(3), the Court must review de novo those portions of
the R&R to which proper objections have been made. Having considered all of petitioner’s
claims, the R&R, and petitioner’s objections, the Court agrees with the magistrate judge’s
analysis and recommendation. The Court shall therefore adopt the R&R and deny the petition.
Petitioner was convicted in Sumner County of first-degree premeditated murder
and sentenced to life imprisonment.1 The Tennessee Court of Criminal Appeals affirmed that

1

Petitioner was charged with shooting and killing Grady Carter in front of Carter’s
house in Westmoreland, Tennessee, on June 18, 2008. See State v. Williamson, No.
M2010-01067-CCA-R3CD, 2011 WL 3557827, at *1 (Tenn. Crim. App. Aug. 12, 2011).
As the facts of the case are stated in detail in that court’s opinion, and in the R&R, the Court
need not restate them here.

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judgment over petitioner’s many claims of error.2 See State v. Williamson, No.
M2010-01067-CCA-R3CD, 2011 WL 3557827 (Tenn. Crim. App. Aug. 12, 2011). The
Tennessee Supreme Court denied petitioner’s application for permission to appeal.
Petitioner later filed a motion in the trial court for post-conviction relief, arguing
that his trial attorneys had been ineffective for various reasons.3 The trial court denied that

2

On direct appeal, petitioner argued “that the trial court committed reversible error
when it twice told prospective jurors during voir dire that the State was not seeking either the
death penalty or the penalty of life without parole on the murder charge and that should you
find the Defendant guilty of first-degree murder in this case, there will be an automatic life
sentence imposed”; “that the trial court erred in [not] granting his motion for a mistrial when
Sumner County Sheriff's Deputy Brandon Clark inadvertently testified that ‘the [D]efendant
had been in trouble before’”; “that the trial court erred by allowing Westmoreland Police
Sergeant Karl Haynie to testify as an expert that certain marks he found on the curb at the
crime scene were consistent with ricochet marks from bullets”; “that the trial court erred in
allowing the State to introduce two photographs taken by Dr. Deering during his autopsy of
the victim”; “that the evidence presented at trial failed to support a flight instruction and that
the trial court erred by giving such an instruction to the jury”; “that there was insufficient
evidence of premeditation to support his first-degree murder conviction [because] . . . the
proof failed to demonstrate that he was not sufficiently free from excitement and passion as
to be capable of premeditation”; “that the trial court erred in denying his request for a jury
instruction on self-defense based on his testimony that he panicked when he saw the victim
approach his car with his hands up”; and “that the cumulative effect of the errors in the trial
court effectively denied him a fair trial.” State v. Williamson, No. M2010-01067-CCAR3CD, 2011 WL 3557827, at *4, *7-10, *12-13, *15 (Tenn. Crim. App. Aug. 12, 2011).
3

As summarized by the Tennessee Court of Criminal Appeals, petitioner
contends that his trial attorneys provided ineffective assistance by
failing to investigate and develop evidence to challenge the State's
proof of the culpable mental state required for first degree murder
and by failing to offer the evidence at the trial. The Petitioner's
allegations relate to the failure to obtain a prompt psychiatric
evaluation and to offer testimony of a mental health expert at the
trial. He also contends that the post-conviction court erred in
ruling that Dr. Montgomery's testimony would have been
inadmissible if the defense had attempted to present it at the trial.
*

*

*

2

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motion. The Tennessee Court of Criminal Appeals, applying Strickland v. Washington, 466
U.S. 668 (1984), affirmed on the grounds that trial counsel’s performance was not deficient
and/or that their performance, while deficient, did not prejudice petitioner. The Tennessee
Supreme Court again denied petitioner’s application for permission to appeal.
In the instant petition, as amended, petitioner asserts the following claims:
GROUND ONE: Petitioner was denied his right to present a
defense under the Sixth and Fourteenth Amendments to the United
States Constitution by the refusal of the trial court to give a selfdefense instruction.
GROUND TWO: Petitioner was denied his right to a jury trial
under the Sixth and Fourteenth Amendments to the United States
Constitution by the refusal of the trial court to give a self-defense
instruction.
GROUND THREE: Petitioner was denied his right to Due Process
and a Fair Trial under the Fourteenth Amendment to the United
States Constitution by the trial court’s failure to grant a mistrial
after a state’s witness stated that petitioner had previously been in
trouble.
GROUND FOUR: Petitioner was denied his right to Due Process
and a Fair Trial under the Fourteenth Amendment to the United
States Constitution by the Tennessee Court of Criminal Appeals
denying him relief under the cumulative errors made by the trial

[Further,] the Petitioner contends that his trial attorneys provided
ineffective assistance in investigating and preparing for the trial in
several respects. He contends they failed to investigate and
preserve cell phone records and voice messages, failed to conduct
effective interviews of available witnesses, failed to prepare for
and conduct an effective cross-examination of Brandon Clark, and
failed to develop a defense theory. He argues that these failures,
individually or collectively, entitle him to post-conviction relief.
Williamson v. State, 476 S.W.3d 405, 418, 424 (Tenn. Crim. App. 2015).
3

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court.
GROUND FIVE [Withdrawn]
GROUND SIX – In his appeal to the Tennessee Court of Criminal
Appeals, Mr. Williamson raised the following issues:
1. Was the finding of the Court below declaring specific
portions of attorney Kline Preston’s testimony credible,
after first declaring him to be not very credible, contrary to
the record and erroneous?
2. Did the court below violate Mr. Williamson’s right to
due process and a meaningful and fair review of his
post-conviction claim of ineffective assistance of counsel
by finding certain portions of Mr. Preston’s testimony
credible despite his testimony being contrary to the record?
3. Did the court below abuse its discretion by finding that
Dr. Montgomery’s testimony was inadmissible?
4. Did the finding of the court below that Dr.
Montgomery’s testimony was inadmissible violate Mr.
Williamson’s right to present a defense pursuant to Article
I, sections 8 and 9 of the Tennessee Constitution and the
Sixth and Fourteenth Amendments to the United States
Constitution?
5. Did trial counsel’s patently deficient performance deny
Mr. Williamson his right to a fair trial and the effective
assistance of counsel under Article I, section 9 of the
Tennessee Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution?
6. Did trial counsel’s inadequate consultation prevent
adequate investigation and preparation leading to trial
counsel’s deficient performance and the denial of Mr.
Williamson’s right to the effective assistance of counsel?
7. Did trial counsel deprive Derek Williamson of his
constitutional right to the effective assistance of counsel by
their failure to investigate and develop evidence to
challenge mens rea?

4

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8. Did trail counsel’s additional deficient performance,
either singularly or cumulatively, deny Mr. Williamson his
right to the effective assistance of counsel?
a. Did trial counsel’s failure to timely investigate
and prepare for trial deny Derek Williamson his
right to the effective assistance of counsel?
b. Did trial counsel’s failure to timely investigate
and preserve cell phone records and voicemail deny
Mr. Williamson his right to the effective assistance
of counsel?
c. Did trial counsel fail to provide the effective
assistance of counsel by their failure to effectively
interview readily available witnesses?
d. Was trial counsel’s failure to prepare for and
effectuate effective cross-examination deficient
performance that prejudiced Mr. Williamson?
e. Did trial counsel’s failure to develop a theory of
the defense deny Mr. Williamson his right to the
effective assistance of counsel?
GROUND SEVEN [Withdrawn]
GROUND EIGHT: Mr. Williamson was denied his right to
present a defense under the Sixth and Fourteenth Amendment to
the United States Constitution by the decisions of the Criminal
Court for Sumner County and the Court of Criminal Appeals that
the testimony of Stephen Montgomery, M.D., was not admissible
on the issue of whether Mr. Williamson lacked the capacity to
premeditate and reflect at the time of the offense.’
GROUND NINE: Mr. Williamson was denied his right to the
effective assistance of counsel under the Sixth and Fourteenth
Amendments to the United States Constitution by the conclusion
of the Criminal Court and Court of Criminal Appeals that, because
Dr. Montgomery’s testimony was inadmissible, trial counsel’s
failure to investigate Mr. Williamson’s mental state at the time of
the offense was not prejudicial and, therefore, did not deny Mr.
Williamson the right to the effective assistance of counsel.

5

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Pet. at 6; Am. to Pet. at 3-6.
In his exceptionally thorough R&R, the magistrate judge carefully examined each
of these claims and found none to merit habeas relief. Petitioner focuses his objections on the
following three issues:
1. Williamson was unconstitutionally denied a jury instruction on
self-defense when his testimony and other evidence fairly raised
that defense.
2. Williamson was denied the effective assistance of counsel
because counsel failed to develop and use expert testimony
regarding post-traumatic stress disorder that was relevant to the
element of premeditation.
3. Williamson was denied the effective assistance of counsel
because counsel failed to investigate and use readily-available
evidence that would support both his self- defense defense and his
defense against premeditation.
Pet.’s Objs. at 1.
Self-Defense Instruction
Regarding the first issue, petitioner argues that the trial court should have
instructed the jury on self defense because he felt threatened by the victim. The state appellate
court rejected this argument on direct appeal for the following reasons:
The Defendant argues that the trial court erred in denying his
request for a jury instruction on self-defense based on his
testimony that he panicked when he saw the victim approach his
car with his hands up. The trial court, however, determined that
the Defendant's actions of taking a loaded weapon to a
confrontation he initiated did not entitle him to self-defense
instruction. We agree.
The defense of self-defense is expressly provided for in Tennessee
by statute and is defined, in relevant part, as follows:
(a) A person is justified in threatening or using force
6

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against another person when and to the degree the person
reasonably believes the force is immediately necessary to
protect against the other's use or attempted use of unlawful
force. The person must have a reasonable belief that there
is an imminent danger of death or serious bodily injury.
The danger creating the belief of imminent death or serious
bodily injury must be real, or honestly believed to be real
at the time, and must be founded upon reasonable grounds.
There is no duty to retreat before a person threatens or uses
force.
Tenn. Code Ann. § 39–11–611(a).
A trial court has the duty to “give a complete charge of the law
applicable to the facts of the case.” State v. Harbison, 704 S.W.2d
314, 319 (Tenn. 1986). This duty includes “giving jury
instructions concerning fundamental issues to the defense and
essential to a fair trial....” State v. Anderson, 958 S.W.2d 9, 17
(Tenn. Crim. App. 1998). See also Myers v. State, 185 Tenn. 264,
206 S.W.2d 30, 32 (Tenn. 1947) (holding that a defendant is
entitled to an affirmative instruction on self-defense if raised by
the evidence). In deciding whether a defense instruction is
warranted, the trial court “must examine the evidence in the light
most favorable to the defendant to determine whether there is
evidence that reasonable minds could accept as to that defense.”
State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001).
Though the question of whether an individual acted in self-defense
is a factual determination to be made by the jury, see State v. Ivy,
868 S.W.2d 724, 727 (Tenn. Crim. App. 1993), our law also
mandates that “[t]he issue of the existence of a defense is not
submitted to the jury unless it is fairly raised by the proof .” Tenn.
Code Ann. § 39–11–203(c). Additionally, this Court is instructed
to interpret the above statute to require that “[t]he defendant has
the burden of introducing admissible evidence that a defense is
applicable.” Id., Sentencing Commission Comments; see also
State v. Leaphart, 673 S.W.2d 870, 873 (Tenn. Crim. App. 1983)
(holding “[a]lthough it is well-settled that an accused is entitled to
an affirmative instruction on every issue fairly raised by the
evidence, there is no requirement that the court charge on matters
not raised by the proof”). Thus, this Court may find error only if
a jury charge “fails to fairly submit the legal issues or misleads the
jury as to the applicable law.” State v. Phipps, 883 S.W.2d 138,
142 (Tenn. Crim. App. 1994).
7

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Even considering the evidence in the light most favorable to the
Defendant, we agree with the trial court that the evidence
contained in the record does not raise a factual issue of
self-defense. Though the Defendant testified that he was afraid of
the victim based on months of harassing text mail and voice mail
messages, the victim never physically harmed the Defendant or
even attempted to. On the evening of the shooting, the Defendant
decided that he had had enough of the victim's haranguing and
drove thirteen miles to the victim's home, with a loaded
semi-automatic weapon. Upon seeing the victim approach his car,
with his hands raised in the air and bearing no weapon, the
Defendant said he “panicked” and unloaded the entire magazine of
twelve bullets plus the one bullet in the chamber in the direction
of the victim. Seven shots penetrated the victim's left back, rear
shoulder and arm area. Nothing in the record suggests that the
Defendant acted to protect himself against the victim's use or
attempted use of unlawful force. Accordingly, we conclude the
trial court's refusal to instruct the jury on self-defense was not
error.
Williamson, No. 2011 WL 3557827, at *13-14.
The magistrate judge concluded that this claim lacks merit because the state
court’s decision was neither inconsistent with Supreme Court precedent nor an unreasonable
interpretation of the facts in light of the evidence. He noted that criminal defendants have a
constitutional right to present a complete defense, but that this right requires trial courts to
instruct the jury regarding a particular defense only if the defense is supported by the evidence.
See R&R at 12 (citing Mathews v. United States, 485 U.S. 58, 63-64 (1998), and Taylor v.
Withrow, 288 F.3d 846, 851 (6th Cir. 2002)). The magistrate judge found the state court’s
explanation as to why the evidence in the present case did not support this defense to be
reasonable both factually and as a matter of law.
In his objections, petitioner first argues that “[i]t was error under state law to deny
the self-defense instruction.” Pet.’s Objs. at 15. The Court rejects this objection because the
8

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issue on habeas review is not whether the state courts’ assessment of the claim is correct under
state law, but whether it is inconsistent with Supreme Court precedent or based on an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1), (2). Even if this were a
proper objection, petitioner has not shown that the state court’s determination was erroneous as
a matter of state law. As the Tennessee Court of Criminal Appeals noted, Tennessee law
requires that a requested instruction concerning a defense be reasonably supported by the
evidence. In the present case, the state courts reasonably concluded that such evidence was
lacking because petitioner drove to the victim’s house, opened his car door, and shot the
unarmed victim several times as the victim approached him with his arms raised.
In his objections, petitioner also argues that “[t]his error was a violation of federal
constitutional law” because “a jury-instruction error rises to the level of constitutional error
when it ‘so infected the entire trial that the resulting conviction violates due process.’” Pet.’s
Objs. at 19 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Petitioner’s reliance on
Cupp is misplaced, as that case involved a questionable instruction that was given, not one that
defendant requested but was denied. Petitioner next argues that “a jury-instruction error rises
to the level of constitutional error when it relieves the state of having to prove an element of the
offense beyond a reasonable doubt.” Pet.’s Objs. at 10 (citing Sandstrom v. Montana, 442 U.S.
510, 521 (1979)). Reliance on Sandstrom is similarly misplaced, as that case, like Cupp,
involved an instruction that was given, not one that was requested but denied. Moreover, the
rule from Sandstrom – that due process is violated if the court instructs the jury in such as way
that it “reliev[es] the State of the burden of proof enunciated in Winship on the critical question
of petitioner’s state of mind,” Sandstrom, 442 U.S. at 521 – has no application in the present

9

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case. The trial court’s decision not to instruct on self defense did not relieve the prosecution of
its burden to prove all elements of first-degree premeditated murder beyond a reasonable doubt.
The Court has considered the rest of petitioner’s objections regarding this issue
and finds none to have merit. The Court agrees with the magistrate judge’s analysis. The
Tennessee Court of Criminal Appeals’ rejection of this claim was reasonable factually and
consistent with Supreme Court precedent requiring that “an instruction [be given] as to any
recognized defense for which there exists evidence sufficient for a reasonable jury to find in his
favor.” Mathews, 485 U.S. at 63. In the present case, the state appellate court reasonably
concluded that the requested instruction was properly refused because the evidence did not
support it. Petitioner’s objections as to this claim are overruled.
Ineffective Assistance: Failure to Develop and Use PTSD Testimony
Petitioner next objects to the magistrate judge’s analysis of his claim that his trial
attorneys were ineffective for failing to “develop and use expert testimony regarding
post-traumatic stress disorder that was relevant to the element of premeditation.” Pet.’s Objs.
at 1, 22. Petitioner argues that he suffered from PTSD as a result of the victim having threatened
and harassed him (by phone, text message, and in person), and that his attorneys should have
retained an expert to testify to this, as it would have supported his defense that he lacked the
capacity to premeditate. Shortly before trial, petitioner’s attorneys did retain such an expert, Dr.
Montgomery, but they withdrew him a witness when the prosecutor objected on grounds of
relevancy and timeliness. See Williamson, 476 S.W.3d 405 at 419. In the post-conviction
proceeding, the Tennessee Court of Criminal Appeals agreed that counsel’s performance in this
regard was deficient, but it rejected the claim on the grounds that petitioner had not

10

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demonstrated prejudice, as required by Strickland, because Dr. Montgomery’s testimony would
not have been admissible under Tennessee law. That court explained its decision at length as
follows:
Upon review, we conclude that in light of the facts of the case and
the chosen defense theory, the failure to consult a mental health
expert and to obtain an evaluation of the Petitioner in a timely
manner was deficient performance. The facts available to the
Petitioner's attorneys at the time warranted prompt consultation
with a mental health expert regarding mens rea and PTSD.
*

*

*

B. Prejudice
Because we have found deficient performance by counsel and
co-counsel, the question becomes whether the Petitioner was
prejudiced by their failure to obtain a prompt mental health
evaluation. The post-conviction court found that the Petitioner
failed to prove by clear and convincing evidence that he was
prejudiced because Dr. Montgomery's testimony did not meet the
standards for admissibility and would not have been admitted at
the trial.
In a criminal prosecution, the State has the burden of proving
beyond a reasonable doubt that a defendant possessed the required
mens rea. See T.C.A. § 39–11–201(a)(2) (2014). In this case, the
State was required to prove that the Petitioner committed an
unlawful, premeditated, and intentional killing of the victim. See
T.C.A. §§ 39–13–201 (2014), 39–13202 (2014). In order to rebut
the State's proof of mens rea, “evidence of a defendant's mental
condition can be relevant and admissible in certain cases[.]” State
v. Abrams, 935 S.W.2d 399, 402 (Tenn. 1996); see also State v.
Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). Tennessee
recognizes the right of a defendant to present expert proof to
negate the existence of the culpable mental state required for the
offense. State v. Hall, 958 S.W.2d 679, 679-80 (Tenn. 1997); State
v. Ferrell, 277 S.W.3d 372, 379 (Tenn. 2009); see T.C.A. §
39–11–203(e)(1) (2014) (recognizing as a ground of defense the
negation of an element of an offense). The so-called rule of
diminished capacity “‘[p]roperly understood ... is not a defense at
all but merely a rule of evidence.’” Hall, 958 S.W.2d at 688-89
11

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(quoting United States v. Pohlot, 827 F.2d 889, 897 (3d Cir.
1987)); see also State v. Adams, 405 S.W.3d 641, 660 (Tenn.
2013).
1. Admission Pursuant to the Tennessee Rules of Evidence and
State v. Hall
“When ... a defendant seeks to utilize expert testimony to negate
an element of the offense, trial courts must consider the
evidentiary principles pertaining to relevancy and expert testimony
as set forth in the Tennessee Rules of Evidence.” Ferrell, 277
S.W.3d at 380 (citing Hall, 958 S.W.2d at 689). Relevant evidence
is “evidence having any tendency 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. Relevant evidence, however, “may be
excluded 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.
Regarding the admissibility of expert testimony, Tennessee Rule
of Evidence 702 provides, “If scientific, technical, or other
specialized knowledge will substantially assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.”
Rule 703 provides,
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in
evidence[.]
Whether to admit expert testimony is within the sound discretion
of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn.
1993). A trial court's ruling will be reversed only if the lower court
abused its discretion, which requires a showing that the court
“‘applied an incorrect legal standard, or reached a decision which
is against logic or reasoning that caused an injustice to the party
complaining.’” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)
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(quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).
In the present case, the post-conviction court found that Dr.
Montgomery was a qualified expert witness but that his testimony
would not have been admissible at the trial because it did not meet
the relevance and reliability requirements of the Rules of Evidence
and the Hall threshold for diminished capacity to form the
requisite mental state evidence. The court noted that although Dr.
Montgomery diagnosed the Petitioner with PTSD related to the
victim's ongoing harassment and threats, the doctor could only
state that it was possible the Petitioner's untreated PTSD and the
intense emotional circumstances caused the Petitioner to
misunderstand the situation and that it was possible the Petitioner
lacked the capacity to exercise reflection and judgment before
shooting the victim. The court noted, as well, that Dr. Montgomery
could only state that it was possible the Petitioner's ability to
reflect and exercise judgment was affected by alcohol impairment.
Dr. Montgomery's testimony and report reflect his opinion that the
Petitioner suffered from PTSD and that the Petitioner's PTSD and
alcohol consumption significantly impaired the Petitioner's ability
to exercise reflection and judgment. Dr. Montgomery testified,
though, that he thought it was possible the Petitioner lacked the
capacity to exercise reflection and judgment due to the PTSD and
alcohol consumption, but he was unwilling state that it was his
expert opinion that the Petitioner lacked the capacity to do so.
In State v. Hall, our supreme court concluded “psychiatric
evidence that the defendant lacks the capacity, because of mental
disease or defect, to form the requisite culpable mental state to
commit the offense charged is admissible under Tennessee law.”
958 S.W.2d at 689. The Hall court provided the following
admonition:
[W]e emphasize that the psychiatric testimony must
demonstrate that the defendant's inability to form the
requisite culpable mental state was the product of a mental
disease or defect, not just a particular emotional state or
mental condition. It is the showing of a lack of capacity to
form the requisite culpable mental intent that is central to
evaluating the admissibility of expert psychiatric testimony
on the issue.
Id. at 690 (citing State v. Shelton, 854 S.W.2d 116, 122 (Tenn.
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Crim. App. 1992)). When presented on subsequent occasions with
questions involving the admissibility of expert proof, the supreme
court has adhered to the parameters of Hall. See, e.g., Ferrell, 277
S.W.3d at 378-79; State v. Faulkner, 154 S.W.3d 48, 56-57 (Tenn.
2005).
Our supreme court's decision in State v. Hatcher, 310 S.W.3d 788
(Tenn. 2010), is instructive. In Hatcher, the juvenile defendant
participated with his older brother and another co-defendant in the
shootings of three victims.
The defense theory ... was that he was so frightened of his
brother Chris that he participated in the shootings with less
than the culpable mental state required for premeditated
murder or attempted premeditated murder. That is, the
defense argued that [the defendant's fear of his brother]
prevented him from acting intentionally and with
premeditation while he participated in the shooting.
Hatcher, 310 S.W.3d at 808. The defense relied upon the
defendant's testimony to support its theory and did not offer expert
proof. The defense sought a special jury instruction to support its
theory that the defendant's fear of his brother negated the culpable
mental state. In determining whether the trial court properly
denied the request, the supreme court looked to Hall for guidance.
The Hatcher court noted that the defense theory relied upon “a
particular emotional state or mental condition” but not a “lack of
capacity to form the requisite mental intent.” Id. at 805-07
(quoting Hall, 958 S.W.2d at 690). For this reason, the court
concluded, the trial court properly denied the requested
instruction. Id. at 807. Although Hatcher involved a jury
instruction question, it nevertheless provides guidance regarding
the principles of Hall.
This court recently faced a situation similar to the Petitioner's in
State v. Tray Dontacc Chaney, No. W2013–00914–CCA–R9–CD,
2014 WL 2016655 (Tenn. Crim. App. May 14, 2014), perm. app.
denied (Tenn. Sept. 18, 2014). In that case, the State appealed the
trial court's denial of its motion in limine to exclude the testimony
of a defense psychologist who would testify that the defendant's
borderline intellectual capacity combined with related situational
factors “eroded” the defendant's capacity to premeditate. The State
sought exclusion of the evidence because the expert could not
testify unequivocally that the defendant was unable to form the
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required mens rea. This court examined Hall, Faulkner, Ferrell,
and unreported Court of Criminal Appeals cases and concluded
that the evidence was irrelevant and inadmissible and that the trial
court abused its discretion in denying the State's motion in limine
to exclude the evidence. In so holding, this court reasoned:
[T]he case law holds that expert testimony regarding a
defendant's mental state is relevant and admissible only to
establish that, at the time of the crimes, the defendant
lacked the capacity to premeditate. Since Dr. Kennon's
testimony did not do so, we conclude that the trial court
erred in finding that the testimony was admissible.
Tray Dontacc Chaney, 2014 WL 2016655, at *9; see State v.
Herbert Michael Merritt, No. E2011–01348–CCA–R3–CD, 2013
WL 1189092, at *27 (Tenn. Crim. App. Mar. 22, 2013) (holding
that the trial court did not abuse its discretion in excluding
evidence that the defendant's mental disease or defect impaired or
reduced his ability to form the required mens rea, rather than
stating that the defendant “completely lacked the capacity to
commit premeditated first degree murder”), perm. app. denied
(Tenn. Aug. 13, 2013); State v. Robert Austin, No.
W2005–01963–CCA–R3–CD, 2007 WL 2624399, at *6 (Tenn.
Crim. App. Sept. 10, 2007) (holding that although the trial court
erred in ruling that an expert witness could not testify about the
ultimate issue of the defendant's mental state, the error was
harmless because testimony that the defendant's mental disease
merely “impacted” his capacity to form the required mental state
was inadmissible under Hall); State v. Antonio D. Idellfonso–Diaz,
No. M2006–00203–CCA–R9–CD, 2006 WL 3093207, at *4
(Tenn. Crim. App. Nov. 1, 2006) (“The fact that the [defendant's]
mental disease impaired or reduced his capacity to form the
requisite mental state does not satisfy the two-prong requirement
in Hall and Faulkner.”), perm. app. denied (Tenn. Feb. 26, 2007).
The Petitioner argues in his reply brief that other post-Hall cases,
including Ferrell, do not support a narrow construction of Hall.
We disagree. We note that Ferrell stands for the proposition that
evidence to negate the mens rea is not limited to expert psychiatric
testimony. 277 S.W.3d at 377–81. The Petitioner also argues that
Hatcher stands for the proposition that Hall should not be rigidly
applied. He notes that Hatcher quoted the pattern jury instruction
for evidence of mental state and contends that the instruction
contains language that indicates the evidence regarding mental
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state should be admitted even if it is stated in less than certain
terms. We disagree with his reading of Hatcher and the pattern
instruction. The pattern jury instruction informs the jury of the
matters it must resolve as the trier of fact, whereas the
admissibility of expert proof is determined by the trial judge and
governed by the Rules of Evidence and Hall. The proferred
evidence still must show that a defendant suffered from a mental
disease or defect, not just a particular emotional state or mental
condition. To the extent that the Petitioner seeks to utilize the
pattern instruction as a guide to the admissibility of evidence by
a trial court, rather than evaluation by a jury of evidence that has
been properly admitted, his argument is misplaced. See Hatcher,
310 S.W.3d at 804–07; T.P.I.–Crim. 42.22 (18th ed. 2014)
(evidence of mental state).
We have also rejected the Petitioner's argument that the proposed
evidence in State v. Vaughn, 279 S.W.3d 584 (Tenn. Crim. App.
2008), was stated with no greater certainty than were the opinions
expressed by Dr. Montgomery in the present case. As relevant
here, Vaughn involved the denial of a defense motion for a
continuance and denial of funds for expert assistance. In support
of the motion, an expert had submitted an affidavit stating that the
defendant's voluntary intoxication “may have rendered him unable
to form the requisite mens rea for the alleged actions in accordance
with the criteria listed State v. Hall and T.C.A. 39–11–503.” Id. at
597, n.9. In concluding that the trial court erred in revoking the
funds for expert assistance, the court said expert testimony on the
issue of voluntary intoxication was relevant and admissible
pursuant to Hall, but the court did not state that the proposed
expert's opinion, as stated in the affidavit, would be admissible
evidence at a trial. Id. at 597–602.
We have considered the other cases upon which the Petitioner
relies. See Adams, 405 S.W.3d 641; Mobley v. State, 397 S.W.3d
70 (Tenn. 2013); Shuck, 953 S.W.2d 662; State v. Don Sanders,
W2006–02592–CCA–R3–CD, 2008 WL 1850934 (Tenn. Crim.
App. Apr. 22, 2008); State v. Maurice Lamont Davidson, No.
M2002–00178–CCA–R3–CD, 2003 WL 151202 (Tenn. Crim.
App. Jan. 22, 2003), perm. app. denied (Tenn. May 19, 2003).
These cases do not support the Petitioner's argument that
equivocal expert testimony is permitted.
Based upon our review of the law, we conclude that the
post-conviction court did not err in determining that Dr.
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Montgomery's testimony would have been inadmissible pursuant
to the Rules of Evidence and Hall. Dr. Montgomery stated only
that it was a possibility that due to a mental disease or defect, the
Petitioner lacked the capacity to form the required mens rea.
Although Dr. Montgomery was able to state an opinion with
certainty regarding the Petitioner's PTSD and substance use
disorder diagnoses, evidence of these diagnoses was not relevant
and admissible without an opinion regarding the ultimate issue of
the Petitioner's capacity to form the required mens rea.
Williamson, 476 S.W.3d at 419-23.
The magistrate judge found no merit to petitioner’s argument that he was
prejudiced by his counsel’s failure to develop this defense. Petitioner’s first objection is that
he was prejudiced because Dr. Montgomery’s testimony “would have been admissible under
Hall,” and the state court “interpreted Hall unreasonably.” Pet.’s Objs. at 24-25. The Court
rejects this objection because “federal habeas corpus relief does not lie for errors of state law.”
Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “[I]nquiry into issues of state law ‘is no part of a
federal court’s habeas review of a state conviction.’” Seaman v. Washington, 506 F. App’x 349,
357 (6th Cir. 2012) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Therefore, whether
the Tennessee Court of Criminal Appeals did or did not properly apply the Tennessee Supreme
Court’s decision in Hall in ruling that Dr. Montgomery’s testimony would not have been
admissible, had it been offered, is irrelevant on habeas review.
Petitioner next objects that “federal constitutional standards would have entitled
[him] to present [Dr. Montgomery’s testimony] in his defense” because the “Constitution
prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that
are disproportionate to the ends that they are asserted to promote[.]” Pet.’s Objs. at 26-27
(quoting Holmes v. South Carolina, 547 U.S. 319 (2006)).

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In Holmes, the Supreme Court stated that “the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense,” and that “[t]his right is
abridged by evidence rules that infring[e] upon a weighty interest of the accused and are
arbitrary or disproportionate to the purposes they are designed to serve.” 547 U.S. at 324
(citations and internal quotation marks omitted).4

However, the Court also noted that

“well-established rules of evidence permit trial judges to exclude evidence if its probative value
is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or
potential to mislead the jury.” Id. at 326.
The magistrate judge correctly rejected petitioner’s argument that the court of
appeals’ decision in the present case runs afoul of Holmes. There is nothing arbitrary or
disproportionate in a rule of evidence that bars equivocal expert testimony that a defendant’s
mental disease or defect “may” or “possibly might” affect defendant’s mens rea. The court of
appeals found that this rule serves the legitimate interests of limiting expert testimony to that
which will assist the jury in resolving factual disputes by requiring such testimony to be
presented with a reliable degree of certainty. As noted by the post-conviction court and the
court of appeals, Dr. Montgomery

4

The Court cited a number of examples of arbitrary evidence rules, including statues
that “barred a person who had been charged as a participant in a crime from testifying in
defense of another alleged participant unless the witness had been acquitted”; a “state
hearsay rule [that] did not include an exception for statements against penal interest, the
defendant was not permitted to introduce evidence that [a third party] had made
self-incriminating statements to three other persons” regarding the crime of which defendant
was charged; and a rule whereby “the defendant was prevented from attempting to show at
trial that his confession was unreliable because of the circumstances under which it was
obtained.” Id. at 325-26. Holmes itself invalidated a statute that prohibited defendants from
offering evidence that a third party committed the murder of which he was charged.
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could only state that it was possible the Petitioner's untreated
PTSD and the intense emotional circumstances caused the
Petitioner to misunderstand the situation and that it was possible
the Petitioner lacked the capacity to exercise reflection and
judgment before shooting the victim. The court noted, as well, that
Dr. Montgomery could only state that it was possible the
Petitioner's ability to reflect and exercise judgment was affected
by alcohol impairment.
Williamson, 476 S.W.3d at 421 (emphasis added). Excluding equivocal testimony of this nature
did not deprive petitioner of his right to present a defense. He therefore suffered no prejudice
as a result of his attorneys’ failure to offer this evidence at trial. Petitioner’s objections to the
magistrate judge’s analysis of this claim are overruled.
Ineffective Assistance of Counsel: Failure to Investigate and Use Evidence that Would
Support Self-Defense and Lack of Premeditation
Petitioner’s next objection is that the magistrate judge incorrectly analyzed his
claims that his attorneys were ineffective for failing to find and use evidence relative to his
defenses of self-defense and lack of premeditation. Pet.’s Objs. at 1, 30. The Tennessee Court
of Criminal Appeals addressed these claims as follows:
In addition to the allegations regarding the failure to pursue mental
health evidence to challenge mens rea, the Petitioner contends that
his trial attorneys provided ineffective assistance in investigating
and preparing for the trial in several respects. He contends they
failed to investigate and preserve cell phone records and voice
messages, failed to conduct effective interviews of available
witnesses, failed to prepare for and conduct an effective
cross-examination of Brandon Clark, and failed to develop a
defense theory. He argues that these failures, individually or
collectively, entitle him to post-conviction relief.
A. Failure to Investigate and Preserve Cell Phone Records and
Voice Messages
The post-conviction proof showed that the Petitioner provided his
cell phone to his mother before his arrest in order for her to
provide it to counsel to obtain stored messages for use at the trial.
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Counsel testified that he hired a person with technical expertise to
obtain messages from the Petitioner's cell phone. Co-counsel
testified that he was responsible for obtaining the Petitioner's cell
phone records, that he had trouble because the provider only
maintained records for a short time, and that a subpoena was
issued to the cell phone service provider on the Friday before the
trial began the following Monday. At the trial, the defense was
unable to play the voice messages because the Petitioner's cell
phone service had lapsed.
The post-conviction record reflects that counsel knew early in the
case that the ongoing conflict between the Petitioner and the
victim was important factually. The Petitioner's mother provided
counsel with the Petitioner's cell phone, but counsel took no
immediate action to preserve any available voice messages. The
failure to investigate and preserve any available evidence was
deficient performance.
Turning to the question of prejudice, we note the Petitioner's trial
testimony that he received text and voice messages from the victim
and that approximately ninety-eight percent of them were
threatening and 100% contained profanity. The Petitioner said that
at one point, he filed a complaint with the Macon County Sheriff's
Department and had an officer review threatening text and voice
messages from the victim. The Petitioner read the content of some
of the text messages to the jury and testified about the contents of
the voice messages. He said that he had not saved some of the
voice messages because of his cell phone's limited capacity. The
Petitioner also testified in detail about in-person encounters with
the victim. Macon County Sheriff's Deputy Ron Smith testified
that in the process of taking a report from the Petitioner against the
victim, he reviewed text messages and listened to voice messages,
but he did not testify about the contents. The State acknowledged
at the trial that the victim was disgruntled with the Petitioner and
that the victim sent the text messages and left the voice messages
for the Petitioner.
In assessing prejudice, we think it is significant that despite the
inability to play the messages for the jury, the Petitioner was able
to introduce evidence about their contents. The Petitioner argues
that the victim's inflection and anger would have provided
probative evidence to support Dr. Montgomery's testimony, had it
been presented, of the Petitioner's PTSD. As we have stated, Dr.
Montgomery's testimony was inadmissible. We also note the
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State's acknowledgment at the trial that the victim was angry and
hostile toward the Petitioner.
We cannot conclude that the Petitioner was prejudiced by
counsel's failure to present the recorded voice messages at the
trial. The Petitioner is not entitled to relief on this basis.
B. Failure to Conduct Effective Interviews of Roger Williamson,
Maria Creasy, and John Michael McKinnon
The Petitioner contends that his trial attorneys failed to conduct
effective interviews of the Petitioner's parents and his mother's
then-boyfriend. He claims that the witnesses would have assisted
Dr. Montgomery's evaluation and supported the Petitioner's
testimony.
First, the Petitioner argues that his trial attorneys failed to conduct
an adequate interview of his father, Roger Williamson. The
Petitioner's father did not testify at the trial but did testify at the
post-conviction hearing that he was present when the victim
chased the Petitioner home after trying to run the Petitioner off the
road. The Petitioner asserts that Mr. Williamson could have
testified about the large size of the truck the victim drove, the
victim's “cut[ting] the tailspin” in Mr. Williamson's driveway, and
the Petitioner's “shaken” demeanor. Mr. Williamson also testified
at the post-conviction hearing that the defense team never
questioned him in detail about the Petitioner's background.
Second, the Petitioner argues that his mother, Maria Creasy, was
not adequately interviewed. Ms. Creasy did not testify at the trial.
The Petitioner asserts that she could have provided relevant
information about his childhood, the events before and after the
shooting, and his relationship with Ms. Holmes. Regarding the
Petitioner's history, he argues that Ms. Creasy could have testified
about both his parents' alcoholism and the conflicts between the
Petitioner and his father and that these facts contributed to a
predisposition to PTSD. He notes Ms. Creasy's testimony at the
post-conviction hearing about his starting a new job two days
before the shooting and his being unreachable and unable to get
out of bed the day before the shooting. He likewise notes her
post-conviction testimony about his beer consumption on the day
of the crime and his demeanor after the shooting.
Third, the Petitioner argues that John Michael McKinnon was
never interviewed about the events on the day of the crime but that
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he could have testified about the difficulties in the Petitioner and
Ms. Holmes's relationship. The Petitioner notes that he was with
Mr. McKinnon all day on the date of the crime and that Mr.
McKinnon could have testified about their actions, including the
amount of beer they drank after finishing work that afternoon.
The record reflects that both trial attorneys met with the Petitioner
and that counsel spent a substantial amount of time reviewing the
case with the Petitioner. Co-counsel retained investigative
assistance early in the case, and Ms. Waltz met with the Petitioner
about the facts of the case. Her written report reflects that the
Petitioner told her about the incident in which the victim tried to
run him off the road and about the conflict between himself and
the victim due to the Petitioner's involvement with Ms. Holmes.
By his own account, the Petitioner had two or three beers on the
night of the crime, and counsel did did not think the Petitioner was
intoxicated when the Petitioner turned himself in to the police.
Regarding the adequacy of the investigation, the post-conviction
court found that the trial attorneys' testimony was credible
regarding their knowledge of the case and preparedness. We
acknowledge the court's adverse credibility determinations relative
to co-counsel, particularly as regards his attorney's fees, but we
note that the court separately credited his testimony regarding his
knowledge of the case and trial preparation. We note that counsel's
testimony provides some corroboration of co-counsel's preparation
efforts. In addition, the court specifically noted and credited
counsel's testimony that he knew the facts of the case. The court
found that the Petitioner failed to prove by clear and convincing
evidence that his attorneys' investigation, preparation, or trial
performance was inadequate. The evidence does not preponderate
against the court's findings. The Petitioner's attorneys were aware
of the prior conflicts between the Petitioner and the victim and the
Petitioner's related state of vigilance and fear. They had Ms.
Waltz's report containing information about the incident in which
the victim tried to run the Petitioner off the road and followed him
home. They investigated the Petitioner's alcohol consumption by
asking him how much he drank on the day of the crime, and his
answer was consistent with counsel's personal observations of the
Petitioner at the sheriff's department after the crime. The court
noted that no proof had been offered to show that the Petitioner
was intoxicated at the time of the shooting to the extent that it
affected his ability to premeditate. The Petitioner has not shown
that his trial attorneys' performance was deficient and that he was
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prejudiced by counsel's performance. He is not entitled to relief on
this basis.
C. Failure to Prepare for and Conduct an Effective
Cross–Examination of Brandon Clark
The Petitioner contends that his trial attorneys were ineffective for
failing to prepare for and conduct a successful cross-examination
of Brandon Clark, who said in a written statement that the
Petitioner told him the shooting had been premeditated. The
Petitioner testified that after he reviewed the discovery materials,
he notified counsel that Mr. Clark's statement was inaccurate about
the Petitioner's having said the shooting was premeditated. He
contends that counsel should have investigated Mr. Clark's
personnel record because it contained information about an
investigation of Mr. Clark's off-duty presence at a suspected “drug
house” and Mr. Clark's apparent intoxication, which he argues
could have been used as impeachment evidence. He also argues
that counsel's cross-examination of Mr. Clark was ineffective
because counsel was not adequately familiar with the Mr. Clark's
written statement when counsel attempted unsuccessfully to get
Mr. Clark to say that Mr. Clark had not quoted the Petitioner when
Mr. Clark used the word “premeditated” in the statement.
However, Mr. Clark said he had quoted the Petitioner despite his
lack of quotation marks around the word in the statement and his
use of quotation marks elsewhere in the statement.
The post-conviction court found that the information in Mr.
Clark's personnel file about the off-duty incident was not relevant
impeachment evidence. The court noted that the statement had
been provided in discovery, that counsel had talked to Mr. Clark
a couple of times before the trial, that Mr. Clark had been a
reluctant witness, that the prosecutor had been frustrated with the
witness, and that the prosecutor had to show the statement to the
witness “to draw it out of him.” The court found that the Petitioner
failed to show ineffective assistance in the preparation for and
cross-examination of Mr. Clark. As we noted previously, the
post-conviction court credited counsel's testimony that he knew
the facts of the case. The Petitioner has not shown on appeal that
the evidence preponderates against the post-conviction court's
factual findings or that its conclusions are unsupported by the
factual findings. The Petitioner is not entitled to relief on this
basis.
D. Failure to Develop a Defense Theory
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The Petitioner contends that his trial attorneys failed to develop a
“complete theory of the defense because their theory lacked a
recognized challenge to premeditation.” He argues that the
attorneys' lack of further investigation about the Petitioner's
alcohol consumption and lack of a timely psychiatric evaluation
show their failure to develop a defense theory to show why the
Petitioner could not form the mens rea for first degree murder. As
we have stated, the post-conviction court expressed concern about
co-counsel's billing practices, but it credited counsel's testimony
about his and co-counsel's investigation and preparation of the
defense. The record shows that the Petitioner's trial attorneys
consulted with him about the facts and the trial. To the extent that
the Petitioner may have provided them with erroneous or
misleading information about his alcohol consumption, the
reasonableness of the Petitioner's attorneys' actions must be
evaluated in this light. See Strickland, 466 U.S. at 691, 104 S.Ct.
2052. Although the attorneys failed to consult with a psychiatric
expert promptly, the Petitioner failed to demonstrate by clear and
convincing proof that prompt consultation would have resulted in
the development of admissible evidence to support a defense
theory that the Petitioner was unable to form the culpable mental
state. Prompt consultation would not have affected the defense
strategy because Dr. Montgomery's testimony was inadmissible.
The Petitioner is not entitled to relief on this basis.
Williamson, 476 S.W.3d at 424-28.
The magistrate judge analyzed each of these claims and found none to have merit.
In his objections regarding these issues, petitioner narrows his focus to the following three
alleged failures of his trial attorneys: their failure to preserve petitioner’s voicemails, their
failure to “present at trial proof of the road incident, where [the victim] attempted to kill or
injure [petitioner],” and their failure to “develop and present proof that [petitioner] had ingested
quite a bit of alcohol during the late afternoon to evening of the shooting.” Pet.’s Objs. at 30-31.
Petitioner argues that if his attorneys had presented the additional voicemails and
evidence of the road incident, “it would have been completely clear that [he] was entitled to the
self-defense instruction, and so the prejudice he suffered from this failure was the denial of that
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instruction.” Id. at 31. The magistrate judge correctly rejected this argument. As the appellate
court noted, evidence of the voicemails was presented at trial. Petitioner read some of the
voicemails aloud and testified about the contents of others. He also testified that he reported the
threatening messages to the police, and a sheriff’s deputy, Ron Smith, verified in his testimony
that he had done so. Further, petitioner “testified in detail about in-person encounters with the
victim.” Williamson, 476 S.W.3d at 425. Therefore, petitioner presented the evidence in
question for the jury’s consideration.
Petitioner’s suggestion that the trial court would have given the requested selfdefense instruction if counsel had presented additional voicemails and more detail about the
road incident is far-fetched. As noted by the court of appeals on petitioner’s direct appeal, the
defense of self-defense permits a person to use force against another “when and to the degree
the person reasonably believes the force is immediately necessary to protect against the other’s
use or attempted use of unlawful force. The person must have a reasonable belief that there is
an imminent danger of death or serious bodily injury.” Williamson, No. 2011 WL 3557827, at
*13 (quoting Tenn. Code Ann. § 39–11–611(a) (emphasis added)). The state appellate court
reasonably concluded that this defense simply did not apply in this case because petitioner drove
thirteen miles to the victim’s house, opened his car door, and shot the unarmed victim several
times while his arms were raised. Petitioner faced no imminent danger. He therefore was not
prejudiced by his attorneys’ failure to submit the additional evidence in question because there
is no “reasonable probability” that the trial court would have instructed the jury on self-defense
if this evidence had been presented. Strickland, 466 U.S. at 694. Nor, had the jury been
instructed on self-defense, is there any reasonable probability that it would have believed that

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petitioner acted in self-defense.
Petitioner next argues that “counsel failed to present the evidence of relatively
significant intoxication. Had counsel timely consulted with Dr. Montgomery, counsel would
have learned of [petitioner’s] PTSD diagnosis and the synergistic effect of alcohol on the PTSD
symptoms. Consequently, counsel would have presented a stronger case that the PTSD likely
prevented [petitioner] from premeditating that night.” Pet.’s Objs. at 31. The magistrate judge
correctly rejected this argument. The state appellate court found that counsel’s performance in
this regard was not deficient. When counsel met with petitioner on the same night as the
shooting, “he did not notice signs of intoxication.” Williamson, 476 S.W.3d at 413. Further,
petitioner told counsel’s investigator that he had consumed “two or three beers on the night of
the crime but did not mention an alcohol problem.” Williamson, 476 S.W.3d at 413. Under
these circumstances, the state appellate court reasonably concluded that counsel did not perform
deficiently by failing to further investigate whether petitioner was so intoxicated at the time of
the shooting that it may have exacerbated his PTSD and thereby prevented him from
premeditating. Petitioner’s objection as to this issue is overruled.
Petitioner’s final objection is that the magistrate judge failed to consider the
“cumulative effect of counsel’s errors.” Pet.’s Objs. at 31. The Court rejects this argument, as
“a claim of cumulative error is not a cognizable ground for relief on federal habeas review.”
Kelly v. Collins, No. 20-3221, 2020 WL 5000062, at *6 (6th Cir. June 26, 2020) (citing
Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006)).
Conclusion
For the reasons stated above,

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IT IS ORDERED that Magistrate Judge Frensley’s R&R is hereby accepted and
adopted as the findings and conclusions of the Court. Petitioner’s objections are overruled.

IT IS FURTHER ORDERED that petitioner’s application for a writ of habeas
corpus is denied.

IT IS FURTHER ORDERED that no certificate of appealability shall issue, as
petitioner has made no substantial showing that any of his constitutional rights have been
violated.

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: January 26, 2021
Detroit, Michigan

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