Hall v. Bell

Filing 148

ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 1 15 . Signed by Chief Judge J. Daniel Breen on 3/30/15. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

JON HALL,
Petitioner,
vs.
WAYNE CARPENTER, Warden, Riverbend
Maximum Security Institution,
Respondent.

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No. 05-1199-JDB-egb

ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
DENYING CERTIFICATE OF APPEALABILITY
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On February 4, 2013, the United States Court of Appeals for the Sixth Circuit remanded
this case in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). (Electronic Case Filing (“ECF”)
No. 128.) The Court initially directed Petitioner, Jon Hall, to brief the issues related to Martinez,
but subsequently held the briefing in abeyance pending the decision of the United States Supreme
Court addressing a related issue in Trevino v. Thaler, 133 S. Ct. 1911 (2013). (ECF Nos. 129 &
131.) On May 28, 2013, the Supreme Court decided Trevino. On August 30, 2013, Hall filed a
brief on the Martinez issues. (ECF No. 136.) On October 15, 2013, Petitioner filed a notice of
filing for the declaration of Frankie Stanfill, Petitioner’s pre-trial counsel. (ECF No. 139.) On
October 30, 2013, Respondent 1 filed a supplemental brief addressing Martinez and Trevino.

1

The Respondent at that time was Warden Ricky Bell, (See ECF Nos. 140 & 142), but is
now Warden Wayne Carpenter.

(ECF No. 140.) On November 20, 2013, Hall filed a notice of supplemental authority. (ECF No.
141.) On February 4, 2014, Respondent, Wayne Carpenter, submitted documents related to the
state post-conviction proceedings. (ECF No. 144.) On March 19, 2014, Petitioner filed a notice
of supplemental authority, (ECF No. 146), and on July 11, 2014, a notice of additional
supplemental authority. (ECF No. 147.)
I.

BACKGROUND
On February 5, 1997, Hall was convicted of first-degree murder in the Circuit Court of

Madison County, Tennessee for the 1994 death of his estranged wife, Billie Jo Hall, and sentenced
to death. State v. Hall, No. 02C01-9703-CC-00095, 1998 WL 208051, at *1 (Tenn. Crim. App.
Apr. 29, 1998). Petitioner had the same counsel at trial, for the new trial motion, and on direct
appeal. (See ECF No. 136 at 4.)
A.

Pro Se Petition for Post-Conviction Relief

On December 7, 2000, the inmate filed a pro se petition for relief from conviction or
sentence in the Circuit Court of Madison County, Tennessee. (ECF No. 144-1 at PageID 1842–
73.) 2 He alleged ineffective assistance of counsel at a Acritical stage@ related to his arrest and
extradition process, preliminary hearing, bail proceedings, illegal search and seizure. (Id. at
PageID 1847–60.) Petitioner addressed the Adenial of right to be heard@ and complained of his
counsel=s ineffectiveness in relation to cross-examination of the State’s witnesses, the failure to
rebut misleading evidence/testimony, and the lack of Abasic facts@ or evidence Aneeded to present a
clear picture of the hardships and conditions that caused the Petitioner to experience a very
confused state of mind, subjecting him to abnormal behavior.@ (Id. at PageID 1867.) He

2

“PageID” references are used for ease of location with documents filed as part of the state
court record or as exhibits.
2

asserted that his trial counsel failed to: (1) protect various state and federal rights; (2) subject the
State’s case to any meaningful adversarial testing; (3) suppress illegally obtained evidence; (4) try
and obtain a bail; (5) suppress Chris Dutton=s testimony as the fruit of the exploitation of no bail;
and (6) present sufficient evidence in support of Petitioner’s defense theory. (Id. at PageID
1868.) Hall complained of pre-trial counsel, Frank Stanfill’s, lack of experience, the resulting
“unreasonable prejudicial delays in obtaining a fair and speedy trial,@ and of the prejudice
Petitioner suffered from an early psychiatric evaluation. (Id.) He alleged numerous other
incidents of ineffective assistance related to counsel=s failure to have him transferred to a local
county jail to prepare for trial, inform him of the nature of a court-ordered psychiatric examination,
record the examination, require that he be present at hearings, and file a motion to compel
identification of the psychiatrist or psychologist treating key witnesses. (Id. at PageID 1871–72.)
Petitioner alleged that his trial counsel, Jesse Ford and Clayton Mayo, were ineffective
because they failed to:
1. Select a jury consisting of a fair cross section of the community of the
petitioner’s race and gender;
2. Utilize all peremptory and cause challenges and allow Juror Rucker from
Jackson Madison County General Hospital;
3. Have the jury sequestered away from the victim’s family;
4. Represent Petitioner effectively in all aspects in presenting his case;
5. Stand up for Petitioner=s rights to be heard by himself and counsel and
require the court clerk to make out a verbatim transcript depicting this
request;
6. Make proper objections and move to suppress or strike the testimony of TBI
Agent Byrd and Chris Dutton as fruits of the poisonous tree;
7. Present evidence in their custody and control to corroborate Petitioner=s
defense;
3

8. Rebut or correct misleading circumstantial evidence, especially evidence
that had nothing to do with the facts or crime;
9. Give up investigative files produced for the defense to thwart Petitioner=s
desire to represent himself;
10. Learn basic facts and listen to Petitioner=s flag argument;
11. Include motions by previous attorneys in the technical record;
12. Investigate facts;
13. Object to Anude@ autopsy photos that made a female juror too sick to
continue;
14. Present proof in support of Sheryl Arbogast=s testimony and admit this same
evidence at the sentencing phase;
15. Object to the judge=s fundamental error or impermissible comment on the
evidence during jury instructions; and
16. Appeal the judge=s erroneous order refusing to let trial attorneys withdraw.
(Id. at PageID 1872–73.)
On November 1, 2001, Hall filed an affidavit to support the ineffective assistance of
counsel claim regarding a misstatement of law. (Id. at PageID 1981–83.)
B.

Amended Petition for Post-Conviction Relief

On November 1, 2001, Petitioner’s counsel filed an amended petition for post-conviction
relief. (ECF No. 144-2 at PageID 2071–2121.) In Issue 1 of the Amended Petition, the inmate
presented the following ineffective assistance of counsel claims:
1. Counsel failed to adequately investigate the mental history of Defendant. Had they
done so, they could have prepared adequate psychiatric testimony showing a
diminished mental capacity that was consistent with a charge of manslaughter,
perhaps insanity, and certainly a Defendant undeserving of the death penalty.
2. Counsel failed to adequately petition for funds for various experts, including
psychiatric experts.
4

3. Counsel failed to establish the proper working relationship with Petitioner. Counsel
met with Petitioner only a few times prior to the trial[,] and they did not
consistently maintain communication with Petitioner. Had Counsel fulfilled this
duty, (ABA Def Funct. 4-3.1; ABA Death Penalty Guidelines 11.4.2) Petitioner
would have been able to provide Counsel with valuable investigative assistance,
including details that would support defense strategies, including facts which
established this crime to be manslaughter or possibly insanity.
4. Counsel failed to be aware of (through experience, training-or research) the law
applicable to Petitioner’s case, as evidenced by the deficiencies in Counsel’s
performance outlined in this petition. Had Counsel fulfilled this duty (ABA Def.
Funct. 4-3.8; ABA Death Penalty Guidelines 9.1) they would have prepared and
presented the legitimate defenses available to Petitioner, such as manslaughter or
insanity.
5. Counsel failed to maintain their workload at the level acceptable to handling a
capital murder trial (ABA Death Penalty Guidelines 6:1). Counsel continued to
carry their full criminal practice throughout their representation of Petitioner and
neither withdrew from nor declined representation in other matters.
6. Counsel failed to adequately prepare for their representation of Petitioner,
including but not limited to:
a)

Counsel failed to properly interview Petitioner (ABA Def. Funct. 4-3.2;
ABA Death Penalty Guidelines 11.4.2). Counsel met with Petitioner only a
few times during the course of representation of Petitioner. Had Counsel
fulfilled this duty they would have established the rapport necessary to elicit
from Petitioner valuable information leading to and supporting defense
theories and mitigation.

b)

Counsel failed to properly investigate (ABA Def. Funct. 4-4.1; ABA Death
Penalty Guidelines 11.4.1), including but not limited to:
(1)

Counsel failed to identify, locate and interview all relevant
witnesses
(ABA
Death
Penalty
Guidelines
ll.4.l(D)(l)(3)(a)-(c)),including but not limited to crime scene
witnesses, expert witness and mitigation witnesses.

(2)

Counsel failed to identify, gather and examine the necessary
documents,
records
and
physical
evidence
(ABA
11.4.1(D)(l)(a)-(c), (D)(2)(a)-(e), (D)(4)-(6)), including but not
limited to: arrest reports, reports of forensic testing, any recorded or
memorialized version of statements made by Petitioner and others,
autopsy reports, physical evidence seized by the state, viewing the
5

crime scene, and prior criminal records of Petitioner and other
witnesses.
Had Counsel fulfilled this duty they would have uncovered
legitimate defenses for Petitioner. Proper preparation also would
have produced valuable evidence tending to impeach the testimony
and credibility of the state’s witnesses. Had Counsel prepared
properly, they also would have strengthened Petitioner’s position in
any plea negotiations. Campbell v. Marshall, 769 F.2d 314, 318 (6th
Cir. 1985) (The Court noted in dicta that certain evidence would
have “borne upon the defense counsel's negotiating power in
arriving at a plea.”).
7. Counsel failed to engage in the motions practice necessary to protect Petitioner’s
rights (ABA Def. Funct. 4-3.6; ABA Death Penalty Guidelines 11.5.l(B)),
including but not limited to:
(a)

Counsel failed to file sufficient pre-trial motions challenging the
constitutionality of the sentencing provisions of Tennessee’s murder
statute, especially the portions relating to the death sentence and the manner
in which it is to be carried out. Had Counsel fulfilled this duty Petitioner
would not have faced the death penalty. Tennessee’s sentencing statute is
arbitrary and capricious and is therefore a violation of the Eighth and
Fourteenth Amendments to the Untied (sic) States Constitution and Article
I, §§ 6, 7, 8, 9, 10, 16, 17 and 19 Article XI, § 8 of the Tennessee
Constitution.
(1)

The sentencing statute provides insufficient guidance to the jury
concerning what standard of proof the jury should use in making the
determination that the aggravating factors outweigh the mitigating
circumstances.

(2)

The sentencing statute does not sufficiently narrow the population
of defendants convicted of first degree murder who are eligible for a
sentence of death.

(3)

The sentencing statute does not sufficiently limit the jury’s
discretion because once the jury finds the existence of one
aggravating factor, the jury can impose a sentence of death no
matter what evidence of mitigation is shown.

(4)

The sentencing statute limits the jury’s discretion to exercise mercy
by requiring the jury to impose a sentence of death if it finds that the
aggravating factors outweigh the mitigating factors.
6

(5)

The sentencing statute fails to ensure that non-statutory mitigating
factors are given the same weight as statutory mitigating factors by
not requiring that the jury be given written instructions on the equal
weight of non-statutory mitigating factors.

(6)

The sentencing statute does not require the jury to make the ultimate
determination that the appropriate punishment is a death sentence.

(7)

The sentencing statute does not require that the jury be instructed in
writing that it may impose a life sentence on the basis of mercy
alone.

(8)

The sentencing statute does not provide a way to correct, by written
instructions or the presentation of evidence, juror’s common
misperceptions regarding the actual terms of a life-sentence and the
death sentence, the cost of incarceration and the cost of executions,
the death penalty’s failure to deter murders, and the painful nature of
death by electrocution.

(9)

The sentencing statute prevents effective review on appeal because
it does not require the jury to make specific findings with respect to
the presence or absence of mitigating circumstances and with
specificity regarding the presence of aggravating circumstances.

(10)

The sentencing statute provides for a punishment, death, which is
cruel and unusual.

(11)

The sentencing statute provides for methods of execution,
electrocution and lethal injection, which are cruel and unusual.

(12)

The sentencing statute is applied in a discriminatory manner unfairly affecting racial, gender, geographic, economic and political
classes.

(13)

The sentencing statute does not provide an adequate method for
proportionality and arbitrariness review by the Tennessee Supreme
Court.

(14)

The sentencing statute has been applied by prosecutors in a manner
that represents an abuse of their discretion because the statutes do
not provide uniform standards for application of the death sentence.

(15)

The sentencing statute has produced violations of the equal
protection clauses of the state and federal constitutions because they
do no[t] provide uniform standards for qualifying jurors for service
7

on capital juries.
(16)

The sentencing statute permits the introduction of unreliable
evidence in support of aggravating circumstances and in rebuttal of
mitigating factors.

(17)

The sentencing statute allows the state to make the final closing
argument to the jury in the penalty phase of the trial.

(18)

The sentencing statute does not require that the jury be instructed in
writing regarding the consequences of its failure to reach a
unanimous verdict in the penalty phase.

(19)

The sentencing statute requires the jury to agree to a unanimous
verdict in order to impose a life sentence.

(20)

By restricting the discretion of the jury to life (which the jury might
believe is any number of years, including as low as five or six) or
death, and not allowing the jury to fix the penalty at life without
parole or life without parole for a fixed number of years the statute
denies the discretion of the sentencer mandated by the Eighth and
Fourteenth Amendments to the United States Constitution and
Article I, §§ 8 and 16 of the Constitution of Tennessee. Lockett v.
Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L.Ed.2d 973 (1978).

(21)

The statute did not require the court to instruct the jury on all
mitigating circumstances raised by the evidence.

(22)

The statute violates the Sixth, Eighth and Fourteenth Amendment to
the United States Constitution and Article I, §§ 6, 8, 9, and 16 of the
Tennessee Constitution, because the heinous, atrocious or cruel
aggravating factor under Tenn. Code Ann. § 39-13-204(i)(5) is
vague and overbroad and thus fails to narrow the scope of those
individuals guilty of first degree or felony murder who are eligible
of the death penalty. Moreover, the definitions provided in the
instructions in this case, as required by State v. Williams, 690
S.W.2d 517 (Tenn. 1985), are a mere tautology and do not provide
the necessary clarity to provide the required narrowing of those
eligible for death.

(23)

The statute violates Petitioner’s rights because death by
electrocution and lethal injection constitute cruel and unusual
punishment, and because it requires the Petitioner to elect his
method of execution.
8

(a)

Execution by electrocution or lethal injection is neither
immediate nor painless and therefore is cruel and unusual
punishment under Article I, § 16 of the Tennessee
Constitution and the Eighth Amendment to the United States
Constitution. See, Fierro v. Gomez, 77 F.3d 301 (9th Cir.
l996) (holding that death by lethal gas is cruel and unusual
punishment).

(b)

Electrocution using Tennessee’s electric chair and protocol
is particularly cruel and unusual as according to Dr. John P.
Wikswo, Jr., Professor of Living State Physics and Professor
of Physics at Vanderbilt University, and others, the peculiar
design of Tennessee’s electric chair and procedures
recommended for the use of Tennessee’s electric chair
would result in prolonged and agonizing pain to the person
being electrocuted.

(24)

The statute violates the Eighth and Fourteenth Amendments to the
United States Constitution and Article I, §§ 8 and 16 of the
Constitution of Tennessee as the requirements of Furman v.
Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972), that
the discretion to impose death must be closely confined to avoid
arbitrariness, those of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954,
57 L.Ed.2d 973 (1978) that the sentencer must have unlimited
discretion not to impose death, and of Eddings v. Oklahoma, 455
U.S. 104, 102 S. Ct. 869, 71 L.Ed.2d 1 (1982), that the death penalty
must be imposed “fairly, and with reasonable consistency or not at
all,[”] have proven impossible to administer in practice, and thus,
there is no way to constitutionally administer the death penalty.
Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 1128-1138, 127
L.Ed.2d 435 (l994) (Justice Blackm[u]n, dissenting from the denial
of certiorari).

(25)

The statute violates the Fourth, Sixth, Ninth and Fourteenth
Amendments to the United States Constitution and Article I, §§ 6, 7,
8, 9, 16 and 17 of the Tennessee Constitution as it impinges on
Petitioner’s fundamental right to life. The right to life is a
fundamental constitutional right and the punishment of death is not
necessary to promote any compelling state interest in punishing
Petitioner nor has the state shown that there are no less restrictive
means of punishing him.
(a)

Counsel filed inadequate pre-trial motions seeking the
state’s compliance with constitutional, statutory and local
discovery obligations. Had Counsel fulfilled this duty they
9

would have obtained valuable mitigation evidence and
evidence which would impeach the state’s witnesses.
(b)

Counsel failed to file pre-trial motions seeking preservation
of all law enforcement rough notes and a complete copy of
the District Attorney General’s file, both for in camera
inspection and later use on post-conviction. Counsel’s
failure to file such a motion severely handicapped
Petitioner’s post-conviction efforts from which Petitioner
should be granted relief.

(c)

Counsel filed inadequate and untimely pre-trial motions
seeking the resources necessary for their representation of
Petitioner, including appropriate sentencing investigative
assistance, appropriate funding for a mitigation specialist
who could guide the preparation of a sentencing case, jury
selection assistance and expert witnesses able to address
forensic issues in this case, Petitioner’s life history and
Petitioner’s mental condition. See Tenn. Sup. Ct. R. 13; Ake
v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.ED.2d 53
(1985). Had Counsel fulfilled this duty, valuable mitigation
evidence would have been developed and presented.

(d)

Counsel filed inadequate pre-trial motions seeking special
voir dire rules, including but not limited to the right to
submit a comprehensive jury questionnaire and the right to
conduct individual voir dire as to death qualification of the
venire members. Had Counsel fulfilled this duty they would
have been able to develop the information necessary to
properly select the jury.

(e)

Counsel failed to file pre-trial motions charging the
prosecution with abuse of discretion in seeking the death
penalty and asserting the disproportionate application of the
death penalty in Petitioner’s case. Had Counsel fulfilled this
duty[,] the death notice in Petitioner’s case may have been
withdrawn or dismissed.

(f)

Counsel failed to file pre-trial motions challenging the
proportionality of the death sentence in Petitioner’s case.
Had Counsel fulfilled this duty[,] the case may have been
dismissed.

(g)

Counsel failed to file objections challenging jury
instructions and failed to file proposed jury instructions,
10

including but not limited to the following:
(1)

Counsel failed to object to jury instructions which
equated “reasonable doubt” with “moral certainty”
and permitted conviction upon a “satisfactory
conclusion” of Petitioner’s guilt.

(2)

Counsel failed to object to a jury instruction which
misstated the law regarding the necessity for a
unanimous verdict in order for Petitioner to receive a
life sentence.

(3)

Counsel failed to seek an instruction clarifying that a
life sentence means “life” and that a death sentence
means “death” that these sentences will be carried
out.

(4)

Counsel failed to seek an instruction clarifying that
the decision regarding sentence is to be made by
individual jurors; that the jury does not have to be
unanimous regarding sentence.

(5)

Counsel failed to seek instructions clarifying the law
regarding sentencing factors: (i) an instruction
clarifying that only statutory aggravating factors are
to be considered; (ii) an instruction defining
aggravating factors; (iii) an instruction defining
mitigating circumstances, including listing all nonstatutory mitigating circumstances; (iv) an
instruction
clarifying
how
aggravating
circumstances are to be weighed; (v) an instruction
establishing that the jury must find, unanimously, the
existence of aggravating circumstances beyond a
reasonable doubt; (vi) an instruction establishing that
mitigating circumstances may be found by a single
juror; (vii) an instruction clarifying that Petitioner
began the sentencing phase of the trial under the
presumption that no aggravating circumstances
existed in his case; (viii) an instruction that the first
degree murder conviction itself is not an aggravating
circumstance; (ix) an instruction clarifying that
evidence put on to establish mitigating
circumstances cannot be used to establish
aggravating circumstances.
11

(6)

Counsel failed to seek an instruction establishing
that lingering doubt regarding Petitioner’s guilt may
serve as a non-statutory mitigating circumstance.

(7)

Counsel failed to seek an instruction establishing
that doubts regarding the appropriate sentence are to
be resolved in favor of a life sentence.

(8)

Counsel failed to seek an instruction establishing
that the jury may base its decision on mercy,
sympathy and compassion.

(9)

Counsel failed to file a proposed verdict form that
listed all mitigating circumstances raised by the
evidence, statutory and non-statutory, and which
required to jury to specifically state what mitigating
circumstances were found to exist by any juror, and
failed to object to the verdict form used by the court.

Had Counsel fulfilled this duty[,] prejudicial and/or illegal jury
instructions may have been kept from the jury and accurate, fair
instructions may have been presented. Moreover, an appropriate
verdict form would have preserved issues for appeal and collateral
attack.
(h)

Counsel failed to file pre-trial motions seeking the right to
allocution for Petitioner. Had Counsel fulfilled this duty
Petitioner may have been ·able to speak for his own life,
providing valuable insight into his life history and
background.

(i)

Counsel failed to file pre-trial motions seeking to limit the
state’s proof at the sentencing hearing to specific
aggravating circumstances. See Cozzolino v. State, 584
S.W.2d 765, 767-68 (Tenn. 1979). Had Counsel fulfilled
this duty, improper and prejudicial evidence presented by
the state during the sentencing may have been excluded.

(j)

Counsel failed to timely subpoena witnesses or evidence.
Tenn. R. Crim. P. 17. Had Counsel fulfilled this duty,
valuable evidence would have been available to support
defense theories and mitigation.

(k)

Counsel failed to properly file motions to preserve the
testimony produced at the preliminary hearing. Had they
12

done so, valuable impeachment testimony would have been
preserved for future use.
(1)

Counsel failed to file pre-trial sufficient motions challenging
Petitioner’s illegal arrest, detention, and interrogation in
Texas, and his subsequent transfer from Texas to Tennessee.
Had Counsel done so, Petitioner’s indictment may have
been dismissed and/or all evidence gathered pursuant to
Petitioner’s illegal arrest and interrogation would have been
suppressed.

(m)

Counsel failed to file pre-trial motions challenging the
constitutionality of Tennessee’s murder statute. Had
Counsel fulfilled this duty Petitioner’s indictment may have
been dismissed and/or these constitutional issues would
have been preserved in the record for consideration on
appeal and in post-conviction. Specifically, Counsel did not
file motions challenging the constitutionality of Tennessee’s
murder statute on these grounds:
(1)

(2)

Tennessee’s murder statute has produced violations
of equal protection guarantees of the state and
federal constitutions because it does not provide
uniform standards for qualifying jurors for service in
murder juries.

(3)

(n)

Tennessee’s murder statute is applied in a
discriminatory manner, unfairly affecting racial,
gender, geographic, economic and political classes.

Tennessee’s murder statute was vague and failed to
fulfill the requirements of Article II, § 17 of the
Tennessee Constitution, which prohibits the
enactment of any bill which embraces more than one
subject which is to be expressed in the title of the
bill. Tenn. Code Ann. § 39-13-202 contains more
than one subject and the title of the statute gives no
notice of some of the subjects addressed by the
statute. State v. Hailey, 505 S.W.2d 712 (Tenn.
1974).

Counsel failed to file a pre-trial motion seeking a bill of
particulars pursuant to Tenn. R. Crim. P. 7(c). Had counsel
fulfilled this duty they would have been able to identify
evidence supporting viable defense theories and would have
13

been better equipped to rebut the state’s case.
(o)

Counsel failed to file adequate pre-trial motions seeking the
state’s compliance with constitutional, statutory and local
rules governing the disclosure of discovery. Had Counsel
fulfilled this duty they would have obtained all of the
available evidence, some of which would have supported
viable defense theories and some of which would have
impeached state witnesses. Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L.Ed.2d 215 (1963); California v.
Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L.Ed.2d 413
(1984); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972); Kimmelman v. Morrison, 477 U.S.
365, 106 S. Ct. 2574, 91 L.Ed.2d 305 (1986); Tenn. R Crim.
P. 16.

(p)

Counsel failed to file adequate pre-trial motions and motions
in limine seeking special voir dire rules, including but not
limited to the right to submit a jury questionnaire and the
right to conduct individual voir dire. State v. Claybrook, 736
S.W.2d 95 (Tenn. 1987). Had Counsel fulfilled this duty
they would have been able to develop the information
necessary to properly select the jury.

(q)

Counsel failed to file pre-trial motions challenging the
legality and constitutionality of the process by which the
grand and petit juries were selected in Petitioner’s case.
Specifically, Counsel failed to assert that the venire did not
represent a cross-section of the community. Had Counsel
fulfilled this duty the ·indictment in this case may have been
dismissed and the jury ultimately seated in Petitioner’s case
would have been more free of biases for the prosecution.

(r)

Counsel failed to file objections to the jury instructions
proffered by the state and given by the court and failed to file
proposed jury instructions, including but not limited to the
following:
(1)

Counsel failed to object to jury instructions which
shifted the burden of proof of an element of the crime
to the Petitioner.

(2)

Counsel failed to object in a pre-trial motion to jury
instructions which required the jury to presume the
truthfulness of witnesses, thereby violating the jury’s
14

prerogative to assess the credibility of witnesses and
determine facts.
(3)

Counsel failed to request in a pre-trial motion that
the court instruct the jury on the elements of all lesser
included offenses.

(4)

Counsel failed to object to jury instructions that
improperly defined premeditation and the
presumption of innocence.

(5)

Counsel were ineffective for not objecting to the
failure to instruct the jury that it must find, as an
element of the (i)(5) aggravating factor of “heinous
atrocious or cruel (HAC),” that the Petitioner
intended to inflict serious physical abuse. Absent
such
instructions,
the
HAC
aggravating
circumstance found by the jury in this case was
unconstitutional. Wade v. Calderon, 29 F.3d 1312,
1320 (9th Cir.), cert. denied, 115 S. Ct. 923 (1995).
The Petitioner asserts that trial counsel was
constitutionally ineffective under the Sixth
Amendment to the United States Constitution and
Article I, § 9 of the Tennessee Constitution for not
requesting such a clarifying instruction.

Had Counsel fulfilled this duty prejudicial and/or illegal jury
instructions may have been kept from the jury and accurate, fair
instructions may have been presented in their place.
(s)

Counsel failed to timely subpoena witnesses or evidence.
See Tenn. R. Crim. P. 17. Had Counsel fulfilled this duty,
valuable evidence would have been available at the trial to
support viable defense theories.

(t)

Counsel failed to file an adequate motion for judgment of
acquittal. Had Counsel fulfilled this duty, the court would
have entered a judgment of acquittal regarding the
premeditated murder charge in this matter.

(u)

Counsel failed to file a motion seeking an order which would
have required the state to elect which of two murder counts
as to each deceased would go to the jury. Had Counsel
fulfilled this duty[,] they would have been able to more
narrowly present a defense[,] and the court may have
15

dismissed the case against Petitioner.
(v)

Counsel failed to file necessary post-trial motions, including
but not limited to:
(1)

Counsel failed to file adequate motions seeking a
continuance of the date for filing a motion for new
trial and for the hearing on the motion for new trial.
Counsel failed to secure the time necessary to
adequately investigate, develop and present new
evidence that supported viable defense theories.

(2)

Counsel failed to file a motion seeking production of
a complete transcript of the trial prior to the date for
filing a motion for new trial.

(3)

Counsel failed to file an adequate and
comprehensive motion for new trial, neglecting to
assert significant evidence and numerous legal
issues.

Had Counsel fulfilled this duty[,] the court may have granted a
motion for new trial. Moreover, counsel would have preserved
additional issue[s] for appeal and collateral review which would
have resulted in Petitioner’s being relieved from his conviction and
sentence.
(w)

Counsel failed to file a motion to dismiss and/or a motion to
arrest the judgment on the ground that Tennessee's murder
statute was unconstitutional.

8.

Counsel failed to develop and pursue a comprehensive defense theory for
the trial. (ABA Death Penalty Guidelines 11.7.l(A) and (B)). Significant
evidence which supported a viable defense theory, including Petitioner’s
crime being that of mansla[u]ghter or possibly insanity, was available to
Counsel.

9.

Counsel failed to competently select the jury for the trial (ABA Death
Penalty Guidelines l l.7.2(A) and (B)), including but not limited to:
(a)

Counsel failed to conduct an adequate voir dire which would have
exposed biases prejudicial to Petitioner which were held by some of
the jurors: failing to discover jurors who were relatives and close
friends of law enforcement officials, failing to discover jurors who
had been victims of crime or were close to crime victims. Had
16

Counsel fulfilled this duty[,] they would have been able to more
effectively exercise peremptory strikes to exclude jurors with biases
against Petitioner.
(b)

Counsel failed to challenge, for cause, those jurors who held some
kind of bias against Petitioner, his case, or any class or group to
which he belongs. Had Counsel fulfilled this duty[,] the jurors with
biases against Petitioner would have been excluded and Petitioner’s
peremptory strikes could have been strategically applied.

(c)

Counsel failed to object to the state’s discriminatory use of its
peremptory challenges to strike African-Americans, men, poor
people or the unemployed, and other cognizable groups. Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986); State
v. Butler, 795 S.W.2d 680 (Tenn. Crim. App. 1990). Had Counsel
fulfilled this duty[,] the jury in Petitioner’s case would have
represented a fair cross-section of the community.

(d)

Counsel failed to conduct an adequate voir dire, especially with
respect to the “death qualification” of the jurors. Counsel failed to
object to the exclusion of jurors who held general opposition to the
death penalty and failed to properly voir dire those jurors in an effort
to rehabilitate them as viable panelists. In the same vein, Counsel
failed to seek to exclude jurors whose opinions would lead them to
impose the death penalty in every case. Witherspoon v. Illinois, 391
U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968). Had Counsel
fulfilled this duty[,] Petitioner’s jury would have been composed of
a fair cross-section of society, including those with reservations
about capital punishment, a fact relevant to the guilt/innocence
phase of the trial because it is well established that jurors who are
inclined to impose the death penalty are also more inclined to
convict.

(e)

Counsel failed to object to the state’s incorrect presentation, during
voir dire, of the definitions of the elements of the charge, burdens of
proof, and definitions of sentencing terms.

10.

Counsel failed to competently argue motions at the pre-trial and post-trial
motions hearings. Specifically, Counsel failed to present evidence in
support of the various motions. Counsel also failed to cite legal authority in
support of some of the various motions.

11.

Counsel did not competently perform during opening and closing
arguments during the guilt/innocence phase of the trial, including but not
limited to:
17

(a)

Counsel failed to object to the state’s improper, inflammatory,
prejudicial, inappropriate and misleading or inaccurate statements
concerning the law, the evidence and Petitioner during opening and
closing arguments. Had Counsel fulfilled this duty[,] the court may
have corrected the errors in the state’s comments and presentation of
evidence.

(b)

Counsel failed to adequately and accurately argue the evidence and
law in their opening and closing arguments to the guilt/innocence
phase of the trial. Had Counsel fulfilled this duty the jury would
have been better exposed to the defensive theory that this case was
manslaughter or that the Defendant was insane at the time of the
commission of the offense.

12.

Counsel failed to adequately object to the state’s presentation of prejudicial,
misleading, false and inappropriate evidence at the guilt/innocence phase of
the trial. Counsel also failed to adequately object to the state’s inappropriate
methods of introducing evidence at the guilt/innocence phase of the trial,
including but not limited to the state’s extensive practice of leading
witnesses on direct-examination. Counsel did not move for a mistrial on the
basis that the state’s extensive practice of leading witnesses rendered the
state’s evidence unreliable and the entire proceeding fundamentally flawed.

13.

Counsel failed to adequately cross-examine the state’s witnesses during the
guilt/innocence phase of the trial. Significant opportunities existed for
Counsel to demonstrate the falsity of the testimony of the state’s witnesses
and to impeach the credibility of the state’s witnesses. (ABA Def. Funct.
4-7.6). Had Counsel fulfilled this duty[,] the jury may have concluded that
the state had not met its burden of proof.

14.

Counsel failed to present, during Petitioner’s case at the guilt/innocence
phase of the trial, significant evidence in existence at that time which
supported viable defense theories, including but not limited to:
manslaugh[t]er or insanity.

15.

Counsel failed to conduct post-trial juror interviews, in order to develop
potential issues for Petitioner’s motion for a new trial.

16.

Counsel failed to raise the objections necessary to preserve issues for
appellate review. Had Counsel fulfilled this duty, error in Petitioner’s trial
proceedings may have been available for consideration on appeal and in
post-conviction proceedings.

17.

Counsel failed to properly challenge the admissibility of the testimony of
18

the minor children who testified in this case. Counsel failed to properly
object and make the court aware of the proper test for the admissibility of
the testimony of children of tender years.
18.

Counsel failed to withdraw from this case. At the time of trial, a conflict had
developed between counsel and the Petitioner so as to cause Petitioner to
file a grievance against counsel with the Tennessee Board of Professional
Responsibility. Knowing this, counsel failed to try to have themselves
properly excused from representation. The subsequent performance reflects
this hostility toward Petitioner.

19.

Counsel failed to secure the preliminary hearing testimony. Failing to do so
left valuable impeachment testimony of the state’s witnesses unusable.

20.

Counsel held numerous hearings without fully informing Petitioner.

21.

Counsel failed to properly withdraw a change of venue motion when
instructed to do so by Petitioner. Failing this caused this trial to be tried in
Madison County, where publicity and conditions were far worse than
Henderson County, Tennessee. Counsel failed to object to the trial
proceeding in Madison County. Had Counsel acted consistent with the
wishes of their client, a different result would have been obtained.

22.

Counsel failed to properly introduce much testimony that should have been
known to them at the time of trial. Specifically, mitigation investigations
had been done which had alerted them to much mitigation testimony which
was ignored by them. Additionally, Counsel failed to introduce the dying
declaration of Petitioner’s brother. Had they properly used this testimony
and presented it in a history to a psychiatrist, the outcome of this trial would
have been different.

23.

Counsel failed to properly inform the Petitioner of the consequences of
testifying in his own behalf. Had they done so, Petitioner would have
testified and the result of the trial would have been different.

24.

Counsel asked for continuances against the wishes of Petitioner. Petitioner
desired a speedy trial and was denied one because of the actions of counsel. 3

(ECF No. 144-2 at PageID 2077–98.)
An evidentiary hearing was held over the course of four days: May 15–16, 2002,
3

There appear to be additional allegations of ineffective assistance of trial counsel, but the
top of the page seems to be cut off on the copy scanned into CM-ECF. (See ECF No. 144-2 at
PageID 2098–99.)
19

September 4, 2002, and November 4, 2002. (See ECF No. 144-7 at PageID 2822.) On February
20, 2003, the post-conviction trial court denied post-conviction relief. (Id. at PageID 2822–74.)
C.

Post-Conviction Appeal

Hall filed a notice of appeal on March 4, 2003. (Id. at PageID 2875.) The Tennessee
Court of Criminal Appeals addressed the following ineffective assistance of trial counsel claims on
appeal of the denial of post-conviction relief:
1. failure to properly present an intoxication defense;
2. failure to establish the victim as the aggressor;
3. failure to preserve the testimony of Jeff Hall;
4. failure to submit evidence of the petitioner’s habit of disconnecting telephone lines;
5. failure to adequately present the mental health issue;
6. failure to present proof that the petitioner was a good father and evidence of other good acts
of the petitioner;
7. failure to develop a defense strategy; and
8. failure to interview all potential witnesses.
Jon Hall v. State, No. W2003-00669-CCA-R3-PD, 2005 WL 22951, at *27 (Tenn. Crim. App. Jan.
5, 2005) (See ECF No. 144-17 at PageID 3952–57.) On January 5, 2005, the Tennessee Court of
Criminal Appeals affirmed the decision of the post-conviction trial court. Hall, 2005 WL 22951
at *1, *38. (ECF No. 144-19.) Petitioner’s application for permission to appeal to the Tennessee
Supreme Court was denied on June 20, 2005. (Id.)
D.

Habeas Petition

The inmate alleged ineffective assistance of trial counsel in Claim 13 of his amended
habeas petition, specifically alleging that defense counsel:
20

1.

Failed to obtain and present evidence from Hall’s family and other sources
(including Carol Alexander, Kathy Hugo, Debbie Davis, Jay Hall, Jeff Hall,
Sheryl Arbogast, Joel Hall, Beth Hall, Carla Ulery, Scott Smith, school
records) respecting Mr. Hall's social history (& 259);

2.

Failed to obtain and present evidence from Hall’s family, friends,
acquaintances, doctors, prison and jail personnel providing an explanation
for the homicide (& 260);

3.

Failed to obtain and present evidence that at the time of the offense, a
biologically driven deficit interfered with his ability to exercise reflection
and judgment for his actions (& 261);

4.

Failed to obtain a change of venue (& 262.1);

5.

Failed to keep the trial in Henderson County (& 262.2);

6.

Selected a jury consisting of eleven women and one man (& 262.3);

7.

Failed to correct District Attorney Woodall’s voir dire intimation that a
first-degree murder required a death sentence (& 262.4);

8.

Failed to correct Judge LaFon’s statement that the jury sentence would be
advisory (& 262.5);

9.

Failed to correct Judge LaFon’s statement that the only purpose of the trial
would be to ascertain guilt (& 262.6);

10.

Agreed to the striking for cause of juror Bozza (& 262.7);

11.

Failed to object to Billie Hall’s family members sitting with prospective
jurors during voir dire (& 262.8);

12.

Failed to establish that Hall disconnected telephone lines to Billie Hall’s
house so Billie Hall wouldn’t call the police and inform them that Hall was
violating a protection order (& 262.9);

13.

Failed to establish that Chris Dutton’s testimony was a lie (& 262.10);

14.

Failed to establish that the testimonies of Hall’s daughters were not accurate
(& 262.11);

15.

Failed to demonstrate that crime scene photographs presented to the jury
were inaccurate (& 262.12);
21

16.

Failed to establish that Dr. O.C. Smith’s testimony was inaccurate and
unfounded (& 262.13);

17.

Failed to preserve Jeff Hall’s testimony about [Jon] Hall’s mental state in
the days and weeks prior to the Billie Hall homicide (& 262.14);

18.

Failed to present at the sentencing stage the testimony of Sheryl Arbogast
about what Jeff Hall told her about [Jon] Hall’s mental state in the days and
weeks prior to the homicide (& 262.15);

19.

Failed to establish that [Jon] Hall was not capable of assisting in his defense
(& 262.16);

20.

Told Judge LaFon that Hall had knowingly and voluntarily waived his right
to testify (& 262.17);

21.

Failed to recognize the difference between premeditation and deliberation
under Tennessee law (& 262.18);

22.

Inaccurately referred to a Bible passage respecting the crucifixion of Jesus
Christ (& 262.19);

23.

Failed to challenge proportionality review (& 262.20); and

24.

Failed to raise at trial and on appeal any claim that “this Court rules is procedurally
defaulted.” (& 264).

(ECF No. 15 at 55–61.) Hall alleged that trial counsel were rendered ineffective by the State’s
pre-trial manufactured evidence that Michelle Hays Elliott said that he said “I'm going to kill that
bitch;” that Petitioner told Latasha Whittington-Barrett that he killed Billie Hall to have sole
possession of money he expected to accrue from a lawsuit; and that the inmate told Darlene Britain
that he intended to grind Billie Hall into “hamburger meat.” (ECF No. 15 at 60–61, & 263.)
E.

Habeas Proceedings Related to Petitioner’s Ineffective Assistance of Trial
Counsel Claims

Respondent argued that Petitioner raised only eight of the twenty-five grounds of
ineffective assistance of counsel alleged in his habeas petition in the Tennessee state courts.
(ECF No. 19 at 30.) Respondent filed a motion for judgment on the pleadings in this case. (ECF
22

No. 90-1.) He averred that, in the Tennessee state courts, Petitioner raised ineffective assistance
of trial counsel claims alleging that counsel failed to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

properly present an intoxication defense;
establish the victim as the aggressor;
preserve the testimony of Jeff Hall;
present evidence of the petitioner=s habit of disconnecting telephone lines;
properly present the mental health issue;
present evidence that petitioner was a good father and evidence of other
good acts;
develop a defense strategy; and
interview all potential witnesses.

(Id. at 26.) Warden Carpenter insisted that these claims were Aarguably interspersed through
petitioner=s ineffective assistance of counsel claim,@ but all other claims not contained within these
eight claims were procedurally defaulted. (Id.)
The issues identified by Respondent are those specified in the Tennessee Court of Criminal
Appeals’ decision affirming the post-conviction trial court. See Hall, 2005 WL 22951, at *27.
This Court examined those claims that were clearly exhausted on the merits. (ECF No. 110 at
88.)
Petitioner maintained that the state failed to meet its burden of showing that portions of his
ineffective assistance of counsel claims (Claim 13) were procedurally defaulted. (ECF No. 100 at
121–23.) 4 This Court held that Petitioner failed to demonstrate cause and prejudice with regard to
the unexhausted ineffective assistance of counsel claims:
8. Remaining Ineffective Assistance of Counsel Claims
Petitioner=s claims in his habeas petition, to the extent that they have not
been addressed above, are procedurally defaulted because Petitioner failed to
exhaust these claims and failed to demonstrate cause and prejudice or that a
miscarriage of justice would result if the Court fails to review these claims.
4

Petitioner did not argue ineffective assistance of post-conviction counsel as cause to
excuse the procedural default.
23

(ECF No. 110 at 123.) This Court addressed the allegations in && 259–62 of the Amended
Petition on the merits. (Id. at 88–123.) 5
II.

MARTINEZ & TREVINO
In 2012, the United States Supreme Court issued its decision in Martinez, which

recognized a narrow exception to the rule stated in Coleman 6 “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding . . . .”
Martinez, 132 S. Ct. at 1320. In such cases, “a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id.
The Supreme Court emphasized that “[t]he rule of Coleman governs in all but the limited
circumstances recognized here. . . . 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 . . . .”
Id. The requirements that must be satisfied to excuse a procedural default under Martinez are as
follows:
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;
(2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel
during the state collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim] ... be raised in an initial-review
collateral proceeding.”
Trevino, 133 S. Ct. at 1918 (emphasis and revisions in the original).
Martinez arose under an Arizona law that did not permit ineffective assistance claims to be
5

The Court made specific references to && 259, 260, 260.1, 260.2, 260.3, 260.3.4, 260.6,
261, 262.9, 262.14, 262.15 in the order denying the petition. (Id. at 88, 91, 99, 102, 108, 111, 117,
121.)
6

Coleman v. Thompson, 501 U.S. 722 (1991).
24

raised on direct appeal. In its subsequent decision in Trevino, the Supreme Court extended its
holding in Martinez to states in which a “state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal . . . .” Id. at
1921. Thus, Trevino modified the fourth requirement stated for overcoming a procedural default.
Recently, the Sixth Circuit in Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014), held that
ineffective assistance of state post-conviction counsel can establish cause to excuse a Tennessee
prisoner’s procedural default of a substantial federal habeas claim that his trial counsel was
constitutionally ineffective. Id. at 789; Wallace v. Sexton, 570 F. App’x 443, 453 (6th Cir. 2014)
(“Tennessee’s procedural framework directs defendants to file ineffective-assistance claims in
post-conviction proceedings rather than on direct appeal, and thus it falls into the Martinez–
Trevino framework.”).
In Martinez, the Supreme Court stated, “[t]o overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some merit.” 132 S. Ct. at
1318–19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)); see Miller-El, 537 U.S. at 336
(“[R]easonable 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 were ‘adequate to deserve
encouragement to proceed further.’”) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Martinez elaborated on what it meant for a claim to be “substantial”:
When faced with the question whether there is cause for an apparent default, a State
may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial,
i.e., it does not have any merit or that it is wholly without factual support, or that the
attorney in the initial-review collateral proceeding did not perform below
constitutional standards.
25

132 S. Ct. at 1319. Martinez requires that a petitioner’s claim be rooted in “‘a potentially
legitimate claim of ineffective assistance of trial counsel.’” Cook v. Ryan, 688 F.3d 598, 610 (9th
Cir. 2012) (quoting Lopez v. Ryan, 678 F.3d 1131, 1138 (9th Cir. 2012)), cert. denied, 133 S. Ct.
55 (2012). The petitioner must show a “substantial” claim of ineffective assistance, and this
requirement applies as well to the prejudice portion of the ineffective assistance claim. McGuire
v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 752 (6th Cir. 2013), cert. denied, 134 S. Ct. 998
(2014). See Hoak v. Idaho, No. 1:09-CV-00389-EJL, 2013 WL 5410108, at *7 (D. Idaho Sept.
25, 2013) (“Martinez requires the district court to review but not determine whether trial counsel’s
acts or omissions resulted in deficient performance and in a reasonable probability of prejudice,
and to determine only whether resolution of the merits of the claim would be debatable among
jurists of reason and whether the issues are deserving enough to encourage further pursuit of
them.”); see also Gunter v. Steward, No. 2:13-CV-00010, 2014 WL 2645452, at *13 (M.D. Tenn.
June 13, 2014) (“[I]n many habeas cases seeking to overcome procedural default under Martinez,
it will be more efficient for the reviewing court to consider in the first instance whether the alleged
underlying ineffective assistance of counsel was ‘substantial’ enough to satisfy the ‘actual
prejudice’ prong of Coleman.”). The Supreme Court and the Sixth Circuit have not provided
guidance as to how district courts reviewing habeas petitions are to implement the rulings in
Martinez and Trevino. See id. at *12.
This Court must take into account the standards related to ineffective assistance of trial
counsel to determine whether a claim is “substantial.” To be “substantial” under Martinez, a
claim must have “some merit” based on the controlling standard for ineffective assistance of
counsel stated in Strickland v. Washington, 466 U.S. 668 (1984). 132 S. Ct. at 1318–19. To
demonstrate deficient performance by counsel, a petitioner must demonstrate that “counsel’s
26

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–
88. “A court considering a claim of ineffective assistance 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, 194 (2011) (citing Strickland, 466 U.S. at 689). “The
challenger’s burden is to show ‘that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Id. (quoting
Strickland, 466 U.S. at 687). To demonstrate prejudice, a prisoner must establish “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. 7

“A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. “It is not enough ‘to show that the
errors had some conceivable effect on the outcome of the proceeding.’” Richter, 131 S. Ct. at
787–88 (quoting Strickland, 466 U.S. at 693). “Counsel’s errors must be ‘so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at
687). “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
III.

ANALYSIS
Hall argues that Martinez and Trevino apply to:
$

procedurally defaulted claims of ineffective assistance of trial counsel;

$

procedurally defaulted claims of ineffective assistance of appellate counsel,
prosecutorial misconduct, and/or withholding of exculpatory evidence; and

$

unexhausted assertions of ineffective assistance of counsel as cause for the default

7

“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant[.]” Strickland, 466 U.S. at 697. If a
reviewing court finds a lack of prejudice, it need not determine whether, in fact, counsel’s
performance was deficient. Id.
27

of other substantive claims.
(ECF No. 136 at 17–18.) Petitioner outlines the claims that Respondent or the Court have found
to be procedurally defaulted and asserts that he can show cause and prejudice under Martinez for
such issues. (Id. at 18–20.) 8
A.

Ineffective Assistance of Appellate Counsel Claims (Amended Petition ¶ 264)

The allegation in Claim 13, Paragraph 264, is a general assertion of ineffective assistance
of counsel for failure to raise at trial and/or on appeal any claim that this Court rules is procedurally
defaulted. (ECF No. 15 at 61.) The holding in Martinez does not encompass claims that
appellate counsel was ineffective. See Martinez, 132 S. Ct. at 1319 (“Coleman held that an
attorney’s negligence in a postconviction proceeding does not establish cause, and this remains
true except as to initial-review collateral proceedings for claims of ineffective assistance of
counsel at trial.”). The Sixth Circuit in Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013), stated
“[u]nder Martinez’s unambiguous holding our previous understanding of Coleman in this regard is
still the law—ineffective assistance of post-conviction counsel cannot supply cause for procedural
default of a claim of ineffective assistance of appellate counsel.” But see Ha Van Nguyen v.
Curry, 736 F.3d 1287, 1295–96 (9th Cir. 2013) (extending the equitable principle in Martinez to
Sixth Amendment claims of appellate-counsel ineffective assistance). Petitioner is denied relief
under Martinez to the extent he seeks review of his procedurally defaulted ineffective assistance of
appellate counsel claims.

8

Hall refers to multiple claims of ineffective assistance of trial (Claim 13) and other
“non-ineffectiveness” claims (Claims 1–9, 11, 14, 15, 18, and 19). (ECF No. 136 at 19.)
However, he fails to make a specific argument about how Martinez allows him to overcome
procedural default for each of these claims. The Court will only address those specific claims for
which Petitioner has presented a Martinez argument.
28

B.

“Non-Ineffectiveness” Claims

The inmate also contends that the “non-ineffectiveness” claims that the Court found to be
procedurally defaulted should be reevaluated under Martinez because ineffective assistance of trial
and/or appellate counsel provide cause for the default. (ECF No. 136 at 16–20.) He relies on
Justice Scalia’s dissent in Martinez to argue that the rationale of Martinez is not limited to
ineffective assistance of trial counsel cases. (Id. at 15–16, 52–53.) Petitioner argues Scalia’s
rationale for the application of Martinez as it relates to his claims of prosecutorial misconduct,
withheld exculpatory evidence, false testimony, and false evidence. (See ECF No. 15, Claims 4,
5, & 8, Amended Petition ¶¶ 227–40, 247–48; see ECF No. 136 at 52–53.) The Warden responds
that the Supreme Court and Sixth Circuit have made clear that Martinez and Trevino do not apply
to any type of claim other than for ineffective assistance of trial counsel. (ECF No. 140 at 17–18.)
Martinez is limited to ineffective assistance of trial counsel claims, see supra pp. 24–25.
See Martinez, 132 S. Ct. at 1320; see Moore v. Mitchell, 708 F.3d 760, 784–85 (6th Cir. 2013)
(“[T]he Court repeatedly emphasized the ‘limited nature’ of its holding, which ‘addresse[d] only
the constitutional claims’ present where the state has banned a defendant from raising his
ineffective assistance of trial counsel claim on direct appeal.”) (quoting Martinez, 132 S. Ct. at
1320); Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013) (“By its own emphatic terms, the
Supreme Court’s decision in Martinez is limited to claims of ineffective assistance of trial counsel
that are otherwise procedurally barred due to the ineffective assistance of post-conviction
counsel.”). The Court will not give Martinez an expansive holding to grant Petitioner merits
review of procedurally defaulted “substantive, non-ineffectiveness claims” for which he argues
ineffective assistance of trial counsel “as cause” to excuse a procedural default.

29

C.

Ineffective Assistance of Trial Counsel Claims
1.

Failure to Establish Petitioner=s Incompetence to Stand Trial
(Amended Petition & 262.16)

Hall alleges that trial counsel A[f]ailed to establish that Mr. Hall was not capable of
assisting his defense.@ (ECF No. 15 at 60.) He asserts that the prosecution and his appointed
counsel saw red flags indicating that he was not competent to stand trial. (ECF No. 136 at 20–30.)
Petitioner argues that that Dr. J. Douglas Bremner, a professor of psychiatry and behavioral
sciences at Emory University School of Medicine, found that he was not competent to stand trial
A[i]n fact and law” “because he did not have the ability to consult with his many lawyers with a
reasonable degree of rational understanding so as to assist them in preparing his defense and he did
not [have] a rational as well as factual understanding of the proceedings against him.” (ECF No.
136 at 21; see ECF No. 136-2 at PageID 1735.) The inmate states that Terry A. Maroney, a
tenured professor of law and a professor of medicine, health, and society at Vanderbilt University,
stated:
I saw a number of red flags that suggest that Mr. Hall has been, and likely remains,
adjudicatively incompetent. In my view, it is very likely that he suffers from both
cognitive distortions and major emotional pathology. Either of these factors might
in isolation be sufficient to destroy competence. In combination, which is what I
perceive to be likely in Mr. Hall’s case, they are even more pernicious.
(ECF No. 136 at 21; see ECF No. 136-3 at PageID 1738.) Petitioner relies on Dr. Ruben Gur’s
findings that he has substantial structural and functional brain damage, that 61% of his brain
regions function abnormally, and that he was likely unable “to modulate his emotional behavior in
response to situational demands.” (ECF No. 136 at 23; see ECF Nos. 102-34 through 102-36.)
He contends that the “real world behaviors and cognitive abilities” resulting from the brain
damage were Petitioner’s striking behaviors including belligerence and agitation with his counsel,
30

the judge, and the victim’s sister. (ECF No. 136 at 23–25; see ECF No. 136-4.)
Petitioner concludes that he was “simply unable to communicate with his attorneys, and
they with him,” suffered distorted perceptions about the criminal process, could not identify his
own best self-interest, and was unable to reason through options. (ECF No. 136 at 25–28.) He
claims that the effect of his inability to communicate or reason was “particularly devastating given
his lack of a criminal history,” the murder arising from a tempestuous marriage, and the death
penalty. (Id. at 27–28.) The inmate insists, based on Bremner’s observations, that his behavior
was “not willful but evidence of Mr. Hall’s incapacity for logical thought and his cognitive deficits
and emotional misperceptions.” (Id. at 28; ECF No. 136-2 at PageID 1734.)
Petitioner argues that there is significant medical evidence of his brain damage and that the
behavioral evidence of his inability to work with his attorneys is even more compelling. (ECF
No. 136 at 28.) He submits that the legal principles governing competency to stand trial have
been settled for decades and the facts demonstrate that he was not competent to stand trial at every
stage of the proceedings including in post-conviction. (Id. at 28–30.) Petitioner asserts that the
issue of competence was never raised, never investigated with prior counsel, and appropriate
mental health testing was never pursued. (Id. at 29–30.) Hall maintains that he has a substantial
claim that trial counsel was ineffective for failing request a competency hearing and to establish
that he was incompetent to stand trial. (Id. at 30.)
The Warden counters that Petitioner raised a related claim of ineffectiveness for failure to
properly evaluate Petitioner=s mental health which was found to be meritless by the
post-conviction court and on appeal of the denial of post-conviction relief, see supra pp. 20 and 23.
(ECF No. 140 at 18 n.6.); See Hall, 2005 WL 22951, at *31–34. Respondent contends that
Petitioner has “navigated the Tennessee Court system raising legal claims through numerous pro
31

se appeals” and “littered” the trial court technical record with “his reasonably cogent pro se legal
analysis.” (ECF No. 140 at 19.) According to Respondent, Petitioner was evaluated by five
psychological experts throughout his state court proceedings, none of whom made findings that
supported a theory of incompetence. (Id.); See Hall, 2005 WL 22951, at *3, 12, 14–18. Thus,
Petitioner=s claims that he was not competent to stand trial are not credible and not supported by
the evidence. (ECF No. 140 at 19.)
Various attorneys were appointed to represent Hall throughout the pretrial proceedings.
(See ECF No. 136-8 at PageID 1749–50.) He provides the declaration of pre-trial counsel
Stephen Spracher, Carthel Smith, and Michael Mosier to support his claim that he was
incompetent to stand trial. (ECF Nos. 136-5, 136-8, & 136-10.) Jesse Ford and Clayton Mayo
were the attorneys who represented Petitioner at trial. He was evaluated by Western Mental
Health and also by Middle Tennessee Health Institute and determined to be competent to stand
trial. Hall, 2005 WL 22951, at *8. Lynn Zager, a clinical psychologist, also worked with
defense counsel and made no determination that Petitioner was incompetent. See id. at *3.
Further she found no evidence to support an insanity defense. See id. at *10. Additionally, in the
seventeen years since Petitioner’s trial, he has been evaluated by neuropsychologist Pamela Auble,
psychiatrist Keith Caruso, and psychiatrist Kimberly Stafford, none of whom expressed concerns
about Petitioner’s competence. Id. at *14–21. It was reasonable for Petitioner’s trial counsel to
rely on the mental health professional’s determination that their client was competent to stand trial.
Although Bremner now provides a declaration in support of Petitioner’s ineffective
assistance claim, Bremner’s September 2008 report was filed as an exhibit in response to the
motion for judgment on the pleadings and did not address the inmate’s competence. (See ECF
No. 102-39.) Bremner addressed the effect of childhood neglect and abuse on the development of
32

Petitioner’s brain and whether he had the ability to commit first-degree premeditated murder. (Id.
at PageID 1269, 1277.) It was not until the August 27, 2013 declaration that Bremner was
“informed of facts about Mr. Hall’s representation and his behaviors” and came to the conclusion
that Petitioner was incompetent to stand trial. (ECF No. 136-2 at PageID 1732.) Bremner does
not appear to have reviewed the conclusions of mental health professionals who evaluated
Petitioner at or near the time of his trial to determine his competence at the time of trial.9 The
professor’s conclusions about Petitioner’s competence come nine years after the trial of this matter
and with no indication that Bremner has ever met Petitioner. (See ECF No. 102-39 at PageID
1269 (the terms of engagement were “to review certain psychological evaluations . . ., including a
neuropsychological report by Dr. Ruben Gur, an overview of Mr. Hall’s personal history, and the
facts and circumstances surrounding the death of Mr. Hall’s wife . . . .”)); see also ECF No. 136-2
at PageID 1732 (“In addition to the information set out in the 2008 Report, I have been informed of
facts about Mr. Hall’s representation about his behaviors, information upon which psychiatrists
customarily rely to reach a medical opinion. . . . I also had brief telephone conversations with Mr.
Hall’s federal counsel.”).
Given the initial determination of competence, the opinions of mental health professionals
that evaluated Petitioner throughout his state court proceedings, and no finding or even question of
mental incompetence being raised during that time, the Court does not find that trial counsel’s
performance was unreasonable in relying on the opinions of mental health professionals and
failing to establish that Petitioner was incompetent to stand trial. Petitioner’s claim of ineffective
assistance of counsel related to failure to establish Petitioner’s incompetence is not substantial.
9

Bremner reviewed a summary of Auble’s 2002 testing and a 2008 letter from Gur. (See
ECF No. 102-39 at PageID 1269.)
33

The claim is procedurally defaulted and DENIED.
2.

Jury Instructions (Amended Petition &¶ 250, 250.1, 250.2, 250.3, 264)

Hall claims that Martinez applies to his otherwise procedurally-defaulted challenges and
ineffective assistance claims involving jury instructions in which the trial court improperly and
unconstitutionally limited consideration of intoxication evidence, misdefined Aintentional@, and
improperly defined Areasonable doubt.@ (ECF No. 136 at 30.) Respondent asserts that Petitioner
raised the failure to object to jury instructions as a claim in the initial review post-conviction
proceeding. (ECF No. 140 at 18.) He avers that Martinez does not apply to appellate counsel=s
failure to pursue a claim on post-conviction appeal. (Id.) Respondent further points out that this
Court denied Petitioner’s freestanding jury instruction claims because the inmate was not
prejudiced from any error. (Id. at 19; see ECF No. 110 at 65–69.)
a.

The Intoxication Instruction (Amended Petition ¶¶ 209.19.3 &
250.3)

The allegation in Claim 13 ¶ 264 of the Amended Petition is a general assertion of
ineffective assistance of counsel for failure Ato raise at trial and/or on appeal any claim that ‘this
Court rules is procedurally defaulted.’” (ECF No. 15 at 61.) Petitioner presents this argument in
conjunction with Amended Petition ¶ 209.19.3 and Claim 9 ¶ 250.3, neither of which allege
ineffective assistance of trial counsel. (See ECF No. 136 at 30–36; see ECF No. 15 at 43, 54.)
Paragraph 209.19.3 is a factual allegation related to the jury instruction on intoxication:
209.19.3. Intoxication itself is generally not a defense to prosecution for an
offense. If a person voluntarily becomes intoxicated and while in that condition
commits an act which would be a crime if he or she were sober, he or she is fully
responsible for his or her conduct. It is the duty of persons to refrain from placing
themselves in a condition which poses a danger to others . . . . Intoxication is
irrelevant to the issue of the essential element of the Defendant’s culpable mental
state. Judge LaFon said the last sentence of this quote twice.
34

(ECF No. 15 at 43.) Paragraph 250.3 states that, at the guilt stage, Judge LaFon “[g]ave an
intoxication instruction that nullified Mr. Hall’s intoxication defense.” (Id. at 54.) As stated
supra pp. 24, 29–30, Martinez is limited to ineffective assistance of trial counsel claims.
Petitioner generically alleges a Sixth Amendment violation in Amended Petition & 250.3, but fails
to specifically include a claim of ineffective assistance of trial counsel in the Amended Petition.
(See ECF No. 15 at 54.) 10
Trial counsel’s failure to object to jury instructions was raised in the initial post-conviction
proceedings, see supra pp. 11–12. (See ECF No. 144-2 at PageID 2086–88.) 11 The inmate’s
post-conviction appellate counsel did not exhaust the claim on appeal, see supra p. 20. Because
ineffective assistance of counsel related to the jury instructions was raised by post-conviction
counsel in the initial-review collateral proceeding, Martinez does not apply.
Further, the claim is not “substantial” under Martinez because the Court determined that
Petitioner did not suffer “substantial and injurious effect” from the intoxication jury instruction.
(See ECF No. 110 at 69.) Without the ability to show prejudice, he is not entitled to Martinez
relief.

The allegation of ineffective assistance of counsel related to the intoxication jury

instruction is procedurally defaulted and DENIED.
b.

AIntentional@ Jury Instruction (Amended Petition ¶¶ 209.19.2 &
250.2)

10

Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases in the United States
District Courts (“Habeas Rules”), Petitioner must “specify all grounds for relief available” and
“state the facts supporting each ground.”
11

Petitioner’s allegations of ineffective assistance of trial counsel that were raised in the
post-conviction proceedings did not specifically relate to the intoxication jury instruction. (See
ECF No. 144-2 at PageID 2086–88.) The post-conviction appellate court addressed the issue of
whether counsel failed to present an intoxication defense properly. See Hall, 2005 WL 22951, at
*20, 27–28.
35

Petitioner uses the general assertion of ineffective assistance of counsel for failure Ato raise
at trial and/or on appeal any claim that this Court rules is procedurally defaulted” under Claim 13 ¶
264 to assert an ineffective assistance of counsel claim related to the jury instruction about intent.
(See ECF No. 136 at 35–37; see ECF No. 15 at 61.) He argues that his trial and appellate counsel
were ineffective for failing to properly challenge the definition of “intentional” because it relieved
the prosecution of its burden of proof. (See ECF No. 136 at 35.) In ¶ 250.2 of the Amended
Petition, the inmate claims that Judge LaFon gave a jury instruction on intent that allowed the jury
to find Petitioner intentionally killed Billie Hall when he only intended to strike her. (ECF No. 15
at 54.) 12 Paragraph 209.19.2 is a factual allegation that is tied to ¶ 250.2 and provides the jury
instruction at issue:
209.19.2. A person acts intentionally with respect to the nature of his
conduct or the result of his conduct when it is the person’s conscious objective or
desire to engage in the conduct or cause the result;
(ECF No. 15 at 43.) The Court will not grant Martinez relief for Petitioner’s allegations of a
substantive trial error or ineffective assistance of appellate counsel related to this instruction, see
supra pp. 28–30.
Hall generally posits a Sixth Amendment violation, but fails to specifically state a claim of
ineffective assistance of trial counsel in the amended habeas petition. (See ECF No. 15 at 43, 54.)
Trial counsel’s failure to object to jury instructions directly related to “the burden of proof of an
element of the crime” was raised in the initial post-conviction proceedings, see supra p. 14. (See
ECF No. 144-2 at PageID 2091.) Petitioner’s post-conviction appellate counsel did not exhaust
12

To say that Petitioner merely intended to strike Billie Hall is an understatement. In
addition to the drowning and manual strangulation, Billie Hall suffered a fractured nose, blunt
trauma to the head, skin tears, bruises, scrapes to the chest, abdomen, genitals, extremities, arms,
legs, and back with “eighty-three areas of separate wounds to the body indicat[ing] that the victim
had received an extensive and painful beating.” Hall, 1998 WL 208051, at *4.
36

the claim on appeal, see supra p. 20. Because ineffective assistance of counsel related to the jury
instructions was raised by post-conviction counsel in the initial-review collateral proceeding,
Martinez does not apply.
The jury instruction read:
A person acts intentionally with respect to the nature of his conduct or the
result of the conduct when it is the person’s conscious objective or desire to
engage in the conduct or cause the result.
(See ECF No. 136 at 36.) Petitioner argues that, in defining the essential element of “intentional,”
the instruction allowed the jury to find that Petitioner “intentionally” killed the victim merely by
concluding that he intended to “engage in the conduct” that caused her death. (Id.) He maintains
that this instruction is unconstitutional and that his claim has some merit and is substantial under
Martinez. (Id. at 36–37.)
The Tennessee Supreme Court has held that a proper jury instruction defining
“intentionally” would not include the nature-of-conduct and circumstances surrounding the
conduct language. State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). The court stated that first
degree premeditated murder is a “result-of-conduct” offense, but found no authority that the
erroneous instruction lessened the State’s burden of proof. Id. at 58–61. Counsel cannot be
deemed ineffective for failing to object to the jury instruction. See Davidson v. State, No.
M2010-02663-CCA-R3-PD, 2013 WL 485222, at *39 (Tenn. Crim. App. Feb. 7, 2013), aff’d in
part, rev’d in part & remanded, ___ S.W.3d ____, No. M2010-02663-SC-R11-PD, 2014 WL
6645264 (Tenn. Nov. 17, 2014), petition for cert. filed, No. 14-8522 (U.S. Feb. 23, 2015).
Petitioner’s claim that counsel’s failure to object to the “intentional” jury instruction is also not
substantial under Martinez because he cannot demonstrate prejudice.
The allegations related to the definition of “intentional” in the jury instructions are
37

procedurally defaulted and DENIED.
c.

Reasonable Doubt Jury Instruction (Amended Petition ¶¶
209.19.1 & 250.1)

Petitioner uses the general assertion of ineffective assistance of counsel for failure “to raise
at trial and/or on appeal any claim that this Court rules is procedurally defaulted” under Claim 13 ¶
264 to assert an ineffective assistance of counsel claim related to the “reasonable doubt” jury
instruction. (See ECF No. 136 at 37–39.) Paragraph 209.19.1 is a factual allegation that
provides the jury instruction that is connected to Claim 9:
209.19.1 Reasonable doubt is that doubt engendered by an investigation of
all the proof in the case and an inability after such an investigation to let the mind
rest easily as to the certainty of guilt. Reasonable doubt does not mean a capricious,
possible or imaginary doubt. Absolute certainty of guilt is not demanded by the law
to convict of any criminal charge, but moral certainty is required, and this certainty
is required as to every proposition of proof requisite to constitute the offense;
(ECF No. 15 at 43, 54.) Hall insists that Amended Petition ¶ 209.19.1 and Claim 9, ¶ 250.1 assert
a claim of ineffective assistance of trial and appellate counsel related to the meaning of
“reasonable doubt” and “moral certainty” as stated in the jury instruction. (See ECF No. 136 at
37–39; see ECF No. 15 at 43, 54.) The Court will not grant Martinez relief for Petitioner’s
allegations of a substantive trial error or ineffective assistance of appellate counsel related to this
instruction, see supra pp. 28–30.
The inmate alleges a Sixth Amendment violation in Amended Petition ¶ 250.3, but fails to
specifically state a claim of ineffective assistance of trial counsel in the Amended Petition. (See
ECF No. 15 at 54.) His post-conviction counsel alleged that trial counsel failed to object to jury
instructions related to reasonable doubt and moral certainty in the initial review post-conviction
proceeding, see supra p. 11. (See ECF No. 140 at 18; ECF No. 144-2 at PageID 2086.)
Petitioner’s post-conviction appellate counsel did not exhaust the claim on appeal, see supra p. 20.
38

Because ineffective assistance of counsel related to the jury instructions was raised by
post-conviction counsel in the initial-review collateral proceeding, Martinez does not apply.
Petitioner’s argument that his claim related to the Areasonable doubt@ jury instruction is
substantial also fails. The Sixth Circuit has upheld the constitutionality of a similar reasonable
doubt jury instruction. Austin v. Bell, 126 F.3d 843, 847 (6th Cir. 1997) 13; see Morris v. Bell, No.
07-1184-JDB, 2011 WL 7758570, at *33–36 (W.D. Tenn. Sept. 29, 2011) (finding that the
reasonable doubt penalty phase jury instruction had been upheld by the Sixth Circuit and the
inmate’s arguments were without merit). In Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001),
the Sixth Circuit held that “[c]haracterizing reasonable doubt as >substantial doubt= or >not a mere
possible doubt= does not violate due process.” Id. at 436–37 (citing Victor v. Nebraska, 511 U.S.
1, 5 (1994)); see also White v. Mitchell, 431 F.3d 517, 533–34 (6th Cir. 2005) (finding there was no
constitutional violation based on an instruction advising that A[r]easonable doubt is not mere
possible doubt, because everything relating to human affairs or depending upon moral evidence is
open to some possible or imaginary doubt@). Therefore, Petitioner cannot demonstrate prejudice
for his counsel’s failure to challenge this jury instruction.
Hall argues that his claim is substantial based on the trial court’s use of the language
“satisfactory conclusion” of guilt and instruction to the jurors to decide the case “as you think truth
13

The trial court instructed the jury as follows:

Reasonable doubt is that doubt engendered by an investigation of all the
proof in the case and an inability after such investigation to let the mind rest easily
upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise
from possibility. Absolute certainty of guilt is not demanded by the law to convict
of any criminal charge, but moral certainty is required and this certainty is required
as to every proposition of proof requisite to constitute the offense.
Austin, 126 F.3d at 846.
39

and justice dictate” to bolster his argument related to the reasonable doubt jury instruction. (ECF
No. 136 at 38–39.) However, Petitioner did not present these allegations in his habeas petition
and, therefore, is not entitled to habeas relief based on these contentions. See Habeas Rule 2.
Further, the inmate alleged that counsel failed to object to the jury instruction that permitted
conviction upon a “satisfactory conclusion” of Petitioner’s guilt in his Amended Petition for
Post-Conviction Relief. (ECF No. 144-2 at PageID 2086.) Therefore, even if the Court were to
consider this claim adequately pled, ineffective assistance of post-conviction counsel cannot be
“cause” for the procedural default under Martinez.
The allegations related to the reasonable doubt jury instruction are procedurally defaulted
and DENIED.
3.

Failure to Challenge the False and Misleading Testimony of Chris
Dutton (Amended Petition & 262.10)

Petitioner claims that his trial counsel A[f]ailed to establish that Chris Dutton’s testimony
was a lie.@ (ECF No. 15 at 59.) He also argues that Dutton made Aall sorts of outlandish claims
about what he claimed Jon Hall told him about the offense.@ (ECF No. 136 at 40.) Petitioner
further asserts that his trial counsel failed to investigate Dutton=s background to establish that he
was mentally ill, a liar, and that his testimony was false. (Id.) He insists that “[h]ad trial counsel
simply looked into Dutton=s criminal history and obtained Dutton=s prison records, trial counsel
would have uncovered extensive evidence that could have been used [to] devastate Dutton on
cross-examination” including information that
$

Dutton admitted he was possessed by a legion of demons (ECF No. 102-10 at PageID
1116–17);

$

Dutton suffered hallucinations, a history of psychotic thinking, suicide attempts, a long
history of using LSD, PCP, and heroin (ECF No. 102-11 at PageID 1124; ECF No.
102-12);
40

$

Dutton hears voice and demons Atelling him all kinds of stuff@ and has been hearing voices
since he was twelve years old (ECF No. 102-13 14);

$

Dutton attempted suicide and was housed in a prison psychiatric unit (ECF Nos. 102-14
through ECF No. 102-16); and

$

Dutton has a long history of mental health problems including antisocial personality
disorder and a treatment with numerous psychotropic medications (ECF Nos. 102-17 &
102-18).

(ECF No. 136 at 40–41.)
Hall asserts that, had counsel properly investigated, they would have been able to
cross-examine the witness with extensive evidence that he was lying when he claimed to not be
Alooking for benefits and had no idea what an informant was.@ (Id. at 41.) Petitioner contends
that counsel could have cross-examined Dutton with proof that he was working for the
government, seeking benefits, and knew that he could get assistance based upon his story against
Petitioner, including evidence that:
$

Dutton boasted that he knew how the informant system worked and was ready to become
an informant for the FBI (ECF No. 102-2);

$

when Dutton was trying to get out of administrative segregation, he again sought to contact
the FBI for assistance (ECF No. 102-19 at PageID 1139);

$

Dutton testified for the State of North Carolina in the State v. Tammie Thompson and
received numerous benefits, including being quickly released from maximum security in
Tennessee, sent to the Knox Community Service Center, given two furloughs, and released
early from prison (ECF Nos. 102-20 through 102-23);

$

Dutton received additional prison time including time for assaulting a corrections officer
(ECF Nos. 102-24 through 102-26);

$

Dutton was depressed and looking to get out of segregation when he claimed he obtained
information on Petitioner in late 1995 15; and
14

Petitioner incorrectly cited ECF No. 102-32.

15

Petitioner’s reference to ECF No. 102-29 may be incorrect.
41

$

Dutton Awas lavished with extraordinary benefits by the Tennessee Department of
Correction@ after he provided information against Petitioner including quick release from
administrative segregation, hasty transfer from Riverbend Maximum Security Institution
to minimum security at Cold Creek Correctional Facility, and a job Aafter which he boasted
that he was going to be paroled.@ (ECF Nos. 102-28 through 102-33);

(ECF No. 136 at 41–43.)
He insists that “[g]iven this abundance of impeachment evidence”, counsel was ineffective
for failing to cross-examine Dutton using this evidence. (Id. at 43.) Respondent did not directly
address Petitioner’s argument as it relates to Dutton except to note that this Court found “the
claims related to the impeachability of state witnesses were found to be non-material” in regard to
Petitioner=s Brady claims. (ECF No. 140 at 19.)
This Court determined that much of the information that the inmate asserts was
impeachment evidence that trial counsel should have used to impeach Dutton was not material
under Brady and the state’s failure to disclose such information did not prejudice Petitioner.
(ECF No. 110 at 35–46.) Hall’s trial counsel questioned Dutton about being an informant. (ECF
No. 21, Add. 2, Vol. 2, pp. 232–33; see ECF No. 110 at 41.) The Court stated, Athe jury was
aware that Dutton was a criminal, that he sought parole in exchange for his testimony, and that he
testified in other cases. This information was sufficient to alert the jury that Dutton=s testimony
may not be credible.@ (Id. at 43.) Just as Petitioner cannot demonstrate prejudice from the
failure to disclose this information, he cannot establish prejudice from counsel=s failure to impeach
Dutton on this evidence. His claim is not substantial under Martinez.
Petitioner’s allegations related to trial counsel’s failure to challenge Dutton’s testimony are
procedurally defaulted and DENIED.

42

4.

Failure to Challenge the Misleading Testimony of Petitioner=s
Daughters (Amended Petition & 262.11)

Hall contends that his trial counsel failed to establish that Petitioner’s daughters’ testimony
was not accurate. (ECF No. 15 at 59.) He argues that his trial counsel could have secured
evidence for use to cross-examine Petitioner’s daughters and demonstrate that he attacked and
killed Billie Hall “following a drunken blow-up, wherein [Petitioner] didn’t deliberate or
premeditate or act intentionally, as required for a finding of first-degree murder.” (ECF No. 136
at 43–44.) Petitioner submits that his counsel would have learned that he did not barge into the
house and immediately attack and kill the victim. (Id. at 44.) He asserts that the investigation
would have established that “Momma let [Petitioner] in”; “[h]e promised not to fight” and did not
immediately attack her. (Id.) The inmate contends that he “stayed somewhere around an hour”
and “drunk two or three beers” before a fight erupted. (Id.) Because he was in “a drunken rage”,
he maintains he was guilty of Aat most, second-degree murder.@ (Id.)
Respondent did not directly address Petitioner’s argument about ineffective assistance of
counsel related to Petitioner’s daughter’s testimony. The Warden argues that this Court found
Athe claims related to the impeachability of state witnesses were found to be non-material@ in
regard to Petitioner=s Brady claims. (ECF No. 140 at 19.) This Court stated that evidence that
Petitioner was drinking and that time lapsed from his arrival at Billie Hall=s home was presented at
trial. (ECF No. 110 at 48.) The Court further noted, “this is not information about which
Petitioner can claim he had no knowledge. [Petitioner] was present for these events and able to
advise his counsel of the discrepancies in information or testify himself.” (Id.) The Court held
that the omission was not “of sufficient significance to result in the denial of defendant=s right to a
fair trial.” (Id. at 49 (internal quotation marks and citation omitted)).
43

Similar to the Brady claim about Petitioner=s daughters’ testimony, counsel=s performance
with regard to their testimony did not prejudice him. Cynthia Lambert initially testified that
Petitioner pushed his way in the house (ECF No. 21, Add. 2, Vol. 2, p. 260), but on
cross-examination, she admitted that she did not remember whether he forced his way in. (Id. at
269–70.) Lambert also related that Petitioner and Billie Hall did not fight when he first arrived at
the house and that he brought some beer and drank it. (Id. at 269.) On cross-examination, she
admitted that Petitioner had brought beer with him to the house and started drinking in her
presence. Hall, 2005 WL 22951, at *27.
The post-conviction trial court and the Tennessee Court of Criminal Appeals addressed
Petitioner’s claims that counsel failed to establish the victim as the aggressor including the
evidence related to whether he forced his way into the home and immediately attacked Billie Hall,
The petitioner contended that trial counsel should have presented evidence that the
victim was the aggressor in their relationship. The trial court acknowledged the
facts as presented at trial, including that the petitioner forced his way into the
victim=s home, attacked her as her children watched in horror, informed the
children that he would kill their mother if they called for help, chased the victim
after she escaped, dragged her down the walkway, and held her under the water in
the children's swimming pool. The trial court concluded that trial counsel were
aware of the relevant facts and that they made a tactical decision not to attack the
victim at trial. It also concluded that introduction of any evidence as to the victim’s
role as first aggressor would have had little to no legal significance as there was no
proof that the victim provoked the petitioner at the time of her murder and that any
attempt to argue to the contrary would have resulted in the immediate and
irrevocable alienation of the jury. In a related issue, the trial court noted that the
state possessed a great deal of negative information about the petitioner that was
not introduced at the trial. The trial court concluded that had trial counsel pursued
an attack of the victim=s character, the state would have taken the opportunity to
reveal many facts which would have harmed the petitioner much more than
presenting evidence concerning the victim=s past behavior would have benefitted
him.
Id. at *24.
The post-conviction appellate court addressed Petitioner=s argument that the victim was the
44

aggressor; counsel=s strategic decision not to attack the victim; and the argument that he was
intoxicated and acting in an impulsive, rather than intentional and premeditated manner;
B. Counsel failed to establish the victim as the aggressor
The petitioner asserts that the post-conviction testimony of his siblings Aand the
Brittains clearly establish that the victim was capable of goading the petitioner.@ He
contends that this evidence established provocation and was essential to establish
the circumstances for voluntary manslaughter. Trial counsel testified that they
made a strategic decision not to attack the character of the victim because it ran the
risk of alienating the jury. Mr. Mayo also said that as best as he could recall, the
victim=s acts against the petitioner were not severe enough to imply that his conduct
was reasonable. Both Mr. Mayo and Mr. Ford stated that the petitioner was the only
reliable source to establish the victim=s acts of violence but that he refused to
testify.
Briefly summarized, the facts established that the petitioner disconnected the
telephone lines, forced his way into the victim=s home, and violently attacked her as
the children jumped on his back, bit him, and pleaded for him to stop hurting their
mother. The fight continued outside, where the petitioner dragged the victim across
the driveway and to the back of the house. There, he held her under the water in the
children=s swimming pool. No evidence showed that the victim provoked the
petitioner immediately before his actions that resulted in her death. The trial court
concluded that in light of these facts, evidence of the victim=s prior acts of
aggression upon the petitioner would not have assisted counsel in establishing that
the victim was the first aggressor on this occasion. Additionally, the trial court
found that the testimony of Dr. Zager and Randy Helms communicated to the jury
that the petitioner was emotionally distraught and acting in an impulsive manner.
During the petitioner=s trial, counsel attempted to negate the element of
premeditation by presenting evidence of mental health issues and intoxication
rather than attempt to establish the provocation necessary to support a voluntary
manslaughter verdict. The state possessed a sufficient amount of information
reflecting prior acts of violence by the petitioner against the victim, but did not seek
introduction of this evidence at trial. However, had the defense attempted to
establish the victim as the first aggressor, the state could have presented such
information to discredit any indication that the victim provoked the petitioner. The
defense strategy not to portray the victim as the aggressor was reasonable, given the
risk of the backlash from attacking the deceased victim’s character. See, e.g.,
Heiman v. State, 923 S.W.2d 622, 627 (Tex. Crim. App. 1995) (stating it was sound
trial strategy to refrain from attacking the victim=s character as it was conceivable
that the jury would have found this strategy repugnant). Accordingly, the petitioner
has failed to establish that counsel was deficient by failing to pursue this theory of
defense. He is not entitled to relief as to this claim.
45

Id. at *28–29.
There was clearly evidence presented at trial, even on cross-examination, that Petitioner
arrived at the home with beer, was drinking, and attacked Billie Hall after some period of time
passed. Hall’s trial counsel stated that he made a strategic decision not to attack the victim Billie
Hall because of the information that might be presented about his character. Further, counsel was
able to address credibility issues with Cynthia Lambert without alienating the jury by attacking a
child who has lost her mother in a gruesome murder. Trial counsel attempted to negate the intent
aspect of the crime with evidence of intoxication and impulsivity. Trial counsel=s performance
was reasonable, and given the facts, of the case, Petitioner cannot demonstrate prejudice. His
claim is not substantial under Martinez.
The allegations related to trial counsel’s failure to challenge Petitioner’s daughter’s
testimony are procedurally defaulted and DENIED.
5.

Failure to Have Petitioner Testify and Allowing an Invalid Waiver of
Hall=s Right to Present Such Testimony (Amended Petition & 262.17)

The inmate alleges that trial counsel was ineffective for telling Judge LaFon that he had
knowingly and voluntarily waived his right to testify. (ECF No. 15 at 60.) Petitioner claims that
he possessed a fundamental constitutional right to testify on his own behalf, and only a knowing
and intelligent waiver by Petitioner himself could waive that right. (ECF No. 136 at 45.) He
asserts that his trial counsel “not only failed to protect and enforce [his] fundamental right to
testify, he became an accomplice in depriving Mr. Hall of that right.” (Id.) Petitioner further
argues that he clearly expressed his desire to testify on his own behalf although he placed
“nonsensical conditions” of removing the Aflag or war@ or signing a Ajudicial contract@ on that
desire. (Id. at 46.) He insists that “no sentient jurist could consider those conditions a knowing
46

and intelligent exercise of reason.” (Id.) Petitioner states that his counsel failed to argue that
Petitioner=s “bizarre demands demonstrated that Hall was not knowingly and intelligently doing
anything, let alone waiving a fundamental right.” (Id.) He also submits that his counsel did not
ask the trial court if it were willing to take down the flag that Petitioner found offensive and “sign
a harmless piece of paper” that he deemed important or assert that a failure of the court to do so
would result in the arbitrary denial of Petitioner=s fundamental right to testify. (Id. at 46–47.) He
contends that, instead of protecting Petitioner, his counsel stripped him of that right by telling the
Court that he and Petitioner fully discussed the matter and the client was freely giving up his right
to testify. (Id. at 47.)
Petitioner maintains that he was prejudiced because, had he testified, he would have told
the jury that:
$

he did not go to Billie Hall=s house to kill her, but to reconcile;

$

he did not barge into the house and force his way into the back bedroom;

$

he did not plot Billie=s homicide;

$

he was besieged by circumstances troubling his life, including the pending death of his
brother, the special needs of his daughter, the anxiety of severe financial strain, the
deterioration of his relationship with Billie, and the struggle of trying to get by without an
automobile, job, or home; and

$

the events in his life Ahad just piled up, and after suffering sleep deprivation, drinking beer,
smoking marijuana, and taking Stay Alert pills, he lost it.@

(Id. at 47–48.) He asserts that, after hearing his testimony, at least one juror would have refused
to find him guilty of premeditated murder. (Id. at 48.)
Petitioner further argues that he could have told the jury about the tragic events of his life
and the events that led to Billie Hall=s death had he testified at the sentencing stage. (Id.) He
contends that at least one juror would have voted to sentence him to a sentence less than death had
47

the jury heard this testimony. (Id.) Respondent answers that Petitioner refused to testify because
there was an American flag in the courtroom, and he has not stated why his counsel is responsible
for that choice. (ECF No. 140 at 19.)
This Court addressed Petitioner=s right to testify and whether there had been a valid waiver
of that right and found no constitutional violation. (ECF No. 110 at 56–59.) Further, much of
the evidence that Petitioner claims he would have testified about was in the record. There was
evidence that he went to the house to discuss a reconciliation, that he disconnected the phone lines
outside the house, and that he pushed his way into the room where Billie Hall and the children
were watching television. Hall, 2005 WL 22951, at *1, 2, 24, 28. There was testimony that
Petitioner had made comments about his threats “to grind [his wife] up as hamburger meat” and
that he wanted his wife to suffer. Id. at *13, 37. There was also evidence that the inmate was
depressed, had been drinking that night and that he suffered personality characteristics of paranoia
and dependency and “psycho-social stressors including a sick child, loss of employment with the
resulting financial problems, his impending divorce, and the terminal illness of a brother.” State
v. Hall, 8 S.W.3d 593, 598 (Tenn. 1999). There was expert testimony that Petitioner was
“depressed, remorseful, suicidal and extremely concerned about his children” and that he suffered
“an adjustment disorder with mixed emotional features (anxiety and depression) and ‘substance
abuse of dependence by history.’” Id. at 598–99.
In contrast to the proof that Petitioner views as favorable to him, there is the evidence that
the victim sustained at least eighty-three separate wounds, including several blows
to the head, a fractured nose, multiple lacerations, and bruises and abrasions to the
chest, abdomen, genitals, arms, legs and back. Abrasions on the victim’s back were
consistent with having been dragged across pavement. Dr. Smith described some of
the injuries to the victim's arms, legs and hands as defensive wounds.
Hall, 2005 WL 22951, at *2. Still, these injuries did not result in Billie Hall’s death:
48

the primary cause of death was asphyxia resulting from a combination of manual
strangulation and drowning. [Smith] could not say with certainty that either
strangulation or drowning was the exclusive cause of death. Evidence supporting
strangling as a contributing cause of death included bruising on the left and right
sides of Mrs. Hall’s neck, hemorrhaging in the neck muscles around the hyoid bone
in the neck, and bleeding in the thyroid gland, which indicated that extensive
compression had been applied to the neck. Evidence supporting drowning as a
contributing cause of death was water found in both Mrs. Hall’s stomach and in her
bloodstream. The water in her stomach could have collected when Mrs. Hall
swallowed water as she was being drowned. The water in her bloodstream would
have entered when she took water into her lungs, and the water passed through the
lungs into her bloodstream.
Hall, 8 S.W.3d at 597. The evidence also revealed that:
When the children tried to enter the room, they found the door blocked. The three
oldest children, Jennifer, Cynthia and Stephanie, persisted in their efforts to get into
the room and finally succeeded. They attempted to stop the defendant from hurting
their mother. When Mrs. Hall told the children to go to a neighbor’s house, the
defendant told them that if they went for help, “he was going to kill Mama.” He also
told Mrs. Hall, a college student, that she would never live to graduate. Cynthia and
Stephanie tried to use the telephone to call for help, but they discovered the
telephones would not work. At that point, they went to a neighbor’s house where
they called 911. Jennifer, the oldest child, was the last to leave the house, carrying
her sister Jessica. Before she left, she saw her mother and the defendant leave the
bedroom and go outside. She watched the defendant drag her mother, “kicking and
screaming,” to the small pool in the back yard.
Id. at 596–97.
Petitioner’s testimony, if presented, would have been subject to a credibility determination
and a weighing and balancing against the aggravating factors and evidence presented in the case.
His testimony would not have created a reasonable probability of a different outcome. Because
his right to testify was not violated and he suffered no prejudice from his failure to testify,
Petitioner=s claim of ineffective assistance of counsel related to his right to testify is not substantial
under Martinez.

49

6.

Failure to Keep the Venue in Henderson County (Amended Petition &
262.2)

Hall alleged that his counsel failed to keep the trial in Henderson County. (ECF No. 15 at
59.) He argues that his claim that trial counsel was ineffective for failing to keep the venue in
Henderson County when it was Petitioner=s wish to be tried in Lexington is a substantial claim.
(ECF No. 136 at 49.) Petitioner insists that he did not waive, Aand there is no record@ that he
waived, his right to be tried in Henderson County, Tennessee. (Id. at 51.)

He claims that he was

not given an opportunity to be heard on the issues and that Madison County simply had no
jurisdiction to try him. (Id. at 51–52.)
The Warden counters that Petitioner’s counsel’s failure to request a change of venue was
raised as an ineffectiveness claim in the initial-review post-conviction proceeding. (ECF No. 140
at 18.) Respondent contends that appellate counsel=s failure to raise the issue on post-conviction
appeal is outside the scope of Martinez. (Id.)
Respondent is correct. In the Amended Petition for Post-Conviction Relief, counsel
alleges that he “failed to properly withdraw a change of venue motion when instructed to do so by
Petitioner.”

(ECF No. 144-2 at PageID 2098.)

Therefore, ineffective assistance of

post-conviction counsel cannot serve as cause for the procedural default of the claim. Martinez
does not apply.
Respondent also argues that the Court previously determined that Petitioner=s venue claims
were properly exhausted in state court but were without merit. (ECF No. 140 at 19; see ECF No.
110 at 24–28.) The Court found that the Sixth Amendment vicinage right refers to federal judicial
districts and have never been defined to apply to states. (Id. at 26.) The Court further stated that
Petitioner is entitled to relief only if he can demonstrate that he was denied due process in the form
50

of Aa fundamentally fair trial.@ (Id. at 27.) The Court also held that Hall had not shown that
being tried before a Madison County jury prejudiced any constitutional right. (Id.) Petitioner
has not demonstrated prejudice from being tried before a Madison County jury, especially where
there were issues related to pretrial publicity. His trial counsel determined that a change of venue
was “absolutely necessary” after reading newspaper articles. See Hall, 2005 WL 22951, at *13.
Petitioner=s claim of ineffective assistance related to the change of venue is also not substantial
under Martinez.
The allegations of ineffective assistance of counsel related to the change of venue are
procedurally defaulted and DENIED.
7.

Failure to Investigate and Introduce Evidence of Brain Damage and
Mental Illness (Amended Petition && 259-61)

The inmate argues that, to the extent this Court has denied relief on his claim that counsel
was ineffective for failing to investigate and introduce evidence of Petitioner=s brain damage and
mental illness and/or Petitioner=s social history, Martinez allows full consideration of the
mitigating evidence and the grant of habeas relief. (ECF No. 136 at 53–56.) He relies on the
Ninth Circuit=s ruling in Dickens v. Ryan, 688 F.3d 1054 (9th Cir. 2012), to assert that his
post-conviction counsel failed to present all the evidence in support of his claims, and he is entitled
to a full hearing on his ineffectiveness claim under Martinez with consideration of all the new
evidence not presented in the post-conviction proceedings. (Id. at 53–54.) Petitioner asserts that
for the guilt-phase claims, the new evidence includes: the testimony of Bremner and Ruben Gur
and Magnetic Resonance Imaging (MRI) and Positron Emission Topography (PET) scans. (Id. at
54.) He contends that this evidence shows that Petitioner suffers significant brain damage which
limits his ability to control his behavior and modulate his impulses; that the brain damage rendered
51

him unable to act with deliberation; and that Petitioner was incompetent to stand trial. (Id. at 54–
55.) Petitioner also asserts that this evidence supports the sentencing phase ineffectiveness
claims also and that additional evidence from Professor Terry Maroney 16, and the psycho-social
history of Petitioner including the testimony of Petitioner=s family members should be presented.
(Id. at 55.) He submits that his trial counsel failed to conduct an adequate mitigation investigation
and failed to prepare a complete psycho-social history which resulted in the failure to uncover
severe childhood abuse and neglect which likely caused Petitioner=s significant brain damage from
which his ability to regulate and control his responses is disrupted. (Id. at 55–56.)
In the Amended Petition for Post-Conviction Relief, Petitioner’s post-conviction counsel
alleged that his trial counsel failed to adequately investigate the mental history of Defendant and
was ineffective as it relates to the mitigation investigation, see supra pp. 4–5, 9–10, 12, and 19.
(ECF No. 144-2 at PageID 2077–78, 2085, 2088–89, 2098.) Petitioner alleged that, “had counsel
done so, they could have prepared adequate psychiatric testimony showing a diminished mental
capacity that was consistent with a charge of manslaughter, perhaps insanity, and certainly a
Defendant undeserving of the death penalty.”

(Id. at 2077.)

On post-conviction appeal,

Petitioner alleged that his trial counsel failed to present the mental health issue properly, provide a
complete mitigation history, and obtain services of a psychiatrist. See Hall, 2005 WL 22951, at
*31–34. Because these issues were raised in the initial post-conviction proceedings, ineffective
assistance of post-conviction counsel under Martinez does not apply to these claims.
Further, this Court addressed the evidence presented by Bremner and Gur in the context of
evaluating Petitioner’s post-conviction ineffectiveness claims related to his mental health and the
16

Maroney had not personally evaluated Petitioner and was not “professionally qualified
to proffer a diagnosis of mental illness or other disability.” (See ECF No. 136-3 at PageID 1738
n.2.)
52

mitigation case. (ECF No. 110 at 105–16.) The evidence revealed that Petitioner was evaluated
by several mental health professionals at trial and in the post-conviction proceedings: Lynn
Zager, Joe Mount, Keith Caruso, and Pamela Auble, and the State presented the testimony of
Kimberly Stalford to rebut their conclusions. (Id. at 105–07.) The Court stated
his counsel presented evidence through Dr. Zager that Petitioner suffered from
depression and alcohol dependence, had personality characteristics of paranoia and
dependence, suffered psycho-social stressors, and acted in “an impulsive manner
versus a well-thought out plan.” (D.E. 21, Add. 2, Vol. 3, p. 333–35.) Dr. Zager’s
diagnosis of Petitioner is consistent with the conclusions of Drs. Gur and Bremner.
Neither Dr. Gur nor Dr. Bremner diagnosed Petitioner with a particular mental
illness, but they explained how the physical structure of his brain may have affected
his behavior. Ultimately, their opinion was no different from Dr. Zager’s that the
inmate could not form the specific intent to commit first degree murder and that he
acted in an impulsive manner. Even if counsel were found deficient because he did
not investigate and present evidence of brain damage, Petitioner was not
prejudiced.
Id. at 115–16. The Court also found that that the evidence Petitioner claims could have been
presented to obtain a more complete social history was repetitive of what had already been
presented, and the failure to present that evidence was not prejudicial to Petitioner. Id. at 110.
Hall’s claim is not substantial for the reasons stated. The allegations of failure to
investigate and introduce evidence of brain damage and mental illness are not entitled to further
consideration based on Martinez.
D.

Discovery Issues

Petitioner asserts that he is entitled to discovery to establish cause for the procedural
default of his claims. (ECF No. 136 at 56–60; see ECF No. 147.) As his claims are not entitled
to merits consideration under Martinez, Petitioner’s request for discovery deserves no further
attention.

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IV.

CONCLUSION
Upon further consideration on remand, Petitioner is not entitled to habeas relief based on

Martinez. Thus, the amended petition is DENIED.
V.

APPEAL ISSUES
There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition.

Miller-El, 537 U.S. at 335; Bradley v. Birkett, 156 F. App’x 771, 772 (6th Cir. 2005). The Court
must issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to a §
2254 petitioner. Habeas Rule 11. A petitioner may not take an appeal unless a circuit or district
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, and the COA must indicate the specific issue or issues that satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the petitioner
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 were adequate
to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336; see also Henley v. Bell,
308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing
that the appeal will succeed. Miller-El, 537 U.S. at 337 (internal quotation marks omitted);
Caldwell v. Lewis, 414 F. App’x 809, 814–15 (6th Cir. 2011). Courts, however, should not issue
a COA as a matter of course. Bradley, 156 F. App’x at 773.
The Court previously denied Petitioner a COA. (See ECF No. 110 at 131–34.) On
remand, the Court again finds that reasonable jurists could not disagree about the resolution of his
claims and DENIES a COA.
Federal Rule of Appellate Procedure 24(a)(3) provides that a party who was permitted to
54

proceed in forma pauperis in the district court may proceed on appeal in forma pauperis unless the
district court certifies that an appeal would not be taken in good faith or otherwise denies leave to
appeal in forma pauperis. In this case, for the same reasons it denies a COA, the Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant
to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith, and leave
to appeal in forma pauperis is DENIED. 17
IT IS SO ORDERED this 30th day of March, 2015.

s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

17

If Petitioner files a notice of appeal, he must also pay the full $505 appellate filing fee or
file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty (30) days of the date of entry of this order. See Fed. R. App. 24(a)(5)
55