On the afternoon of February 21, 1992, James
Henderson Dellinger, Gary Wayne Sutton, and Tommy Griffin spent
several hours at Howie’s Hideaway Lounge on Highway 321 in Maryville,
The three men drank beer and played pool until
approximately 7:00 p.m., when they left the bar in a dark-blue Camaro.
Witnesses testified that there was no evidence of hostility among the
men while they were in the bar.
Around 7:00 p.m. a couple was traveling north on
Alcoa Highway near the Hunt Road exit. They observed three men who
appeared to be fighting in a dark-colored Camaro on the side of the
road. Two of the men were standing outside of the car attempting to
forcibly remove the third man from the back seat. They used a portable
radio to report the incident to the dispatcher for Rural Metro Blount
A woman who was also driving north on Alcoa Highway
around the same time observed a shirtless and shoeless man stumbling
down the side of the road near the Hunt Road exit. When she passed the
same area about thirty or forty minutes later, she saw two men
standing outside of a dark-colored Camaro on the side of the road.
They appeared to be looking for something.
At 7:11 p.m. a dispatcher for Blount County 911
received a complaint about an altercation involving three men in a
dark Camaro at the intersection of Alcoa Highway and Hunt Road.
Officer Steve Brooks with the Alcoa Police Department was dispatched
to the scene. While making an unrelated traffic stop, Officer Brooks
noticed a vehicle with flashing headlights parked on the side of Hunt
Road. The officer sent his backup, Officer Drew Roberts, to
investigate. Officer Roberts found two men, not Dellinger and Sutton,
standing next to a pickup truck.
A shirtless man sitting on the bed of the truck
identified himself as Tommy Griffin. Griffin told the officer that his
friends had put him out of a car. Griffin would not identify his
friends or tell the officer what had happened. Officer Roberts
arrested Griffin for public intoxication. Griffin was booked at the
Blount County jail at 7:40 p.m.
Dellinger arrived about forty-five minutes to an
hour later to ask about Griffin’s release. Sergeant Ray Herron
explained to Dellinger that department policy required a minimum four-hour
detention for public intoxication and advised him to come back at
10:30 or 11:00 p.m.
At approximately 9:00 p.m. a resident of Bluff
Heights Road, where Dellinger and Tommy both lived looked out of his
trailer window and saw Dellinger’s white Dodge pickup truck. He saw
someone enter the passenger side of the truck. The truck drove up the
road and pulled into Dellinger’s driveway. He then noticed fire
shooting from Griffin’s trailer down the road. His wife reported the
fire to the 911 operator at 9:02 p.m. Arson investigator Gary Clabo
concluded that the fire was set intentionally with the use of a liquid-type
accelerant and an open flame such as a match, candle, or cigarette
Tommy’s niece Jennifer ran to Dellinger’s trailer
when she learned that Tommy’s trailer was on fire. Just as Dellinger’s
wife was telling Jennifer that Dellinger was not home, Dellinger and
Sutton walked down the hall from the living room. The two men were
still wearing their jackets, and their pants were wet up to the knees.
Jennifer asked them if Tommy was in his burning
trailer, and Sutton told her that Tommy was in Blount County with a
girl. When Jennifer asked the men to accompany her to the trailer,
Dellinger responded that they were already in enough trouble.
After returning home, Jennifer looked out the
window and saw Dellinger remove an object wrapped in a sheet from his
truck and place it into the back of his wife’s Oldsmobile. Jennifer
testified that the object resembled a shotgun. A relative of
Jennifer's also observed Dellinger moving an object from his truck to
his wife’s car shortly after 10:00 p.m. Dellinger and Sutton then left
in the Oldsmobile.
At around 11:25 p.m. Dellinger and Sutton returned
to the Blount County jail. Dellinger paid a cash bond for Tommy
Griffin. Officers in the jail lobby overheard one of the defendants
tell Griffin that they needed to get him back to Sevier County.
At 11:55 p.m. two people heard two gunshots fired
from an area on the Little River in Blount County called the Blue Hole,
approximately five hundred yards down the hill from their residence.
The next morning, February 22, Jennifer saw
Dellinger leave his trailer, remove the object he had placed in his
wife’s car the night before, and place the object under his trailer.
Around noon on February 22, Connie Branam,
Jennifer’s mother and Tommy Griffin’s sister, informed her daughter
Sandy of her intent to go to Blount County to look for Tommy. At about
2:00 p.m., Connie went to Jerry Sullivan’s grocery store in Townsend
asking if anyone had seen her brother. Sullivan then saw Connie
speaking with two men in a white Dodge pickup truck in the grocery
store parking lot.
Later that afternoon, Connie accompanied Dellinger
and Sutton to Howie’s Hideaway Lounge. Connie told the afternoon
bartender at Howie’s that she was looking for her brother. Responding
to Dellinger’s questioning, the bartender repeatedly told them that
she remembered Dellinger, Sutton, and Tommy Griffin from the night
before. When Dellinger asked if she remembered with whom Griffin left,
she responded that they were still at the bar when her shift ended.
Dellinger told the bartender that they last saw Griffin with a short,
dark-haired, ugly woman.
When the bartender’s shift ended at 5:00 p.m. on
February 22, Connie, Dellinger, and Sutton were still drinking beer in
the bar. Another woman worked the next shift at Howie’s. When she
approached Connie, Dellinger, and Sutton to ask if they needed
anything, Dellinger asked her if she remembered them from the night
before. She responded that she recalled seeing Dellinger and Sutton
with another man drinking beer and playing pool. Connie explained that
she was looking for her brother and asked with whom he had left the
bar. The woman became confused because she knew that Griffin had left
with Dellinger and Sutton.
Dellinger asked the woman if she remembered them
returning to Howie’s after they bailed Griffin out of jail, but she
knew that the three had not returned to Howie’s because she had worked
until closing. After unsuccessfully attempting to convince her to join
them in their search for Griffin, Sutton asked her if she was married.
When Newman responded that she was married, Sutton stated, “Well, your
husband is going to be surprised whenever you’re missing one morning,
when he wakes up and you’re missing.”
Dellinger, Sutton, and Connie left Howie’s around
6:30 p.m. About 8:00 p.m. that night, a couple observed a fire in the
woods near the Clear Fork area of Sevier County. The following morning,
the woman watched a white truck occupied by two men leave the woods
and head toward the main road. She testified that the truck was
traveling rapidly and that it came from the general area where they
had observed the fire the night before.
On Monday, February 24, around 3:30 p.m. Tommy
Griffin’s body was discovered lying face-down on a bank at the Blue
Hole. He had been shot in the back of the neck at the base of the
skull with a shotgun. Two 12-gauge shotgun shell casings and beer cans
were found near the body. The shotgun shells were fired from the same
gun that fired shells later found in Dellinger’s yard.
Forensic pathologist Dr. Charles Harlan opined that
Griffin had died between 6:00 p.m. on February 21 and 8:00 a.m. on
February 22. Dr. Eric Ellington with the Blount County Medical
Examiner’s Office conducted the autopsy on Griffin’s body. He
concluded that the cause of death was the destruction of the brain
stem from the shotgun wound. Ellington retrieved two metal pellets and
two pieces of shotgun wadding from Griffin’s brain. The pellets were
consistent with pellets loaded in the 12-gauge “00” buckshot casings
found near Griffin’s body.
On Friday, February 28, Connie Branam’s body was
discovered in her burned vehicle in the wooded area where the couple
had observed the fire on February 22. Arson investigator Gary Clabo
determined that the fire had been set by human hands, started by an
outside ignition source with the use of an accelerant. Connie’s body
was so badly burned that forensic anthropologist Dr. William Bass was
unable to determine the cause or time of death. Dental records were
necessary to identify the body. Investigators discovered a rifle shell
in the burned vehicle that had been fired from the .303 rifle later
found in Dellinger’s trailer.
Based upon the above evidence, the jury convicted
Dellinger and Sutton of the first degree premeditated murder of
Griffin. At the penalty stage, the State presented evidence that
Dellinger and Sutton were previously convicted of first degree
premeditated murder of Connie Branam in Sevier County in 1993. The
State also presented proof that Sutton was convicted of aggravated
assault in Cobb County, Georgia in 1983.
The defense presented mitigation witnesses,
including family members, friends, acquaintances, and clinical
psychologists. Dellinger presented proof that he was raised in a large
family with eight children. His parents were loving but were harsh
disciplinarians, and his family was very poor. Dellinger left school
when he was ten years old and never learned to read or write. He
became a carpenter, and testimony showed that he was a good employee
until 1990 when he sustained a back injury that forced him to quit
working. Dellinger has four children and two stepchildren from his two
marriages. Two of his children had died tragically–an eighteen-year-old
daughter died in a car accident, and a fifteen-month-old son died when
a stove fell on him. Dellinger presented evidence that he is a non-violent,
religious, helpful, and kind-hearted man. He had been a well-behaved
prisoner and had prevented another prisoner from committing suicide.
Clinical psychologist Dr. Peter Young testified that Dellinger has an
IQ between 72 and 83 and has borderline personality disorder. He
related that due to a lack of family nurturing Dellinger is
distrustful of others. Young testified that although Dellinger is not
violent he is capable of “flaring up” when drunk and angry. Young
opined that Dellinger would do well in a structured prison environment.
Sutton presented evidence showing that he had been
a good employee and a well-behaved prisoner. His parents divorced when
he was a toddler, and he dropped out of school in the eighth grade.
Sutton has one daughter, and witnesses testified that he gets along
well with children. Witnesses also testified that he is a generous man
and a good family man who provided assistance to his sister-in-law and
her son when his sister-in-law had surgery. He also saved his niece’s
life by rescuing her from a fire. Sutton is a good artist. He draws
well and makes woodwork items as gifts and to earn money. Sutton’s
brother testified that the aggravated assault conviction was based
upon an incident in which Sutton was merely present when his brother
fired a gun into a car and the bullet bounced into a mobile home and
struck a woman in the leg. Clinical psychologist Dr. Eric S. Engum
testified that Sutton’s IQ is between 77 and 83. His intellect, social
judgment, abstract reasoning, and vocabulary are limited. Engum
related that Sutton had suffered undiagnosed learning disabilities.
Sutton’s father was an alcoholic, and Sutton began abusing alcohol at
the age of twelve. Sutton suffered mental and physical abuse due to
the conflict between his parents and learned distrust of others at an
early age. Engum stated that Sutton self-anaesthetized through the use
of alcohol and marijuana. Engum diagnosed Sutton with a depressive
disorder and a mixed personality disorder with passive/aggressive and
anti-social features. Engum opined that prison would be a good
environment for Sutton.
The jury returned its verdict, finding the
aggravating circumstance, that the defendants were previously
convicted of a felony whose statutory elements involve the use of
violence to the person. The jury found that this aggravating factor
outweighed any mitigating circumstances and sentenced Dellinger and
Sutton to death.
March 30, 2011
GARY WAYNE SUTTON PETITIONER,
RICKY BELL, WARDEN,
The opinion of the court was delivered by: Thomas
A. Varlan United States District Judge
On September 1, 1996, a Blount County, Tennessee
jury found Gary Wayne Sutton ("Sutton" or "Petitioner") and James
Dellinger ("Dellinger"), Sutton's co-defendant and uncle, guilty of
the first degree murder of Tommy Griffin ("Griffin"). Petitioner, now
awaiting execution on Tennessee's death row, filed this amended
petition for writ of habeas corpus against Warden Ricky Bell ("Respondent"),
pursuant to 28 U.S.C. § 2254, challenging the legality of his
confinement and raising more than twenty-five claims, including a
claim of actual innocence [Doc. 24].
The procedural and factual histories of this case
are summarized in this Court's Order granting partial summary judgment
[See Docs. 127, 128]. See also Sutton v. Bell, 683 F. Supp. 2d 640 (E.D.
Tenn. Jan. 22, 2010). The Court previously granted Respondent's motion
for summary judgment on all but two claims, pending an evidentiary
hearing. The claims remaining for disposition are: (1) Claim II,
raised under the authority of Giglio v. United States, 405 U.S. 150,
153-54 (1972), Brady v. Maryland, 373 U.S. 83 (1963),and Napue v.
Illinois, 360 U.S. 264, 269 (1959), pertaining to Dr. Charles Harlan,
the forensic pathologist who testified at the initial trial in
rebuttal as to the victim's time of death, and (2) Claim XXV, a claim
of cumulative error. Following a three-day evidentiary hearing on
these issues, the parties submitted their proposed findings of facts,
conclusions of law, and post-hearing briefs [Docs. 142, 143, 145,
The Court of Criminal Appeals rejected both of
these claims [Addenda 41-45]. See Sutton v. State, No.
E2004-02305-CCA-R3-PD, 2006 WL 1472542 (Tenn. Crim. App. May 30,
2006). However, because the Dr. Harlan claim was raised in a motion to
remand the petition for post-conviction back to the trial judge and
because the motion was denied without a full examination of the issues,
the Court concluded, and Respondent agreed, that there were genuine
issues of fact pertaining to the Dr. Harlan claim which merited an
evidentiary hearing [Doc. 80]. Given the necessity of an evidentiary
hearing on Claim II, the Court reserved ruling on the interrelated
ineffective assistance of counsel claims in Claim II and the
cumulative error claim in Claim XXV [Docs. 127, 128].
Petitioner presented new evidence at the
evidentiary hearing, including testimony from three experts-all of
whom disagreed with Dr. Harlan's opinion as to the time of death [Docs.
137-139]. In addition, Petitioner presented his lead trial attorney,
Mr. F.D. Gibson, III ("Gibson"), who testified, inter alia, that Dr.
Harlan was a surprise witness, that the Tennessee Bureau of
Investigations ("TBI") had substantial involvement in the
investigation of this murder case, that the State Attorney General's
Office handled the appeal of Petitioner's murder conviction and death
sentence, that he had no knowledge of any investigation or misconduct
of Dr. Harlan, and that, if he had been provided the documents
relating to the investigation of Dr. Harlan, he would have used them
to impeach Dr. Harlan [Doc. 139, pp. 74-89].
Respondent called two witnesses. Respondent's first
witness was Michael Flynn, District Attorney General for the Fifth
Judicial District of the State of Tennessee and one of the prosecutors
who prosecuted Petitioner, who testified that he had no knowledge
concerning the Harlan investigation [Doc. 139]. Respondent's second
witness was Dr. Bruce Phillip Levy ("Dr. Levy"), Chief Medical
Examiner for the State of Tennessee and County Medical Examiner for
Davidson County [Doc. 138]. Dr. Levy testified that he reviewed the
materials provided to him regarding the death of the victim, and based
on that information, along with the fact that the specific
temperatures at the exact spot where the victim's body was found are
unknown but were below 70 degrees, the victim could have died anywhere
between 12 to 64 hours before the body was found [Doc. 138, pp. 8-26].
After careful consideration, and for the reasons
explained herein, the Court will dismiss both claims and deny
Petitioner's habeas corpus petition.
II. Factual Background
A. Facts Presented at Trial
Although detailed facts surrounding Griffin's
murder are contained in the Court's prior memorandum opinion [Doc.
127], a brief synopsis of those facts provides important context to
the issues now before the Court.
On February 21, 1992, Petitioner and Dellinger
spent the late afternoon and early evening hours drinking with Griffin
at a bar [Addendum No. 12, Vol. 1, pp. 2040-2074].
The three left the bar together and, at
approximately seven o'clock that evening, were involved in an
altercation on the side of the road, resulting in Griffin being
abandoned there without a shirt [Addendum No. 12, Vol 1, pp.
2079-2112]. The fracas was reported to the police, who arrived to find
a shirtless, disheveled, and fearful Griffin standing beside the road
[Addendum No. 12, Vol. 1, pp.2132-2172]. The police arrested Griffin
and took him to the Blount County jail [Addendum No. 12, Vol. 1, pp.
2132-42; Addendum No. 12, Vol. 2, pp. 2164-92]. At approximately 11:25
p.m., Dellinger and Sutton, one of whom was carrying a blue flannel-type
shirt and one of whom was overheard telling Griffin, "we've go [sic]
to get you back to Sevier County or something to that effect[,]" were
seen bailing Griffin out of jail [Addendum No. 12, Vol. 3, p. 2435].
Griffin was never seen alive after leaving the jail with Sutton and
At 11:55 p.m., Jason McDonald, who lived about 500
yards from the Blue Hole on the Little River, was writing in his
journal when he heard two or three gunshots coming from the bottom of
the hill [Addendum No. 12, Vol. 3, pp. 2442-50]. His mother also heard
the shots and discussed them with her son, who noted them in his
journal [Addendum No. 12, Vol. 4, pp. 2473-90]. Three days later, at
approximately 3:00 p.m., a fisherman and his children, who were at the
Blue Hole, discovered Griffin's body lying face down, with the back of
his head covered in blood [Addendum No. 12, Vol. 4, pp. 2536-43].According
to an officer at the crime scene, Griffin's body was found lying face-down
on the ground of a steep embankment pointing toward the river [Addendum
No. 12, Vol. 4, pp. 2548-49]. The Death Scene Checklist reflects that
the approximate temperature was fifty-eight degrees when the body was
located [Petitioner's Habeas Evidentiary Hearing Exhibit #2].
Dr. Eric Patrick Ellington ("Dr. Ellington"), the
pathologist who conducted the autopsy on the remains of Griffin on
February 25, 1992 testified that he does not make time-of-death
determinations. Therefore, he did not provide a time of death [Addendum
No. 12, Vol.6, pp. 2881-2901]. Dr. Ellington also clarified that the
date on his report-February 24, 1992-was the date the body was
discovered, and not the date or time of death [Addendum No. 12, Vol.
6, pp. 2881-91].
Although Dr. Ellington did not make a time-of-death
determination, he was questioned about the factors that are considered
when making such determinations. He explained that rigor mortis begins
somewhere within 30 minutes to an hour after death and lasts up to 24
to 36 hours and then goes away [Addendum No. 12, Vol. 6, p. 2897]. He
specifically clarified that the time frames are not strict, but are an
average length of time and are dependent on the ambient temperature
and climatic conditions to which the body is exposed [Id.]. Other
facts which assist in determining the time of death, Dr. Ellington
explained, are core body temperature, chemical test results on eyeball
fluid, and the presence or absence of the stage of insect larvae. Dr.
Ellington did not observe any injuries to Griffin's body which could
be attributed to carrion eaters or carnivores, did not take or have
taken the core body temperature, and did not order any chemical tests
performed on the fluid from the eyeball [Addendum No. 12, Vol. 7, pp.
Dr. Ellington then detailed some of his autopsy
findings. Griffin's pancreas had gross features of autolysis, meaning
it had started to digest itself which happens shortly after death
occurs. Both of Griffin's lungs, his left adrenal gland, and his liver
showed signs of decomposition, with the latter organ being more
extensively decomposed and containing cystic areas which did not
appear to be a post-mortem change. Dr. Ellington also pointed out that
the rate of decomposition is variable-the colder the climate the
slower the rate of decomposition [Addendum No. 12, Vol. 7, pp.
The defense presented Dr. Larry Elmo Wolfe ("Dr.
Wolfe"), the medical examiner and coroner in Union County, as its
expert to testify about the victim's time-of-death. Dr. Wolfe, a
licensed medical doctor, though not board certified in any field of
medicine, testified that Griffin died 24 to 36 hours before his body
was discovered, thus placing his time of death between 3:00 a.m. and
3:00 p.m. Sunday February 23, 1991. But the doctor conceded that,
conceivably, Griffin died on Friday when the shots were heard [Addendum
No. 12, Vol. 13, pp. 3853-55;3914-15; 3923-25; 3941].
The State did not present any expert-time-of-death
testimony during its case-in-chief given Dr. Ellington's reluctance to
determine a time of death [Addendum No. 12, Vol. 6, pp. 2881-2901],
and the disqualification of its intended expert on the subject, Dr.
Cleland Blake ("Dr. Blake"), due to a conflict of interest [Addendum
No. 12, Vol. 7, p. 3047]. Rather, on rebuttal, the State combated Dr.
Wolfe's estimate as to the time of death by presenting the testimony
of Dr. Charles Harlan ("Dr. Harlan") as to that issue [Addendum No.
12, Vol. 14, pp. 4014-4066].
Dr. Harlan, a board-certified forensic pathologist,
testified that he considered the reports from the first responders,
the autopsy report, the photographs, the tissues on the microscopic
slides, and the fact the victim was last seen alive around 11:30 p.m.
on Friday, February 21, 1992, and estimated that Griffin died between
11:30 p.m. on Friday, February 21, 1992 and 8:00 a.m. on Saturday,
February 22, 1992 [Addendum No. 12, Vol., 14, pp. 4018-20].
B. Facts Presented During the Federal Habeas
1. Dr. Neal Haskell
Petitioner's first witness, Dr. Neal Haskell ("Dr.
Haskell"), a board certified forensic entomologist, testified how
insect activity assists in determining a person's time of death [Doc.
137, pp. 23-24]. Relying upon his observation of the crime scene years
after the crime was committed, as well as reports by the first
responders, investigators, and medical examiners, crime investigation
and autopsy pictures, climatological data from the McGhee Tyson
Airport in Knoxville, Tennessee and the Gatlinburg weather station in
Sevier County, and the lack of any evidence of insect activity, Dr.
Haskell testified, based upon a reasonable degree of medical certainty,
that the body was not there any longer than 24 to 48 hours prior to
when the body was found. He further testified within a reasonable
degree of medical certainty that Griffin was not killed on Friday,
February 21, 1992 [Doc. pp. 53-54].
2. Dr. Stanton Coleman Kessler
Dr. Stanton Coleman Kessler ("Dr. Kessler"), a
forensic pathologist and medical examiner, was Petitioner's second
witness at the evidentiary hearing. Dr. Kessler disagreed with Dr.
Harlan's time-of-death opinion and most of his testimony. For example,
Dr. Kessler testified that he does not believe that time of death can
be determined by looking at slides of organs, as organs decompose at
different rates, that he has never heard of anyone determining time of
death by looking at slides of organs, and that, in his opinion, the
slide method of determining a time of death lacks a scientific basis [Doc.
137, p. 114-115].
Testifying that it is customary for forensic
pathologists to look at weather data when forming a time-of-death
opinion, Dr. Kessler testified he could not give an exact time of
death, but in his opinion the body was 12 to 24 hours old, but not 64
hours old [Doc. 137, p. 129]. Dr. Kessler, who did not know the
temperature at the site where the body was found, explained that,
without knowing the actual temperature at that location, he could not
be one-hundred percent accurate, but he gave his "best guestimate" [Doc.
139, p. 10].
Dr. Kessler explained that there were tests-vitreous
from the eye fluid, body temperature, and serum testing for potassium
levels-which could have been performed and which would have provided
more information and, perhaps, a more accurate time-of-death opinion [Doc.
139, pp. 14; 20-22]. Even though this expert previously testified
during the state post-conviction proceedings of Petitioner's co-defendant
that more testing was desirable, when asked during the habeas
evidentiary hearing if he agreed that the information available would
not permit a "100 percent . . . perfectly-clear picture of when the
death" occurred, he answered that, while more testing was preferable,
he knew 100 percent "that the body was fresh. . . . within about 24
hours" [Doc. 139, pp. 21-22].
3. Dr. Darinka Mileusnic-Polchan
Petitioner's third witness, Dr. Darinka Mileusnic-Polchan
("Dr. Mileusnic-Polchan"), Chief Medical Examiner for Knox and
Anderson Counties and a pathology professor, reviewed the first
responder reports, crime scene photographs, Dr. Harlan's trial
testimony, and the slides of the organs of the victim's body [Doc.
139, pp. 40-41; 43-45]. Dr. Mileusnic-Polchan initially testified she
was "comfortable with this individual being dead for about a day; or
maybe two days, or three days. Depending, of course, on the
circumstances where the body was found" [Doc. 139, p. 48].
Contrary to Dr. Harlan's testimony that he saw
decomposition on the slides, Dr. Mileusnic-Polchan testified she saw
no decomposition. Although she initially testified an estimate of
death based on the examination of microscopic slides is not recognized
science, Dr. Mileusnic-Polchan subsequently testified it was proper
for her to draw conclusions from the slides as to the time of death,
but improper for Dr. Harlan to do so because Dr. Harlan "looked at
actual hours[,] . . . stating that whatever he was seeing in the
tissue is telling him that this individual had been dead for 72 hours
or longer. You cannot put an hour to it" [Doc. 139, p. 49].
Dr. Mileusnic-Polchan conceded that determining
time of an unwitnessed death is "a very complex topic, and we still
don't have answers. We have to rely on a lot of data [and] it would be
impossible to put the time - - an exact time to his death" [Doc. 139,
p. 60]. Thus, while offering testimony that she was at ease with the
victim being dead between one and three days, Dr. Mileusnic-Polchan
further testified that she was "comfortable with this body being dead
24 hours. I can maybe even push it to a day and a half. But beyond
that, I'm very uncomfortable. And I don't - - I would never really
support the time of death - - the time being more than 48 hours" [Doc.
139, p. 60].
Dr. Mileusnic-Polchan then added that "a lot of
things can impede . . . anybody's ability to give the time of death .
. . . Because under no circumstances can anybody really give you the
exact time of death" and that none of the techniques used to determine
time of death "can give you a with full certainty answer to the time
of death[,]" and "any self-respecting pathologist cannot really put
the exact time of death" [Doc. 139, p. 63-65]. Finally, on cross-examination,
acknowledging that no one knows the temperature at the location of
where the body was found, Dr. Mileusnic-Polchan testified that weather
temperatures play a role in the rate of decomposition of a body and
the colder it is the less decomposition you would see in the body [Doc.
139, pp. 69-70].
4. District Attorney General Michael Flynn
Respondent's first witness, District Attorney
General for the 5th Judicial District of the State of Tennessee,
Michael Flynn ("General Flynn"), co-prosecutor to Assistant District
Attorney Bailey ("ADA Bailey") in Petitioner's trial, explained that
the prosecution had intended to call Dr. Blake--whose opinion was
consistent with Dr. Harlan's opinion--to testify as to the time-of-death
issue, but the trial court granted the defense's motion to exclude him
because defense counsel had consulted him [Doc. 139, pp. 109-113].
General Flynn and ADA Bailey scrambled to find a rebuttal witness,
ultimately choosing Dr. Harlan whose name had been provided by the
Attorney General's Conference [Doc. 139, pp. 110-11]. General Flynn
was not aware of any investigations of Dr. Harlan at that time [Doc.
139, p. 11].
In response to a question inquiring about the
general involvement of General Flynn's office with the TBI, he
explained that a resident TBI agent, assigned to his county and Knox
County, investigates cases at the direction of the Attorney General [Doc.
139, P. 112]. He also testified that, generally, other than dealing
with the resident agent, the only contact the prosecution has with the
TBI involves receiving reports from their lab personnel and on
occasion having lab personnel testify at trials [Doc. 139, p. 112-13].
General Flynn did not clearly explain the extent to which the TBI
participated in Petitioner's investigation and trial but he did
explain that the two TBI agents who sent him reports in this case were
agents assigned to another district and were working with the Blount
County Sheriff as they participated in the investigation of
Petitioner's other case [Doc. 139, p. 119-121]. General Flynn received
copies of reports and correspondence from the TBI on the other case,
but did not recall directing the TBI to conduct any investigation of
Petitioner's case [Doc. 139, p. 120].
5. Dr. Bruce Phillip Levy
Respondent's second witness, Dr. Bruce Phillip Levy
("Dr. Levy"), Chief Medical Examiner for the State of Tennessee and
the County Medical Examiner for Davidson County, explained that, when
making a time-of-death determination, a forensic pathologist
establishes a "window of death[,]" which begins with the time the
person is last seen alive. Dr. Levy reviewed materials relative to the
time of death of Mr. Griffin, including the first responders report,
the ambulance report, the autopsy report, and the official Gatlinburg
climatology readings, before concluding Mr. Griffin could have died 12
to 64 hours prior to being found [Doc. 138, pp. 4-18].
Dr. Levy testified the official temperature
readings vary across regions and, contrary to Dr. Haskell's opinion,
wooded areas tend to be a little cooler than the surrounding open
areas [Doc. 138 p. 15]. Dr. Levy agreed with the other experts'
opinions regarding the standard length of time it takes a body to go
through rigor mortis, but clarified that these general standards are
based on bodies being maintained at temperatures between 70 to 72
degrees [Doc. 138, p. 16]. Therefore, based on the material he
reviewed, his experience and training, and due to the body being
exposed to cooler conditions than 70 and 72 degrees, Dr. Levy
concluded the victim could have died at any point from the time he was
last seen to approximately six hours before he was found [Doc. 138, p.
III. Standard of Review
Under the Antiterrorism and Effective Death Penalty
Act of 1996 (the "AEDPA"), when a habeas court conducts an evidentiary
hearing on claims, the deference afforded to the state court's
determinations under section 2254(d) applies to adjudicated claims and
de novo review applies to those claims the state court refused to
address. Bray v. Cason, No. 08-1922, 2010 WL 1610320 (6th Cir. April
21, 2010) (unpublished). With respect to the issues relating to Dr.
Harlan, the Court need not determine whether the deference afforded to
the state court's determinations under section 2254(d) applies or
whether de novo review applies because the result is the same under
both standards. With respect to the Petitioner's actual innocence
claim, the Court will apply de novo review as such claim previously
has not been raised. Finally, with respect to the ineffective
assistance of counsel and cumulative error claims, the Court will
apply the AEDPA deference standard because the state courts previously
adjudicated those claims.
A. Claims Related to Dr. Harlan (Claim II)
1. False Testimony Claims (Claims II.A.1-3)
Petitioner contends Dr. Harlan testified falsely as
to both his status as the State's Chief Medical Examiner and Griffin's
time of death. Had the jury been informed of this false testimony,
Petitioner posits, it would have discredited his testimony. Petitioner
raises his claim as violations of Napue, Brady, and Giglio. Respondent
maintains that the proof demonstrates that the prosecution had no
knowledge of any such material or its alleged falsity, and that
Petitioner has not proven that any testimony was false.
A prosecutor's knowing presentation of false
evidence violates a defendant's right to due process. Napue, 360 U.S.
at 269. A conviction obtained with the use of testimony which the
prosecutor knows or should know is false must be set aside if there is
any reasonable likelihood the testimony could have affected the
judgment of the jury. United States v. Agurs, 427 U.S. 97, 103 (1976).
Likewise, if the prosecutor, although not soliciting false testimony,
allows false testimony to go uncorrected, the conviction must be set
aside. Napue, 360 U.S. at 269.
To prevail on such a claim, a petitioner bears the
burden of showing that (1) the testimony was actually false, (2) the
prosecution knew or should have known the testimony was actually false,
and (3) the false testimony was material. Napue, 360 U.S. at 269-71.
See also United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) (section
2255 defendant seeking to vacate a conviction based on perjured
testimony must show testimony was false and mere inconsistencies in
testimony of witnesses do not establish government used false
Simply showing that an expert's opinion is
inaccurate or wrong, however, does not violate due process or
demonstrate that the expert lied. Fuller v. Johnson, 114 F.3d 491,
496-97 (5th Cir. 1997) (use of incorrect methods by expert does not
demonstrate testimony was false), cert. denied, 522 U.S. 963 (1997).
Rather, an attack on an expert's opinions and the methodology used to
reach that opinion goes to the sufficiency of the evidence and the
weight the jury should award that testimony, not the truth of it. Id.
at 497. Likewise, the burden of proving indisputable falsity is not
fulfilled with evidence of a difference of opinion or merely a
hypotheses or inference that testimony could be false. See Rosencrantz
v. Lafler, 568 F.3d 577, 586 (6th Cir. 2009) (hypothesis and
inferences that during a pretrial meeting the prosecution procured
testimony from a witness to change the time of the assault did not
meet burden of proving indisputable falsity), cert. denied, 130 S.Ct.
The burden is on Petitioner to demonstrate Dr.
Harlan's testimony was false. With respect to Petitioner's claim that
Dr. Harlan testified falsely as to the time of Griffin's death,
Petitioner relies upon the fact that his experts relied upon different
scientific proof than Dr. Harlan in reaching their opinions as to this
issue, as well as the fact that his experts disagreed with Dr.
Harlan's time-of-death opinion. With respect to Petitioner's claim
that Dr. Harlan testified falsely about his credentials, Petitioner
relies upon Dr. Harlan's testimony which, according to Petitioner,
implies that the physician was the State's Chief Medical Examiner when
he was not.
a. Time-of-Death Testimony
Petitioner contends Dr. Harlan's time-of-death
testimony was false because his experts concluded that the February
21, 1992, 11:55 p.m. time of death is a scientific impossibility [Doc.
24, p. 29]. First, contrary to Petitioner's contention, Dr. Harlan did
not testify the victim's time of death was 11:55 p.m. on February 21,
1992. Rather, using the time the victim was last seen alive (i.e.,
around 11:30 p.m. on February 21, 1992) as the beginning of the window
of time in which the murder occurred, Dr. Harlan testified the window
of time in which the murder could have occurred was between the time
the victim was last seen alive and 8:00 a.m. on February 22, 1992 [Addendum
No. 12, Vo. 14, pp. 4019-20]. Second, although Petitioner's habeas
experts disagreed with Dr. Harlan's time-of-death opinion, none of his
experts testified Dr. Harlan's time-of-death opinion was
In addition, Petitioner contends that his experts
used a different methodology than Dr. Harlan in reaching their time-of-death
opinions. Petitioner claims his experts would testify Dr. Harlan's use
of the slides of internal organs in determining time of death is not
based on any recognized scientific principles.
The first flaw with this claim is that Dr. Harlan
did not testify he based his opinion solely on the examination of the
slides. Instead, Dr. Harlan testified that he reviewed Dr. Ellington's
autopsy report, the slides of the tissue samples, the photographic
exhibits, and considered "the fact that rigor mortis was present at
5:50 p.m. on February 24, 1992[,]" and that "livor mortis was present
in the body at the time of examination by medical personnel at 5:50
p.m., on February 24, 1992" [Addendum No. 12, Vol. 14, pp. 4017-18].
Dr. Harlan explained there are three stages of the autopsy procedure
and that the examinations conducted during those three stages assist
in determining the time of death. Dr. Harlan also explained that "[t]he
microscopic examination is important in that there are certain
features of the external examination, which include examination of
such things as rigor mortis, livor mortis, et cetera, which play a
significant role" [Addendum No. 12, Vol. 14, p. 4015-16]. Dr. Harlan
further testified that the primary factors he relied upon in
determining the range of time in which the death occurred were the
presence of rigor mortis and his review of the slides, and he
The information that was derived is that there was
livor mortis present in the body at the time of examination by medical
personnel at 5:50 p.m., on February 24th, 1992. And the conclusion
reached with that is that death had to have occurred within the
previous 72 hours; that is, death had to have occurred at sometime
after 5:50 p.m. on February 21st, 1992. Examination of the tissues on
the microscopic slides reveals that death would have occurred at some
time 72 to 96 hours prior to the time of the collection of those
organs and placing those organ samples in formaldehyde, which means
that death would have occurred at some time between 8:00 a.m. on
February 21st, 1992, and 8:00 a.m. on February 22nd, 1992. Putting
those two pieces of information together, it is possible to narrow the
window to a time range of from approximately 6:00 p.m. on February
21st, 1992, to February 22nd, 1992, at 8:00 a.m. I'm unable to narrow
the window any closer than that.
[Addendum No. 12, Vol. 14, pp. 4018-19]. When asked
if the additional fact that the victim was last seen alive was around
11:30 p.m. on February 21, 1992, would assist him in making his
opinion, he responded it would modify the window to 11:30 p.m. on
February 21, 1992, until 8:00 a.m. on February 22, 1991 [Addendum No.
12, Vol. 14, p. 4019].
Although Petitioner's habeas expert Dr. Mileusnic-Polchan
testified an estimate of death based on examination of such slides is
not the recognized science, she nevertheless reviewed what,
essentially, are replicas of the slides Dr. Harlan reviewed and
considered those slides when forming her opinion regarding the time of
death in this case. Contrary to Dr. Harlan's testimony that there was
some decomposition in the tissues in the slides, Dr. Mileusnic-Polchan's
testified that "there was no decomposition" in the tissues in the
slides [Doc. 139, pp. 45-46, 48]. Dr. Mileusnic-Polchan also testified
that there was only "very mild autolysis," which one would normally
expect to see in autopsy material, even in "the freshest body" [Doc.
139, p. 47].
Dr. Harlan testified he saw decomposition present
in the pancreas, the liver, the adrenals, and a small amount which is
very difficult to see in the brain [Addendum No. 12, Vol. 14, p.
4024]. Dr. Harlan's testimony is supported to some extent by the
Autopsy Report which reflects that the microscopic examination
revealed both lungs showed changes of decomposition, that sections of
the liver showed "rather extensive decomposition" and cystic areas,
that sections of the left adrenal glad showed some decomposition, that
sections of the pancreas showed extensive autolysis, and that sections
of the stomach and intestines showed autolysis [Evidentiary Hearing
Plaintiff's Exhibit #50].
Although these experts disagree about the
interpretation of the slides, disagreement between experts does not
transform an expert's opinion into a falsehood. See Hoover v. Newland,
307 F. App'x 56 (9th Cir. Jan. 6, 2009) (expert's opinion was not
rendered false because it differed from testimony and opinions of all
other experts in case); Sistrunk v. Armenakis, 292 F.3d 669, 675 & n.7
(9th Cir. 2002) (en banc) (clearly inaccurate testimony by expert was
not found to be false), cert. denied, 537 U.S. 1115 (2003); United
States v. Workinger, 90 F.3d 1409, 1416 (9th Cir. 1996) (disagreement
with analysis did not transform opinion into falsehood); Campbell v.
Gregory, 867 F.2d 1146, 1148 (8th Cir. 1989) (finding an expert's
opinion which differed from that of another expert and the treatise
cited by the other expert was not false). Therefore, a difference in
opinion and disagreement among the experts is not a legally sufficient
basis to establish falsity of a fact. Indeed, when an assertion that
testimony is perjured rests on mere speculation, it is insufficient to
establish a claim under Napue. See United States v. Aichele, 941 F.2d
761, 766 (9th Cir. 1991).
The issue with which the Court is concerned is not
one of objective fact but one of differences in experts' time-of-death
opinions which, quite frankly, are based on subjective interpretations
of several factors. Simply because Petitioner's experts disagree with
the State's experts does not mean the State knowingly presented false
evidence in violation of Petitioner's due process rights. None of the
experts testified that Dr. Harlan's testimony was false, and the
evidence before the Court does not include an affidavit, a deposition,
or any testimony from Dr. Harlan regarding the truthfulness or falsity
of his trial testimony. Furthermore, the Court notes that Dr. Blake's
proposed testimony would have supported Dr. Harlan's opinion.
The experts disputed, to some extent, the validity
of the methodology used by Dr. Harlan, and they disagreed with his
estimated time of death. But opposing experts who criticize the
prosecution's expert witness and the basis of his testimony falls far
short of proof of false testimony. See Workinger, 90 F.3d at 1416
(holding disagreement between experts did not transform an expert's
testimony into a falsehood). Certainly, the record reveals that
determining time of death is not an exact science and that the
accuracy of that determination might have been improved had other
scientific tests been performed. However, absent any evidence that Dr.
Harlan actually made any false statement of fact or that he did not
honestly and conscientiously arrive at the opinions he expressed at
Petitioner's trial, habeas relief is not warranted. Accordingly, the
conflicting expert opinions, which amounted to nothing more than a
mere disagreement among the experts, does not demonstrate Dr. Harlan's
testimony was false. Therefore, habeas relief is not warranted on this
b. False Credentials Claim
Petitioner claims the prosecutor and/or defense
counsel should have known Dr. Harlan's testimony regarding his
qualifications was false. Petitioner contends that, at the time Dr.
Harlan testified at Petitioner's capital trial, he was not allowed to
enter the TBI lab because of professional misconduct and was being
investigated by the TBI about his gross incompetence [Petitioner's
Evidentiary Hearing Exhibit 20]. Petitioner further argues that Dr.
Harlan knew when he testified during the 1996 trial that he was no
longer the State Medical Examiner and that he was being investigated
by the TBI because Dr. Harlan's contract as State Medical Examiner
expired on June 30, 1995, and was not renewed [Id., at B, p. 238].
Respondent does not contest Petitioner's factual
assertions that Dr. Harlan was no longer the State Medical Examiner or
that he was being investigated by the TBI at the time of Petitioner's
trial. Rather, Respondent argues that the prosecution had no knowledge
of this information and that Petitioner has not proven that any of Dr.
Harlan's testimony was false.
Dr. Harlan testified that he held various positions
with the State of Tennessee, including serving as the most recent
Chief Medical Examiner. Dr. Harlan explained that his "curriculum
vitae is correct, except it does not list my tenure as Chief Medical
Examiner" [Addendum 12, Vol. 14, p. 4013-14]. On cross-examination the
following colloquy took place between defense counsel and Dr. Harlan:
Mr. Goergen: Dr. Harlan, you stated you were the
Examiner for the State of Tennessee?
Dr. Harlan: Yes, sir, I have been.
Mr. Goergen: You have been or you are now?
Dr. Harlan: That's a matter of debate.
Mr. Goergen: Oh, okay.
Dr. Harlan: Between lawyers.
Defense counsel did not pursue this line of
questioning further [Addendum No. 12, Vol. 14, pp. 4034].
To prevail on this claim, Petitioner must first
demonstrate the challenged statement was actually false. Coe v. Bell,
161 F.3d 320, 343 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Petitioner "must show that the statement in question was 'indisputably
false,' rather than merely misleading." Byrd v. Collins, 209 F.3d 486,
517 (2000), (quoting United States v. Lochmondy, 890 F.2d 817, 822
(6th Cir. 1989)), cert. denied, 531 U.S. 1082 (2001). Mere
inconsistencies or conflicting testimony do not establish such
testimony is false. See United States v. Croft, 124 F.3d 1109, 1119
(9th Cir. 1997).
Based on the testimony at trial and the testimony
in the evidentiary hearing, Petitioner has not sustained his burden of
proof that Dr. Harlan made a false statement regarding his credentials.
Although Dr. Harlan's response was somewhat ambiguous, it was not "indisputably
false." The Court finds that it was, at most, misleading.
As Petitioner has not established Dr. Harlan
presented false testimony, the Court need not reach the second and
third prongs of the Napue test. The failure to demonstrate Dr. Harlan
testified falsely necessarily eliminates Petitioner's claim that the
prosecution knowingly offered perjured testimony. Accordingly, relief
is not warranted on Petitioner's false-testimony claims.
2. Brady Claim (Claim II.B.)
Petitioner contends the prosecution violated due
process by failing to disclose that Dr. Harlan was no longer the
State's Chief Medical Examiner and that he was being investigated for
multiple instances of professional misconduct by the Tennessee
Department of Health and certain agents of the TBI. Petitioner
contends the State's failure to disclose this information amounted to
a violation of Brady, which holds that "[t]he suppression by the
prosecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or punishment
irrespective of the good faith or bad faith of the prosecution." 373
U.S. at 87. Petitioner maintains it was the prosecutor's duty to
obtain this impeachment evidence and the failure to take any steps to
fulfill this obligation entitles Petitioner to a new trial.
Respondent counters that the prosecutors had no
actual or imputed knowledge of this material because the Harlan
investigation was being conducted by TBI and Department of Health
employees who were uninvolved in the investigation of Petitioner's
case and because the Harlan investigation did not involve any member
of the prosecution team or anyone else acting "on the government's
behalf in the petitioner's case" [Doc. 144, p. 5]. Moreover,
Respondent argues that, based on Goff v. Bagley, 601 F.3d 445 (6th
Cir. 2010), the prosecution was not obligated to learn of information
possessed by other government agents who were not involved in the
investigation or prosecution at issue.
Petitioner did not explicitly address the "prosecution
team" argument, but seemingly suggests that, because two TBI agents
worked to some extent on his case and because the TBI Laboratory
conducted lab tests on some of the evidence, any knowledge the TBI
possessed about Dr. Harlan should be imputed to the prosecutor.
If the government knows of material evidence
favorable to the defendant in a criminal prosecution, it is obligated
to disclose that information to the defendant. See Kyles v. Whitley,
514 U.S. 419, 431 (1995). Brady material encompasses exculpatory
evidence (i.e., pertinent to the defendant's guilt or innocence) as
well as impeachment evidence (i.e., pertinent to a key prosecution
witness's credibility). See Giglio, 405 U.S. at 154-55 (nondisclosure
of evidence affecting credibility of government's star witness
warranted new trial irrespective of good faith or bad faith of
A Brady claim has three components: (1) "the
evidence at issue must be favorable to the accused, either because it
is exculpatory or because it is impeaching;" (2) "that evidence must
have been suppressed by the State, either willfully or inadvertently;"
and (3) "prejudice must have ensued . . . ." Strickler v. Greene, 527
U.S. 263, 281-82 (1999). Not only does Brady prohibit the
prosecution's actual concealment of exculpatory or impeachment
evidence, but it imposes an affirmative duty on the prosecution to
disclose to the defense all such evidence in the possession of those "acting
on the government's behalf." Strickler, 527 U.S. at 281; Kyles, 514
U.S. at 433. In Kyles, the Supreme Court expressly extended the
concept of constructive possession to all government agencies when it
held that "the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's
behalf in the case, including the police." Id. at 437. Thus, the Brady
rule compels the prosecution to make a reasonable effort to discover
favorable evidence for the defendant to ensure a fair trial.
It is undisputed that Petitioner has met the first
prong of the Brady analysis: the information regarding the Harlan
investigation qualifies as impeachment evidence that could have been
used to discredit Dr. Harlan's credibility as a forensic expert.
The second prong of the Brady analysis is more
complicated. To meet his burden of proof, Petitioner must demonstrate
that the State withheld or suppressed the impeachment evidence.
Petitioner attempts to do so in two ways. First, Petitioner contends
that the impeachment evidence relative to Dr. Harlan should be imputed
to the prosecution because the Tennessee Attorney General and Reporter,
John Knox Walkup, prosecuted Petitioner's case on direct appeal and at
the same time was litigating on behalf of the Department of Health
against Dr. Harlan to stop him from misrepresenting himself as the
State's Chief Medical Examiner. Second, Petitioner contends that the
prosecution bore responsibility for the disclosure of the Harlan
investigation because the TBI was investigating and documenting almost
all of the Brady material relating to Dr. Harlan. Petitioner submits
that he has shown "constructive possession" by submitting his Habeas
Evidentiary Hearing Exhibit 18-which reveals 87 pages of TBI documents
admitted at Petitioner's Blount County trial-and Exhibit 19-which
reveals 53 pages of TBI documents related to his Blount County trial
but not specifically admitted at trial.
Respondent disagrees, maintaining that the
prosecution had neither actual nor imputed knowledge of the any
investigation of Dr. Harlan as such information was not gathered in
connection with the prosecutor's investigation of this murder case.
Relying upon Goff, Respondent argues that "a prosecutor has no
obligation under Brady to learn of information possessed by other
government agencies having no involvement in the investigation or
prosecution at issue" [Doc. 144, p. 4 (citing Goff, 601 F.3d at 476)].
a. Tennessee Department of Health/Attorney
There is no evidence demonstrating that the
Tennessee Department of Health played any role in the investigation or
prosecution of Petitioner. As to Petitioner's theory that knowledge of
these matters should be imputed to the prosecution merely because the
Attorney General and Reporter was representing the Department of
Health against Dr. Harlan and at the same time seeking to persuade the
state appellate courts to affirm Petitioner's conviction, Petitioner
has not pointed to any Supreme Court precedent, and the Court is
unaware of any precedent, supporting this proposition and extending
Brady this far.
Accordingly, habeas relief is not warranted as to
the claims involving those two state agencies.
b. The Tennessee Bureau of Investigation
While the record is unclear as to the extent of the
TBI's involvement in the instant case, for purposes of this discussion,
the Court assumes TBI Special Agents David Davenport ("SA Davenport")
and David Griswold ("SA Griswold") were part of the prosecution team.
The record, however, establishes that the evidence
to impeach Dr. Harlan was in the possession of TBI Special Agents G.
Richard Wright, Roy Copeland, and Jim Taylor-TBI agents with no
connection or involvement in the investigation of Petitioner's case.
Petitioner has not offered, and the record does not contain, any
evidence of a collaborative effort between TBI Agents Wright, Copeland,
and Taylor and Petitioner's prosecution team. Indeed, the proof is to
the contrary as the prosecutors in Petitioner's state criminal case
aver they had no knowledge of any investigation into Dr. Harlan at the
time he testified [Doc. 81, Attachments #1-5; Doc. 139, p. 112].
Nevertheless, Petitioner contends the prosecutors
in this case had a constitutional duty to discover and disclose the
Harlan evidence. Respondent counters that under the facts of this
case, the prosecutor was under no such duty.
Although Brady and its progeny undoubtedly have
recognized a duty on the part of the prosecutor to disclose
exculpatory and impeachment evidence that is favorable to the
defendant over which the prosecution team has control, "Brady clearly
does not impose an affirmative duty upon the government to take action
to discover information which it does not possess[,]" United States v.
Graham, 484 F.3d 413, 417 (6th Cir. 2007), cert. denied, 552 U.S. 1280
(2008) (citation and internal quotations marks omitted), or to
disclose information which it does not know, see Hollman v. Wilson,
158 F.3d 177, 180-81 (3rd Cir. 1998) (finding no Brady violation where
prosecutor, who failed to disclose, had no actual or constructive
possession of information), cert. denied, 525 U.S. 1143 (1999).
The Brady rule has been expanded over the years,
producing a mix of decisions from the circuit courts regarding the
production of documents not in the files of the prosecution, but in
the possession of other agencies. In this mix of decisions, however,
the Court has not found, nor has Petitioner identified, a case finding
a Brady violation where an expert witness was being investigated in a
totally unrelated matter by agents who are not members of the
prosecution team and of which the prosecutors had no knowledge.
Rather, the Supreme Court and circuit court cases
reflect that Brady's disclosure duty extends to evidence known only to
investigating agents or officers assigned to the prosecution team. See
United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998)
("Nonetheless, knowledge on the part of persons
employed by a different office of the government does not in all
instances warrant the imputation of knowledge to the prosecutor, for
the imposition of an unlimited duty on a prosecutor to inquire of
other offices not working with the prosecutor's office on the case in
question would inappropriately require us to adopt 'a monolithic view
of government' that would 'condemn the prosecution of criminal cases
to a state of paralysis.'") (quoting United States v. Gambino, 835
F.Supp. 74, 95 (E.D. N.Y. 1993), aff'd, 59 F.3d 353 (2d Cir. 1995),
cert. denied, 517 U.S. 1187 (1996)).
In Strickler, the Supreme Court reiterated that "the
[Brady]rule encompasses evidence 'known only to police investigators
and not the prosecutor.' In order to comply with Brady, therefore, 'the
individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government's behalf in this case,
including the police.'" 527 U.S. at 280-81 (quoting Kyles, 514 U.S. at
437, 438) (emphasis added). And, in United States v. Locascio, 6 F.3d
924 (2d Cir. 1993), cert. denied, 511 U.S. 1070 (1994), the Second
Circuit refused to impute knowledge of reports prepared by FBI agents
who were "uninvolved in the investigation or trial of the defendants-appellants"
to the Assistant United States Attorneys who were prosecuting the
case. Id. at 948. The court declined to "infer the prosecutors'
knowledge simply because some other government agents knew about the
report." Id. at 949. Likewise, in Goff, the Sixth Circuit specifically
noted that there is federal law "that Brady and its prodigy do not
impose a duty on the prosecutor's office to learn of information
possessed by other government agencies that have no involvement in the
investigation or prosecution at issue." Goff, 601 F.3d at 476 (citations
and quotation marks omitted).
The Second Circuit addressed a somewhat similar
situation to the instant case in United States v. Quinn, 445 F.2d 940
(2d Cir. 1997), cert. denied, 404 U.S. 945 (1971), where the New York
Times announced after trial that the government's witness had been
indicted in Florida in connection with a fraud case. The indictment
had been sealed but the defense moved for a new trial arguing such was
newly discovered evidence. As described by the Second Circuit, the
defendant took the "completely untenable position that knowledge of
any part of the government is equivalent to knowledge on the part of
this prosecutor" and that the New York prosecutor must be deemed to
have had constructive knowledge of the evidence possessed by the
Florida prosecutor. 445 F.2d at 944 (quotation marks omitted).
As in the Quinn case, the Court concludes
Petitioner has taken the "completely untenable position" that
knowledge by any part of the TBI equates to knowledge on the part of
the prosecutor. This position is untenable because the prosecutors did
not know about the Harlan investigation and because the TBI unit in
charge of that investigation and in possession of that information was
not involved in, or interested in the prosecution of Petitioner.
Indeed, the prosecutor could not reasonably have had knowledge of, or
access to, information concerning the Harlan investigation as it does
not appear that the Tennessee Attorney General or the Health
Department ever notified the District Attorneys of Tennessee, or
anyone else, that they were investigating Dr. Harlan.
In sum, because Petitioner has not demonstrated the
State suppressed any evidence, his Brady claim fails and will be
3. Ineffective Assistance of Trial Counsel (Claims
II.C. and II.D.)
Petitioner presents two arguments under his
ineffective assistance of counsel claim. First, Petitioner contends
counsel ineffectively presented "'limited evidence' suggesting the
State's time of death was erroneous" [Doc. 24, p. 35, Claim II. C.].
According to Petitioner, trial counsel should have hired a competent
forensic pathologist to testify to the time of death. In this claim,
Petitioner attacks the state court's decision that it would not second
guess counsel's strategic decision but omits any serious discussion of
the state court's conclusion that Petitioner failed to demonstrate he
was prejudiced by counsel's decision.
Second, acknowledging this claim was not presented
to the state court but claiming his default is excused because he has
presented a credible claim on actual innocence under Schlup v. Delo,
513 U.S. 298, 327 (1995), Petitioner contends that trial counsel
failed to utilize an appropriate expert to rebut Dr. Harlan's time-of-death
testimony [Doc. 24, p. 39, Claim II. D.]. According to Petitioner,
trial counsel failed to investigate the competence, basis of knowledge,
background, and qualifications of Dr. Harlan. In addition, Petitioner
complains that counsel failed to present compelling forensic evidence
rebutting the State's theory of the case.
Respondent contends Petitioner's ineffective
assistance of counsel claims fail for three reasons: (1) trial
counsel's decision to use Dr. Wolfe was strategic, thus not deficient;
(2) Dr. Wolfe's testimony was substantially similar to testimony
proffered by the forensic pathologists presented during the habeas
evidentiary hearing; and (3) the claim is barred from federal habeas
review because the proffered pathologist testimony was not presented
in state courts.
a. Applicable Law
The criteria for analyzing a claim of ineffective
assistance of counsel is set forth in Strickland v. Washington, 466
U.S. 668 (1984). Strickland requires a defendant to demonstrate two
essential elements: (1) counsel's performance was deficient (i.e.,
counsel was not functioning as counsel guaranteed the defendant by the
Sixth Amendment), and (2) counsel's deficient performance prejudiced
the defense (i.e., deprived the defendant of a fair trial rendering
the outcome of the trial unreliable). 466 U.S. at 687-88.
In order to demonstrate deficient performance, it
must be shown that counsel's representation fell "below an objective
standard of reasonableness" in light of the "prevailing professional
norms." Id. at 686-88. The Supreme Court has recently reiterated that
the objective standard of reasonableness is a general standard:
No particular set of detailed rules for counsel's
conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal defendant.
Restatements of professional standards, we have recognized, can be
useful as "guides" to what reasonableness entails, but only to the
extent they describe the professional norms prevailing when the
representation took place.
Bobby v. Van Hook, - U.S. -, 130 S. Ct.13, 16
(2009) (quoting Stickland, 466 U.S. at 688-89) (citations omitted).
When applying these standards, the Court is
cognizant of the fact that there is a strong presumption counsel's
conduct was within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689. "Reviewing courts focus on
whether counsel's errors have undermined the reliability of and
confidence that the trial was fair and just." Austin v. Bell, 126 F.3d
843, 847 (6th Cir. 1997), cert. denied, 523 U.S. 1079 (1998) (citing
Strickland, 466 U.S. at 687; United States v. Cronic, 466 U.S. 648,
658, (1984), cert. denied, 523 U.S. 1088 (1998)). A reviewing court
cannot indulge in hindsight but must instead evaluate the
reasonableness of counsel's performance within the context of the
circumstances at the time of the alleged errors. Strickland, 466 U.S.
at 690. Trial counsel's tactical decisions are particularly difficult
to attack. District Attorney's Office for Third Judicial Dist. v.
Osborne, 129 S. Ct. 2308, 2330 (2009) ("[I]t is a well-accepted
principle that, except in a few carefully defined circumstances, a
criminal defendant is bound by his attorney's tactical decisions
unless the attorney provided constitutionally ineffective assistance.");
O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). A defendant's
challenge to such decisions must overcome a presumption that the
challenged actions might be considered sound trial strategy. O'Hara,
24 F.3d at 828.
With respect to the prejudice prong of the
Strickland analysis, the Supreme Court has reiterated what is
necessary to establish prejudice:
[A] "defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome."
Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting
Strickland, 466 U.S. at 694).
When evaluating Sutton's ineffective assistance of
counsel claim, the Court must review the state court's decision that
Petitioner failed to establish ineffective assistance of counsel as
circumscribed by section 2254(d)'s deferential review standards.
Therefore, Petitioner will meet his burden of establishing ineffective
assistance of counsel only if he demonstrates the state court's
finding of no ineffective assistance is contrary to, or an
unreasonable application of Supreme Court precedent. See 28 U.S.C. §
2254(d). See also Tibbetts v. Bradshaw, - F.3d -, 2011 WL 499276, at
*5-6 (6th Cir. Feb. 15, 2011) (stating the standard of review).
b. Appropriate Expert (Claim II.C.)
Petitioner contends trial counsel's choice of
presenting Dr. Wolfe, a non-board certified general practitioner, who
was not professionally qualified to perform forensic autopsies
amounted to ineffective assistance of counsel. According to Petitioner,
a specialist in forensic medicine would have been more persuasive as
When this alleged attorney shortcoming was offered
on appeal, the state appellate court concluded that, given Dr. Wolfe's
credentials as a medical doctor and coroner, Petitioner had not shown
that he was unqualified to testify regarding the time of death based
on the condition of the victim's body when discovered. The state court
further concluded Petitioner failed to establish that he was
prejudiced by Dr. Wolfe's time-of-death estimate, given that
Petitioner had failed to adduce any evidence demonstrating that a
board-certified forensic pathologist would have refuted Dr. Harlan's
assessment of the time of death of the victim. Sutton, 2006 WL
1472542, at *20. Petitioner contends the state court unreasonably
denied relief when it concluded it would not second guess counsel's
strategic choice of experts and that Petitioner failed to establish
Although Dr. Wolfe was not board certified, Goergen
testified that they believed that his experience as medical examiner
of one of the counties in Tennessee for several years was sufficient
experience for their purposes [Addendum No. 35, pp. 6817-22].
According to Gibson, he selected Dr. Wolfe because he was a friend and
Gibson had used Dr. Wolfe in the past when counsel needed a medical
opinion in a case. When asked if he had any concerns that Dr. Wolfe
was not board certified, Gibson explained:
Well, he was appointed as the coroner of Union
County, Tennessee, and I didn't have any concerns about it. Because he
was a good witness, he was a conscientious man. I think he was - - at
that time, he was, I thought would come across - - he was a country
doctor who gave up a very lucrative practice to go into a clinic in
the poor folks area, and he was translating the Dead Sea Scrolls, and
I felt like this would - -you know, his personality would overcome
that. I knew he wasn't Board certified, but he's a doctor and he was
certified as a coroner - - or listed as a coroner in Union County for
several years. [Addendum No. 35, pp. 7010-11].
"The choice of what type of expert to use is one of
trial strategy and deserves "'a heavy measure of deference.'" Turner
v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002) (quoting Strickland,
466 U.S. at 691). The Court must "make effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland, 466 U.S. at 698. The
fact that Dr. Wolfe was not certified does not, ipso facto, make him
unqualified to render an opinion on time of death, and Petitioner has
cited nothing indicating otherwise. Indeed, Gibson had used Dr. Wolfe
on prior occasions and there is no indication that this medical
expert's opinion was inaccurate.
The state court determined that counsel's selection
of Dr. Wolfe as his expert was a tactical decision. Strategic choices
are virtually unchallengeable if based on a reasonable investigation.
Strickland, 466 U.S. at 690-91. And there is a strong presumption that
counsel performed a reasonable investigation. Webb v. Mitchell, 586
F.3d 383, 395 (6th Cir. 2009), cert. denied, 130 S.Ct. 2110.
Petitioner has submitted nothing to overcome this presumption.
Consequently, trial counsel's employment of Dr. Wolfe was not
constitutionally deficient, and the state court's decision on that
issue was not contrary to or an unreasonable application of Strickland.
Although post-conviction counsel raised his
unqualified-expert issue in state court, the state appellate court
concluded Petitioner called no forensic experts to testify and adduced
no proof of prejudice, following its review of the record, see Sutton,
2006 WL 1471542, at * 20, and that finding is presumed correct,
Brumley v. Winard, 269 F.3d 629, 637 (6th Cir. 2001) (citing Sumner v.
Matta, 449 U.S. 539, 546-47 (1981)), because Petitioner has offered no
clear and convincing evidence to contradict it. Without proof of what
a certified expert's testimony would have been or how it would have
aided the defense, it was impossible for the state post-conviction
court to determine whether there is a reasonable probability that
Petitioner's guilt-phase proceedings would have been different had
counsel presented a certified expert. Thus, the state appellate court
did not unreasonably determine that trial counsels' testimony was not
rebutted and did not unreasonably apply Strickland in concluding that
Petitioner did not demonstrate prejudice. Therefore, habeas relief is
(3) By-Pass AEDPA Deference
Even though Petitioner failed to offer expert
testimony in the state post-conviction court to support his claim of
prejudice, he has presented that testimony in these habeas proceedings.
Before this Court is permitted to consider such testimony in relation
to the instant claim, Petitioner is required to establish he was not
at fault for failing to develop the factual basis for this claim in
state court, see Williams v. Taylor, 529 U.S. 420, 430-32 (2000), or
that, if he was at fault, the conditions prescribed by section
2254(e)(2) were met, see Holland v. Jackson, 542 U.S. 649 (2004).
Under Title 28 U.S.C. § 2254(e)(2), a hearing would be warranted on
Petitioner's claim if he can demonstrate either "a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court" that was previously unavailable or "a factual
predicate that could not have been previously discovered through the
exercise of due diligence; and the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found [Petitioner]
guilty of the underlying offense." Id. at 653.
Petitioner has provided no reason for failing to
develop the factual basis of his claim of prejudice in the state court.
Petitioner raised this claim in state court but failed, for some
unknown reason, to present expert testimony to support his claim. Even
absent knowledge of the Harlan investigation, Petitioner could have
and should have developed the factual basis for this claim in state
court. Thus, he is not entitled to habeas relief on this claim.
Assuming Petitioner was faultless for failing to
develop the factual basis for this claim (i.e., his lack of knowledge
of the Harlan investigation prevented him from developing the factual
basis of the claim), which the Court does not find, and even if the
Court considered the expert witnesses' testimony given at the
evidentiary hearing, the Court would not conclude that Petitioner
suffered any prejudice as a result of his trial counsels' decision.
This is so because the new expert testimony did not weaken the
circumstantial evidence pointing to Petitioner's guilt; all it did was
contradict Dr. Harlan's testimony and support Dr. Wolfe's testimony.
The expert testimony did not demonstrate Dr. Wolfe was not qualified
to testify about his opinion or Mr. Griffin's time of death, nor that
Petitioner was prejudiced by trial counsel's decision to present Dr.
Wolfe as a defense witness. To the contrary, the new experts'
testimony supported Dr. Wolfe's time-of-death testimony.
More importantly, the new experts established that
time-of-death determinations are not an exact science, involve the
exercise of individual judgment within the framework of evaluating
certain data, the evaluation of the data is fairly subjective, and the
exact time of death of this unwitnessed murder is unknown. As an
example of the subjective interpretation of data by these experts, one
only need to look at the issue regarding the use and interpretation of
the microscopic slides. The expert conducting the autopsy concluded
that certain organs evidenced decomposition and autolysis-a conclusion
with which Dr. Harlan agreed but with which Petitioner's expert Dr.
Mileusnic-Polchan disagreed. In addition, Dr. Kessler testified
neither time of death nor change of decomposition could be determined
microscopically [Doc. 137, p. 114]. Similarly, Dr. Mileusnic-Polchan
testified an estimate of time-of-death could not be based upon the
examination of such slides and was outside the realm of "recognized
science," but also acknowledged some consideration of the slides in
connection with her time-of-death opinion, but explained the reason it
was not proper for Dr. Harlan to do so was because "[h]e was stating
that whatever he was seeing in the tissue is telling him that this
individual had been dead 72 hours or longer [and] [y]ou cannot put an
hour to it" [Doc. 139, p. 48-49].
The evidence Petitioner contends demonstrates he is
actually innocent constitutes nothing more than a battle between
experts and, rather than demonstrating his actual innocence, it merely
reveals that a time-of-death determination is not an exact science,
but instead is a fairly subjective opinion. For example, Petitioner's
new experts testified as to the importance of knowing the temperature
to which the body was exposed when making time-of death determinations,
yet all of these new experts used temperatures in locations other than
where the victim's body was found to reach their time-of-death
opinions [Docs. 137, 139]. Similarly, although all of Petitioner's new
experts supported Dr. Ellington's opinion that more scientific tests
should have been conducted to ensure a more accurate time of death,
they were all comfortable with providing a fairly narrow window in
which the murder could have occurred. Finally, although the difference
between Dr. Harlan's latest estimated time of death (early morning
hours of February 22, 1992) and Dr. Haskell's earliest estimated time
of death (late afternoon hours of February 22, 1992), which was
substantially based on the lack of documented insect activity,
amounted to a difference of approximately 15 hours, Dr. Haskell
refused to consider that it was possible the death could have occurred
earlier than late afternoon on February 22, 1992 [Doc. 137, pp.
It also is important to note that Petitioner's
habeas experts differed, to some extent, on their time of death
opinions. In Dr. Haskell's opinion, the body was most likely 24 to 36
hours old but "to be conservative and to cover variability" he
conceded the possibility that it was 48 hours old [Doc. 137, pp.
53-54]. Dr. Kessler believed the body was 12 to 24 hours old and Dr.
Mileusnic-Polchan was initially comfortable with the body being dead
24 to 72 hours but then changed her testimony stating she was
comfortable with the body being dead 24 hours, maybe even a day and a
half but she was very uncomfortable and "would never really support
the time of death - - the time being more than 48 hours" [Doc. 139,
pp. 6, 48, 60].
Petitioner's three new experts disagreed with the
opinion of the three State experts (i.e., Dr. Blake's proposed
testimony, Dr. Harlan, and Dr. Levy). As the weight of the experts
testimony is basically equal and as the other evidence implicating
Petitioner in the crime has not been weakened, the Court's confidence
in the outcome of the trial is not undermined. Accordingly, Petitioner
is not entitled to habeas relief on his claim that trial counsel
failed to use an appropriate expert to establish the victim's time of
death. This claim will be dismissed.
c. Trial Counsel Failed to Present an Expert to
Rebut Dr. Harlan's Testimony (Claim II. D.)
Petitioner contends trial counsel were ineffective
for failing to rebut Dr. Harlan's testimony, as qualified expert
witnesses would have been able to assist in cross-examining Dr. Harlan,
to rebut his testimony, and to show Petitioner's innocence. Admitting
this claim was not presented in the State courts, Petitioner maintains
he has presented credible evidence sufficient to establish his actual
innocence under Schlup, thus requiring a Schlup hearing and a review
of the claim.
A claim of actual innocence may be a procedural
gateway to allow consideration of a constitutional claim otherwise
procedurally barred from federal review. Schlup, 513 U.S. at 327. Thus,
before the Court can address Petitioner's claim that trial counsel
were ineffective for failing to present expert testimony to rebut Dr.
Harlan's testimony, Petitioner must demonstrate that, in light of all
the evidence, including the evidence he presented during his habeas
evidentiary hearing, "it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt."
Id. at 327-28. In the context of Schlup, a petitioner must establish
his factual innocence of the crime, and not mere legal insufficiency.
See Bousley v. United States, 523 U.S. 614, 623 (1998). The Schlup
exception is limited to "certain exceptional cases involving a
compelling claim of actual innocence." House v. Bell, 547 U.S. 518,
522 (2006); see Schlup, 513 U.S. at 324 (noting that "experience has
taught us that a substantial claim that constitutional error has
caused the conviction of an innocent person is extremely rare").
The cases in which a federal habeas petitioner has
met the Schlup standard usually consists of credible evidence such as
the petitioner's solid alibi, see Garcia v. Portuondo, 334 F.Supp.2d
446 (S.D.N.Y. 2004) (several eyewitness accounts of the crime
exonerated petitioner), DNA evidence, see Schlup v. Delo, 912 F.Supp.
448 (E.D.Mo. 1995) (on remand) (DNA evidence excluded petitioner and
identified another potential perpetrator), House, 547 U.S. at 38-52 (DNA
established semen was not petitioner's), and substantial evidence of a
different perpetrator, Carriger v. Stewart, 132 F.3d 463, 478 (9th
Cir. 1997) (sworn confession by another that he committed crime and
Here, the Court finds Petitioner has not satisfied
Schlup because he has not presented new reliable evidence that shows
he is probably innocent. The proffered evidence of actual innocence is
opinion evidence, in the form of live testimony from three experts
expressing their opinions as to the victim's time of death. For the
reasons explained above, those opinions, neither individually nor
cumulatively, lead the Court to conclude that, in light of all the
evidence, "it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt." Schlup, 513
U.S. at 327-28. The expert opinion evidence does not eliminate any of
the circumstantial evidence pointing to Petitioner's guilt and does
not provide any evidence of his innocence. The proof upon which
Petitioner relies does not provide any compelling evidence regarding
the commission of the crime, nor does it fundamentally call into
question the reliability of his conviction. At most, Petitioner has
provided evidence to support his trial expert's opinion, but this is
not the kind of evidence to which Schlup refers (i.e., actual factual
Moreover, Petitioner's proffered evidence comes
nowhere near the evidence produced in Schlup, House, Garcia, or
Carriger. As stated, the evidence Petitioner has presented merely
calls into question the time-of-death opinion of the State's rebuttal
expert witness and amounts to nothing more than an attempt to
discredit Dr. Harlan rather than affirmatively presenting new
exculpatory evidence demonstrating his innocence.
Accordingly, the actual innocence claim does not
exempt Petitioner from his procedural default. Petitioner's claim of
ineffective assistance of counsel therefore is barred from habeas
B. Cumulative Error Claim (Claim XXV)
The final claim the Court must address is
Petitioner's assertion that, when viewed cumulatively, the errors
alleged in his habeas petition justify relief. The state appellate
court concluded that because they found no errors to accumulate, the
issue was without merit. Sutton, 2006 WL 1472542, at *29. Petitioner
has not demonstrated the state court's decision was either contrary to
or an unreasonable application of clearly established federal law.
Even if cumulative error can form the basis for
section 2254 relief, which the Supreme Court has never held,
Petitioner is not entitled to such relief in this case as he has not
shown the existence of any constitutional error at trial or sentencing.
As there are no errors to cumulate, Petitioner's cumulative-error
claim fails. See Evans v. Mitchell, 344 F. App'x 234 (6th Cir. 2009) (unpublished)
(finding no errors to cumulate and observing that neither the Supreme
Court nor the Sixth Circuit has recognized "that distinct
constitutional claims can be cumulated to grant habeas relief"), cert.
denied, 130 S.Ct. 1106 (2010). See also Baze v. Parker, 371 F.3d 310,
330 (6th Cir. 2004) ("Because Baze cannot establish any errors to
cumulate and because his theory that errors can be considered in the
aggregate depends on non-Supreme Court precedent, this claim is also
without merit."). Accordingly, Petitioner's claim of cumulative error
lacks merit and will be dismissed.
For the reasons stated in this Memorandum Opinion,
Respondent's motion for summary judgment on Claims II and XXV will be
GRANTED. Having previously granted Respondent's motion for summary
judgment as to all other claims and dismissing without prejudice
Petitioner's claim that he cannot be executed because he is
incompetent, Petitioner's section 2254 petition [Doc. 24] will be
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
Gary Wayne Sutton