Pike v. Johns, No. 1:2012cv00035 - Document 93 (E.D. Tenn. 2016)

Court Description: MEMORANDUM OPINION: For the reasons stated herein, the Court finds that Petitioner is not entitled to relief under 28 U.S.C. § 2254 and her motion for partial summary judgment (Doc. 45 ) will be DENIED. Respondent's mo tion for summary judgment (Doc. 42 ) will be GRANTED, and the petition for a writ of habeas corpus (Doc. 19 ) will be DENIED. After reviewing each of Petitioner's claims, the Court finds that reasonable jurists could not conclude that Peti tioner's claims are adequate to deserve further review, nor would reasonable jurists debate the correctness of the Courts procedural ruling. As such, because Petitioner has failed to make a substantial showing of the denial of a constitutional right, a COA will not issue. A SEPARATE JUDGMENT ORDER WILL ISSUE.Signed by District Judge Harry S Mattice, Jr on 3/11/2016. (BJL, )

Download PDF

Pike v. Johns Doc. 93 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA CHRISTA GAIL PIKE, ) ) ) ) ) ) ) ) ) ) ) Petitioner, v. VICKI FREEMAN, Warden, Respondent. No: 1:12-cv-35 J udge Mattice MEMORAN D U M OPIN ION This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Christa Gail Pike (“Petitioner”) is a Tennessee death row inm ate incarcerated in the Tennessee Prison for Wom en. The m atter is now before the Court on Respondent’s m otion for sum m ary judgm ent (Doc. 42), and Petitioner’s cross m otion for partial sum m ary judgm ent (Doc. 45). Petitioner has filed a response to Respondent’s m otion and a reply to Respondent’s response (Docs. 51, 56), and Respondent has filed a corresponding response and reply (Doc. 50 , 55). Petitioner also filed a m otion for an evidentiary hearing (Doc. 51), which this Court granted (Doc. 58), and a hearing was held on May 26th, 20 15 and May 27th, 20 15 (Doc. 81). For the reasons that follow, Petitioner’s m otion for partial sum m ary judgm ent (Doc. 45) will be D EN IED , and Respondent’s m otion for sum m ary judgm ent (Doc. 42) will be GRAN TED . The petition for habeas corpus relief will be D EN IED . I. FACTU AL BACKGROU N D AN D PROCED U RAL H ISTORY Respondent has provided the Court with copies of the relevant docum ents as to Petitioner’s trial, direct appeal, and post-conviction proceedings (Docs. 7– 13). Dockets.Justia.com Petitioner was convicted by a Knox County, Tennessee jury of conspiracy to com m it the m urder of Colleen Slem m er, and the first degree m urder of Colleen Sleem er. Petitioner was sentenced to death for the m urder charge, and a consecutive twenty-five year prison sentence for the conspiracy charge. Petitioner’s conviction and sentence were affirm ed on direct appeal by the Tennessee Court of Crim inal Appeals (“TCCA”) and the Tennessee Suprem e Court (“TSC”). State v. Pike, 978 S.W.2d 90 4 (Tenn. 1998), cert denied, 526 U.S. 1147 (1999). The facts that led to the conviction of Petitioner are set forth in detail in the opinion of the TSC: The proof presented by the State at the guilt phase of the trial established that on J anuary 11, 1995, the [Petitioner], Christa Gail Pike, a student at the J ob Corps Center in Knoxville, told her friend Kim Iloilo, who was also a student at the facility, that she intended to kill another student, Colleen Slem m er, because she “had just felt m ean that day.” The next day, J anuary 12, 1995, at approxim ately 8:0 0 p.m ., Iloilo observed Pike, along with Slem m er, and two other J ob Corps students, Shadolla Peterson and Tadaryl Shipp, Pike’s boyfriend, walking away from the J ob Corps center toward 17th Street. At approxim ately 10 :15 p.m ., Iloilo observed Pike, Peterson, and Shipp return to the Center. Slem m er was not with them . Later that night, Pike went to Iloilo’s room and told Iloilo that she had just killed Slem m er and that she had brought back a piece of the victim ’s skull as a souvenir. Pike showed Iloilo the piece of skull and told her that she had cut the victim ’s throat six tim es, beaten her, and thrown asphalt at the victim ’s head. Pike told Iloilo that the victim had begged “them ” to stop cutting and beating her, but Pike did not stop because the victim continued to talk. Pike told Iloilo that she had thrown a large piece of asphalt at the victim ’s head, and when it broke into sm aller pieces, she had thrown those at the victim as well. Pike told Iloilo that a m eat cleaver had been used to cut the victim ’s back and a box cutter had been used to cut her throat. Finally, Pike said that a pentagram had been carved onto the victim ’s forehead and chest. Iloilo said that Pike was dancing in a circle, sm iling, and singing “la, la, la” while she related these details about the m urder. When Iloilo saw Pike at breakfast the next m orning she 2 asked Pike what she had done with the piece of the victim ’s skull. Pike replied that it was in her pocket and then said, “And yes, I’m eating breakfast with it.” During a class later that m orning, Pike m ade a sim ilar statem ent to Stephanie Wilson, another J ob Corps student. Pike pointed to brown spots on her shoes and said, “that ain’t m ud on my shoes, that’s blood.” Pike then pulled a napkin from her pocket and showed Wilson a piece of bone which Pike said was a piece of Slemm er’s skull. Pike also told Wilson that she had slashed Slem m er’s throat six tim es and had beaten Slem m er in the head with a rock. Pike told Wilson that the victim ’s blood and brains had been pouring out and that she had picked up the piece of skull when she left the scene. Though neither Iloilo nor Wilson im m ediately reported Pike’s statem ents to police, on the day after the m urder, J anuary 13, at approxim ately 8:0 5 a.m ., an em ployee of the University of Tennessee Grounds Departm ent, discovered Slem m er’s sem i-nude, slashed, and badly beaten body near the greenhouses on the agricultural cam pus. He testified that the body was so badly beaten that he had first m istaken it for the corpse of an animal. Upon closer inspection, he saw the victim ’s clothes and her nude breast and realized it was the body of a hum an fem ale. He im m ediately notified law enforcem ent officials. Officers from the Knoxville Police Departm ent and the U.T. Police Departm ent were sum m oned to the scene. Officer J ohn Terry J ohnson testified at trial that the body he found was lying on debris and was nude from the waist up. Blood and dirt covered the body and rem aining clothing. The victim ’s head had been bludgeoned. Multiple cuts and slashes appeared on her torso. Officer J ohnson stated that he thought he was looking at the victim ’s face but he could not be sure because it was extrem ely m utilated. J ohnson rem oved all civilians from the area and secured the scene surrounding the body. As other officers arrived, they began securing the crim e area. As officers discovered other areas of blood, articles of clothing, footprints, and broken foliage, the crim e scene tripled in size, eventually encom passing an area 10 0 feet long by 60 feet wide. The crim e scene was wet and m uddy, and there was evidence of a scuffle, with tram pled bushes, hand 3 and knee prints in the m ud, and drag m arks. A large pool of blood was found about 30 feet from the victim ’s body. The victim ’s body was actually lying face down on a pile of debris. When officers turned the body over, they discovered that the victim ’s throat had been slashed. A bloody rag was around her neck. Detective Donald R. Cook, of the U.T. Police Departm ent, accom panied the body to the m orgue. He observed the body after it had been cleaned and noticed that a five pointed star in a circle, com m only known as a pentagram , had been carved onto the victim ’s chest. Randy York, a crim inal investigator with the Knoxville Police Departm ent, began investigating this case on J anuary 13, the day the victim ’s body was discovered. York separately interviewed the [Petitioner] and Shipp at the Knoxville Police Departm ent on J anuary 14th. Investigator York advised [Petitioner] Pike of her Miranda rights, but she chose to waive them and m ake a statem ent. Pike explained in detail how the killing had occurred. Pike’s statem ent was tape-recorded and transcribed in som e forty-six pages. Copies of the transcription were given to the jury, and the jurors were allowed to listen to the tape through individual headphones. In her statem ent, Pike said that she and Slem m er had been having problem s for som e tim e. Pike claim ed to have awakened one night to find Slem m er standing over her with a box cutter. Pike told Investigator York that Slem m er had been “trying to get her boyfriend” and had been “running her m outh” everywhere. Pike said that Slem m er had deliberately provoked her because Slem m er realized that Pike would be term inated from the J ob Corps program the next tim e she becam e involved in a fight or sim ilar incident. Pike claimed that she had not planned to kill Slem m er, but she had instead planned only to fight Slem m er and let her know “to leave m e the hell alone.” However, Pike adm itted that she had taken a box cutter and a m iniature m eat cleaver with her when she and the victim left the J ob Corps Center. Pike said she had borrowed the m iniature m eat cleaver, but refused to identify the person who had loaned it to her. According to Pike, she asked Slem m er to accom pany her to the Blockbuster Music Store, and as they were walking, Pike told Slem m er that she had a bag of “weed” hidden in Tyson Park. Though Pike refused to nam e the other parties 4 involved in the incident, she said the group began walking toward the U.T. Cam pus. Upon arriving at the steam plant on U.T.’s agricultural cam pus, Pike and Slem m er exchanged words. Pike then began hitting Slem m er and banging Slem m er’s head on her knee. Pike threw Slem m er to the ground and kicked her repeatedly. According to Pike, as she slam m ed Slem m er’s head against the concrete, Slem m er repeatedly asked, “Why are you doing this to m e?” When Slem m er threated to report Pike so she would be term inated from the J ob Corps program , Pike again repeatedly kicked Slem m er in the face and side. Slem m er lay on the ground and cried for a tim e and then tried to run away, but another person with Pike caught Slem m er and pushed her to the ground. Pike and the other person, who Pike referred to as “he,” held Slem m er down until she stopped struggling, then dragged her to another area where Pike cut Slem m er’s stom ach with the box cutter. As Slem m er “scream ed and scream ed,” Pike recounted how she began to hear voices telling her that she had to do som ething to prevent Slem m er from telling on her and sending her to prison for attem pted m urder. At this point Pike said she was just looking at Slem m er and “just watching her bleed.” When Slem m er rolled over, stood up and tried to run away again, Pike cut Slem m er’s back, “the big long cut on her back.” Pike said Slem m er repeatedly tried to get up and run. Pike recounted how Slem m er bargained for her life, begging Pike to talk to her and telling Pike that if she would just let her go, she would walk back to her hom e in Florida without returning to the J ob Corps facility for her belongings. Pike told Slem m er to “shut up” because it “was harder to hurt som ebody when they’re talking to you.” Pike said the m ore Slem m er talked, the m ore she kicked Slem m er in the face. Slem m er asked Pike what she was going to do to her, at which point Pike thought she heard a noise. Pike left the scene to check out the surrounding area to m ake sure no one was around. When she returned, Pike began cutting Slem m er across the throat. When Slem m er continued to talk and beg for her life, Pike cut Slem m er’s throat several other tim es. Pike said that Slem m er continued to talk and tried to sit up even though her throat had been cut several tim es, and that Pike and the other person would push her back on the ground. 5 Slem m er attem pted to run away again, and Pike threw a rock which hit Slem m er in the back of the head. Pike stated that “the other person” also hit Slem m er in the head with a rock. When Slem m er fell to the ground, Pike continued to hit her. Eventually Pike said she could hear Slem m er “breathing blood in and out,” and she could see Slem m er “jerking,” but Pike “kept hitting her and hitting her and hitting her.” Pike eventually asked Slem m er, “Colleen, do you know who’s doing this to you?” Slem m er’s only response was groaning noises. At this point, Pike said she and the other person each grabbed one of Slem m er’s feet and dragged her to an area near som e trees, leaving her body on a pile of dirt and debris. They left Slem m er’s clothing in the surrounding bushes. Pike said the episode lasted “for about thirty m inutes to an hour.” Pike admitted that she and the other person had forced the victim to rem ove her blouse and her bra during the incident to keep Slem m er from running away. Pike also adm itted that she had rem oved a rag from her hair and tied it around Slem m er’s m outh at one point to prevent Slem m er from talking. Pike denied carving a pentagram in the victim ’s chest, but said that the other person had cut the victim on her chest. After disposing of Slem m er’s body, Pike and the other person washed their hands and shoes in a m ud puddle. They discarded the box cutter, and Pike returned the m iniature m eat cleaver to the person at the J ob Corps from whom she had borrowed it. Pike never identified that individual. Pike told Investigator York that the bloodstained jeans she had worn during the incident were still in her room . She said they were covered in m ud because she had rubbed the m ud from the bottom of her shoes onto the jeans to conceal the blood. Pike also adm itted to Investigator York that she had discarded two form s of identification belonging to the victim and the victim ’s black gloves in a trash can at a Texaco station on Cum berland Avenue. Pike gave Investigator York consent to search her room and then accom panied him to the J ob Corps center. From there Pike retraced her steps, describing what had occurred on the night of the killing. Investigator York testified that Pike eventually directed him to the exact location where the victim ’s body was found. After Pike’s statem ent was played for the jury, the state introduced pictures of Pike and Shipp taken at the Knoxville Police Departm ent on the day the statem ent was given, J anuary 14, 1995, two days after the m urder. In the pictures, both Pike and Shipp were wearing pentagram necklaces. 6 Mark A. Waggoner, an officer with the Knoxville Police Departm ent, testified that he had retrieved a pair of black gloves and two of Slem m er’s I.D. cards from the Texaco station on Cum berland Avenue. These items were also m ade exhibits. Another officer, Lanny J aneway, used a chart to illustrate each of the locations where blood or evidence was found. Photographs of bloody chunks of asphalt, blood drippings on leaves, and pools of blood were introduced into evidence. The bloody piece of asphalt and the victim ’s bloody clothing were also introduced into evidence. Special agent Raym ond A. DePriest, a forensic scientist em ployed by the Tennessee Bureau of Investigation, testified that he had received blood sam ples taken from the shoes and clothing of Pike and Shipp. Those item s that he determ ined had hum an blood on them were sent to the DNA unit. Margaret Bush, an em ployee of the Tennessee Bureau of Investigation assigned to the DNA unit, testified that she had been unable to perform a DNA analysis on the blood taken from the shoes of Pike and Shipp, but she had determ ined that the blood sam ples taken from the clothing of both Pike and Shipp m atched the DNA profile of the victim . Dr. Sandra Elkins, the Knox County Medical Exam iner, perform ed the autopsy on the victim , who was later identified by dental records as Colleen Slem m er, a nineteenyear-old J ob Corps student. Dr. Elkins described the victim ’s body as covered with dirt and twigs. Slem m er was nude from the waist up clothed only with jeans, socks, and shoes. After rem oving the victim ’s clothing and cleaning the body, Dr. Elkins had attem pted to catalog the slash and stab wounds on the victim ’s torso by assigning a letter of the alphabet. There were so m any wounds that eventually Dr. Elkins decided to catalog only the m ost serious and m ajor wounds. Dr. Elkins explained that to catalog every wound she would have been required to go through the alphabet again, and stay in the m orgue for “three days.” Eventually, Dr. Elkins said she “basically threw up her hands and just said, [innum erable] m ore superficial slash wounds on the back, arm s and chest.” In addition, Dr. Elkins said the victim had purple contusions on her knees, indicating fresh bruising consistent with crawling, and defense wounds on her right arm . Dr. Elkins described the m ajor slash and stab wounds she had cataloged on the victim ’s back, arm s, abdom en, and chest. She found a six inch gaping wound across the m iddle 7 of the victim ’s neck which had penetrated the fat and m uscles of the neck. In addition, Dr. Elkins had found ten other slash wounds on the victim ’s throat. Other slash wounds were on the victim ’s face, and Dr. Elkins observed what appeared to be a pentagram carved onto the victim ’s chest. Because the area around each wound was red in appearance, Dr. Elkins concluded that the victim ’s heart had been beating when the wounds were inflicted and she said the victim would not have been rendered unconscious by any of the stab or slash wounds. Dr. Elkins determ ined that the victim ’s death was caused by blunt force injuries to the head. The victim had suffered m ultiple and extensive skull fractures. From the autopsy, Dr. Elkins determ ined that the victim had sustained a m inim um of four blows to her head; two to the left side of the head, one over the right eye, and one in the nose area. The right frontal area of the victim ’s skull had been fractured as had the bridge of her nose. However, the m ajor wound, labeled as injury “W”, involved m ost of the left side of the victim ’s head. Dr. Elkins said that this injury, caused by blunt force to the left side of the victim ’s head while the right side of the victim ’s head was against a firm surface, also had fractured the right side of the skull and im bedded a portion of the skull into the victim ’s brain. Dr. Elkins found sm all divots in the victim ’s skull containing black particles from an asphalt chunk which was later determ ined to have been used to adm inister the blows. Finally, Dr. Elkins testified that blood in the victim ’s sinus cavity indicated she had been alive and probably conscious when the injuries were inflicted. During her testim ony, Dr. Elkins utilized the victim ’s skull to describe the injuries. She testified that in order to determ ine the cause of death, it was necessary to rem ove the head of the victim and have the skull prepared by Dr. Murray Marks, a forensic anthropologist at the University of Tennessee. She explained that she had rem oved the top of the victim ’s skull in order to rem ove the brain. Em bedded inside the victim ’s brain as a result of the blunt force were portions of the victim ’s skull. Dr. Elkins rem oved those em bedded pieces and forwarded them to Dr. Marks. Dr. Marks reconstructed the skull, fitting those loose portions into the left side area of the skull. However, those pieces had not com pletely filled one area on the left side of the victim ’s skull. Dr. Elkins then showed the jury a piece of skull that had been given to her shortly before the trial and dem onstrated that it fit perfectly into the rem aining area of the victim ’s skull. The piece of 8 skull utilized by Dr. Elkins had been taken from the pocket of a jacket which witnesses identified as belonging to Pike. Pike’s jacket had been turned over to the law enforcem ent officials by J ob Corps em ployees. Robert A. Pollock, orientation specialist at Knoxville J ob Corps, testified that he had spoken with Pike on J anuary 13, 1995, concerning a m isplaced I.D. card. After Pike left his office, Pollock noticed a black leather jacket hanging on the chair where she had sat. The jacket had been hanging on the chair when Pollock locked the room at approxim ately 4:0 0 p.m . on J anuary 13th, and it was still there when he returned at 7:30 a.m . on J anuary 17th. Because he had heard over the weekend that Pike was a suspect in this m urder investigation, Pollock im m ediately turned the jacket over to the J ob Corps’ Safety and Security Captain, William Hudson. Hudson called the Knoxville Police Departm ent and turned the jacket over to Officer Arthur Bohanan when he arrived a short tim e later. Officer Bohanan identified the jacket, and it was introduced into evidence. He testified that he had discovered a sm all piece of bone in the inside pocket of the jacket and had im m ediately taken it to Dr. Marks at the University of Tennessee. Dr. Marks testified concerning the process by which the victim ’s skull had been prepared and again dem onstrated that the bone fragment given to him by Officer Bohanan fit perfectly into the bone reconstruction of the skull of the victim . Following the introduction into evidence of the victim ’s skull, num erous photographs, and item s of the victim ’s clothing, the State rested its case-in-chief. Dr. Eric Engum , a clinical psychologist, testified for the defense and stated that he had conducted a clinical interview and had adm inistered a battery of tests to the [Petitioner]. Dr. Engum described Pike as an “extremely bright young wom an.” Dr. Engum explained that Pike “is excellent in problem solving, reasoning, analysis, ah, can pay attention, sustains concentration, can sequence, ah, has excellent receptive and expressive language skills.” Pike had a full scale IQ score of 111 which is in the 77th percentile and which was characterized as “rem arkable” by Dr. Engum since she had only com pleted the ninth grade. According to Dr. Engum , the tests unequivocally showed that Pike had no sym ptom s of brain dam age and that she was not insane. However, Dr. Engum concluded that the [Petitioner] suffers 9 from a very severe borderline personality disorder and exhibits signs of cannabis (m arijuana) dependence and inhalant abuse. He testified that the [Petitioner] is not so dysfunctional that she needs to be institutionalized, but instead opined that she has a m ultiplicity of problem s in interpersonal relationships, in controlling her behavior, and in achieving vocational and academ ic goals. During direct exam ination, Dr. Engum opined that the [Petitioner] had not acted with deliberation or prem editation in killing Slem m er. Instead, Dr. Engum said she had acted in a m anner consistent with his diagnosis of borderline personality disorder; she had lost control. He explained that she had danced around when relating the m urder to Iloilo because of the em otional release she experienced from having assured through the killing of Slem m er that she could m aintain her relationship with Shipp. When questioned about the piece of skull found in the [Petitioner’s] coat, Dr. Engum explained that the [Petitioner] actually has no identity and the action of taking and displaying a piece of Slem m er’s skull to her friends was the [Petitioner’s] way of getting recognition, “no m atter how distorted” the recognition. On cross exam ination, Dr. Engum stated that there was no question that the [Petitioner] had killed Slem m er. He reiterated that his opinion that once the attack began, Pike had literally lost control. However, Dr. Engum adm itted that Pike had deliberately enticed Slem m er to the park, carved a pentagram onto Slem m er’s chest, bashed Slem m er’s head against the concrete, and beaten Slem m er’s head with the asphalt. Dr. Engum agreed that Pike’s act of carrying weapons with her indicates deliberation. Finally, Dr. Engum conceded that Pike had tim e to calm down and consider her actions when she left Slem m er during the attack to investigate a noise and determine whether anyone else was in the area. William Bernet, m edical director of the psychiatric hospital at Vanderbilt University, testified that he had reviewed the statem ents of the [Petitioner] and Kim berly Iloilo and the reports of Dr. Engum , Dr. Elkins, and Dr. Marks. He concluded that although there were satanic elem ents in this crim e, the pattern was that of an adolescent dabbling in Satanism . He then described the phenom enon of collective aggression, whereby a group of people gather and becom e em otionally aroused and the end result is that they engage in 10 som e kind of violent behavior. On cross-exam ination, Dr. Bernet adm itted that he had spoken neither with the [Petitioner] nor any of the other witnesses. Dr. Bernet adm itted that he did not have enough inform ation to offer an expert opinion as to whether Pike acted with intent or prem editation in killing the victim . Based on this evidence offered during the guilt phase of the trial, the jury found Pike guilty of first degree m urder and conspiracy to com m it first degree m urder. In the sentencing phase of the trial, the State relied on the evidence presented at the guilt phase and presented no further proof. The defense, in m itigation, called Carrie Ross, Pike’s aunt as a witness. Ross testified that the [Petitioner] had experienced no m aternal bonding because she was prem ature and was raised by her paternal grandm other until she died in 1988. Ross said that Pike’s fam ily has a history of substance abuse and that Pike’s m aternal grandm other was an alcoholic who was verbally abusive to Pike. Following the death of Pike’s paternal grandm other, Pike was shuffled between her m other and father. According to Ross, Pike’s m other’s hom e was very dirty. Pike’s m other set no rules for her, and on the occasions that Pike had visited Ross, the [Petitioner] had behaved as a “little girl,” playing Barbie and dress-up with her eleven-year-old cousin. On cross exam ination, Ross adm itted that she has previously described Pike as a pathological liar and that she had been afraid to allow Pike to associate with her own children. Ross also adm itted that Pike had been out of control since she was twelve years old. Glenn Pike, the [Petitioner’s] father, testified that he had kicked the [Petitioner] out of his house twice, the last tim e in 1989. He adm itted that he had signed adoption papers for the [Petitioner] prior to her eighteenth birthday. On crossexam ination, he adm itted that he had forced Pike to leave his hom e in 1989 because there had been an allegation that the [Petitioner] had sexually abused his two-year old daughter from his second m arriage. According to her father, Pike had been disobedient, dishonest, and m anipulative when she had lived with him . The [Petitioner’s] m other, Carissa Hansen, a licensed practical nurse, testified that Pike had lived with her 95 percent of the tim e since her paternal grandm other’s death. 11 Hansen adm itted that she had sm oked m arijuana with the [Petitioner] in order to “establish a friendship.” Hansen related that the [Petitioner] had attem pted suicide by taking an overdose shortly after the death of her paternal grandm other. Hansen also testified that one of her boyfriends had whipped Pike with a belt. Hansen had the boyfriend arrested. On cross-exam ination, Hansen adm itted that Pike’s behavior had been problem atic for years. The [Petitioner] had begun growing m arijuana in pots in her hom e at age nine. After threatening to run away from hom e and live on the street, Pike had been allowed to have a live-in boyfriend at age fourteen. Hansen adm itted that Pike had wielded a “butcherknife” against the boyfriend, who had been arrested for whipping her. Hansen also said Pike had lied to her and stolen from her on num erous occasions and had quit high school. Hansen conceded that Pike had been out of control since she was eight years old. Following Hansen’s testim ony, the defense rested its case. In rebuttal, the State presented the testim ony of Harold J am es Underwood, J r., a University of Tennessee police officer who was assigned to secure the crim e scene on J anuary 13, 1995. Underwood testified that the [Petitioner] cam e to the scene with three to five other fem ales between four and five p.m [.] that day. Pike asked Underwood why the area had been m arked off and questioned him concerning the identity of the victim and whether or not the police had any suspects. None of the other fem ales spoke during the fifteen m inutes the group was there. Underwood said Pike appeared am used and giggled and m oved around. Underwood noticed Pike was wearing an unusual necklace in the shape of a pentagram . After learning at roll call on J anuary 14, 1995, that the victim of the m urder had a pentagram carved on her chest, he reported Pike’s strange behavior and unusual necklace to his superior officers. Based on the proof subm itted at the sentencing hearing, the jury found the existence of the following two aggravating circum stances beyond a reasonable doubt: (1) “the m urder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death,” and (2) “the m urder was com m itted for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the defendant or another.” In addition, the jury found that the State had proven that the 12 aggravating circum stances outweighed any m itigating circum stances beyond a reasonable doubt. As a result, the jury sentenced the [Petitioner] to death by electrocution. The trial court entered a judgm ent in accordance with the jury’s verdict and the Court of Crim inal Appeals affirm ed. Pike, 978 S.W.2d at 90 7– 14. (internal citations om itted). After reviewing the record and considering Petitioner’s claim s on appeal, The TSC found that the evidence supported the conviction and sentence, and affirm ed the TCCA’s decision. Id. at 914. Petitioner next field a petition for post-conviction relief, which was denied after an evidentiary hearing. The TCCA affirm ed the denial of postconviction relief, Pike v. State, No. E20 0 9-0 0 0 16-CCA-R3-PD, 20 11 WL 154420 7 (Tenn. Crim . App. Apr. 25, 20 11), and the TSC denied Petitioner’s application for perm ission to appeal. Petitioner then filed the pending m otion for federal habeas corpus relief. II. STAN D ARD OF REVIEW Respondent argues that one of Petitioner’s claim s is procedurally defaulted. As to the rem aining claim s, Respondent argues that she is entitled to judgm ent as a m atter of law based on the findings of the Tennessee Courts. Petitioner conversely argues that she is entitled to sum m ary judgm ent on m any of her claim s because the state courts’ decisions were unreasonable.1 A. Pro ce d u ral D e fau lt Procedural default is an extension of the exhaustion doctrine. A federal court cannot grant a state prisoner’s petition for a writ of habeas corpus unless the petitioner has exhausted his available state court rem edies. 28 U.S.C. § 2254. This rule has been interpreted by the Suprem e Court as one of total of exhaustion. Rose v. Lundy , 455 U.S. 1 Petitioner did not seek summary judgment on two of her claims; instead, Petitioner requested an evidentiary hearing on these claims, which the Court granted [Docs. 51, 58]. 13 50 9 (1982). Thus, each and every claim set forth in the federal habeas corpus petition m ust have been presented to the state appellate court. Picard v. Connor, 40 4 U.S. 270 (1971); see also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (stating that exhaustion “generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review.”). Furtherm ore, the substance of the claim m ust have been presented as a federal constitutional claim . Gray v. Netherland, 518 U.S. 152, 162– 63 (1996). Here, Petitioner has exhausted her state rem edies because there is no other procedure under Tennessee law for her to present her claim s challenging her convictions and sentence. See Tenn. Code Ann. 40 -30 -10 2(a). It is well established that a crim inal defendant who fails to com ply with state procedural rules which require the tim ely presentation of constitutional claim s waives the right to federal habeas corpus review of those claim s “absent a showing of cause for the non-com pliance and som e showing of actual prejudice resulting from the alleged constitutional violation.” W ainw right v. Sy kes, 433 U.S. 72, 84 (1977); accord Engle v. Isaac, 456 U.S. 10 7, 129 (1982) (“We reaffirm , therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default m ust dem onstrate cause and actual prejudice before obtaining relief.”) In all cases in which a state prisoner has defaulted his federal claim s in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim s is barred unless the prisoner can dem onstrate cause for the procedural default and actual prejudice as a result of the alleged violation of federal law, or dem onstrate that failure to consider the claim s will result in a fundam ental m iscarriage of justice. Colem an v. Thom pson, 50 1 U.S. 722, 750 (1991). 14 “When a state-law default prevents the state court from reaching the m erits of a federal claim , that claim can ordinarily not be reviewed in federal court.” Ylst v. N unnem aker, 50 1 U.S. 797, 80 1 (1991). Therefore, to excuse her procedural default, Petitioner m ust first dem onstrate cause for her failure to present an issue to the state courts. “[T]he existence of cause for a procedural default m ust ordinarily turn on whether the prisoner can show that som e objective factor external to the defense im peded counsel’s efforts to com ply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). B. § 2 2 54 ( d ) : State Co u rt Fin d in gs Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the jurisdiction of a federal court to consider and grant habeas corpus relief to prisoners is significantly lim ited.” Pursuant to 28 U.S.C. § 2254(d), as am ended by AEDPA, a state petitioner m ay not obtain federal habeas corpus relief with respect to a claim that was adjudicated on the m erits in a state court proceeding unless the state court decision: (1) was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) was not reasonably supported by the evidence presented to the state court. In addition, findings of fact by a state court are presum ed correct, and a petitioner m ay rebut this presum ption of correctness only by clear and convincing evidence. 28 U.S.C. § 2254(e). A state court decision is “contrary to” Suprem e Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Suprem e Court] on a question of law or if the state court decides a case differently than [the Suprem e Court] has on a set of m aterially indistinguishable facts.” W illiam s v. Tay lor, 529 U.S. 362, 412 (20 0 0 ). A state court decision “involves an unreasonable application of clearly established federal 15 law” only where “the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 40 9. A federal habeas court m ay not find a state adjudication to be unreasonable “sim ply because that court concludes in its independent judgm ent that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application m ust also be unreasonable.” Id. at 411. A state petitioner seeking federal habeas relief m ust m eet a very high bar under the standard set by AEDPA. “A state court’s determ ination that a claim lacks m erit precludes federal habeas relief so long as ‘fairm inded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 10 1 (20 11) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (20 0 1)). “[A] habeas court m ust determ ine what argum ents or theories supported or . . . could have supported the state court’s decision; and then it m ust ask whether it is possible fairm inded jurists could disagree that those argum ents or theories are inconsistent with the holding in a prior decision of [the Suprem e Court].” Id. at 10 2. The Suprem e Court acknowledges that this is a very high standard. “If this standard is difficult to m eet, that is because it was m eant to be.” Id.; see also Renico v. Lett, 130 S. Ct. 1855, 1866 (20 10 ) (“AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”); Peak v. W ebb, 673 F.3d 465, 472 (6th Cir. 20 12) (citing Richter, 562 U.S. at 10 1– 0 2) (“[T]he Suprem e Court has very recently m ade abundantly clear that the review granted by AEDPA is even m ore constricted than AEDPA’s plain language already suggests.”). 16 C. Mo tio n fo r Su m m ary Ju d gm e n t It is well established that a m otion for sum m ary judgm ent pursuant to Rule 56 of the Federal Rules of Civil Procedure is applicable to habeas corpus proceedings and allows the court to assess the need for an evidentiary hearing on the m erits of the habeas petition. See Blackledge v. Allison, 431 U.S. 63, 80 – 81 (1977). Rule 56(a) provides that “[t]he court shall grant sum m ary judgm ent if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” The m oving party bears the burden of establishing that no genuine issues of m aterial fact exits. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v . Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and inferences to be drawn therefrom m ust be viewed in the light m ost favorable to the non-m oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 30 1 F.3d 937, 924 (6th Cir. 20 0 2). “When reviewing cross-m otions for sum m ary judgm ent, [the Court] m ust evaluate each m otion on its own m erits and view all facts and inferences in the light m ost favorable to the nonm oving party.” W estfield Ins. Co. v. Tech Dry , Inc., 336 F.3d 50 3, 50 6 (6th Cir. 20 0 3). Once the m oving party presents evidence sufficient to support a m otion for sum m ary judgm ent, the non-m oving party is not entitled to a trial m erely on the basis of allegations. The non-m oving party m ust present som e significant probative evidence to support its position. W hite v. Turfw ay Park Racing Ass’n, 90 9 F.2d 941, 943– 44 (6th Cir. 1990 ), overruled on other grounds by Ey erm an v. Mary Kay Cosm etics, Inc., 967 F.2d 213, 217 n.4 (6th Cir. 1992); Gregg v. Allen-Bradley Co., 80 1 F.2d 859, 861 (6th Cir. 1986). 17 Sum m ary judgm ent should not be disfavored and m ay be an appropriate avenue for the “just, speedy and inexpensive determ ination” of an action. Celotex Corp., 477 U.S. at 327. The m oving party is entitled to judgm ent as a m atter of law “against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. III. EVID EN TIARY H EARIN G The Court held an evidentiary hearing on May 26th, 20 15 and May 27th, 20 15 (Doc. 81). The hearing was restricted to evidence concerning Petitioner’s claim s of ineffective assistance of counsel based on a possible conflict of interest stem m ing from the investigation into lead counsel’s billings to the Indigent Defense Fund, and trial counsel’s procurem ent of m edia rights to Petitioner’s story (Doc. 58). During the hearing, the Court stated that it had yet to determ ine whether Petitioner has cleared the lim itations to receiving new evidence under 28 U.S.C. § 2254(d); however, out of the abundance of caution and because of the highly extraordinary nature of the punishm ent involved, the Court decided to hold the hearing and determ ine later if the evidence received would be considered or not (Doc. 84 p. 6). A federal habeas petition containing claims that have been adjudicated on the m erits in state proceedings m ust m eet the § 2254(d) restriction which prohibits relief unless the adjudication of that claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). In Cullen v. 18 Pinholster, 563 U.S. 170 (20 11), the Suprem e Court, while reinforcing that the district court still retains the discretion to grant an evidentiary hearing, held that “[i]f a claim has been adjudicated on the m erits by a state court, a federal habeas petitioner m ust overcom e the lim itation of § 2254(d)(1) on the record that was before that state court.” Id. at 185. “[T]his m eans that when the state-court record ‘precludes habeas relief’ under the lim itations of § 2254(d), a district court is ‘not required to hold an evidentiary hearing.’” Id. at 183 (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (20 0 7)). As it applies to this case, until Petitioner has overcom e the § 2254(d) lim itation, the Court is not required to consider any “new” evidence introduced at the evidentiary hearing. After a thorough review of the state record, the facts, and Suprem e Court precedent applicable to counts two and six of Petitioner’s petition, the Court finds that the state court’s adjudication of those claim s did not involve an unreasonable determ ination of the facts in light of the evidence before the court. The Court also notes that in any event, the evidence presented at the evidentiary hearing did not differ in any significant way from what was presented to the state court with regard to these claim s.2 A m ore in-depth analysis of these claim s will be presented in turn with Petitioner’s other claim s for relief. IV. CLAIMS FOR RELIEF The Court will consider Petitioner’s claim s for relief in the order she has presented them in her petition for a writ of habeas corpus, and in light of the pending m otions for sum m ary judgm ent. The Court finds Petitioner’s allegations regarding inconsistencies in William Talman’s testimony before the state post conviction court and before this Court at the May, 2015 evidentiary hearing to be irrelevant and immaterial to the issues before the court on this petition. 2 19 A. Pe titio n e r’s atto rn e ys w e re co n s titu tio n ally in e ffe ctive d u rin g th e p e n alty p h as e o f h e r cap ital trial an d h e r righ ts u n d e r th e Sixth , Eigh th , an d Fo u rte e n th Am e n d m e n ts to th e U n ite d State s Co n s titu tio n w e re vio late d . Petitioner alleges that her trial counsel were ineffective during the penalty phase of her trial, and that this ineffectiveness led to her eventual death sentence. Particularly, Petitioner claim s that counsel failed to uncover and present a wealth of m itigating evidence, and m ade last-m inute decisions that negatively affected the quality of their penalty phase argum ents. 1. Applicable Law The Sixth Am endm ent to the United States Constitution guarantees that “[i]n all crim inal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” In Strickland v. W ashington, the Suprem e Court established a two-part standard for evaluating claim s of ineffective assistance of counsel. 466 U.S. 668 (1984). To bring a successful claim of ineffective assistance of counsel, [f]irst, the defendant m ust show that counsel’s perform ance was deficient. This requires showing that counsel m ade errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Am endm ent. Second, the defendant m ust show that the deficient perform ance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687. Under the first part of the Strickland test, the appropriate m easure of attorney perform ance is “reasonableness under prevailing professional norm s.” Id. at 688. A defendant asserting a claim of ineffective assistance of counsel m ust “identify the acts or om issions of counsel that are alleged to not have been the result of reasonable professional judgm ent.” Id. at 690 . The evaluation of the objective reasonableness of 20 counsel’s perform ance m ust be m ade “from counsel’s perspective at the tim e of the alleged error and in light of all the circum stances, and the standard of review is highly deferential.” Kim m elm an v. Morrison, 477 U.S. 365, 381 (1986). It is strongly presum ed that counsel’s conduct was within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. A finding of serious attorney incom petence will not justify setting aside a conviction or sentence, however, absent prejudice to the defendant so as to render the conviction or sentence unreliable. Id. at 691– 92. The question with prejudice is whether counsel’s perform ance “was so m anifestly ineffective that defeat was snatched from the hands of probable victory.” United States v. Morrow , 977 F.2d 222, 229 (6th Cir. 1992). Here, Petitioner m ust dem onstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Moss v. United States, 232 F.3d 445, 454 (6th Cir. 20 0 3) (quoting Strickland, 466 U.S. at 694) (internal quotation marks om itted). “A reasonable probability is a probability sufficient to underm ine confidence in the outcom e.” Moss, 323 F.3d at 454– 55. Counsel is constitutionally ineffective only if a perform ance below professional standards caused the defendant to lose what he “otherwise would have won.” Morrow , 977 F.2d at 229. The focus here, however, should not be solely on outcom e determ ination: [A]n analysis focusing solely on m ere outcom e determ ination, without attention to whether the result of the proceeding was fundam entally unfair or unreliable is defective. To set aside a conviction or sentence solely because the outcom e would have been different but for counsel’s error m ay grant the defendant a windfall to which the law does not entitle him . Lockhart v. Fretw ell, 50 6 U.S. 364, 369– 70 (1993). 21 2. Discussion Petitioner challenged the effectiveness of her trial counsel during the penalty phase, arguing to the TCCA that the penalty phase verdict was less an appropriate response to the facts than an indictm ent of the perform ance of defense counsel. Pike, 20 11 WL 154420 7, at *49. The TCCA, applying Strickland, concluded that Petitioner had not m et her burden of proving deficient perform ance or prejudice. Id. at *49– 60 . Accordingly, the task before the Court is to determ ine whether the state court’s application of Strickland to the facts of Petitioner’s case was unreasonable, in light of Petitioner’s claim s of ineffective assistance of counsel at the penalty phase of her trial. a. Failure to present m itigating evidence uncovered during investigation. Petitioner first alleges that trial counsel’s abrupt decision to change their penalty phase plans, and not call their m itigation specialist, Dr. McCoy, led them to present a very lim ited case for m itigation and abandon the com pelling m itigation evidence that had already been discovered. Failure to present m itigating evidence at sentencing generally constitutes ineffective assistance of counsel. See, e.g., W illiam s v. Tay lor, 529 U.S. 362, 393 (20 0 0 ) (“[I]t is undisputed that William s had a right—indeed, a constitutionally protected right—to provide the jury with the m itigating evidence that his trial counsel either failed to discover or failed to offer.”); Skaggs v. Parker, 235 F.3d 261, 269 (6th Cir. 20 0 0 ) (“We find that Skaggs’s counsel acted below an objective standard of reasonableness at sentencing, essentially providing no legitim ate m itigating evidence on Skaggs’s behalf, and that this failure severely underm ines our confidence in the just outcom e of this 22 proceeding.”); Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997) (holding that the failure of trial counsel “to investigate and present any m itigating evidence during the sentencing phase so underm ined the adversarial process that Austin’s death sentence was not reliable.”). The state did not present any evidence during the penalty phase of Petitioner’s trial; rather, they chose to rest on the evidence that had been presented during the guilt phase (Addendum No. 2, Doc. 25, Vol. 25, pp. 2481– 83). Petitioner’s evidence consisted of the testim ony of her aunt, her m other, and her father. Petitioner’s aunt, Carrie Ross, testified that Petitioner did not have a relationship with her m other right from birth, and was prim arily raised by her paternal grandm other until her grandm other’s death in 1988 (Id. at 2487; Addendum No. 2, Doc. 26, Vol. 26, pp. 250 3– 0 5). Ms. Ross also testified that Petitioner’s m other did not enact any disciplinary rules with Petitioner, and that she always put her personal interests ahead of Petitioner’s (Addendum No. 2, Doc. 25, Vol. 25, pp. 2499– 250 0 ). Petitioner’s father, Glenn Pike, testified that he was not around a lot, and that he had a long-distance relationship with Petitioner (Addendum No. 2, Doc. 26, Vol. 26, pp. 2512– 13). Mr. Pike also testified that on m ore than one occasion, he effectively rejected Petitioner, once telling her she was no longer welcom e in his hom e, another tim e sending her back to live with her m other, and signing papers for her to be adopted at one point (Id. at 2513– 16). Finally, Petitioner’s m other, Carissa Hansen, testified that Petitioner spent m ajority of her childhood with her paternal grandm other and first attem pted suicide after her grandm other’s death in 1988 (Id. at 2526, 2528– 29). Ms. Hansen also testified that on one occasion she chose her new husband over Petitioner, and sent Petitioner off to live with her father because Petitioner did not get along with the new husband (Id. at 23 2525). Ms. Hansen also adm itted to sm oking m arijuana with Petitioner, in an attem pt to get closer to her and be her friend, and also to allowing Petitioner’s boyfriend to m ove into her hom e when Petitioner was fourteen years old (Id. at 2527, 2537). After Petitioner’s m other testified, the Petitioner rested her case. The state then called a rebuttal witness, Harold Underwood, a police officer with the University of Tennessee, to testify to Petitioner’s dem eanor on the day following the m urder. Officer Underwood testified that Petitioner cam e to the crim e scene with between three and five other girls and asked questions about who the victim was, and if any suspects had been identified (Id. at 2551– 52). Officer Underwood also testified that Petitioner appeared am used, and was giggling and m oving around (Id. at 2252). In her petition, Petitioner alleges that her lead counsel initially intended to call Dr. McCoy as the only witness during the sentencing phase, planning for her to bring in all the evidence of Petitioner’s background that she had uncovered, and tie it in with their m edical expert, Dr. Engum’s, diagnosis (Doc. 19, p. 49). However, after the guilty phase, lead counsel turned over Dr. McCoy’s entire m itigation report to the prosecution in and in cam era proceeding that was not put on the record, and subsequently decided not to call Dr. McCoy to testify during the penalty phase (Id. at 50 ). Petitioner alleges that as a result of this abrupt change in plans, the m itigation evidence prepared was not properly presented to the jury, the prosecution was able to use inform ation from Dr. McCoy’s report to im peach the lay witnesses on cross exam ination, and counsel’s planned m itigation plan com pletely unraveled (Id.). Petitioner further alleges that none of the reasons provided by counsel for their decision to abandon their m itigation plan at the last m inute was supported by the record (Id. at 51). 24 Dr. McCoy testified at the post-conviction evidentiary hearing that her role as a m itigation expert was to “collect inform ation, interview people, get records and analyze all of this inform ation in an effort to develop certain them es that the attorneys would present to a jury in sentencing[,] and also to identify lay witnesses who could com e and talk to the jury and show them the hum an side of [Petitioner] and fam iliarize them with her history and basically help them see that life would be an option for her” (Addendum No. 5, Doc. 18, Vol. 6B, p. 621). Dr. McCoy also testified that it would have been detrim ental to Petitioner’s case to only have fam ily m em bers and lay witnesses testify to Petitioner’s background, without any testim ony from an expert about how it connects to Petitioner’s psycho pathology (Id. at 638– 39). Petitioner’s trial co-counsel, J ulie Martin Rice, testified during the postconviction evidentiary hearing that their decision not to call Dr. McCoy during the penalty phase of Petitioner’s trial was based on several theories that were floating around, but that she was not sure which one precipitated the ultim ate decision (Addendum No. 5, Doc. 12, Vol. 1, p. 77). Ms. Rice testified that at som e point, Dr. McCoy said she could not support part of Dr. Engum ’s testim ony or report (Id.); that they had discovered Dr. McCoy was dating the lead prosecutor on the case, and that she thought it to be an on-going relationship (Id.; Addendum 5, Doc. 13, Vol. 2, p. 197); that Dr. McCoy had also told her at som e point that Petitioner was a liar, and that she did nothing but lie (Addendum No. 5, Doc. 13, Vol. 2, p. 113); and that on the m orning the penalty phase was set to begin, the prosecutor had “stickified” Dr. McCoy’s report (Addendum No. 5, Doc. 12, Vol. 1, p. 77). Trial lead counsel, Bill Talm an, also testified during Petitioner’s post-conviction hearing. Mr. Talm an testified that the prim ary reason they decided not to call Dr. 25 McCoy to testify at the sentencing phase of Petitioner’s trial was because she would not corroborate Dr. Engum ’s testim ony (Addendum No. 5, Doc. 15, Vol. 4, p. 348). Mr. Talm an also testified that after he received Dr. McCoy’s report, he was already teetering with whether he wanted to use it or not because of all the negative things the report contained about Petitioner’s history (Id. at 345). According to Mr. Talm an, it becam e a question of weighing whether he wanted to have all of the negative things in Dr. McCoy’s report com e into the record over putting Dr. McCoy on the stand, when all she would testify to was that she spoke to a num ber of people (Id. at 348– 49). Mr. Talm an testified that he believed they could get substantially the sam e testim ony in through the fam ily m em bers (Id. at 349). Mr. Talm an adm itted that the decision not to call Dr. McCoy as a witness was “one of those last m inute decisions that . . . you just [m ake],” and that the decision was, to the best of his knowledge, m ade the m orning right before the penalty phase began while they were in “one of those little huddles outside during a break” (Id. at 351– 52). In addition, Mr. Talm an testified that another reason he was hesitant to call Dr. McCoy as a witness was because they had found out shortly before trial that she was involved in a rom antic relationship with William Crabtree, the lead prosecutor on Petitioner’s case (Id. at 352). According to Mr. Talm an, when he asked Dr. McCoy why she had not initially disclosed the relationship, she told him that she did not think that it m ade a difference, and that she knew that he would not have retained her as an expert witness on the case if she had revealed the relationship to him (Id. at 352; Addendum No. 5, Doc. 16, Vol. 5, pp. 444– 45). Mr. Talman stated that he did not call attention to the issue when he first found out because he never doubted Dr. McCoy’s work or Mr. Crabtree’s integrity, that Dr. McCoy assured him that she had never talked to Mr. 26 Crabtree about the case, and that they had already spent a lot of m oney on Dr. McCoy’s work at that point (Addendum No. 5, Doc. 15, Vol. 4, p. 355). Even further, Mr. Talm an testified that he was angered by Dr. McCoy’s actions during jury selection when she appeared on local television stations talking about jury selection, although not specifically about the facts of Petitioner’s case (Id. at 357). Mr. Talm an also testified that he did not recall ever asking Dr. McCoy to lie about the date he received her report, and that he could not ever im agine asking a witness to lie (Addendum No. 5, Doc. 16, Vol. 5, p. 440 ). With respect to the claim that trial counsel failed to present the m itigating evidence they had in their possession, the TCCA agreed with the finding of the trial court that Petitioner failed to establish ineffective assistance of counsel. The trial court accredited lead counsel’s testim ony that he did not call Dr. McCoy because she could not corroborate Dr. Engum ’s report, and also that he felt uncom fortable with the use of Dr. McCoy’s m aterials, as they contained a lot of inform ation which he did not want the jury to hear. The TCCA also agreed with the finding of the trial court that Petitioner could not prove prejudice because the m itigation evidence which was om itted would not have outweighed the aggravating factors. Pike v. State, 20 11 WL 154420 7, at *52. The Sixth Circuit has found ineffective assistance of counsel in cases where counsel wholly failed to present any m itigation evidence at trial. See, e.g., Glenn v. Tate, 71 F.3d 120 4, 120 7 (6th Cir. 1995) (finding that trial counsel rendered deficient perform ance where “the jury was given virtually no information on [defendant’s] history, character, background and organic brain damage—at least no inform ation of a sort calculated to raise reasonable doubt as to whether [he] ought to be put to death.”); Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) (finding ineffective assistance where 27 counsel did not present any m itigating evidence because he did not think that it would do any good). These cases, however, are sufficiently distinguishable from Petitioner’s case. At the outset, trial counsel did not fail to present any evidence in m itigation. Rather, counsel chose to use testim ony from Petitioner’s fam ily m em bers in support of m itigation, in place of their original plan to call Dr. McCoy. While the Court notes that counsel adm itted that the decision to forgo Dr. McCoy’s testim ony was a last-m inute decision and m ay not have been the best choice, the Court is counseled by Strickland’s direction to focus on counsel’s perspective at the tim e. See Strickland, 466 U.S. at 689. As such, the Court cannot find that the TCCA’s conclusion that counsel’s decision was a tactical one is an unreasonable determ ination of the facts. Even further, the record supports the TCCA’s finding that m uch of the evidence that Dr. McCoy would have provided was presented in som e form in either the guilt phase or through the fam ily m em bers in the sentencing phase. Pike, 20 11 WL 154420 7, at *51– 52. Furtherm ore, the Court cannot find that the state court’s conclusion that Petitioner could not establish prejudice is an unreasonable determ ination. Under Strickland, a petitioner challenging a death sentence m ust show that there is a reasonable probability that, absent the errors, the jury would have concluded that the balance of the aggravating and m itigating circumstances did not warrant death. Strickland, 466 U.S. at 695. A petitioner cannot establish prejudice by claim ing his counsel failed to present cum ulative m itigation evidence—that is, evidence that was already presented to the jury. See Beuke v. Houk, 537 F.3d 618, 645 (6th Cir. 20 0 8) (citing Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir. 20 0 6)). As previously noted, m ost of the evidence that Petitioner claim s was not presented by counsel was presented in 28 som e form during either the guilt or penalty phase, perhaps just not in as com prehensive a way as Petitioner contends it should have been. Regardless, Petitioner cannot m eet her burden of showing prejudice. Accordingly, the court finds that the state court’s decision that Petitioner has failed to dem onstrate ineffective assistance of counsel for failure to present m itigating evidence was neither contrary to, nor did it involve an unreasonable application of, federal law. b. Failure to discover relevant and com pelling m itigation evidence. Petitioner next alleges that trial counsel were ineffective for failing to investigate, discover, and present evidence of Petitioner’s organic brain dam age and its effects, along with evidence that Petitioner suffers from bipolar disorder and post-traum atic stress disorder (Doc. 19). Petitioner also claim s that trial counsel failed to interview m any witnesses from her background that would have provided m itigating evidence of her positive traits, and witnesses from the J ob Corps program that would have testified to the dangerous and violent atm osphere there (Doc. 19). As previously stated, “failure to investigate possible m itigating factors and failure to present m itigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Am endm ent.” Colem an v. Mitchell, 244 F.3d 533, 545 (6th Cir. 20 0 1). Dr. Pincus, a neurologist, testified as an expert at Petitioner’s post-conviction evidentiary hearing. Dr. Pincus testified that Petitioner suffers from brain dam age and that essentially, “her frontal lobes aren’t put together properly” (Addendum No. 5, Doc. 3, Vol. 3, p. 243). According to Dr. Pincus, an im portant function of the frontal lobe is m oral and ethical standards, “the ability to say, ‘No, don’t say that; no, don’t do that’ to 29 yourself” (Id.). As such, Dr. Pincus surm ised that Petitioner was under the influence of a m ental disease and defect that prevented her from being able to consider what she was doing, and was unable to prevent herself from giving in to the im pulse to kill (Id. at 278). Dr. Pincus further testified that while Dr. Engum perform ed all the right tests for the frontal lobe, the type of frontal lobe dam age that Petitioner suffers is not visible on those tests (Id. at 285). Dr. Pincus testified that Dr. Engum ’s error was concluding that there was no brain dam age based m erely on the tests perform ed, and that trial counsel, in his opinion, had a duty to seek further opinions to put together a credible defense (Id. at 283– 84). Dr. William Kenner, a specialist in psychiatry, child psychiatry, and psychoanalysis, also testified on Petitioner’s behalf. According to Dr. Kenner, there was significant data at the tim e of Petitioner’s trial to suggest early onset bipolar disorder (Addendum No. 5, Doc. 24, Vol. 1, p. 35). Dr. Kenner testified that there was also data to help the jury understand the im pact of early layered traum a on Petitioner’s developm ent, as well as Petitioner’s congenital brain abnorm ality (Id.). Dr. Kenner also testified that there was data suggestive of dissociative sym ptom s that was available to a psychiatrist back in 1995 and 1996 (Id. at 37– 38). Dr. Kenner opined that the structure of Petitioner’s defense team at trial was odd because all the lines of com m unication were to lead counsel, but there was little to no “cross talk,” especially am ong the experts (Id. at 30 ). According to Dr. Kenner, this caused problem s for Petitioner’s defense because it lim ited the psychiatrist, Dr. Bernet, from testifying to the depth and extent of his knowledge (Id. at 31). Based on the testim onies of Drs. Pincus and Kenner, as well as testim ony from several lay witnesses from Petitioner’s background and the J ob Corps program , 30 Petitioner alleges that trial counsel should have conducted further investigations into Petitioner’s m ental health and presented such m itigation evidence to the jury, and trial counsel should have investigated the lay witnesses and presented their testim ony. In reaching its decision to deny relief on this claim , the TCCA agreed with the postconviction trial court that trial counsel was not required to question the diagnosis reached by the m ultiple experts he retained to exam ine Petitioner. Pike, 20 11 WL 154420 7, at *54. Sixth Circuit jurisprudence has “distinguished between counsel’s com plete failure to conduct a m itigation investigation, where we are likely to find deficient perform ance, and counsel’s failure to conduct an adequate investigation, where the presum ption of reasonable perform ance is m ore difficult to overcom e.” Beuke v. Houk, 537 F.3d 618, 643 (6th Cir. 20 0 8). The cases where [the Sixth Circuit] has granted the writ for failure of counsel to investigate potential m itigating evidence have been lim ited to those situations in which defense counsel have totally failed to conduct such an investigation. In contrast, if a habeas claim does not involve a failure to investigate but, rather, petitioner’s dissatisfaction with the degree of his attorney’s investigation, the presum ption of reasonableness im posed by Strickland will be hard to overcom e. Id. (quoting Cam pbell v. Coy le, 260 F.3d 531, 552 (6th Cir. 20 0 1)). Petitioner’s trial counsel did not totally fail to conduct a m itigation investigation. The record indicates the opposite is the case-trial counsel engaged the services of three different expert witnesses to assist the defense in different ways. Dr. Engum , particularly, evaluated Petitioner and at no tim e did he recom m end that counsel retain any additional expert for further testing. Dr. McCoy also testified that it was her belief that if any additional testing was required, Dr. Engum would m ake the call. This Court 31 cannot now fault counsel for relying on the diagnosis and advice of the expert he retained to evaluate Petitioner. Furtherm ore, as the TCCA noted, even Drs. Pincus and Kenner agreed that the diagnosis reached by Dr. Engum was reasonable based on the tests he perform ed and that bipolar disorder was often m istaken for borderline personality disorder. The TCCA also noted that “[w]hile the actual diagnosis is som ewhat varied, the essential facts, i.e., the concession to prem editation, are very sim ilar.” Pike, 20 11 WL 154420 7, at *54. The record also indicates that trial counsel interviewed a num ber people from Petitioner’s background, even travelling to North Carolina to investigate and interview witnesses (Addendum No. 5, Doc. 15, Vol. 4, pp. 339– 40 ). Petitioner has not presented any evidence to overcom e the strong presum ption that counsel’s decision not to call any of these lay witnesses was anything other than a strategic decision. See Strickland, 466 U.S. at 689. As such, the Court cannot find that Petitioner has dem onstrated ineffective assistance of counsel for failure to investigate m itigating evidence. The decision of the TCCA was neither contrary to, nor did it involve an unreasonable application of federal law, and Petitioner is not entitled to relief on this claim . c. Disclosure of protected work product to the prosecution Petitioner’s next claim of ineffective assistance of counsel alleges that her trial counsel were ineffective for turning over all three volum es of Dr. McCoy’s work product, without ensuring that the record reflected the possible issuance of a court order requiring disclosure and ensuring that the m aterial turned over did not include privileged attorney work product (Doc. 19, p. 61). Petitioner argues that she was prejudiced by trial counsel’s failure to protect this privileged inform ation because the 32 prosecution used inform ation from Dr. McCoy’s report to cross-exam ine the witnesses that testified during the penalty phase of her trial (Id. at 62). In considering this claim , the TCCA found that Petitioner had not carried her burden of proof establishing either deficient perform ance or prejudice. Pike, 20 11 WL 154420 7, at *55. Particularly, the TCCA found that the essence of Petitioner’s claim was that the record did not establish that the trial court ordered trial counsel to turn over the reports to the prosecution. Id. However, the TCCA held that its interpretation of the facts did not support Petitioner’s theory; rather, the record seem ed to indicate that the trial court did in fact order disclosure. Id. Furtherm ore, the TCCA found that Petitioner failed to prove prejudice because even the trial prosecutor could not recall whether his cross-exam ination of Petitioner’s witnesses during the penalty phase was based on evidence he obtained from Dr. McCoy’s reports, or whether they were obtained independently. Id. Additionally, the TCCA found that Petitioner did not establish that the result of her trial would have been different absent the testim ony elicited by the prosecution. Id. Petitioner now argues that the TCCA’s decision was unreasonable because the issue was not whether trial counsel was required to comply with the orders of the court (Doc. 46, p. 80 ). Rather, Petitioner contends that counsel was required to m ake a reasonable argum ent that discovery was to be conducted according to procedural rules, and further ensure that an appropriate objection was on the record and preserved for appellate review (Id.). According to Petitioner, under the Tennessee Rules of Evidence, Dr. McCoy’s m itigation report and social history was not discoverable until and unless she testified, and even if she did testify, only upon an order from the court after the court had reviewed the reports (Id. at 78). 33 On post-conviction, trial counsel testified that he did not recall the exact details of how Dr. McCoy’s reports were turned over the to the Prosecution, but that he did rem em ber the in-cham bers conference where he turned over the reports (Addendum No. 5, Doc. 15, Vol. 4, p. 374). According to Mr. Talm an, he believed that they had a discussion about whether the prosecution was entitled to the reports, and also believed that he was ordered to turn them over to the state, although he equivocated, stating that he could be wrong (Id. at 374– 75). Lead prosecutor in Petitioner’s trial, William Crabtree, also testified that he did not recall what objections m ay have been m ade during the in-cham bers conference where trial counsel turned over Dr. McCoy’s reports, but that he thought that the prosecution should have been entitled to them under reciprocal discovery (Addendum No. 5, Doc. 14, Vol. 3, pp. 238– 40 ). As previously noted, § 2254(d) is a very difficult standard to meet; the Suprem e Court has found that it “stops just short of im posing a com plete bar on federal-court relitigation of claim s already rejected in state proceedings.” Harrington v. Richter, 562 U.S. 86, 10 2 (20 11). Com bined with the highly deferential standard of Strickland, the burden is even m ore form idable. Based on the Court’s review of the record, the Court cannot find that the TCCA’s decision was an unreasonable determ ination of the facts. The record is certainly unclear as to what exactly happened during the in-cham bers conference, and it is not within the Court’s province to speculate as to what m ay or m ay not have happened. While trial counsel testified that in retrospect he should have ensured that there was a court reporter present in cham bers and that he should not have turned over the entirety of Dr. McCoy’s report, Strickland counsels that every effort should be m ade to assess counsel’s perform ance “from counsel’s perspective at the tim e,” and not in hindsight. 466 U.S. at 689. Both trial counsel and the prosecutor 34 thought, at the tim e, that Dr. McCoy’s reports should have been discoverable. While this belief m ight have been erroneous, the Court m ust note that “Strickland does not guarantee perfect representation, only a ‘reasonably com petent attorney.’” Richter, 562 U.S. at 110 (quoting Strickland, 466 U.S. at 687). For these reasons, the Court finds that Petitioner is not entitled to relief on this issue because the TCCA’s decision was neither an unreasonable application of federal law, nor was it an unreasonable determ ination of the facts in light of the record before the court. d. Failure to present effective penalty phase argum ents to the jury Petitioner’s next ineffective assistance of counsel claim alleges that trial counsel failed to present effective penalty phase argum ents because counsel never argued to the jury to spare Petitioner because of her youth, nor did they discuss any of the m ental health evidence presented by Dr. Engum (Doc. 46, p. 81). Petitioner also argues that counsel was ineffective for failing to m ention Petitioner’s m ental illness or her history of abuse and neglect (Id.). The TCCA found that this claim had been waived because Petitioner failed to present it to the post-conviction trial court. Pike, 20 11 WL 154420 7, at *56. Petitioner now argues that the TCCA’s review of the post-conviction trial court record was erroneous because the claim that counsel was ineffective for failing to m ention m ental health evidence during their penalty phase closing argum ent was actually presented, and in the alternative, that Petitioner is entitled to review of this claim under Martinez v. Ry an, 132 S. Ct. 130 9 (20 12). Under the procedural default doctrine, a federal court cannot grant a state prisoner’s petition for habeas relief unless each and every claim set forth in the habeas 35 petition has been fairly presented to the state courts. Satterlee v. W olfenbarger, 453 F.3d 362, 365 (6th Cir. 20 0 6) (citing Baldw in v. Reese, 541 U.S. 27, 29 (20 0 4)). The petitioner m ust present the sam e claim under the sam e theory presented to the state courts. W agner v. Sm ith, 581 F.3d 410 , 418 (6th Cir. 20 0 9). Based on its review of the record, the Court cannot find that this claim was fairly presented to the state postconviction trial court. While Petitioner alluded to counsel’s failure to present the jury with evidence of her m ental illness, the rem ainder of the facts asserted under this claim were not presented to the state court under the theory for which Petitioner now seeks relief. As such, the claim is procedurally defaulted. To overcom e a procedural default, a petitioner m ust show cause and actual prejudice to excuse the failure to present the claim in state court. See Gray v. Netherland, 518 U.S. 152, 162 (1996). In Martinez, the Suprem e Court created a “narrow exception” to the general rule of Colem an v. Thom pson that a habeas petitioner cannot use ineffective assistance of collateral review counsel as cause to excuse a procedural default. 50 1 U.S. 722, 756– 57 (1991). The Sixth Circuit, in Sutton v. Carpenter, 745 F.3d 787, 795– 96 (6th Cir. 20 14), held that Martinez, as expanded by Trevino v. Thaler, 133 S. Ct. 1911, 1921 (20 13), applies in Tennessee. Martinez perm its a petitioner to establish cause to excuse a procedural default of an ineffective assistance of trial counsel claim by showing that he received ineffective assistance by post-conviction counsel. See Martinez v. Ry an, 132 S. Ct. 130 9, 1320 (20 12). This holding, however, does not dispense with the “actual prejudice” requirem ent established by the Suprem e Court in Colem an. 50 1 U.S. at 750 . To successfully establish cause and prejudice under Martinez, a petitioner m ust show a substantial underlying claim of ineffective assistance of trial counsel. See Trevino, 133 S. Ct. at 1918; Martinez, 132 S. Ct. at 1318– 19. 36 As part of showing a substantial claim of ineffective assistance of counsel, the petitioner m ust prove prejudice under Strickland. See McGuire v. W arden, Chillicothe Corr. Inst., 738 F.3d 741, 752 (6th Cir. 20 13) (“To be successful under Trevino, [petitioner] m ust show a ‘substantial’ claim of ineffective assistance, and this requirem ent applies as well to the prejudice portion of the ineffective assistance claim .” (internal citations om itted)). Under Strickland, a petitioner can prove prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. W ashington, 466 U.S. 668, 694 (1984). The “actual prejudice” requirem ent of Colem an and the prejudice requirem ent of Strickland overlap such that in 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. If not, because the “cause and prejudice” standard is conjunctive rather than disjunctive, the reviewing court would have no need consider whether the petitioner has established cause to overcome the procedural default, in the form of ineffective assistance of post-conviction counsel. Thorne v. Hollw ay , No. 3:14-CV-0 695, 20 14 WL 4411680 , at *23 (M.D. Tenn. Sept. 8, 20 14) Petitioner claim s that her trial counsel was ineffective in their penalty phase argum ents (Doc. 19). Petitioner points to counsel’s statem ents during his penalty phase opening statem ent that Ms. Pike has a personality that she derives and gains her selfesteem , her self-worth from those around her. If you sentence her to life in prison I would suggest that what you do, that you turn her into just any other inm ate doing a life sentence for first degree m urder. If, on the other hand, by 37 turning her into any other inm ate serving a life sentence that what you take from her is her notoriety. You take her fam e. She will be just another inm ate serving a life sentence. And we suggest that if you im pose a sentence of death, or life without the possibility of parole, you will thrust her into a spot light, a national spot light, and I would suggest that you consider these points. (Addendum No. 2, Doc. 25, Vol. 25, pp. 2480 – 81). Petitioner argues that this argum ent conceded that Petitioner was deserving of the worst punishm ent they could im agine (Doc. 19). Even further, Petitioner argues that trial counsel failed to em phasize statutory m itigating factors like youth, and her m ental illness in their argum ent. Counsel’s statem ents here, when taken in isolation, m ay not appear to be the m ost appealing argum ents counsel could have m ade; however, these statem ents m ust be viewed in the context of counsel’s entire argum ent. See Moore v. Mitchell, 70 8 F.3d 760 , 790 (6th Cir. 20 13) (citing United States v. Lostia, 20 F. App’x 50 1, 50 2 (6th Cir. 20 0 1)). Based on the review of counsel’s entire opening statem ent, as well as co-counsel’s closing argum ent, the Court cannot find that each statem ent was not a part of the constitutionally protected strategy that counsel chose to adopt. Counsel alluded to the availability of statutory m itigating circum stances by reference to the state’s argum ent that m entioned Petitioner’s youth as a m itigating factor. Furtherm ore, co-counsel, in her closing argum ent, emphasized that the jury were entitled take into account everything they had heard in both the guilt phase and sentencing phase in reaching their decision to not sentence Petitioner to death (Addendum No. 2, Doc. 26, Vol. 26, p. 2564). While Petitioner m ay not believe that counsel’s argum ents were as stirring, eloquent, or com prehensive as they could have been, the decision on how to present the available evidence in their argum ents was a m atter of trial strategy which this Court will not second guess. As such, the Court finds that Petitioner’s claim that counsel failed to 38 present effective penalty phase argum ents is not “substantial” for the purposes of Martinez. e. Failure to conduct m eaningful voir dire of potential jurors Petitioner’s final claim of ineffective assistance of counsel alleges that trial counsel failed to rehabilitate or object to the dism issal of potential juror Rutherford, whose voir dire showed that he was qualified to serve (Doc. 19). Petitioner also claim s that counsel was ineffective for failing to tell potential jurors that her youth was a statutory m itigating factor, and failed to voir dire jurors on other prospective m itigation them es, such as m ental illness and m ental health experts, in order to strike jurors who could not consider certain m itigation evidence (Doc. 19). Applying the standards for jury qualification espoused by the Suprem e Court in W itherspoon v. Illinois, 391 U.S. 510 (1968) and W ainw right v. W itt, 469 U.S. 412 (1985), the TCCA considered and rejected this claim . The Petitioner argues that [the] colloquy indicates only that “Mr. Rutherford m ade clear that he could consider the death penalty for a m ature defendant, but that he had reservations in light of the Petitioner’s youth.” We disagree with Petitioner’s analysis and her reliance on the statem ent m ade in Morgan v. Illinois. As previously stated, the Suprem e Court in Morgan stated that “a juror who in no case would vote for capital punishm ent, regardless of his or her instructions, is not an im partial juror and m ust be rem oved for cause. [Morgan v. Illinois, 50 4 U.S. 719, 728 (1992)]. According to the Petitioner, that statem ent stands for the proposition that if a potential juror could possibly im pose the death penalty in som e case, just not the instant case, then he should not be stricken for cause an im partial juror. We clearly disagree with that interpretation entirely and conclude that the statem ent should only be taken as reiteration of the standard previously stated in W ainw right and Adam s that a potential juror m ust have im partiality in the case he or she is presently involved in. 39 A reading of the colloquy which occurred with Mr. Rutherford m ade clear that he could not im pose the death penalty under any circum stances because of the Petitioner’s age in this case. As such, the statem ents m ade by Mr. Rutherford indicate that his views would prevent or substantially im pair his performance of his duties as a juror in accordance with his instructions and his oath. As such, we agree that he was appropriately struck for cause, and no objection by trial counsel was warranted. While we do agree that the statem ents do not necessarily indicate an unconditional bias against capital punishm ent entirely, as noted, that is not the required standard. Pike, 20 11 WL 154420 7, at *58. The Court agrees entirely with the TCCA’s exhaustive and com prehensive review of this issue. With respect to Petitioner’s claim that trial counsel failed to question the potential jurors about any possible bias related to m ental illness, psychologists, and m ental health experts, the TCCA found that Petitioner failed to present any evidence that any juror harbored bias or prejudice on these grounds. Id. at *59. The decision by the TCCA was neither contrary to, nor did it involve an unreasonable application of, federal law. Petitioner is not entitled to relief on this claim . B. Pe titio n e r w as d e p rive d o f th e righ t to u n co n flicte d co u n s e l in vio latio n o f th e Sixth an d Fo u rte e n th Am e n d m e n ts to th e U n ite d State s Co n s titu tio n . Petitioner’s second claim for relief alleges that she was denied the right to unconflicted counsel because her trial counsel were burdened by a two conflicts—i.e., Mr. Talm an’s legal and ethical troubles caused by his overbilling practices, and the release of m edia rights that counsel procured from Petitioner authorizing counsel to use or sell Petitioner’s story for pecuniary gain. 40 1. Applicable Law As a general rule, claim s of ineffective assistance of counsel under the Sixth Am endm ent are governed by Strickland, and a petitioner m ust prove deficient perform ance and prejudice in order to bring a successful claim . 466 U.S. at 687. When dealing with ineffective assistance due to a conflict of interest, “to establish a violation of the Sixth Am endm ent, a defendant who raised no objection at trial m ust dem onstrate that an actual conflict of interest adversely affected his lawyer’s perform ance.” Cuy ler v. Sullivan, 466 U.S. 335, 348 (1980 ). “A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not dem onstrate prejudice in order to obtain relief.” Id. at 349– 50 . However, “until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim or ineffective assistance.” Id. at 350 . Absent this showing, the Strickland standard applies. See Stew art v. W olfenbarger, 468 F.3d 338, 351 (6th Cir. 20 0 6). 2. Discussion Petitioner argued on state post-conviction appeal to the TCCA that her lead trial counsel was conflicted between his fear of being prosecuted by the state—which likely involved the district attorney’s office prosecuting her case—and his representation of Petitioner. Pike, 20 11 WL 154420 7, at *46. Petitioner further argued that counsel’s agreem ent to profit from Petitioner’s story presented a conflict of interest because it signified that counsel was m otivated by m onetary gain throughout their representation of Petitioner. Id. at *48. The TCCA, applying the Strickland and Cuy ler standards, concluded that Petitioner did not m eet her burden of showing that an actual conflict of 41 interest which adversely affected her representation existed, and that Petitioner could not prove prejudice. Id. at *48– 49. a. Conflict from investigation into counsel’s billing practices to the Indigent Defense Fund. Petitioner’s first claim of conflict of interest arises from Mr. Talm an’s involvem ent in an overbilling investigation by the State of Tennessee. According to Petitioner, counsel still faced the possibility of ethical and crim inal charges during the period in which he represented her. Petitioner points to evidence that counsel abandoned his pans to call Dr. McCoy as the sole m itigation witness at the last m inute as an indication that counsel’s alleged conflict adversely affected her representation. Petitioner argues, based on Dr. McCoy’s testim ony that counsel asked her to lie about when she turned in her m itigation reports after the prosecutor com plained about receiving the large three-volum e report so late in the proceeding, that counsel was operating under his fear of further angering the prosecution. Petitioner further claim s that all the explanations counsel offered for his decision not to call Dr. McCoy are im plausible. In dism issing this claim , the TCCA found that Petitioner failed to offer m ore than m ere speculation as to the reason behind counsel’s actions and, as such, did not m eet her burden of establishing that an active conflict of interest existed. The record indicates that between 1993 and 1994, Mr. Talm an learned that the state of Tennessee Com ptroller’s Office was conducting an audit of the indigent defense system for lawyers that had possibly overbilled the fund (Addendum No. 5, Doc. 14, Vol. 3 p. 256). After determ ining that he m ight be one of the attorneys im plicated in the investigation, Mr. Talm an self-reported to the Board of Professional Responsibility and conducted an internal audit (Id. at 257). Mr. Talm an subsequently repaid approxim ately 42 $ 67,0 0 0 to the indigent defense fund shortly before he was appointed as counsel in Petitioner’s case (Id. at 259, 61). The record further indicates that the com plaint from Mr. Talm an’s self-reporting was still pending before the Board of Professional Responsibility during the tim e he represented Petitioner, and was not fully resolved until the day after the Tennessee Suprem e Court affirm ed Petitioner’s conviction and sentence, when Mr. Talm an’s license was suspended for eleven m onths and twenty-nine days (Id. at 263– 64); Pike, 20 11 WL 154420 7, at *45. Mr. Talm an testified that as far as he was concerned, the m atter was closed and com pleted before he accepted the appointm ent to Petitioner’s case (Id. at 263). According to Mr. Talm an, he had begun receiving appointm ents in other cases and the state had resum ed paying him in his other cases (Id.). Mr. Talm an also testified that he did not believe the investigation affected his representation of Petitioner (Id.). A petitioner claim ing ineffective assistance of counsel due to a conflict of interest m ust prove that counsel was actually burdened by a conflict which adversely affected the lawyer’s perform ance. Cuy ler, 446 U.S. at 348. In the absence of this, the petitioner m ust prove deficient perform ance and prejudice under Strickland. The TCCA found that prior to Mr. Talm an’s appointm ent, the trial court inquired into the status of the investigation and learned that it had been concluded, and that Mr. Talm an rem ained licensed and in good standing. Pike, 20 11 WL 154420 7, at *47. The TCCA also credited the post-conviction court’s finding that Mr. Talm an deem ed the m atter concluded prior to his appointm ent to Petitioner’s case. Id. The Court cannot find that this decision was contrary to, or an unreasonable application of, federal law. Petitioner points to the prosecution’s anger at receiving Dr. McCoy’s m itigation reports just before the penalty phase began as causing Mr. Talm an 43 to fear further angering the prosecution or the court and placing his interest ahead of Petitioners (Doc. 19 p. 68). While it is unclear to the Court why Dr. McCoy’s reports, which would arguably have been rendered unnecessary by a not-guilty verdict, would have been discoverable to the prosecution before the close of the guilt phase, the Court cannot find that the TCCA’s decision that Petitioner’s allegations are m ere speculation was unreasonable in light of the record before it. Furtherm ore, Petitioner appears to argue that regardless of counsel’s belief that the overbilling investigation was concluded, the truth is that there rem ained the possibility of crim inal and ethical charges. Petitioner’s burden under Cuy ler requires a showing that counsel was burdened by an actual conflict of interest. It does not follow that Mr. Talm an could have been burdened by the possibility of crim inal and ethical charges if he genuinely believed that the m atter had been concluded as the TCCA found. Because Petitioner has failed to show that her trial counsel was burdened by an actual conflict of interest stem m ing from the State of Tennessee’s investigation into his billing practices, Petitioner m ust prove deficient perform ance and prejudice under Strickland. See Stew art, 468 F.3d at 381. The Court has previously found that that state court’s decision that Petitioner failed to demonstrate ineffective assistance of counsel for failure to present m itigating evidence was not unreasonable. Petitioner is not entitled to relief. b. Conflict from counsel’s procurem ent of a release of m edia rights from Petitioner Petitioner’s second claim of conflict of interest alleges that counsel was conflicted by their interest in m onetary gain from selling Petitioner’s story, based on the waiver releasing all m edia rights to her story signed by Petitioner (Doc. 19 p. 69). Petitioner 44 argues that the adverse effect to her representation is evidenced by counsel’s failure to seek a continuance of Petitioner’s trial date after lead counsel had only been on the case for ten m onths, and co-counsel for less than two m onths (Id. at 70 ). Petitioner further argues that this failure to seek a continuance aligns with counsel’s pecuniary interest in having a rapid trial so as to capitalize on Petitioner’s story while it was still publicly relevant (Id. at 71). The TCCA dism issed this claim , agreeing with the state that because the release at issue was not signed until after Petitioner had been found guilty and sentenced, it was unreasonable to suggest that Petitioner had been adversely affected by the post-trial agreem ent. Pike, 20 11 WL 154420 7, at *49. The TCCA also found that although a conflict of interest existed during counsel’s of Petitioner on appeal, Petitioner failed to show either an adverse effect or prejudice. Id. Mr. Talm an testified during the sate post-conviction hearing that at som e point after the trial, he discussed with Petitioner’s aunt, Carrie Ross, the possibility of writing a book on Petitioner’s case; however, nothing was ever done about it (Addendum No. 5, Doc. 16, Vol. 5, p. 410 ). According to Mr. Talm an, in a follow-up from his discussion with Ms. Ross, they obtained the m edia release from Petitioner (Id. at 141). Mr. Talm an testified that his intent was to show that there was a whole other side of Petitioner that people did not really get to see (Id. at 411). Ms. Rice also testified that the intention behind obtaining the release from Petitioner was not particularly for pecuniary gain; rather, they believed that the public aspects of Petitioner’s trial could have been useful in the future as a teaching tool (Addendum No. 5, Doc. 13, Vol. 2, p. 159). Ms. Rice further testified that the purpose of the agreem ent was to m ake sure that things were clear and that Petitioner understood that if a story about the trial was eventually told, no 45 attorney-client privileged information would be used, just public inform ation (Id. at 159– 60 ). As previously noted, Cuy ler requires a petitioner to show that an actual conflict of interest adversely affected his lawyer’s perform ance. 446 U.S. at 348. The Suprem e Court has held that “the m ere possibility of a conflict is insufficient to im pugn a crim inal conviction.” Id. at 350 . Like the TCCA, the Court cannot find that Petitioner has carried her burden of proving that an actual conflict of interest affected her trial counsel’s perform ance. As an initial m atter, the TCCA’s decision that it is improbable that a m edia release agreem ent signed after the com pletion of Petitioner’s trial and sentencing could som ehow have affected counsel’s decisions during the trial is not an unreasonable determ ination of the facts. Any suggestion from Petitioner that the potential pecuniary benefit counsel could get from re-telling her story affected the adequacy of counsel’s representation is m erely speculative and such a “possibility” is not sufficient to m eet the constitutional standard under Cuy ler. In the absence of proving a conflict of interest under Culy er, the Court also agrees with the TCCA that Petitioner cannot show prejudice to m eet her burden of proving ineffective assistance of counsel under Strickland. Because the TCCA did not incorrectly apply federal law, nor unreasonably determ ine the facts from the record before it, Petitioner is not entitled to habeas relief on this claim . C. Pe titio n e r’s atto rn e ys w e re co n s titu tio n ally in e ffe ctive d u rin g th e gu ilt/ in n o ce n ce p h as e o f h e r cap ital trial fo r failin g to p re s e n t e vid e n ce th at Pe titio n e r d id n o t fo rm th e re qu is ite m e n s r e a fo r firs t-d e gre e m u rd e r, an d h e r righ ts u n d e r th e Sixth , Eigh t, an d Fo u rte e n th Am e n d m e n ts to th e U n ite d State s Co n s titu tio n w e re vio late d . 46 Petitioner’s next claim for relief alleges that trial counsel were ineffective for failing to present an effective case to underm ine the state’s proof of deliberate and prem ediated m urder. Petitioner argues that this was as a result of two fundam ental errors—to wit, failure to m ake appropriate use of expert witnesses, and failure to discover relevant lay testim ony. 1. Applicable Law As previously stated, the Suprem e Court has set forth the test required to bring a successful ineffective assistance of counsel claim in Strickland v. W ashington, 466 U.S. 668 (1984). A petitioner claiming ineffective assistance of counsel under the Sixth Am endm ent m ust show that counsel’s perform ance was deficient, and that this deficient perform ance prejudiced the defense. Id. at 687.3 2. Discussion Petitioner challenged her trial counsel’s effectiveness during the guilt phase of her trial to the TCCA, arguing that counsel presented scant evidence of her m ental state during the crim e only through Dr. Engum, and that his testim ony was insufficiently substantiated. According to Petitioner, had trial counsel presented lay witness testim ony, as well as provided Dr. Engum with Petitioner’s social history, his testim ony would have carried more weight with the jury. Petitioner also argued that counsel was ineffective for presenting Dr. Bernet as a witness because his testim ony offered no apparent benefit to the defense. Pike, 20 11 WL 154420 7, at *61. In dism issing this claim , the TCCA found that Petitioner failed to carry her burden of establishing entitlem ent to relief. Id. Particularly, the TCCA held that Petitioner’s argum ent that the jury would have credited Dr. Engum ’s testim ony if it was supported by lay testim ony was m ere 3 See supra Part III.A.1. 47 supposition, and was “not sufficient to substantiate a claim for post-conviction relief,” because Petitioner “failed to argue how any specific lay witness would have sufficiently substantiated the testim ony in order to im prove its weight before the jury.” Id. Under Strickland, a petitioner claim ing ineffective assistance of counsel m ust show both deficient perform ance and prejudice. 466 U.S. at 687– 88. “Counsel is constitutionally ineffective only if perform ance below professional standards caused the defendant to lose what he otherwise would have won.” United States v. Morrow , 977 F.2d 222, 229 (6th Cir. 1992). To show prejudice, “[i]t is not enough for the defendant to show that the errors had som e conceivable effect on the outcom e of the proceeding. Virtually every act or om ission of counsel would m eet that test, and not every error that conceivably could have influenced the outcom e underm ines the reliability of the result of the proceeding.” Strickland, 466 U.S. at 693 (internal citations om itted). Rather, “[t]he defendant m ust show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 394. “A reasonable probability is som ething m ore than a ‘conceivable effect’ on the verdict but ‘a probability to underm ine confidence in the outcom e.’” Pay ne v. W arden, Lebanon Corr. Inst., 543 F. App’x 435, 489 (6th Cir. 20 13) (citing Strickland, 466 U.S. at 693). The TCCA held that Petitioner failed to show that she suffered prejudice because there was no evidence that supporting Dr. Engum ’s testim ony with lay witnesses would have carried m ore sway with the jury. This decision is neither contrary to, nor an unreasonable application of, federal law. This is not a case where Petitioner’s conviction was only weakly supported by the record; rather, in light of the com pelling evidence supporting Petitioner’s conviction in the record, the state court did not violate clearly 48 established federal law in rejecting Petitioner’s ineffective assistance claim for lack of prejudice. Because Petitioner has failed to show prejudice under Strickland, the Court need not reach the issue of deficient perform ance. See Strickland, 466 U.S. at 697 (concluding that since both the prejudice and perform ance prongs m ust be m et, if a petitioner cannot satisfy one prong, the other need not be exam ined). Petitioner is not entitled to relief on this claim . D. Im p o s itio n o f th e d e ath p e n alty o n Pe titio n e r vio late s th e Eigh th Am e n d m e n t to th e U .S. Co n s titu tio n be cau s e Pe titio n e r is an im m atu re , m e n tally ill, an d brain -d am age d e igh te e n -ye ar o ld . In her next claim for relief, Petitioner contends that Roper v. Sim m ons, 543 U.S. 551 (20 0 5) and Atkins v. Virginia, 536 U.S. 30 4 (20 0 2) support a categorical bar to the death penalty for im m ature, m entally ill, and brain-dam aged eighteen year olds (Doc. 19). Petitioner argues that im m ature, m entally ill, and brain-dam aged eighteen year olds face the sam e culpability lim itations that the Suprem e Court has found to plague m inor and m entally retarded defendants and, as such, the sam e exem ption should be extended to them . In addressing and dism issing this claim , the TCCA engaged in an extensive exam ination of applicable Suprem e Court precedent, including Roper and Atkins. See Pike, 20 11 WL 154420 7, at *62– 68. The TCCA found that Petitioner failed to persuade the court that a new national consensus exists to extend the holding of Roper to persons over the age of eighteen, or that there is a consensus in state legislation supporting a categorical exclusion for the m entally ill. Id. at *67– 68. In conclusion, the TCCA stated: While this court appreciates the novelty of the Petitioner’s argum ent, practicality precludes its acceptance. The court can envision a m ultitude of specifically created exem ptions based upon the unique circum stances of an individual defendant. These particular circum stances were not what 49 was envisioned as being encompassed within a categorical bar. Rather, this specific grouping of traits is captured within the individualized sentencing m andate of the capital sentencing schem e. Id. at *68. As previously outlined, a federal court may not grant habeas relief under § 2254(d) unless the petitioner shows that the “state court’s decision was contrary to federal law then clearly established in the holdings of [the Suprem e Court]; or that it involved an unreasonable application of such law; or that it was based on an unreasonable determination of the facts in light of the record before the state court.” Harrington v. Richter, 562 U.S. 86, 10 0 (20 11) (internal citations and quotation m arks om itted). This standard is highly deferential and difficult to m eet. Id. at 10 2. Having found that the TCCA identified the proper governing Suprem e Court precedent, the Court m ust determ ine whether the TCCA’s decision was an unreasonable application of the law, or an unreasonable determ ination of the facts. The proper inquiry here is not whether the state court’s decision was m erely erroneous or incorrect, but whether it was “objectively unreasonable.” Lordi v. Ishee, 384 F.3d 189, 195 (6th Cir. 20 0 4) (citing Middleton v. McNeil, 541 U.S. 433 (20 0 4)). While a state court’s unreasonable refusal to extend a legal principle from Suprem e Court precedent to a new context m ay be considered an unreasonable application of § 2254(d), see W illiam s v. Tay lor, 529 U.S. 3632, 40 7 (20 0 0 ), that is not the case here. The TCCA engaged in a thorough analysis of the law and the facts in the record before it. Its decision was neither an unreasonable application of the law, nor was it an unreasonable determ ination of the facts. Petitioner is, therefore, not entitled to relief on this claim . 50 E. Trial co u rt’s d is m is s al o f a qu alifie d ju ro r d e n ie d Pe titio n e r o f h e r righ t to trial by a fair ju ry. Petitioner’s next claim alleges that her right to a fair jury was violated because the trial court dism issed potential juror Rutherford for cause even though he was qualified to serve (Doc. 19). Petitioner’s claim here is based on the sam e facts under which she alleged ineffective assistance of counsel for trial counsel’s failure to object to J uror Rutherford’s dism issal. According to Petitioner, J uror Rutherford never said that he would be unable to follow instructions and conscientiously follow the law, and that the trial court never told J uror Rutherford that Petitioner’s youth was a statutory m itigating factor (Id.). Furtherm ore, Petitioner argues that J uror Rutherford’s hesitation to im pose the death penalty here was constitutionally perm issible because he could accord as m uch weight as he desired to Petitioner’s age and im m aturity as m itigating factors (Id.). The TCCA addressed this claim together with Petitioner’s claim for ineffective assistance of counsel for failure to conduct a m eaningful voir dire of potential jurors. Analyzing W itherspoon and W ainw right, the TCCA found that J uror Rutherford was properly excused for cause. In W itherspoon v. Illinois, the Suprem e Court held that a state cannot strike a potential juror m erely because that juror has a conscientious or religious opposition to capital punishm ent, or all who opposed it on principle, if that juror could, nevertheless, consider the punishm ent. 391 U.S. 510 , 520 – 23 (1968). In W ainw right v. W itt, the Court clarified its holding in W itherspoon, and stated that the “standard is whether the juror’s views would prevent or substantially im pair the perform ance of his duties as a juror in accordance with his instructions and his oath.” 469 U.S. 412, 424 (1985) (internal quotation m arks om itted). The Court further stated that “the quest is for jurors who will conscientiously apply the law and find the facts. 51 That is what an ‘im partial’ jury consists of, and we do not think, sim ply because a defendant is being trying for a capital crim e, that he is entitled to a legal presum ption or standard that allows juror to be seated who quite likely will be biased in his favor.” Id. at 423. During the voir dire of J uror Rutherford, the trial court explained to him that he would be instructed as to the factors he m ay consider, which m ay include age, and that he would be instructed on the m itigating and aggravating circum stances (Addendum No. 2, Doc. 16, Vol. 16, p. 1511). The court then asked him if the one issue of Petitioner’s age would keep him from following the court’s instructions (Id.). In follow up, the state asked if he absolutely could not return a sentence of death solely because of Petitioner’s age, and he answered that he did not think he could (Id. at 1512). In an attem pt to clarify his stance, Petitioner’s trial counsel asked juror Rutherford if regardless of any aggravating circum stance that was proven in this case, he would still not be able to vote for the death penalty (Id. at 1514). J uror Rutherford answered that he did not think he could (Id.). Based on the standard set forth in W ainw right, the TCCA did not unreasonably determ ine the facts based on the record before it. While J uror Rutherford did not express a hesitation to im pose the death penalty in every single case, he im plied on m ore than one occasion that he could not follow the court’s instructions to weigh the aggravating circum stances against the m itigating circum stances to reach a decision on the applicability of the death penalty in this case. In certain cases, “it does not m ake sense to require sim ply that a juror not ‘autom atically’ vote against the death penalty; whether or not a venirem an m ight vote for death under certain personal standards, the State still m ay properly challenge that venirem an if he refuses to follow the statutory 52 schem e.” W ainw right, 469 U.S. at 422. As the Court previously found with respect to Petitioner’s ineffective assistance of counsel claim , the TCCA’s decision was not an unreasonable application of clearly established law; therefore, Petitioner is not entitled to relief on this claim . F. Ap p o in tm e n t o f co u n s e l w ith active co n flict o f in te re s t kn o w n to trial co u rt vio late d Pe titio n e r’s Sixth Am e n d m e n t righ t to co u n s e l. Next, Petitioner alleges that the state court’s appointm ent of Mr. Talm an, knowing that he had a high risk of a conflict of interest, constitutes a structural error and requires that her conviction and sentence be set aside (Doc. 19 p. 84). Petitioner appears to argue that the TCCA, by finding that no conflict of interest existed because of Petitioner’s failure to show prejudice, failed to address the structural nature of the claim (Id. at 85). Petitioner further argues that although this claim has not been procedurally defaulted, there is no state court decision to defer to, and the Court m ust address it de novo (Id.). Petitioner is correct that where a petitioner has dem onstrated that an actual conflict of interest exists, that petitioner need not dem onstrate prejudice because the conflict itself dem onstrates a denial of the right to have ineffective assistance of counsel. Glasser v. United States, 315 U.S. 60 , 72 (1942). However, Petitioner incorrectly states that the TCCA dism issed her claim based solely on her failure to show prejudice. In its opinion, the TCCA clearly credited the post-conviction court’s finding that the proof did not establish an actual conflict of interest which adversely affected lead counsel’s perform ance. Pike, 20 11 WL 154420 7, at *47. The TCCA went on to state that “Petitioner offers only speculation as the reason for ‘counsel’s penalty phase collapse.’ This speculation as to what m ight have been the reason for the decisions m ade is not 53 sufficient [to] m eet her burden of establishing that a conflict excused.” Id. at *48. It is clear from the TCCA’s opinion that it directly addressed the m erits of Petitioner’s structural claim by finding that no actual conflict of interest existed. As the Court has previously found, this decision is not contrary to or an unreasonable application of clearly established federal law, and was reasonably supported by the evidence presented to the state court. Petitioner is not entitled to habeas relief on this claim . G. Allo w in g te le vis io n an d p h o to grap h ic co ve rage o f th e p re trial p ro ce e d in gs vio late d Pe titio n e r’s righ ts to d u e p ro ce s s u n d e r th e Fo u rte e n th Am e n d m e n t to th e U .S. Co n s titu tio n . Petitioner next argues that her due process rights were violated because the trial court allowed television and photographic coverage of the pretrial proceedings in her case (Doc. 19). According to Petitioner, this extensive pretrial publicity, which continued throughout the trial, m ade jury selection extrem ely difficult and resulted in a jury panel that was already familiar with the facts of the case as reported by the m edia (Id.). Petitioner presented this claim to the TCCA and the TSC on direct appeal. Petitioner now argues that the TSC failed to engage in a fact-specific analysis of the effect of continuing m edia coverage in her trial, and that to the extent that it did, its analysis was unreasonable (Id.). The TSC found that Petitioner failed to point to any portion of the record or offer specific evidence indicating how witness testim ony was affected or the proceedings disrupted, that Petitioner did not explain how m edia coverage of the crim e would have been less intense had cam eras been excluded from the courtroom , and that there was generally no indication from the transcripts that the m edia coverage itself was disruptive or that any disruptive events occurred during the proceedings. Pike, 978 S.W.2d at 917. Citing to Chandler v. Florida, 449 U.S. 560 , 581– 54 82 (1981), the TSC concluded that Petitioner failed to show either that the m edia coverage of the pretrial and trial proceedings im paired the jurors’ ability to decide the case on the evidence alone, or adversely im pacted one or m ore of the trial participants. Pike, 978 S.W.2d at 917. In Chandler, the Suprem e Court refused to prom ulgate a per se constitutional ban on photographic or broadcast coverage of crim inal trials, finding that “[a]n absolute ban on broadcast coverage of trials cannot be justified sim ply because there is a danger that, in som e cases, prejudicial broadcast accounts of pretrial and trial events m ay im pair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous m atter.” 449 U.S. at 575. Rather, the Court held that a defendant m ust show that m edia coverage com prom ised the ability of the jury to judge him fairly, or in the alternative, that the “broadcast coverage of his particular case had an adverse im pact on the trial participants sufficient to constitute a denial of due process.” Id. at 581. As the state court noted, Petitioner has not pointed to any evidence that leads the Court to infer that the m edia coverage had an adverse im pact on her trial. “To dem onstrate prejudice in a specific case, a defendant must show som ething m ore than juror awareness that the trial is such as to attract the attention of broadcasters.” Id. Petitioner has not done so here. Petitioner further argues that the state court’s reliance on Chandler is m isguided because the Suprem e Court lim ited its holding in that case to the authority of the Florida Suprem e Court to promulgate the rule allowing m edia coverage of judicial proceedings, and did not exam ine the application of such a rule to specific facts (Doc. 19). While the Suprem e Court noted its limitation with exercising supervisory jurisdiction over state courts, Chandler, 449 U.S. at 570 , the Court did not lim it its holding to the extent Petitioner contends it did. Rather, the Court set out the 55 standard for determining whether a petitioner has shown prejudice from m edia presence during pretrial and trial proceedings, which the state court correctly applied in Petitioner’s case. The TSC decision was not an unreasonable application of clearly established federal law; as such, Petitioner is not entitled to relief on this claim . H. Trial co u rt’s d e n ial o f Pe titio n e r’s m o tio n fo r a ch an ge o f ve n u e d e n ie d Pe titio n e r o f h e r righ t to a fair an d im p artial ju ry. Petitioner’s eighth ground for habeas relief asserts that the trial court erred by failing to grant her motion for a change of venue (Doc. 19). Petitioner argues that the extensive pretrial publicity generated in her case exposed an overwhelm ing m ajority of the prospective jurors to detailed information about the case, and that voir dire indicated that m any of the jurors rem em bered specific details (Id.). Petitioner presented this claim on direct appeal to the TCCA and TSC. Although the TSC did not specifically address the claim , it expressly adopted the findings of the TCCA. Pike, 978 S.W.2d at 923. The TCCA, citing to Irw in v. Dow d, 366 U.S. 717 (1961), found that every juror who adm itted to fam iliarity with the case said that he or she could disregard the reports and m ake an im partial decision. Pike, 978 S.W.2d at 924. The TCCA also found that Petitioner had failed to cite any specific response from any seated juror that was troublesom e. Id. The decision of the state court was neither contrary to, nor did it involve an unreasonable application of, federal law. In Irw in, the Suprem e Court found that because of the “pattern of deep and bitter prejudice shown to be present throughout the com m unity,” very little weight could be given to each juror’s declaration to rem ain im partial. Irw in, 366 U.S. at 727– 28. Regardless, the Court acknowledged that in general, 56 [i]t is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse m ethods of com m unication, an im portant case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have form ed som e im pression or opinion as to the m erits of the case. This is particularly true in crim inal cases. To hold that the m ere existence of any preconceived notion as to the guilt or innocence of an accused, without m ore, is sufficient to rebut the presum ption of a prospective juror’s im partiality would be to establish an im possible standard. It is sufficient if the juror can lay aside his im pression or opinion and render a verdict based on the evidence presented in court. Irw in, 366 U.S. at 722. The TCCA found that all potential jurors who said they could not disregard the reports were excused for cause. The Court cannot find that this decision was an unreasonable determination of the facts based on the record before the TCCA. While Petitioner alleges that several potential jurors rem em bered specific facts about her case, she has not shown the “actual existence of such an opinion in the m ind of [a] juror as will raise the presum ption of partiality.” Id. at 723. As such, Petitioner is not entitled to relief on this claim . I. Th e n e w law co n ce rn in g th e n u m be r o f p e re m p to ry ch alle n ge s aw ard e d to th e State co n s titu te d an e x p o s t fa ct o ch a n ge in vio latio n o f Pe titio n e r’s righ t to a fair an d im p artial ju ry. Petitioner next argues that her right to an im partial jury was violated because the trial court applied a new law that gave the prosecution the sam e num ber of perem ptory challenges as the defense. According to Petitioner, because this law was not in effect at the tim e the crim e was com m itted, its application to her case constituted an ex post facto violation. The TCCA addressed this claim on direct appeal and found that there 57 was no ex post facto violation, because the law was a procedural change and did not affect Petitioner’s substantial rights. In Dobbert v. Florida, the Suprem e Court held that “[e]ven though it m ay work to the disadvantage of a defendant, a procedural change is not ex post facto.” 432 U.S. 282, 293 (1977); see also Miller v. Florida, 482 U.S. 423, 433 (1987), abrogated on other grounds by Peugh v. United States, 133 S. Ct. 20 72 (20 13) (“[N]o ex post facto violation occurs if the change in the law is m erely procedural and does not increase the punishm ent, nor change the ingredients of the offence or the ultim ate facts necessary to establish guilt.”). Applying Dobbert, the TCCA found that the trial court m erely applied a procedural rule that had been am ended after the com m ission of the crim es in question. Pike, 378 S.W.2d at 926. The law giving the prosecution the sam e num ber of perem ptory strikes as the defense was a procedural rule that m erely im plicated the num ber of jurors the prosecution could strike without cause. The law did not effect a change in the quantum of punishm ent attached to Petitioner’s crim e. The Court finds that the TCCA’s decision denying this claim was neither contrary to, nor was it an unreasonable application of clearly established law. J. Th e Te n n e s s e e d e ath p e n alty s ch e m e vio late s th e Eigh th Am e n d m e n t to th e U n ite d State s Co n s titu tio n . 1. Tennessee’s death penalty schem e fails to m eaningfully narrow the class of death eligible defendants. 2. The death penalty is im posed capriciously and arbitrarily under the Tennessee statute 3. Execution by Tennessee’s protocol for lethal injection w ould v iolate Petitioner’s rights under the Eighth and Fourteenth Am endm ents 58 4. The death sentence is unconstitutional because it infringes on Petitioner’s fundam ental right to life, and im position of the death penalty is not necessary to prom ote any com pelling state interest. 5. The indictm ent returned by the Grand Jury w as unconstitutional Petitioner contends that Tennessee’s death penalty schem e is unconstitutional for the foregoing reasons. However, she has failed to cite any authority holding the Tennessee Death Penalty Act unconstitutional and the Court notes that the Sixth Circuit has held that Tennessee’s death penalty statute is constitutional. W orkm an v. Bell, 178 F.3d 759, 778 (6th Cir. 1998); see also Bly stone v. Pennsy lvania, 494 U.S. 299, 30 5 (1990 ) (holding that the Eighth Am endm ent is satisfied by a schem e that m andates a death penalty if a jury finds one aggravating circum stance and no m itigating ones or none that outweigh it). The TCCA rejected Petitioner’s allegations that the death penalty schem e is unconstitutional, finding that the TSC has repeatedly upheld Tennessee’s proportionality review as m eeting constitutional standards, that Tennessee’s lethal injection protocol is consistent with contem porary standards of decency, and that the United States Constitution does not require the state to charge aggravating factors to be relied upon in the indictm ent. Pike, 20 11 WL 154420 7, at * 69– 70 . This decision is not contrary to clearly established law; Petitioner is not entitled to relief on this claim . K. Th e cu m u lative e ffe ct o f all th e e rro rs w h ich o ccu rre d d u rin g Pe titio n e r’s trial co n s titu te d a d e n ial o f h e r d u e p ro ce s s righ ts . Petitioner’s final claim alleges that the cum ulative effect of the errors that occurred during her trial dem onstrates a fundam ental denial of due process of law. This claim lacks m erit. 59 The Suprem e Court has not held that a district court m ay look to the cum ulative effects of trial courts in deciding whether to grant habeas corpus relief. See W illiam s v. Anderson, 460 F.3d 789, 816 (6th Cir. 20 0 6) (“[T]he law of this Circuit is that cum ulative error claim s are not cognizable on habeas because the Suprem e Court has not spoken on this issue. No m atter how m isguided this case law m ay be it binds us.”); Moore v. Parker, 425 F.3d 250 , 256 (6th Cir. 20 0 5) (“[W]e have held that, post-AEDPA, not even constitutional errors that would not individually support habeas relief can be cum ulated to support habeas relief.”); Scott v. Elo, 30 2 F.3d 598, 60 7 (6th Cir. 20 0 2) (“The Suprem e Court has not held that constitutional claim s that would not individually support habeas relief m ay be cum ulated in order to support relief.”); Lorraine v. Coy le, 291 F.3d 416, 447 (6th Cir. 20 0 2) (“The Suprem e Court has not held that distinct constitutional claim s can be cum ulated to grant habeas relief.”). As such, Petitioner is not entitled to relief on this claim . V. CON CLU SION For the reasons stated above, the Court finds that Petitioner is not entitled to relief under 28 U.S.C. § 2254 and her m otion for partial sum m ary judgm ent (Doc. 45) will be D EN IED . Respondent’s m otion for sum m ary judgm ent (Doc. 42) will be GRAN TED , and the petition for a writ of habeas corpus (Doc. 19) will be D EN IED . VI. CERTIFICATE OF APPEALABILITY The Court m ust consider whether to issue a Certificate of Appealability (“COA”), should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner m ay appeal a final order in a habeas proceeding only if he is issued a COA, and a COA m ay only be issued where a petitioner has m ade a showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Where a claim has been dism issed on 60 the m erits, a substantial showing is m ade if reasonable jurists could conclude that the issues raised are adequate to deserve further review. See Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (20 0 3); Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). When a claim has been dism issed on procedural grounds, a substantial showing is dem onstrated when it is shown that reasonable jurists would debate whether a valid claim has been stated and whether the court’s procedural ruling is correct. Slack, 529 U.S. at 484. After reviewing each of Petitioner’s claim s, the Court finds that reasonable jurists could not conclude that Petitioner’s claim s are adequate to deserve further review, nor would reasonable jurists debate the correctness of the Court’s procedural ruling. As such, because Petitioner has failed to m ake a substantial showing of the denial of a constitutional right, a COA will not issue. A SEPARATE JU D GMEN T ORD ER W ILL ISSU E. / s/ Harry S. Mattice, Jr._ _ _ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 61

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.