Kenneth Wayne O'Guinn v. Michael Dutton, Cross-Appellee

SMITH, BENAVIDES Bеfore DUTTON, Respondent- Michael DENNIS, Judges. Circuit Cross-Appellee. Appellant, 93-5578, PER CURIAM: 93-5620. Nos. entered a con- Harkrider Shawn Christian Appeals, Court of United States indictment plea to a one-count guilty

ditional Sixth Circuit. aof firearm charging possession him with alleging an enhance- felon and 14, a convicted 1995. Reargued June Stat- Criminal under the Armed Career ment 3, July Decided appeal right to reserved Harkrider ute. 922(g). § constitutionality of U.S.C. 18 for violation was convicted

Harkrider a con 922(g)(1)

§ that makes unlawful ship transport interstate “to or felon

victed commerce, affect possess or foreign or

or commerce, any or ammunition firearm

ing transported shipped or has been foreign 18 U.S.C. commerce.”

interstate 922 is Section 922(g).

§ He contends that beyond Con because it

unconstitutional authority the Commerce Clause.

gress’ under circuits, Joining other disagree. several

We Rawls, held, 85 F.3d v. in United States we Cir.1996) curiam), (5th (per Section

240 See United to be constitutional. 922(g) (2d 294, Sorrentino, 296-97 72 F.3d v.

States Bell,

Cir.1995); 70 F.3d United States (7th Cir.1995); v. Bol States United

497-98 (10th Cir.1995),

ton, cert. F.3d 400 — -, U.S. denied (1996); v. Ran States United L.Ed.2d (8th Cir.), kin, cert. de 64 F.3d -

nied, -, Morante,

Kathy Atty. (argued Asst. Gen. briefed), Burson, Gen., Atty. Charles W. Pruden, Gen., Atty. Glenn R. Office Div., Nashville, TN, Justice for Re- Criminal. spondent-Appellant, Cross-Appellee. MERRITT, Judge; Before: Chief KENNEDY, MARTIN, JONES, NELSON, MILBURN, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, MOORE, Circuit Judges.

The court delivered a PER CURIAM MERRITT, opinion, J., in which C. MARTIN, JONES, MILBURN, NELSON, RYAN, MOORE, JJ., joined. MERRITT, 1413-1430), (pp. C.J. delivered a separate concurring opinion, in which JONES, J., BOGGS, joined. (pp. J. 1430- 1432), separate dissenting delivered a opinion, in which SILER and BATCHELDER, JJ., joined, with BATCHELDER, 1432-1464), (pp. J. also delivering separate dissenting opinion, KENNEDY, BOGGS, NORRIS, SUHRHEINRICH, SILER, JJ, joined. PER CURIAM. Wayne

Kenneth O’Guinn was convicted in Jackson, Tennessee, state court of first degree aggravated rape against murder and Cupples. currently Sheila serving He is aggravated rape life sentence for the and is under a death sentence for the murder. The granted District petition Court for a writ of federal corpus habeas on the grounds that his confession was obtained in right against violation of his self-incrimina tion and because he received ineffective as during sentencing. sistance of counsel War appealed den Dutton issuance the writ. decision, split original In a panel heard the case reversed the issuance of the agreed writ and the en banc court to rehear Dutton, appeal. O’Guinn v. 42 F.3d 331 (1994), vacated, (6th Cir.1995). 42 F.3d 359 The en banc court finds the federal Bottei, Paul R. Christopher petition petition is, M. Minton habeas is a “mixed” —that (briefed), Lassiter, Hildebrand, Tidwell containing & one exhausted and unexhausted Michael (argued), J. Passino Passino Min-& claims. This also principles finds that ton, Nashville, TN, Petitioner-Appellee, comity require and federalism that unex- Cross-Appellant. hausted claims be decided the first in-

14H juryA was admitted trial.1 ples murder the absence courts by the state stance aggravated rape and Be- convicted O’Guinn circumstances. or unusual exceptional He was exceptional first-degree sentenced no such murder. finds the Court cause here, rape petition aggravated is the imprisonment for the life circumstances unusual adju- courts for the murder. that the state and to death so dismissed presented. the claims dicate were affirmed and sentence The conviction Supreme Court on direct by the Tennessee I. O’Guinn, v. 709 S.W.2d 561 appeal. State brutally raped Cupples was Marie Sheila 871, denied, (Tenn.), 107 479 U.S. S.Ct. cert. 23, May 1981 night of murdered on and (1986). 1987, 244, In 169 O’Guinn 93 L.Ed.2d Hat & evening at the spending after state petition with Tennessee filed a Sheila, Jackson, Cane, in Tennessee. a bar peti post-conviction relief. courts for friends Cupples and two cousin Joannie her court and the circuit was dismissed tion taking Darvon drinking, evening spent Appeals of Criminal Tennessee Court ap- Sheila dancing at Hat & Cane. O’Guinn, 243 786 S.W.2d affirmed. State v. Sheila’s quite intoxicated. became parently Su (Tenn.Crim.App.1989). The Tennessee saw that she last testified Joannie cousin permission to O’Guinn preme Court denied to midnight near the entrance around Sheila 1989, post- a In filed second appeal. O’Guinn body found the was Sheila’s Hat & Cane. courts; petition with the state conviction top halter with her a field afternoon in next also dismissed. was strangulation her neck wrapped around pur petition filed a federal habeas The local O’Guinn of death. cause listed as the was § in 1990 to 28 U.S.C. 2254 October Investi- suant Tennessee Bureau and the police August petition in 1992. superseding people in the numerous interviewed gation requested undisputed O’Guinn had murder but following the It months weeks from the State suspect exculpatory all documents was not O’Guinn no arrests. made Upon utilizing court. his trial before investigation. during the discovery procedures under federal 4, 1983, later, July O’Guinn years Two statute, first for the O’Guinn learned habeas assault and for the in Alabama arrested had documents arguably material time admit- woman. rape of an O’Guinn Alabama counsel over to O’Guinn’s turned not been rape. O’Guinn but denied the assault ted Mary Brady v. before trial violation and remained post unable to bond 1194, land, 83, 10 L.Ed.2d U.S. 373 later, Alabama a week About prison. (1963). his federal amended O’Guinn about question O’Guinn began to authorities his claim for the first time and raised petition Because murder. unsolved Alabama an improperly of Tennessee the State Jackson, Ten- originally from O’Guinn his coun from documents numerous withheld nessee, contacted authorities the Alabama therefore, claim, has trial. This before sel background check police to do Jackson by the manner been addressed de- The Tennessee authorities O’Guinn. state courts. Tennessee unsolved question about the O’Guinn cided several the next Cupples murder. Over evidentiary an held The District Court police force weeks, the local from a detective of habeas cor granted the writ hearing and Jackson, agent from Tennessee confes grounds that O’Guinn’s pus on the Investigation traveled Bureau of right of his in violation obtained sions were interview times Alabama several right and that against self-incrimination O’Guinn. violated of counsel was assistance effective trial. of his sentencing phase during 1983, confessed August O’Guinn On Dutton, F.Supp. v. murder of murder and the the Alabama both ad- (M.D.Tenn.1993). District Cup- confession Cupples. The Sheila intelligent. State knowing and was not counsel murder in the Alabama O'Guinn’s confessions (Ala.Cr.App.1985). 462 So.2d 1052 because suppressed the Alabama courts v. right to waiver of his O’Guinn's it was found that part federally-based dressed one small of O’Guinn’s claim such as O’Guinn’sclaim and, discussion, Brady claim Brady Maryland, without found under the claim be without merit. Id. at 786. It Granber points 133-34, did not address the main ry, other 481 U.S. at 107 S.Ct. at 1674-75. Brady claim. In Court held in Gran berry v. Greer that federal courts could en post-con- filed his third tertain unexhausted claims petition under certain cir viction with the Tennessee state cumstances, but the alleging Court circumscribed this rights courts that his constitutional exception Rose, to LaVallee v. Delle withholding were violated of docu- 690, 1203, 93 S.Ct. 35 in L.Ed.2d 637 Brady. ments violation of The state quite narrowly. In Granberry, Id. holding petition abeyance courts are in the state inadvertently failed to raise pending the the defense of outcome of the case in the feder- level, non-exhaustion at the district court al courts. but appeals it Supreme raised at the court. The Court held that federal courts are to deter II. case-by-case mine on a comity basis whether statute, 2254(b), § The habeas 28 U.S.C. and federalism would be better served provides application that the for a writ will requiring proceedings further state or ad granted not be dressing immediately. 134, the merits Id. at appears applicant unless has Supreme 107 at 1675. again S.Ct. The Court exhausted the remedies available in the strong confirmed that “there is a presump State, courts of the or that there is either tion in requiring prisoner favor of an absence of available State corrective pursue his available state remedies.” Id. at process or the existence of circumstances 131, 107 particular, S.Ct. at 1674. rendering process such pro- ineffective to said, Court if the important case involves an rights prisoner. tect the question unresolved of fact or state law or important where there is an state The Court interest at has held that a habeas stake, a return to the petition containing appro state courts is both exhausted and unex- 134-35, priate. Id. at 107 S.Ct. at hausted claims 1675-76. must be dismissed in its en tirety. “exceptional” Unless “unusual” or Rose v. circum Lundy, 455 U.S. 102 appropriate stances make it S.Ct. 71 reach the L.Ed.2d 379 It is issue, merits of an undisputed unexhausted petition habeas here is one, petition held that the should “mixed” be dismissed so because it contains both ex claim such, hausted and unexhausted be reviewed unexhausted claims. As by the in state courts the first we find that it instance. Id. should be returned to state Thus, 107 S.Ct. at adjudication excep court for present of the claims tion in Granberry fairly is ed. narrow and the Supreme Court has quite clear that requirement for exhaustion of preferred exhaustion is the avenue and that jurisdictional remedies is not because state exceptions are to be for purposes narrow fully empowered courts are adjudicate fed only. rights instance; eral in the first it is essen tially a matter of comity. case, federalism and In this the state courts have an Greer, Granberry 129, 133-34, v. important U.S. serious, in reviewing interest 1671, 1674-75, 95 L.Ed.2d 119 unexhausted constitutional claim. O’Guinn’s (1987); Serrano, Duckworth Brady claim involves the conduct of a state (1981) (state (in L.Ed.2d prosecutor particular, his decisions re should opportunity be afforded evidence) first to cor garding withholding in a violation). rect constitutional Unless there is state trial in which prose the defendant was no process, available state or circumstances violating cuted for state law. Even if there exist that process render the presumption ineffective to not a returning in favor of (circumstances protect petitioner’s rights petitions court, not mixed to state this would be present case), in adjudicate a state can appropriate an case in which to do so. The petition and the entire is to dismiss weigh er course comity do justice and interests opportunity to the first allow the state courts decide having this Court favor presented. There is no adjudicate claims Granberry beyond the Extending question. courts will that the state undermines “unusual” case reason believe “exceptional” adequately or having unex- claims for not address O’Guinn’s preference clear the law’s mat- pursue court. Be- futile to these in state it would claims decided hausted deny the exceptional or should not no in state court. We presents case ters cause this circumstances, ad- it should be decide the opportunity state courts unusual in- petition in the first Accordingly, courts Brady the state claim. dressed adjudication prejudice without stance. dismissed instance. the first courts held the District Court note that We issues hearing some of the evidentiary MERRITT, Judge, concurring. Chief petition. habeas raised “exceptional” hearing is neither holding of a opinion per curiam I concur the Court’s provide does therefore “unusual” and judicial nor to exhaust state requirement on the unexhausted to decide for this Court grounds remands judgment effect Our remedies. Moreover, not a ease it was in this claims. exam- courts for further the case to the state question exhaustion hearing the of and full I have heard this the issues.1 now ination of by the District Court. never discussed twice, argued it was before when case once F.Supp. 779: See argued it was era again and when panel the my bane, closely. In studied it and court petition in state a has filed in the state view, and after all is said done court on adjudication by the state seeking courts, trial. must a new there be and federal holding is The state court Brady the issue. inter- complex, the this is and Because case pending the outcome abeyance in petition the issues and constitutional by play of the factual ruling While a proceeding. the federal of immediately, sepa- I write grasp binding difficult to be issue would not on this Court our if the rately for future reference to courts, prop- the record we believe the state on and stat- legitimate his finding of constitutional dissenting opinion, "ex- exercise Judge Boggs’ theory case, game in utory rights an exercise as disposition is oddity” this our of treme —as (a phrase First, ”try[ing] federal court” opinion. it fails luck judicial itself an unusual opinion proofs galley the after arguments liti- removed from recognize alternative to written) "[drawing] from arrow legal system, another and in cases in our gants are the norm cases, light O’Guinn’s life quiver” of not be both [his] should including penalty and death —makes are his counsel. simply different remedies and the efforts of rejected because the traditional job remedies to make sure that of is our is no election It called for. There poli- is our It corpus principles and no are honored. requirement cases of federalism in habeas of arguments the absence disfavoring based life is not taken in cy job see that simultaneous a rights merits. which the constitutional and the fair trial exhaustion to allow or granted are observed to the accused Second, Boggs' opinion even to Judge fails a serious unan- there remains an execution while point counsel notice of the or take mention is in accused question about whether the swered Brady issue only out about the found for O’Guinn charged. process of The guilty of crime fact the District discovery in the conducted a result of as reflection, trial, deliberation, and review were proceedings in court state Court after time, uncertainty takes and elimination error for fail- completed. O’Guinn's To fault counsel evi- to review new including it takes the time prior occasions” three ing at least to raise "on necessary. tradi- The becomes when it dence district state facts in fully com- process must tional deliberative many attorney to O'Guinn failed turn over life innocent to insure that plied with in order say How was disingenuous, to years least. is dignity pre- are of human the attributes and in state supposed unknown facts to raise counsel biological passion served face court? kill each species us to hostility that lead in our courts of the federal It not the is function process If this traditional reason. without other day passions political to the kowtow time, we reflection takes of deliberation only execution supply we swift decree that fallibility of light In must take time. guilty regard the accused whether without life of even the arena, judgment, better that it is human judicial trial. received a or fair years we while spared for a few guilty man be constitu- or social value there is no traditional making another fatal we are sure that ex- make rapid or requiring principle execution tional mistake. to O’Guinn’s life. To refer tinction human (1) pro- case should return to this and to extremely physi- O’Guinn was weak: No my colleagues vide assistance state court cal evidence ties O’Guinnto the victim or the my opinions contrary, Tennessee. While on these murder scene. To the binding physical issues are of course not on the state evidence found at the scene not as- courts, utilizing it is in the interest of best sociated with the victim brown were hairs judicial O’Guinn; affirmatively belong extensive resources that have did not (2) expended point Only on this case to date to two witnesses claim to have seen problems out the with the case as I see night them O’Guinn the victim the goes before it credibility. back to state court. murder and both lack One of testimony those witnesses has her recanted significant issues this case raise witness, cogni- the other due to severe questions about whether rights O’Guinn’s problems, tive and mental lacks credibili- during pre-trial were violated the trial and whatsoever; ty given The confessions process. Collectively, problems over- recanted, since reliability lack reliability whelm the of the conviction and cursory reading even on a because O’Guinn’s question raise a as to whether O’Guinn is statements, heavily when not coached actually murder, Cupples innocent police, completely inconsistent with the he maintains. This was a terrible crime and police facts known to the about the murder. it is understandable that the authorities in reliability of the confessions is also sus- Tennessee were anxious to find and convict pect impaired physical due to the and mental perpetrator. However, regardless of state of O’Guinn at gave the time he them. innocence, guilt he is entitled to totality This is the of the evidence used to vigilant a fair trial protection of his convict O’Guinn. rights. constitutional He received neither in this case. The facts Significantly, and circumstances man- O’Guinn’sname did not sur- provided date that O’Guinn be with a years new following face for two Cupples trial guilt murder, where his or innocence can despite investigation be by the Jackson fairly. tested police and the Tennessee Bureau of Investi- gation. only came to the attention perfect, While no trial alleged the errors of the Tennеssee authorities when he was simply this case are not technical errors arrested Alabama on an charge. unrelated impact no had on the outcome of the many Not one of the witnesses interviewed they egregious. When balanced trial — by law enforcement authorities in the weeks against the weakness of the evidence used to and months after the murder ever mentioned O’Guinn, convict weigh heavily. the errors the name Kenneth O’Guinn or described him. Those errors fully deserve to be examined police The many people interviewed who the merits. It question is not a of one’s night were at the bar the of the murder and opposition views favor of or in to the death at that time no being one identified him as penalty as a theoretical matter. Such consid- Furthermore, gathered there. erations are irrelevant. What matters is that the Tennessee authorities but withheld from rights the constitutional of a defendant have strongly counsel indicates that seriously violated and these constitu- others from the may Jackson area have been tional violations should go not continue to knowledge involved with or had of Sheila unaddressed. Cupples’ murder. I. Eyewitnesses A.

The Evidence Used to Convict totality against the evidence O’Guinn Was Weak O’Guinn at eyewit- trial consisted of two Kenneth O’Guinn was convicted after a given by nesses and the confessions O’Guinn. jury murdering trial of Cupples Sheila on That was the whole case. None of this evi- May Jackson, 1981 in Tennessee. I trustworthy. be- dence is peo- Out of scores of lieve wrong man ple have been who saw the victim at a local bar the convicted. The night murder, evidence used to convict of her two witnesses testi- what he unsure about was confused and ness with O’Guinn the victim having seen fled saw: admitted limited man of one a at the bar: a woman second and the abilities cognitive cross-examination: On police to curry favor with sought to

who deny saying that man was Q. you Do and later troubles legal own mitigate her medium build? in fed- testimony and admitted her recanted No, sir, say that did I? I didn’t A. at O’Guinn’s herself perjuring court to eral trial. has in his Agent if Q. Leach down So who Dunn, witnesses of the one Danny interview— O’Guinn, man of low is a against

testified probably I was back at that time A. Well and who attends read cannot intelligence who things, sir. about forth problems. mental facility to his due special murder, Q. Dunn Mr. Sir? 1981, shortly after man description of the police a given the probably time I said about was A. I & Cupples at the Hat Sheila saw with things, sir. them [sic] about back forth (the Jackson, bar where Cane describing you deny right. Do Q. All alive) night of her last seen Sheila man as dark headed? (6’4”) man with a tall He described murder. ... at that time. had dark hair A. He description is odds This a medium build. redirect: On of Kenneth physical description you about Q. counsel] asked [Defense weighed about 5’9” and iswho you [back mean ... do dark hair What murder. of the time pounds at ... that?] and forth fairly de- Dunn by Mr. description given at the bar “regulars” thinking several way scribes means in one A. It Sheila, including Bill way be friends known to way and sometimes— one another Although tricks, Mr. Dunn Del Ehrett. but at plays Dix and my mind sometimes with Sheila man he saw black hair. stated I did see the that time the man was these men and either of tricks, say plays it would you Q. When him, it be stranger” to should “complete ... darker sometimes? than fighter identify unable Dunn was that Mr. noted Yes, A. sir.... “regu- the other several of photographs from On recross: of Sheila. were friends who lars” at the bar plays tricks[?]” my mind Q. “Sometimes “regulars” at the many of the Apparently, strangers to him as well. Yes, Hat & Cane A. sir. Dunn testified surprising, as Mr. is not This Dunn, at 886-89. J.A. Testimony of D. Trial the Hat & frequenting been that he had testimony by a vacillating and confused This the at the time of weeks only for three Cane is now mentally defective witness know Sheila apparently and did murder has not against O’Guinn direct very well. See regular any of her crowd been recanted.2 Dunn, Testimony D. J.A.

generally Trial testify eyewitness only other Testimony D. Dunn Habeas and at 873-89 (now King Diana at trial against O’Guinn J.A. at employed Pitsenbarger). She Diana time of waitress at the & Cane testimony describing the Hat trial Mr. Dunn’s was tak- no statement Although the murder. night with Sheila is person he saw investigation, during initial her wit- en from and indicates very compelling confessed, Mr. custody and was in man lineup to Mr. Dunn photographic shown 2. The lineup con- picked out of O’Guinn questionable Dunn also years the murder was two after O’Guinn, one with pictures of two legality. tained reliability When first and both as its clothing. This wearing prison-issue person O’Guinn saw police pick out asked might constitute bar, well suggestive identification Mr. Dunn night at the Sheila with process O’Guinn’s due violation of another do so. After some could not that he stated rights. being told that coaching by police and (and years shortly two later after O’Guinn’s B. The Confessions murder), Cupples indictment Diana August 12,1983, On forty-two days after was arrested. Her connection to the Hat & incarceration, interrogations by numerous Cane came to the attention of police and least three law enforcement officers from two prompted her statement and subsequent tes- n states, counsel, without ‍‌​​​‌​​‌‌‌​​‌​​​​​​​​‌​​​​​‌​​​‌‌​‌‌‌‌​​​‌​​‌​‌​‍legal benefit timony. King Ms. testified at O’Guinn’strial physical a weakened state due to in 1985 that she danced with Mr. O’Guinn at illness, O’Guinn confessed to the murder of night the Hat & Cane the of the murder and Cupples Sheila in a series of oral and written him saw there In with Sheila. howev- statements. The suggest circumstances er, King Ms. recanted the identification of may falsely O’Guinn have confessed. At the gave recanting she at trial. In her confessions, time of the previ- O’Guinn had testimony, King gave Ms. affidavit ously sought help for serious mental and and testified at the habeas hearing problems. addition, emotional In he was ex- that she did not know Kenneth periencing excruciating pain from numerous would not have known whether he inwas tooth extractions and physical other ailments. night Hat & Cane on the of the murder. Ms. pain Due to extractions, from tooth King testified at the habeas hearing that she for which he had not given medication, been lied at trial police because had threat- O’Guinn had not eating or sleeping ened to arrest her some charges unrelated properly prior to giving the confessions. and she believed she help would if herself she physical condition alone makes the cooperated with them. reliability of the questionable. confessions any explanation, Without the District Furthermore, O’Guinn’s intelligence low King’s Court found Ms. testimony not credi- ninth-grade education reliability call the ble. In assessing however, credibility, her question confessions into the motivation and circumstances behind her made him susceptible pressures to the exert- testimony First, must be examined. byed the authorities. King’s Ms. name did not surface the inves- The actual text of O’Guinn’s statements is tigation and she was not interviewed about the most telling evidence of how unreliable knowledge her years of the case until two the confessions are. given The information after the murder. No contemporaneously- police O’Guinn to the about the murder against made record which to evaluate her simply comport did not with the information testimony Instead, exists. there is the testi- police. known to the reading the confes- mony given by a years woman two after the statements, sions and O’Guinn’s statements looking murder who was curry favor never “matched” what the authorities wanted police stated her affidavit recant- say him police until prompted or led ing her testimony that she would have said him. point At the that gave O’Guinn the they whatever wanted to hear at that time. confessions, he questioned had been and This does not very make for a compelling about Cupples coached the murder for weeks against witness King’s Ms. O’Guinn. motiva- and quite had obtained a bit of knowledge tions cooperating police with the at that police from the about the murder. His con- time are prosecutor’s clear the and need for reflect they fessions this in that are stated in cooperative a witness at that time also only terms, the broadest stating such as clear. Conversely, King Ms. came forward he choked Cupples, Ms. information he had voluntarily in 1991 to testimony. recant her from police. received the Whenever O’Guinn She was under no threat from the police at pushed details, was give invariably gave he and, time unlike in there was no at information odds with the actual facts and apparent motivation for her to lie her police, the receiving not they answer affidavit. wanted, would then coach O’Guinn until he my In judgment, testimony of these they said what wanted. two virtually witnesses is The worthless. only other confessions, evidence is O’Guinn’s discrepancies The in the details of the just which are as unreliable. many. confessions are example, For when comport with confessions clothing after details Sheila’s with he did what asked them. See police understood facts as the them he threw murder, said O’Guinn K. at J.A. O’Guinn generally Statements all her with was found As Sheila river. 269-305. if he asked O’Guinn clothes, police then thus in the river clothes her all of threw and mental physical compromised The his an- rephrase try to causing O’Guinn the confes at the time of of O’Guinn he maintained also confessions, swer. O’Guinn sions, of the well as the form and that hands his with strangled Sheila leading great a deal from resulted which shirt, long-sleeved wearing a blue was Sheila police, calls part of the suggestion on the strangled with in fact Sheila when reliability the reliabil question their into wearing. she halter-type shirt pink addition, as dis conviction. In ity of his at a killed Sheila that he stated O’Guinn also below, admissibility confes of the cussed indicates evidence when the station service did issue O’Guinn is at because sions in which in the field strangled that she was right to counsel he had the understand was found. she Supreme Court As the during questioning. history, learned ‘We have stated leading example of the following is The modern, system of crimi ancient coaxing and the of O’Guinn questions asked depend comes to law enforcement nal he did engaged when police in which run, will, long the ‘confession’ they way wanted: answer subject than and more abuses rehable less her you if choked Q. you remember Do evi depends on extrinsic system which else, something with hands or your through skillful independently secured dence Kenneth? Illinois, investigation.” Escobedo my hands. A. With 478, 488-89, 12 L.Ed.2d now, me honest with Be Q. else? What ...me you con don’t I cannot remember ... IA. cannot Physical Evidence C. my hands. her but anything on using at the physical evidence found I remember. can That’s all come from that did not scene crime (Can’t tape) Q. understand come that did not brown hairs victim I think think, now. sure I’m not for A. I fingerprints No O’Guinn. Kenneth from her I think took I for sure about ... I not to tie were used physical other She her neck. put it around blouse Lab FBI murder. to the O’Guinn 8/8/83 I think on and long sleeve blouse 343) (J.A. police conducted at Report. her neck. around used that test a voice stress tests and he detector two at J.A. K. O’Guinn Statement Cupples murder on concerning the rephrasing continued type of This tests, pohce Based on these in 1983. every occurred for answers questions and something knew that O’Guinn determined something ap- until confessions point fact, Cupples murder. about A given. desired answer proaching the when tests that the he detector during stated demon- statements reading of the careful brother, Robert staying with he was merely guessing O’Guinnwas strates that speak Robert O’Guinn, in 1982 he overheard say, him to wanted police what Sheila.3 killing girl named of where him to lead allow them appeared to sum, pointing of evidence pieces the few police the go. When they him wanted reliability. questionable are of to O’Guinn vacil- would question his answers would been legal that have Accordingly, the errors he didn’t remember say either and then late carefully reviewed by must be virtually no raised O’Guinn gave sure. O’Guinn or he wasn’t jury Robert grand indicted at the Spears, who were and Debbie 3. Michael pending indict- murder. The murder, Cupples the for night identified the the of Hat & Cane dismissed, was against O'Guinn per- Robert lineup ment photo the from Robert O'Guinn given Ken- to the confessions presumably due parking they Sheila the 15, saw son with whom 1983, Moreover, neth O’Guinn. July night. lot possible order to avert a miscarriage of procedurally barred from review of justice.4 these claims and changes others. The made definitions “waived” “previously

II. determined,” however, may affect consider- ation of O’Guinn’sclaims in state court. See Passage Recent of the Tennessee (h). § Tenn.Code Ann. 40-30-206(g), Post-Conviction Act Warrants a Remand to State III. May 10, 1995,

On Legisla- the Tennessee adopted ture the Post-Conviction Procedure Exculpatory Information Was Withheld Act, replaced which Tennessee’s then-exist- from the Defense ing post cоnviction statute. Tennessee Pub- O’Guinn’s Brady first claim is that the 1995, 1, lic § Act ch. Tenn.Code Ann. purposely prevented State two witnesses who §§ to -222. I 40-30-201 believe that the would exculpated him from testifying language post-conviction new the statute is (the Spears). This was only one of dismissing additional reason for the feder- Brady O’Guinn’s claims addressed petition. al repeals habeas The new law Court, District only briefly mentioned former Act, Post-Conviction Procedure ruled, the issue and explanation, without -122, §§ Tenn.Code Ann. 40-30-101 to in- against O’Guinn. 870 F.Supp. at 786. The cluding provision § waiver found at 40- District Court made no findings 30-112, regarding and substitutes a number of different documentary claims. Because provisions believe stating granted that relief this claim embodies one of the more serious “when the conviction or sentence is void or case, constitutional errors in this I will dis abridgment voidable because cuss the merits of O’Guinn’s claim as I right guaranteed see by the Constitution of Ten- them. nessee or the Constitution of the United §

States.” Tenn.Code Ann. 40-30-203. prevail To merits, this issue on the ease, In this a number (1) of issues exist that O’Guinn must show that the state with the State preclude seeks from review due exculpatory held evidence and procedural level, default at the state court evidence was Brady material. Maryland, example petitioner’s Brady 83, 87, claim under v. 373 1196-97, 83 S.Ct. Maryland, (1963). 83 S.Ct. Shortly after O’Guinn’s (1963), L.Ed.2d 215 his trial, claim of ineffective Court stated a new stan counsel, assistance appellate of trial and his materiality dard for of withheld evidence. claim that rights his Fifth Amendment “Evidence is material if there is a rea violated, and his claim language probability that, sonable evidence penalty Tennessee death statute effect defense, disclosed the result of at the time conviction was unconstitu- the proceeding would have been different. A tionally vague. The State asserts that these probability’ ‘reasonable probability is a suffi adjudicated claims have not been on the mer- cient to undermine confidence in the out its the state courts and that the federal come.” United States v. Bagley, 473 U.S. "map” 4. The so-called fact, referred at the end of iar. Other than this map does Judge section III. get B. of dissenting anything right. Batchelder's else opinion support argument. does her 5. At the time of early O’Guinn's trial in "map” supports the view that O'Guinn did not determining standard for materiality sup body know where the was simply found pressed specifically requested evidence making up places the facts. He body on a was whether the "might have affected road Highway that runs east from 45 when in the outcome of the trial." 427 U.S. Agurs, United States v. fact body was found at end of Conrad 97, 111, 2392, 2401, Drive which runs West of 45 and is much further L.Ed.2d 342 As will be demonstrated from the intersection of 1-40 and 45 than below, suppressed the evidence here materi map O'Guinn's shows. had been told - Agurs, Bagley Kyles al under Whitley, or v. that body the was found on a road side near an -, 1555, U.S. (1995). 115 S.Ct. interchange interstate with which he was famil-

1419 lawyers, the im- trial to O’Guinn’s 3384, 481 available 3375, 87 L.Ed.2d 667, 683, 105 S.Ct. in the many people named of the evidence, as of portance as well (1985). Impeachment would not Brady potential witnesses evidence, the falls documents within exculpatory 667, the statements apparent without Bagley, 473 U.S. been v. have States rule. United (1985). possessed the 3375, 481 information the other L.Ed.2d and 87 105 S.Ct. to materiality not whether looks of State. question have resulted would suppressed evidence the addition, about had trial counsel In the absence in the but whether acquittal,

in of capital for a case. prepare to months two a received the fair defendant information avail- and resources the limited time Given 97, 427 Agurs, v. States United trial. counsel, to choose a they forced able 2392, 2401, L.Ed.2d 342 49 111, S.Ct. 96 strategies on which to of number limited added). (1976) (emphasis to be- led for O’Guinn was Counsel focus. require- the Brady is based rule entire O’Guinn they the that received lieve is not purpose Its process. of due ment “redacted” not some prosecutors, from file primary the adversary system as displace only portion the mate- containing a of version uncovered, but to truth is by which means understanding that of light In their rials. justice does miscarriage of ensure file, O’Guinn’s entire they had received 675, Bagley, U.S. at 473 occur. to believe no reаson had counsel the dis- recognizes simply Brady 3379-80. They had other evidence. prosecution defendant between in resources parity aware that been have therefore would play- attempts to level the and State and the evidence, al- exculpatory other there Here, in addition extent. ing to some field uncovered, they should look. ready field, fail- playing creating an unbalanced addition, known the infor- of had counsel In have may well documents disclose ure to documents, likely it is in withheld mation being uncovered. from the truth prevented have at trial would their focus part of that, case stated Supreme Court A recent failure to important, changed.6 More reviewing materiality, a assessing trial counsel documents left over the turn the withheld collective effect to assess or im- effectively to cross-examine unáble present light the evidence has evidence of Here, the collective witnesses. certain peach — U.S. -, Whitley, Kyles v. at trial. ed evidence, particularly withheld effect 1569-70, 131 -, S.Ct. relatively weak against the juxtaposed when added). When (emphasis L.Ed.2d 490 trial, confidence undermines evidence a determination leads to an assessment such claim guilty verdict. out in the trial’s confidence that undermines his consti- him deprived evidence withheld trial. to a new come, is entitled the defendant sup- well process is to due right tutional in the Thus, of the the weakness Id. ported. Bra makes the against O’Guinn ease State’s per- other that indicate records Police The evi important. particularly dy issue to commit opportunity a motive had sons likely would from O’Guinn withheld dence face, are, on their question crime in minds a reasonable doubt created have thus, material, must exculpatory made they been aware jurors had Evidence to the defense. over turned nor it. Neither fraction of even other someone seen with last victim was should, have knew, could his counsel likely to raise defendant, which is Al than withheld. information about the known and is juror’s in a mind doubt reasonable may have names some of though (failure 1992) either (6th inves counsel Cir. exactly how much clear on is not record 6. The consti promising witnesses tigate or interview counsel trial O'Guinn's independent information strategy); v. Blackburn negligence, not trial tutes Foltz, named many concerning the individuals 1987) (lawyer (6th Cir. F.2d the event documents. withheld to investi failed apparent reason no knowledge who had for independent counsel did important alibi potentially gate a known docu- withheld of the information some assistance), provide effective had failed it, witness claim pursue O’Guinn's failed ments denied, rt. is even at trial of counsel ce assistance ineffective stronger. Tate, 99 L.Ed.2d 957 F.2d Workman both material exculpatory, therefore was understanding from the conversation that withheld in this case. Another document subjects eventually “these kill did [Sheila].” prosecutor failed to turn over con- Dees, (J.A. Interview with Renee TBI 9/12/82 tains 558-59). information that someone other than at the defendant confessed to the murder. This Ms. Dees’ statement partially corrobo evidence would also unquestionably fall with- rated several other withheld statements Brady progeny. and its exculpatory that are of O’Guinnwhen viewed large Due to the number of statements not cumulatively or in relation to other informa disclosed, only (1) some the most exculpatory tion: William Dix owns a blue van and and material among documents from those came to the Hat & evening Cane that

withheld are summarized below. These Stewart, van with blue Alice one of the wom (1) statements are material because had de- reportedly en at the motel. Statement of fense counsel had access Dix, (J.A. information William 514-16); TBI at 11/4/81 prior to likely trial isit that the preparation Stewart, (J.A. Statement of Alice TBI 11/4/81 (2) would have been different and (2) 543-44); at an informant stated saw s/he testimony of certain might witnesses getting ready Sheila to leave the Hat & Cane discredited, been questioned, at least with Bill Dix night of the murder. Jack raising a reasonable doubt as to O’Guinn’s son Notes, Police Handwritten dated 5/28/81 guilt juror’s ain mind. (J.A. (3) 372); at a woman informed the police Jackson that she saw a van blue and a cousin, 1. Thе victim’s Couples, Joannie car hit approximately at 1:00 a.m. parents threatened Sheila and her the week parking lot of the Hat & Cane. before Jackson the murder. As Sheila par and her (J.A. Police Notes, Handwritten ents undated leaving Cane, were at Hat & Joannie (4) 370); Patricia knife, Moncier also brandished stated that threatened to cut Sheila Joannie knew more than she yelled saying. Sheila’s they mother and and/or left Note, Jackson you!” “I’ll Police kill Handwritten Johnson, Interview of Pamela undated (J.A. 376) (J.A. at TBI 525-26); patron at of the Hat & 11/2/81 Sworn state Strain, ment Cane also of Robert stated that report TBI Sheila and Alice Stew 11/10/81 (J.A. 565-68); art arguing at had been Sworn at bar statement of James earlier Stanfill, (J.A. Earl evening TBI and when 461-63); patron at Ms. saw Stew 1/4/82 Interview with art Phillip day the next Tosh TBI she scratches her 5/25/83 (J.A. 562-64). at There is neck. Wayne also Interview evidence that with Johnnie How (AKA Sheila and ‘Wildman”), (J.A. Joannie ard fighting were Joan TBI over at 11/2/81 523-24). ex-boyfriend, (AKA nie’s Dell Ehrett “Apple Jack”). Sworn statement of Pamela Jean 3.Debbie Spear, patrons Michael Johnson, (J.A. TBI 532-35); at 11/3/81 Sworn Cane, the Hat & saw a man and woman (J.A. 458-60). statement of Dell Ehrett scuffling in parking lot about the time 2. Four murder, months after the Joan- reported Sheila was last seen. The man said nie Cupples admitted to being involved with the woman going with him whether she Sheila’s murder. Joannie confessed Re- wanted to or not. The man holding nee that on night Dees of Sheila’s mur- woman close to him and dragged then her der, persons in a blue van abducted Sheila towards blue van lot. parking and took Sheila to the Lakeview Motel.7 Spears woman the described matches that of Joannie, mother, Joannie’s Fay and Alice Cupples shirt, Sheila (pink pink pants and (also Cox Stewart “Wagon”) known as glasses). The man left in a white blue there. Ms. Dees indicated that it pickup was her truck tailgate. with no State- 11/2/81 Cupples 7. Joannie also contradicted ly her first were turned over O’Guinn’s counsel. The statement when she said she had not to the significance however, discrepancy, may night Lakeview Motel the of the murder. Com readily apparent not have been to defense coun- pare Cupples Statement of Joannie and Pam evidence, sel without benefit other much of Johnson, (J.A. at 351-53) Jackson Police 5/24/81 withheld, that Joannie have been in some with Statement Cupples, of Joannie TBI 11/5/81 way involved with the murder. (J.A. 535-42). These two apparent- statements is mate- information withheld the that where (given Spears Debbie and of Michael ments like the punishment, guilt or rial to either (J.A. 530- at 527-29 separately) police to here, acted in the state whether information 31, respectively).8 a to whether faith is immaterial or good bad Spears the of Corroborating the statement Brady, 373 occurred. process violation due (1) some- said Betty Porter following: the is is uncon- It at 1196-97. at U.S. holding a lot parking a the man one saw requested counsel trial tested that the headloek, dragging woman in a woman or in in whole “that any documents copies of pushed woman as another the lot across of defendant innocence part support captured from behind as woman captured It is in nature....” exculpatory are and/or go.” Jackson cried, me let “Please woman what gave counsel the state uncontested (J.A. at Notes, 6/3/81 Handwritten Police complete file as a represented a blue owned 375) Del Ehrett D.A. to from Woodall Letter Cupples ease. at the gate no tail truck with pick up white 409). (J.A. at Martin, dated P. 11/21/84 Notes, Handwritten Police Jackson time. copied that he testified for O’Guinn Counsel Ehrett, 377). Mr. (J.A. As to at undated a except for given he was file that the entire Mr. alibi of discrepancies noted police that, It is uncontested photographs. few between concerning his whereabouts Ehrett counsel’s defense comparison of a based on morning of a.m. and 3:00 a.m. 1:00 received documents file with Ehrett, TBI of Del Interview See murder. habeas during the federal through discovery 458-60). (J.A. at 11/4/81 withheld many documents process, patron stated A & Cane Hat 4. Thus, the trial. before from O’Guinn Henderson, Tennessee from a man heard evi- exculpatory withholding of material “narcing” for killed had Sheila that he state strong possibility dence creates Ricky Glenn of statement him. Sworn on differ- might have been the trial of outcome 536-38). (J.A. at Erwin, TBI 11/3/81 ent. not true is are statements these Whether issue Brady. The purposes issue for IV. of these statements existence is whether of Counsel Assistance Ineffective the defense to been disclosed have should trial. a fair receive O’Guinn to for order Assistance Ineffective A. O’Guinn’s any of part or of all contents Had Procedurally De- Been Has Not Claim trial, it at to testified been statements these faulted could doubt reasonable that a very possible is them before will now courts The state Further- juror’s mind. in a have been raised they issue, decide can important this de- strategy more, not doubt I do directly or whether it to address whether used defend counsel fense waived. determined previously it deem knowledge oth- by their lack influenced subject assist should this law on The federal trial The suspects and events. possible er undertaking. this courts in the state “had course different might have taken prosecutor’s by the been misled provides defense general, corpus, Habeas at Bagley, response.” incomplete claims constitutional review federal up to defense It at 3384. determined —in previously been that have evidence, but through go ruling counsel on the words, has there been other to do the material have all must federal courts. by the state merits job properly. claims review constitutional may also courts claim has whether it is unclear where its failure arguments The State’s contrast, determined. previously been unintentional materials was over these turn on decided has claim where a held has Supreme Court unavailing. The are credi- The District Court’s 786. testi- hearing, F.Supp. the Spears Court At the District extend to does not appear determination bility failure regarding appear their fied regarding made statements Spears earlier District to testify. O'Guinn’s murder night the murder. observations their not credible. testimony found grounds, such as waiver or procedural other fairly claims appeared to primarily rest default, the federal will courts review resolution of claims, those [federal] or to (unless claim there is prejudice cause and claims, interwoven with those and did default). case, In this the state court of clearly expressly rely and on an inde- appeals rejected a number of O’Guinn’s pendent adequate and ground, state a fed- claims with the blanket statement eral court address opinion. claims had been “waived or previously deter- Id.; see also Caldwell v. Mississippi, 472 Among mined.” these or previously “waived 320, 327-28, 105 U.S. 2633, 2638-39, S.Ct. 86 determined” claims was O’Guinn’sineffective (1985) L.Ed.2d 231 (presumption of federal assistance of counsel claim. The ar- State jurisdiction on habeas review where state gued to this Court that the state court of court’s appears decision to rest primarily on appeals found the claim waived. The record law, federal absent a clear express and state demonstrates that there has been no state- ment that the decision is based on indepen ment the state “clearly courts ex- and dent state grounds); Michigan Long, v. 463 pressly” resting the denial of the claim on a 1032, 1040-41, 3469, 103 3476-77, S.Ct. procedural ground state such as waiver. 77 (same). L.Ed.2d 1201 The Court Reed, In v. Harris 489 U.S. 109 S.Ct. clarify went by stating pre 1038, 103 (1989), L.Ed.2d Supreme sumption in applies Harris “where a federal Court procedural made clear that default court good has question reason to whether does not bar consideration of a federal claim there is independent adequate state on habeas review unless the last state court ground for Coleman, the decision.” 501 U.S. rendering judgment “clearly in the case at at S.Ct. expressly” states that judgment its rests on a procedural state case, bar. Harris The conclusion that O’Guinn’s ineffective petition filed a in Illinois state court for post assistance claim has not been waived sup- conviction relief based ineffective assis- ported by the record. In its order concern- tance of counsel. The state trial court dis- ing post-conviction O’Guinn’sfirst appeal, the petition missed the and the Illinois appeals trial found, state court sponte, sua court affirmed. appeals court, while Petitioner did not assert that his trial at- concluding that Harris could have raised his torneys in the State Tennessee were ineffective assistance claim review, on direct either ineffective at trial appeal.... or on stating that those issues that could have [T]here was no testimony elicited at the presented on direct review are consid- hearing directly attacked compe- waived, ered went on to consider Harris’ tency of Petitioner’s Tennessee counsel. claims on the On merits. federal habeas Further, the Court affirmatively finds claim, review of Harris’ Supreme Court the evidence that the Petitioner did from concluded that the state court decision rested receive the effective assistance of counsel primarily on federal law because the Illinois provided by Mr. Patrick Martin and appeals court did “clearly and expressly” Mr. Charles Farmer [O’Guinn’sTennessee rely on ground waiver as a for rejecting trial and direct appeal counsel].... Harris, Harris’ federal claim. 489 U.S. at opinion is of the that Petitioner was (“[A] procedural de- provided with effective assistance of coun- fault does not bar consideration of a federal sel and that both experienced trial claim on either direct habeas review un- attorneys represented who Petitioner com- less the last state rendering judg- petently ably and on appeal. ment ‘clearly case expressly1 states that judgment its rests on a state State, O’Guinn v. C-87-23, No. Slip op. 2at procedural bar.”). Similarly, in (Tenn.Cir.Ct. v. Coleman 5,1988) July added). (emphasis Thompson, 722, 735, appeal On ruling, the Tennessee court (1991), appeals spoke to the issue of the effective- Court held that ness O’Guinn’s pre-trial counsel, Alabama if the decision of the last state noting court to that O’Guinn “finds no fault with trial petitioner which the presented his federal counsel[’s failure to raise the ineffectiveness reasoned been one there has where indicating a counsel], pre-trial Alabama claim, later rejecting a federal judgment claim assistance any ineffective belief judg- upholding that orders unexplained counsel’s pre-trial Alabama regarding upon rest claim rejecting the same ment or State waived.” had been performance opinion If an earlier ground. the same (Tenn.Crim. 243, 246 S.W.2d on feder- primarily rest “fairly appear[s] in no However, this statement App.1989). proce- no presume that will law,” ... we al set statement court’s the trial disturbs way aby subse- been invoked has dural default above.9 out leaves unexplained order quent the support simply cannot here record The place. in consequences judgment or its ineffective Tennessee that O’Guinn’s notion To the 803, at 111 S.Ct. at U.S. been deemed has claim counsel of assistance court of by the state the decision that extent the Although courts. by the state waived post con- second regarding O’Guinn’s appeals the blanket made appeals court Tennessee “unex- to be read can petition viction remaining of O’Guinn’s all that statement “waived of the words to use due its plained” of assistance the ineffective (including claims determined,” only sources the previously or claim) “waived either had been counsel may refer reviewing court a federal to meaning the within determined previously post first the opinions from the earlier are 40-30-112,” State § T.C.A. of sim- opinions These proceeding. conviction May (Tenn.Crim.App. 58740, *1 WL the “expressly” dismiss be read ply cannot Tennessee by the 1990), statement 9, this of Tennessee assistance ineffective claim of expressly “clearly and not does court appeals Further- grounds. procedural on counsel adequate state and independent on rely Coleman, the case, in more, unlike in claim, required as the to decide ground” explanation for plausible the most notion that This in Coleman. reaffirmed and Harris that the state is dismissal court’s state the num- declining review statement blanket on state rested appeals’ decision court of fact, ample reason claims, prоvides in of ber The supported. simply not law is procedural the ineffec- of the denial whether question only one the explanation plausible most —and waiver, a was based claim assistance tive just opposite. record —is the supported determination previous or a ground, state of inef- of a claim review court’s A federal violate not did conduct counsel’s that consistent is of counsel assistance fective a fed- rights, which constitutional O’Guinn’s federalism, comity and re- principles The lan- on habeas. review court must eral rulings finality state court the spect for court the employed guage “clearly ex- court has state where the earlier the light of inat looked appeals, views on for its basis law a state pressed” regard- courts by the state pronouncements does not claims of these Review the issue. court federal gives petition, ing first rule well-settled way contravene is an there whether question good reason pro- state defer should courts that federal for ground independent state and adequate clearly they are where rules default cedural decision. determining state court by the upon relied to ad- only state court claim. has not a federal the claim that conclusion assis- ineffective directly O’Guinn’s Supreme dress supported also is waived plain not make claim did Nunnemaker, counsel 501 tance of v.Ylst decision Court’s sub- No Harris. under required 2590, 706 statement L.Ed.2d S.Ct. ruling. disturbed state day sequent Ylst, same In decided express” and of a “clear lack Given stated Coleman, Supreme Court hand, Coleman, on the other In as review. also referenced law was that state fact 9. The on state clearly relied Supreme Court Virginia "fair- the decision negate that order does appeal. Petitioner petitioner’s dismiss the subject law to therefore law is on federal ly rests” thirty appeal outside had filed Coleman day Long, Caldwell Like review. Court's to this explic- Virginia limit Harris, the state court invoked law was state sole- for dismissal motion manner, itly granted the State’s but in some this case opinion in is not grounds. That procedural ly indepen- on state "adequate ground was not the case here. habe- preclude federal necessary ground dent” statement barring (11th review of the claim in Cir.1991), denied, cert. 504 U.S. procedural federal court on grounds, the fed- duty eral court has a (same). to review ineffective as-

sistance of counsel claims. states, many Like mitigation investigation in Tennessee literally is of life and death B. O’Guinn’s Received Ineffective Assis- importance, if the mitigating evidence tance Counsel at Sentencing insufficient, the defendant is sentenced to case, death. In this As to the each of claim, merits O’Guinn’s O’Guinn’s two it is attorney’s thought clear other handling was at sentencing counsel investigation of mitigating was ineffective. evidence order to be to succeed in this presented claim, sentencing phase must show first, two things: trial. result, As a virtually performance mitigating counsels’ no deficient, second, about petitioner O’Guinn was prejudiced discovered or there presented. by. O’Guinn’s sentencing hearing Strickland v. Washington, conducted immediately (1984). guilty after the L.Ed.2d 674 Coun verdict Only returned. witness, sels’ total failure to one investigate O’Guinn’s mother, O’Guinn’s background was called and the wealth behalf of of mitigating evi O’Guinn and she dence that very general asked found, there to be if they had questions look, about bothered to O’Guinn’s amply childhood. A satisfies these two reading of requirements. the direct ap- examination takes proximately 90 seconds and fills less than At the sentencing phase trial, capital three pages of transeri.pt. This failure on the jury must consider the facts and circum part of his attorneys goes beyond ineffective. stances of the crime and the character and It strikes closer to total incompetence. As background of the defendant. Lockett v. the District Court noted: Ohio, 586, 604, 2964- The hearing on petition O’Guinn’s dis- (1978). These facts and closed that Mr. thought Martin that Mr. circumstances “any must aspect include Farmer would investigate the sentencing the defendant’s character or record and factors. Mr. thought Farmer he was of the circumstances of the offense that the in charge of the sentencing argument, and proffers defendant as a basis for a sentence no one investigated background. O’Guinn’s less than death.” Id. This is because “[t]he Considering importance of a sentenc- Eighth requires Amendment jury be ing hearing, the failure to investigate and able to consider give and effect to all relevant put on mitigating evidence amounts to the mitigating evidence by petitioner.” offered performance deficient of counsel. Boyde California, v. 377-78, 870 F.Supp. at 785. This was no 1190, 1196, 108 strategic L.Ed.2d 316 choice not to present However, evidence, mitigating the Constitution merely does not which would at least require Here, be defensible. that whatever mitigating evidence attorneys utterly failed to proffered even look considered, for be requires also anything that would jury cause a to counsel consider reasonably investigate the facts of giving their client a life sentence rather background defendant’s than and present then death. such evidence to the extent it is available. guilt/innocence As phase trial, The prejudice fail resulting from counsels’ fail- ure even to investigate present or ure to investigate mitigating present and mitigation evi- evidence at sentencing may dence is clear. constitute inef The District Court listed fective assistance of some of Tate, counsel. Glenn v. evidence that could have been (6th 71 F.3d Cir.1995) (counsel presented 1206-08 on behalf of O’Guinn: provided ineffective assistance where infor case, had counsel investigated mation presented jury to as sentencing background character, they because counsel made virtually attempt no presented could have strongly mitigating prepare sentencing for phase); accord Blan evidence upon based jury might co Singletary, 943 F.2d 1501-02 have refused impose the death penalty. was nonexis- put to death be should evidence, jury would O’Guinn Summarizing this deci- a reasoned make counsel Nor did up tent. grew have considered for tactical information to withhold his sion abused parents His poverty. abject reasons. sexu- physically both and him siblings parents His childhood. during their ally adequately prepare The failure behavior criminal alcoholism

brought trial, coupled with sentencing phase from away ran family. O’Guinn evidence, into mitigating present failure life. escape his home repeatedly home assistance counsel in ineffective resulted trauma lasting emotional He suffered is case, we know In this what sentencing. while accidentally woman killed when he electric in Tennessee’s will die a man O’Guinn eventu- truck. carnival driving by jurors decision made of a as a result chair sup- regularly to worked ally married carelessness who, of the utter because children, but three their wife and port his counsel, missing crucial constitu- were trauma emotional additional he suffered ex- pitiful This required evidence. tionally affair with [his wife] when hearing justi- cannot mitigation for a cuse marriage. their up and broke father courts up to It now fied. same is additional There is- they will revisit this whether determine character. sue. evi “additional This at 786. F.Supp. children neglect. The included dence” Y. house out of the kicked at home left either Knowingly and Not Were Confessions The diagnosed was O’Guinn basis. regular on a Given, of Intelligently in Violation while nervous breakdown a being near as Rights Amendment Fifth parents’ his of because school grade still refuge attempted to seek circumstances factual O’Guinn to the actions. In addition were conditions the above, because doubt homes call into which at relatives’ described so confessions, legal was bug infestation the The home. poor reliability at so of O’Guinn’s testimony, admissibility that O’Guinn’s the con- of bad, according concerning question problem caused not for an ear did treated at issue. O’Guinn also father fessions is taken right residence to counsel that large roach he had by “a understand Superseding Petition the confes- and thus questioning, ear.” up during [his] inside (J.A. intelligent, n. 47 Corpus at 92 knowing Habeas of for Writ sions 108). con- plotted crimes even This O’Guinn Amendment. at the Fifth of violation believed he Investi- caught testimony because of being of on the hopes based clusion is suppression improvement. be an Duffey. life would At the Tennessee prison gator Duffey stood Investigator hearing, testimony ad- this evidence on Based (made under oath statement earlier hearing, the evidentiary habeas duced at he in which hearing) suppression Alabama concluded: Court District how to obtain not know he did admitted jury consid- that had finds he admitted and where lawyer O’Guinn evidence, a reason- there exists this ered July, he spoke to O’Guinn that, he when it would probability able could not O’Guinn told might have of for murder to die O’Guinn sentenced to court. until he went have counsel preju- establishes a This Cupples. Sheila performance, specific counsel’s deficiency in no court made dicial Tennessee trial Although of O’Guinn’s violation in a point. resulted which on this finding whatsoever counsel of assistance effective found right to the Court the Tennessee sentencing. findings is court’s the trial “implicit in misrepresented Duffey never Investigator are conclusions at 786. These F.Supp. counsel,” State right defendant’s than go no further entirely reasonable (Tenn.1986), O’Guinn, 709 S.W.2d where not a case require. This the facts transcript merely speculation, this is circumstances mitigating hearing reveals suppression the Tennessee as to whether doubt raise a reasonable might that no such finding ever made. In O’Guinnhad not charged with that mur- addition, contrary to the assertions, der, State’s and due to similarities Cup- between the the District rely Court did not ples facts out- murder and murder, the Alabama side Although the record. Jackson, reference was Tennessee Police decided come to made by the District Court to testimony question Alabama to O’Guinn about Cup- given at O’Guinn’s suppression Alabama ples July 11, 1983, murder. On Investigator hearing, the transcript actual of which was Blanton Jackson, from the police Tennessee not entered into Tennessee, record traveled to question Huntsville to suppression Tennessee hearing transcript about Cupples murder. Investigator contains specific numerous references to the Blanton conducted two lie detector tests and testimony. Alabama Investigator Duffey a voice stress test concerning the Cupples was confronted with portions the exact of his murder on presence O’Guinn outside the testimony Alabama to which the attorney. District Court made reference at the Tennessee hear- tests, Based these Investigator Blanton ing. It entirely proper for the District determined that O’Guinn something knew closely portions examine those about the Cupples fact, murder. suppression Tennessee hearing that re- during stated the lie detector tests that when ferred previous testimony. Alabama he was staying brother, with his Robert holding After hearing, District Court in 1982 he overheard speak Robert found the facts relevant to O’Guinn’s Fifth of killing girl named Sheila.10 Based on Amendment claim as July follows: On information, Investigator Blanton took a 1983, O’Guinn was arrested the Sheriffs hair sample from O’Guinn. The hair sample Office of County, Madison Alabama for the did not match with the hair sample found on rape and assault an Alabama woman. body Cupples. Sheila Duffey, Alex an investigator with the Madi- month, Over the next investigators from County son Office, Sheriffs informed both Alabama and questioned O’Guinn of his Miranda rights, which O’Guinn repeatedly about the Alabama and O’Guinnwaived by signing form, a began murders. August On questioning him rape about the and assault. O’Guinn’s court-appointed attorney for the days later, Several in an effort to see if rape and charge, Sandlin, assault Mark told O’Guinn any had information about un- investigators they question could O’Guinn solved 1982 murder, Alabama Investigator matters unrelated to rape Duffey asked if O’Guinn he had ever killed assault outside Mr. presence. Sandlin’s anyone. O’Guinn stated that if he was to be August On O’Guinn asked to see questioned about murder he to wanted have Investigator Duffey. Investigator Duffey an attorney present. Investigator Duffey er- again administered Miranda warnings and roneously informed O’Guinn that in order to questioned O’Guinn about the murders. have counsel appointed him, O’Guinn implicated O’Guinn himself in the Alabama would go need to to court. O’Guinn reason- charged. murder was O’Guinn was also ably believed from this information that the questioned on August 12, 1983, by Agent only way he could obtain legal assistance was Leach of the Tennessee Bureau of Investiga- to be charged murder, which would Agent tion. Leach did not advise O’Guinn of result in a court appearance where he could his Miranda rights because Investigator Duf- request court-appointed counsel. fey told him that he had already done so that O’Guinn could not make bond on the Ala- day. O’Guinn confessed to Cupples mur- charge bama so he remained in prison. day. der that Upon learning that O’Guinn was from Jack- At the suppression Alabama son, hearing, Tennessee, In- Investigator Duffey contact- vestigator Duffey testified as follows ed the Jackson con- Department Police July cerning the July events of 1983: 1983. The police Jackson were told about murder, the Alabama despite the fact that On cross-examination: supra 10. See n. 3. Duffey and O’Guinn’s Investigator tween you, to af- express not

Q. [O’Guinn] Did counsel: rights, or at him of his advised you had ter it him, because that advised you time On cross-examination: need going to was felt he he murder time the first you remember Q. ... Do lawyer? inter- your interview or you raised when but have, I remember don’t He could A. possibility of Mr. O’Guinn rogation of have. he could murder, or Alabama committing a either

Tennessee? O’Guinn you Mr. told not what Q. Is that July the 4th. A give they would yes, that occasion on this got to court? lawyer when him Now, at a certain it true that Q. isn’t if he went him that may have I told A. had Mr. indicat- that point in time him appoint would courts court going to contin- you were you that if ed to one. he better have discuss murder ue to O’Guinn, 462 So.2d Alabama State of lawyer present? (Ala.Crim.App.1985). 1052, 1058 sir, my knowledge. No, A. sup- testimony at Alabama Further was a there correct Q. Now it is as follows: hearing by O’Guinn pression Huntsville, before Alabama hearing in times any subsequent you ever Q. Did [sic] Mueller regarding the Judge Page him, other questioned you when there? down case murder advised you were when investigators, question- Yes, subsequent sir. rights prior A your attorney? for an again you ask ing, did suppression fact, was a again Q. inAnd sir, the understand- No, had because A. not? hearing; was it get I could court before go ing I Yes, sir. A. one. you you to ask I’m Q. going Now —show court found Alabama Id. you if I’ll ask suppose. first I a document right to counsel. effectively denied suppres- [Alabama in that you can recall suppressed Alabama statement you made the hearing that sion] crime, relating statements O’Guinn’s could say that or did Mr. O’Guinn of his waiver explicitly that finding lawyer pres- [he wanted said that intelli knowing and to counsel was right ent]? Investigator by misled he was gent, because that saying sir, No, I remember don’t A. had O’Guinn that Duffey’s original statement down suppress evidence to motion the going to court. without to counsel right no an request he asked did I was there. misapprehen this found The Alabama my knowl- him to told not attorney and I questionings subsequent all the sion infected August on the interview because in edge to response made in any statements and Wayne O’Guinn Kenneth 12th the against used not be could questions those tape, by on rights me his advised O’Guinn, So.2d State O’Guinn. his understood that he he answered and Apparently, (Ala.Crim.App.1985). knowledge did my time to no rights. At Alabama tried for never O’Guinn attorney. for an Wayne ask Kenneth murder. as to relevan- by objection the State After an motion pretrial also made Martin, counsel, continues Mr. cy, O’Guinn’s the four suppress to trial court Tennessee court: exchange with the in an case, Cupples con- given in confessions was stated in time it point ... At a Duffey misin- Investigator tending that Duffey] Mr. that [Investigator his and right to counsel of his him formed mur- discussing the they were when knowing fact not therefore waiver could said, lawyer “I want could have ders suppression At intelligent. point,” ... this exchange occurred be- following hearing Id. After exchange another with lawyer and at my no time to knowledge did he State, for the Mr. Martin ques- continues to ever ask for attorney. an Duffey: tion State Tennessee v. Hearing on (Jan. 3, 1985) Motion to Suppress 30-36, Q. Agent Duffey, this is appears what added). J.A. at (emphasis 779-85 be a page pre-trial cover of a motion to suppress in the Circuit Based on testimony, Court if this [sic] Madi- one could reason ably conclude, County, Alabama, son as along Court, did the District that (1) Duffey a page standing by is numbered RT-38 of earlier testi (where mony he hearing_ may he Does admitted your this told recol- refresh O’Guinn that he get could not you lection that counsel until did indicate dur- in fact court), (2) went Duffey was assert ing hearing Mr. O’Guinn ing that on August O’Guinn never re have in asked a lawyer you when fact quested Attorney. F.Supp. at 783-84. began discussion murder case? 2254(d)(8)11 Section of the habeas statute [objection ... by State] states that factual findings made the state Yes, A. sir. presumed court are to be correct unless the factual determination supported Q. your Is that testimony, Investigator record. contends, The State incorrectly I Duffey? believe, that in arriving at this reasonable Yes,

A. sir. ... I’m denying I made conclusion regarding testimony of Inves the statement. There was one statement tigator Duffey, the District Court failed to that came out the [Alabama] suppres- defer to the state court’s factual findings and motion, sion Mr. if O’Guinn had asked for (2) improperly relied on information from the an attorney, I would know how to have Alabama hearing that was not in the Tennes appointed him one. At that time had to see state court record to find that O’Guinn’s answer, no, sir, I did not know how.... waiver knowing was not voluntary. At that ignorant time I was to the facts [of First, the District Court did not fail to get lawyer how when someone re- defer to Tennessee court ruling; factual quests one]. duty fulfilled its to ensure that findings of the trial court supported by record, so, doing merely interpreted a Q. point But is, though here Investi- totally vague finding in a manner consistent gator Duffey, that day you say with the state court Although record. [O’Guinn] could have made this statement state trial court had ruled the confessions you about wanting an attorney, you did admissible, it did not any specific make credi- your not cease interrogation and go did not bility findings findings detailed of fact get the court to an attorney. to how it conclusion, arrived at this nor did it A. I do not August remember —On ever mention the fact Alabama state 12th when [O’Guinn] made the statement courts previously ruled on very pertaining this, placed it was tape, same issue.12 On appeal, direct the Tennes- 11. provides The statute part: in relevant 12. findings The court, of the Tennessee trial entirety, their are as follows: any proceeding in a instituted Federal court by application an for a writ of corpus habeas Mr. position O'Guinn takes the that even ..., a hearing determination after a the though rights him, on the were read to he felt that issue, of a merits by factual made State court he lawyer couldn't have a until actually he competent jurisdiction of ... pre- shall be went into court he might was told he as correct, sumed to be applicant unless the shall questions well the they answer asking were appear, establish or it respondent shall or the him. shall admit— I think Mr. O'Guinn also mentioned the fact (8) or ... the Federal on court a consider- that one sentence of the warning Miranda was part ation of such of the record as a whole not read to him. The officers stated a number concludes that such factual determination is they of times statements, that did read these fairly supported by not the record. and it be would unusual for all of them leave 2254(d)(8). § U.S.C. point. out that one meaning to simply giving is Court District stated, using the same Supreme Court see opinions opinions where those its the Tennessee to reach used District Court the record clear as to perfectly themselves do not make findings: legal ruling at to the relevant a fact that is render judge did not Although the trial knowing the confessions pre- hand: have whether we would findings, as detailed intelligent. trial court the ferred, that it is obvious law testimony the two the accredited clearly Second, demon- the record the that of not officers enforcement Duffey Investigator strates, testimony of the misinformed defendant, was that he explicitly re- hearing was at the Alabama Implicit Duffey.... investigator Duf- hearing, and to in the Tennessee ferred investigator findings is court’s his earli- shown with and fey was confronted misrepresented defendant’s Duffey never testimony, Alabama The statements. er counsel. right to court rec- therefore, part state the (Tenn. 709 S.W.2d State properly considered and was in this ord case con 1986). Supreme Court’s Tennessee if Accordingly, even Court. by the District “implicit” made an the trial court clusion that transcript use the did District Court dem Duffey’s actions regard finding with the testi- substance not does matter —the finding factual an actual lack of onstrates without refer- be mony used properly could could defer. Court the District simply read- transcript ring actual to the not discuss did Supreme Court Tennessee testimony the Tennessee at ing Duffey’s testimony at Duffey’s findings about make clearly part of that is hearing —material acknowl hearing, where he Tennessee been a it had not Even if record. have told might edged that he record, made District Court part of the went to until he not have counsel he could if Tennessee finding the alternate court’s deferring to the trial While court. testimony at find trial court did Duffey, the Dis credibility to assignment of hearing O’Guinn on between suppression to make sense still trict Court other on the Duffey and Leach one hand and Duffey’s first asser way. testimony in some clearly conflict, finding would such I made denying “I’m not tion was: F.Supp. § at under erroneous that if told may have him T [that statement transcript sworn testimo- contains n. 10. The ap courts would to court that he went by a law enforcement oath ny, given under Hearing Mo on lawyer] him.’].” point [a found courts Tennessee officer that the (J.A. 1985) (Jan. at 34 Suppress tion to testimony relates credible, and the to be was, “... 783). On assertion Duffey’s second issues directly to constitutional one the state made [O’Guinn] 12th when August cor- Thus, if the State even this case. this, placed on it was pertaining ment testimony not Alabama rect knowledge did my no time to tape, testimony Court, the the Tennessee before (J.A. at Id. attorney.” at 36 ask for ever fact of which a new be considered could in both 785). telling the Duffey truth If judicial notice. properly took Court District can instances, statements then these kind prohibit the 2254 does Section lawyer request a O’Guinn did mean that Court by the District here done review might have 12th, that he but August conclusion District Court’s agree with the Thus, District one earlier. requested ground as well. this alternate findings held, reasonably, that no Court agree with District I also made could have did confessions suppress the the failure to August 12. than other to dates courts as error, as the confes- harmless not result in asserts, ease, where as the State is This damaging evidence the most constitute sions findings alternative supports two the record very little other there was a trial where at court’s rejecting is and Court this above, rea- no As described at all. The findings. own of its finding in favor That’s all. and be should overruled the motion I think (Jan. Suppress Hearing on Motion present Tennessee going to be allowed the State (J.A. 844). 3, 1985) 95at statements. these sonable trier of fact would have found than sufficient to warrant a trial new for guilty beyond O’Guinn a reasonable doubt Kenneth O’Guinn. solely based on the other evidence at trial. BOGGS, Judge, Circuit dissenting. appear Tennessee courts to have fo- I Judge leave to Batehelder’s excellent le- only cused so far on the fact that O’Guinn gal analysis questions relating to the was rights advised his Miranda numerous substantive petition merits for a writ during times questioning that led to his corpus. habeas I separately write to em- confessions. Counsel did not focus their at- phasize the oddity extreme of our resolution broadly. tention more Because of this omis- case, of this and way in which the court sion, the Tennessee courts apparently did not prisoner’s uses the own missteps tactical regard the earlier misinformation legally reach outcome favorable to him. my

relevant. opinion, the Tennessee duly Mr. O’Guinn issue, courts sentenced to should on death focus this as did the by a jury Tennessee more years District than eleven As Court. the Alabama state court ago. having After had all and the found, District his entreaties correctly if the rejected separate on three trips through effect of the given misinformation to O’Guinn (direct legal system Tennessee by Investigator Duffey appeal July 1986, post-conviction cured, 1987-89, never relief in none of and subsequent these waiv- post-conviction second 1989-90), ers relief knowing were intelligent and and each finally chose file a every petition statement habeas made O’Guinn dur- in federal court in ing ensuing October 1990. period There is might five-week no indication that investigative been a violation of and discov- his Fifth Amendment ery tools that rights. developed the Accordingly, alleged- material do not believe that ly supporting the Brady claim during O’Guinn’s confessions knowingly were federal court proceedings intelligently given. did not also exist

the two state proceedings that O’Guinn pursued had for previous years. three YI. having After the case under advisement for two years, and one-half the district court case, In this the coached nature of the favor, ruled O’Guinn’s indicating that not confessions and the circumstances under only was the invalid, death sentence but that they obtained, coupled with the trial new point, warranted. To this unreliability facial only two witnesses prisoner, prosecutors the state (presumably who can connect crime, O’Guinn to this is a representing the interests of the State of pathetic amount of evidence which to sen- Tennessee), and federal district court had tence a man to die. egregious constitu- (or perceived raise) had not chosen to tional violations are overwhelming: large problem that the federal corpus peti- habeas quantity material, exculpatory evidence tion contained an unexhausted Brady claim. (a was withheld from the defense claim which only arose as a result petition and the happy Petitioner was victory, discovery which petition ‍‌​​​‌​​‌‌‌​​‌​​​​​​​​‌​​​​​‌​​​‌‌​‌‌‌‌​​​‌​​‌​‌​‍permitted); attorneys representing the interests of utterly counsel present failed to any mitigat- Tennessee, the State of apparently hoping to ing evidence at sentencing where ample evi- succeed on the merits of position, their did existed, dence in violation of right not press yet another proceed- round of effective counsel; assistance of ings courts, but appealed to confessions were not given knowingly and this court. panel When a of this court decid- intelligently because gave the time ed the case in it reversed on the merits been, them he remained, misin- and directed that dismissed, the writ be thus formed right counsel, about his placing a clear O’Guinn on a direct track toward violation of his Fifth rights. Amendment (in only execution. It was point fact, at this While there well other violations of a after an petition en banc had been magnitude constitutional that have granted) not been that O’Guinn’scounsel drew another addressed, analyzed the three here are more from quiver by arrow their raising Brady op- by allowing the State initial justice of petition post-conviction state in a third claims alleged upon and correct pass portunity to appeals effect, (in round a fourth rights.” courts). prisoners’ federal violations state Duckworth, at 19. however, did not O’Guinn point, At this request- by position logic of this the pursue was not that this Granberry indicated rule habeas action federal of the dismissal ing the where the situation It considered absolute. for more than pursuing been he had now that in the district raised issue was non-exhausted the Thus, maintained years. five object had not court, of Illinois the State court If en banc the worlds. of both best court of there, object the did before but ed posi- substantive to the persuaded could be refused Supreme appeals. judge on the dissenting the by held tion requirement an abso make the exhaustion judge, then O’Guinn by district the panel consideration, regard appellate lute bar however, If, the merits. would succeed (a would rule that circumstances less of the go- argument was the merits that appeared opinion). Granber per curiam vindicate prevail him, might able to be he ing against It at 1674-75. ry, 481 U.S. should not be that there argument on the failure the state’s also refused make whole at all but conclusion merits (a absolute below an waiver raise the issue court, thus state go back to should process would, ironically, the asserted serve rule that it had been to where returning the situation in this of Tennessee of the State interests Furthermore, if years earlier. six at least case). Instead, appeals it directed Ibid. ad- concluded proceedings then those state weigh the circum a situation to court such to re- be able he would versely to case, in the context of wheth stances case to the (presumably turn to district be request for remand should er the State’s re-commence judge) and same district granted. they been October where proceedings (indeed, did not face did not The Court be more would now only that he save of) situation, our possibility contemplate the to a natural death. years closer six than seeking re- prisoner is himself where Duckworth imagine that I cannot issues that for consideration mand opinion per curiam Granberry, cited court, while State raise state failed to 5, supra, ever page proposition at appeals court to requests the of Tennessee per curiam a result. intended such has defendant very issues decide Duckworth, I correctly paraphrases brought to us. afforded be the state “should agree, quote did Supreme Court While [a] to correct constitu- opportunity first [the] say exhaustion of earlier cases language fact, graciously In violation.” tional “exceptional” or are required unless there oppor- such courts three gave the Tennessee circumstances, quoted none “unusual” tunities, to raise neglected time but each case that exceptional contemplate the cases Brady issue. defendant, tak- perhaps have, where the we actually Granberry Both Duckworth panel to the from the dissent guidance ing a defendant where instances address opportunity an additional opinion, seeks courts to end-run the federal trying to use on at least has failed that he claims exhaust Duckworth, defendant In state courts. course, raise. Of occasions prior three corpus granted a writ habeas succeeded, stratagem has such now that that had aon claim Circuit Seventh anything but very likely be will such cases fed- court or the raised either state exceptional. unusual Court, court. The eral district representatives Granberry, official argument of State petition and upon the level at the state “comity and federalism” Indiana, should prisoner held to ad- opportunity seeking the state’s claim exhaust required to Here, representatives those claim. dress a the exhaus- especially noted It court. of his the benefit give O’Guinn wish to do not fric- to minimize “serves requirement tion It approach. win, lose” you tails systems “heads federal our state and tion between very type strange “comity5’ seems a of because the characterization of the in facts prisoner truly allows use the breath separate concurring opinion sup- is not taking gain record, footwork at issue here to ported by an opinion and that the years law, additional six of time in which nothing errs in its statement of the I think the happened great effective will have in separate concurring opinion flow go should not penalty juris chart of federal death habeas unanswered.

diction. See J. Tabak and J. Ronald Mark Lane, Legislative Judicial Activism and “Re I. Corpus: form” of Federal A Habeas Critical night 23, 1981, May On the seventeen- Analysis Developments of Recent and Cur year-old Sheila Cupples was at the Hat & Proposals, rent 55 Alb. L.Rev. Jackson, Tennessee, in Cane Club celebrat- Finally, per opinion correctly curiam ing graduation her high from school with her holding states the Court’s Gran- cousin, Cupples, Joanie and two other berry declining to resolve an unexhaust- During friends. evening, Sheila drank question may particularly ed appropriate beer, pills, took a few Darvon and danced “if important the case involves an unresolved By with several men. different eleven question of fact or state or where law there is o’clock, seriously Sheila was intoxicated and important state interest at ....” stake helped to the restroom her cousin 1412). case, (Op. however, In our Joanie, who said straighten Sheila needed “to question unresolved is NOT one of state law. up.” The last Joanie saw of Sheila was at Any question unresolved question is NOT a midnight, when she standing by saw Sheila fact, save perhaps the minds of the the entrance to the dance area near the front appellate judges supporting concurring Club, exit of looking as if she were opinion. Finally, important state interest waiting for someone. at stake here would seem to repre- be best witnesses, Danny Two other Dunn and Di- itself, sented the state which in Granberry (now King anna Pitsenbarger), saw Sheila remand, sought but finality which here seeks midnight. Danny around was outside the of decision. Sheila, Club when heavily he saw in a intoxi- Therefore, agree while I legal with the state, trip cated motorcycle. over a Danny reasoning Judge Batchelder, and of the helped up, Sheila male, and Sheila left with a majority original panel, of the specifically Danny whom years identified two later as dissent grounds as well on the per Kenneth O’Guinn. Dianna remembered opinion’s curiam Granberry use of here is dancing with night, and later completely contrary to language its in- saw together. Sheila and O’Guinnleave tent. early morning May hours of

BATCHELDER, Cupples brutally Sheila raped Circuit Judge, afternoon, dissenting. murdered. That body her naked was found at the end of a dead-end street I must respectfully dissent. For the rea- a field. top Sheila’s halter wrapped follow, sons that agree I cannot tightly around her lay and a neck tire iron principles comity require and federalism between her legs; outstretched her face had the State of given Tennessee be severely, been beaten body and her dragged opportunity adjudicate Brady into the field. sexually Sheila had been pen- Further, my view, claim. if majority etrated a blunt object. metal or wooden opinion the court is of the that this habeas Investigators people interviewed several who petition should be dismissed because con- before, night had seen Sheila the but made claim, tains an appropriate unexhausted progress little on the case. course for the simply court to take is petition, dismiss the attempting without O’Guinn was July arrested Alabama on advise the state 4, 1983, courts or the federal district in connection investigation with the court what their resolution of the rape multitude and assault of an Alabama wom- However, issues in ought this case to be. an. Duffey Alabama investigator informed

1433 detaüed confessions gave the first of several ques rights and Ms Miranda O’Guinn Cupples. Later Duf the murder of Sheüa assault/rape case. to about the him tioned gave a state- possible day, handwritten in O’Guinn’s O’Guinn interested same fey also was murder, ment, detailing Miranda including Alabama a of Ms unsolved in an involvement regarding confessing Cupples to murder. gave rights, a statement so after O’Guinn 1983, case, Duffey 15, gave asked O’Guinn another assauli/rape August O’Guinn On con anyone. O’Guinn to killed handwritten confession had ever and another if he oral right Ms to coun he then invoked AU four were murder. confessions tends SheUa’s O’Guinn never sel, Duffey jury asserts that A convicted O’Guinn while at trial. admitted could lawyer. O’Guinn aggravated a Because degree murder and requested the first charge, he assault/rape post FoUowing bond on deter- rape Cupples. of Sheüa charge. jail on jury remained was asked to guüt, the same mination law, determine, to pursuant Tennessee un- between the similarities to factual Due im- penalty the death should whether murder, murder and Sheila’s Alabama solved only additional evidence offered posed. The 11, investigator Blanton July Tennessee on phase was to penalty m the the State to interview O’Guinn. Alabama went juror photograph a of Sheüa’s each show warn- again given Miranda O’Guinn viewing of the body found. The as it was death. Sheila’s questioned about and ings a visible effect photograph horrific had test, wMch polygraph consented to O’Guinn jurors. sentenced to death O’Guinn was the facts as to guilty knowledge revealed murdering Cupples. Sheüa for confront- When surrounding Sheila’s death. brother, tMs, that Ms said O’Guinn ed with ap pursued trial counsel direct O’Guinn’s (Robert) O’Guinn, that he had said Robert Both the peal conviction and sentence. of Ms upon tMs informa- Based Mlled Sheüa. had by the sentence affirmed and conviction pursue tion, decided to police the Tennessee Court, and the Umted Tennessee as O’Guinn and Robert both Kenneth further peti Supreme Court denied O’Guinn’s States murder. suspects Sheüa’s State v. of certiorari. See tion for writ (Tenn.), O’Guinn, сert. de 709 S.W.2d 561 10, agent Leach August Tennessee On 244, nied, 871, L.Ed.2d O’Guinn, who question to Alabama came by the appointed had counsel by tMs time regard him in represent Alabama to State post- 1987, petition for In filed O’Guinn case. murder unsolved Alabama to the court, court and the in state conviction relief attorney and received contacted this Leach coUateral Byrd pursue tMs appointed Mr. Leach ad- to talk with O’Guinn. permission evi After an conviction. on O’Guinn’s attack rights Miranda before of Ms O’Guinn vised hearing, dismissed dentiary the court him. interrogating Court and the Tennessee petition in jad from sent word August O’Guinn On See State Appeals affirmed. Criminal Duffey Duffey. wanted to talk with O’Guinn, (Tenn.Crim.App. 786 S.W.2d Duf- investigator Leach. in Tennessee called 1989). demed appeal Permission of Ms Miranda O’Guinn again advised fey Supreme Court. the Tennessee interrogation O’Guinn during this rights, a second pro se filed O’Guinn murder. Alabama implicated himself in state relief post-conviction for petition Duffey’s place as day, Leach took Later appointed court. Counsel began question interrogator, without an petition was dismissed Leach Cupples murder. about the O’Guinn hearing. Tennessee evidentiary Miranda warn- new not admmister did dismissal, Appeals affirmed of Criminal warnings admimstered relying on the ings, Supreme Court in 1990 by Duffey, and on day earlier petition for review. O’Guinn’s demed Duffey acknowledgment 12, 1990, in fed- filed On October rights and that he was him his advised habeas a writ of petition for court a freely and eral to Leach statement giving Ms 7, 1992, filed a su- August session, corpus and During voluntarily. tMs perseding petition. holding After evidentia petition pursuant mixed v. Lundy, Rose ry hearings 17-19, 1992, on November

January 20-21, 1993, the district federal (1982), in which the Court held that a habeas conditionally granted the writ of habe- petition that contains both exhausted and corpus grounds: on two ineffective unexhausted claims must be dismissed in its assistance of at sentencing counsel in viola entirety. The Court ruled that for reasons (2) tion of the Sixth Amendment and a Mi comity of and efficiency there were to no be Dutton, randa violation. O’Guinn v. piecemeal adjudications more of collateral at- (M.D.Tenn.1993). F.Supp. 779 ap The state 518-20, tacks. Id. at 102 S.Ct. at 1203-04. pealed, cross-appealed and to a Rose, Subsequent 1987, to three-judge panel panel of this court. The Greer, reversed the grant Granberry district court’s Court decided v. conditional 481 U.S. 129, petition grounds, of the habeas on both and 107 S.Ct. petition ordered that denied its Citing Lundy, v. Granberry Rose held that entirety. Subsequently, ruling of the failure State’s to raise nonexhaustion vacated,

panel was and the case was submit invariably does not waive defense. Id. at court, sitting ted to the full en banc. 133-34, Rather, 107 S.Ct. at 1674-75. held, Supreme Court appellate the federal majority opinion The holds that because courts must look at each case in which the petition O’Guinn’s Brady Mary contains a non-exhaustion defense was not raised before land, L.Ed.2d the district court and decide whether the (1963), claim that was not raised in the justice comity interests of require and that courts, state the petition must be dismissed. petition the habeas be dismissed for failure I will address this issue first. exhaust, to or require that the federal court proceed to consider merits peti of the

II. 134, 107 tion. Id. at at 1675. A. Mixed Petition Granberry clearly rejected the notion that petition alleges O’Guinn’s the state Rose v. Lundy requires every petition obligations violated its Brady by under re- containing an unexhausted claim must be moving exculpatory evidence from its files dismissed the federal court. Id. at allowing before inspect defense counsel to Furthermore, S.Ct. at 1674-75. Gran- copy those files.1 Petitioner did not berry recognizes that nonexhaustion is a de- Brady raise this claim prior time state, fense available to the which the state this federal proceeding, habeas and the State to, to, fail elect not raise. Id. at argues on that proce- basis that the claim is 107 S.Ct. at 1675. Where the state fails durally responds defaulted. O’Guinn that he defense, raise the “appropriate is for the was able to discover the claim after appeals court of a fresh take look at the utilizing discovery procedures first available issue,” id., and to consider entire habeas in this federal purposes habeas action. For petition, including an claim, unexhausted if following analysis, I will assume that justice the interests comity of require O’Guinn has not Brady exhausted his claim.2 action, particularly course where question, therefore, is there has hearing whether been a full in the district petition entire should be dismissed as a court unexhausted claim. groups

1. The four alleg- Speaking only myself, documents/statements I would note that one edly (1) of opinion Cupples Judge Boggs’s contained evidence the reasons I separate concur in Joanie assumption is cousin, that if the is correct involved in the murder of her Sheila O'Guinn had available him in the (2) state Cupples; court police that former Jackson officer post-conviction proceedings investigative murder; Harper (3) Richard was involved in the discovery yielded tools which would have Cupples that Sheila was killed because she was claim, underlying Brady information his but providing information about the distribution tools, failed to utilize those exhausted, then that claim illegal drugs; O’Guinn, peti- Robert petition and no issue of a mixed brother, tioner's killing. was involved in the arises. hand, always has on the other hearing in the case, was a full there In this seeking prerogative of first relief claim. The on the unexhausted court district Instead, state court. Brady claim in the the district proceedings before record first federal chose to file claim testimony numerous wit- he from includes court Although has in fact also with- claims of court. relative nesses post-conviction yet another state superseding filed and records. held evidence Granberry’s petition, it is a distortion bound vol- accompanied by two petition is comity reasoning principles and the to an affidavit attached documents umes of peti- to dismiss this habeas The affi- now federalism counsel. from O’Guinn’s principles. of those in the name of the files tion compares the contents davit during the state given he was access opinion court’s Finally, the district while of those files contents to the proceedings the issue of exhaustion not address does discovery con- district court when the only part in Brady claim addresses the that there is not claim does O’Guinn ducted. opinion state at only summarily, that does sup- presented in to be evidence further in raised that of all of the issues the outset claim; rather, expressly Brady port of his any merit. petition, two had the habeas that all of the appeal on in his brief states proceed- of these the district court record As the merits necessary to determine demonstrates, amply all of the evidence ings is in the record. of claim support in considered seeks to have history Brady of the exhaus- before the district claim was Explaining of decision supported the Court’s court. doctrine tion the ex- middle course between

to take district court did To the extent that the an in- treating nonexhaustion of tremes Brady claim on its mer- part of the address of of the merits consideration bar to flexible its, not an abuse of I that was would hold it treating the state’s petition and an habeas v. to do so. Weaver for the court discretion procedural bar nonexhaustion as silence (6th Cir.1989) Foltz, 1097, 1100 888 F.2d raising the from first the State precluding Granberry allows “federal (recognizing that Granberry Court appeal, defense in discretion decid- to use their sound courts Lundy: v. quoted Rose exceptions to make ing the waiver issue and Hawk, 114, 64 U.S. S.Ct. [321 Parte In Ex petition doc- of mixed application in (1944)], reiter- this Court L.Ed. 572 the extent Lundy.”). And to of Rose v. trine comity basis for the was the ated explicitly ad- court did the district principle con- “it is a doctrine: exhaustion Brady remaining aspects of the dress the to the corpus petitions trolling all habeas of claim, the interests I hold would courts, will inter- courts those federal would be better comity federalism justice in of the administration fere addressing on the them by this court’s served only ‘in rare eases where state courts merits. ur- peculiar exceptional circumstances ” shown to exist.’ gency are Brady Alleged Materials B. 134, 107 at 1675. Granberry, S.Ct. 481 U.S. withheld argues the State Tennessee, prerog Here, whose the State in violation exculpatory evidence material defense, to raise the nonexhaustion ative it is 83, 83 S.Ct. Maryland, U.S. Brady v. petition dis have this asked to has never (1963). For the rea 1194, 10 L.Ed.2d 215 court can determine so that the state missed above, will review O’Guinn’s forth I set sons claim. Where of the unexhausted the merits Brady on the merits. claim principle not seek to have does the State recently restated Supreme Court The in seeks to comity applied, and fact determining Brady violations in standard merits, the federal on its heard petition — -, 115 S.Ct. Whitley, Kyles v. hardly said to be “inter- court can habeas (1995): 1555, 131 L.Ed.2d justice in administration ferfing] with the material, and constitutional [EJvidence to hear proceeds courts” when the state by the suppression from error results its petition. Id. the habeas noted, “if government, prob- there is a reasonable making its determina that, ability had the evidence materiality Kyles, been dis- tion of that it had “eval defense, closed to the tendency result of the uate[d] and force of undis proceeding would have been different.” closed evidence item item.” Id. at - n. 10, 115 S.Ct. at 1567 n. 10. The Court then at -, (quoting Id. at 1565 United separately evaluated the evidence’s “cumula 667, 682, Bagley, States tive purposes materiality.” effect for the 3375, 3383, (1985)). analysis Id. will follow this method of aspects Court then went on to discuss four present case. determining “materiality” involved under this standard. 1. Undisclosed Evidence First, materiality the Court stated that During investigation death, its of Sheila’s require pre “does not demonstration the Tennessee Investigation Bureau of ponderance suppressed that disclosure of the (“T.B.I.”) Jackson, Tennessee, police and the ultimately evidence would have resulted department took from statements numerous at -, acquittal_” the defendant’s Id. Although many individuals. statements were Rather, 115 S.Ct. at 1566. a court looks to turned over to some statements see whether the absence of the undisclosed containing arguably information favorable to trial, evidence the defendant “received a fair not disclosed to him until dis- as a resulting understood in a verdict covery in proceeding. this federal habeas worthy of confidence.” Id. The Court held a probability” “reasonable of a different Spearses’ Testimony a. The government’s result is shown when the sup First, prosecution did not disclose pression of evidence “undermines confidence sworn statements from Michael and Debbie in the outcome of the trial.” (quoting Id. Spears given 2, to the T.B.I. on November 3381). Bagley, 473 U.S. at 105 S.Ct. statement, In his sworn Michael The Court “materiality” next stated that is Spears said that when he and Debbie arrived sufficiency-of-the-evidence not a test. at the &Hat Cane around 12:15 or 12:30 on words, other the defendant does not have to night murder, sitting he saw a man that, discounting inculpatory show after on the hood of a “fussing” girl. T-Bird with a light evidence, evidence in of the undisclosed He having described man as somewhat there would be insufficient evidence to con long, hair, sandy-colored mustache, and a Instead, vict. the defendant establishes a beard. girl blonde, He described the as Brady violation “showing that the favor heavyset wearing pink flowery and top and able evidence could reasonably be taken to pink pants. Michael stated that he and Deb- put the light whole case in such a different as bie they went into the club and when left at to undermine confidence the verdict.” Id. a.m., around 12:50 a.m. to 1:10 the man and at -,115 S.Ct. at 1566. girl “fussing.” were still He stated the man getting he described was into a Third, the Court held that once constitu white, pickup late-model truck with tail- no error Bagley, tional is found under there is gate. He could not remember whether the no need for further harmless-error review. girl got into the truck. Fourth, the Court Bagley held that materiali ty suppressed is defined “in terms of evi Spears’ Debbie statement said when collectively, item-by- dence considered not she and Michael left the Hat & Cane at 12:45 at -, item.” Id. a.m., 115 S.Ct. at 1567. Evi a.m. or boy 1:00 she girl saw a and dence is collectively considered “having because a boy words.” She said that the constitutional violation holding girl does occur each telling going her she was government time the way evidence. with him withholds one or the other while she tried Instead, prosecutor the burden is on the get boy loose. She described the hav- as “gauge likely ing net effect all such shaggy evi shaggy brown hair and a beard dence and point make disclosure girl having light when brown hair probability’ ‘reasonable glasses. is reached.” Id.

1437 the essence suspect.3 This information was respect occurred Brady violation No Had Martin called the Brady “is concerned of their statements. statements. to these government trial, testily could have Spearses eases only with which the defendant forming information possesses the events the basis inquired about not, failure government’s and the does composite description and Spearses’ for the deprives the defen the information disclose of Robert. their identification v. Mul States a fair trial.” United dant violation, Brady Even if there had been Cir.1994). (6th lins, 1371 22 F.3d Spearses’ testimony likely that the it is not “a Thus, occurs where Brady violation no testimony of the have undermined the would known the ‘knew or should defendant with Shei- who saw O’Guinn other witnesses advan permitting him to take facts essential at the district Spearses la. The testified any exculpatory information’ tage of testimony by hearing, including to defendant court habeas is available the evidence where v. States found that their proffer. source.” United The district court from another (citations (6th Cir.) incredible,” Clark, F.2d 738 testimony “completely denied, 846, 112 omitted), S.Ct. cert. thoroughly impeached.4 they had been 885, 112 L.Ed.2d clearly finding erroneous. More- This in For 116 L.Ed.2d over, regarding testimony proffered their Todd, stance, 920 F.2d in United States night of the murder their observations (6th Cir.1990), Brady no viola we found materially sworn from their earlier differed government did not disclose tion where statements. knew the defendant witness statements but instance, evidentiary hearing, For at the exculpatory potentially witness had before her they that both knew Sheila stated Id. at 405. information. Cupples, dated Joanie murder. Michael Here, be Brady violation there was no statements cousin. Their earlier Sheila’s counsel, Martin, one O’Guinn’s cause pink, in and Mi- merely described woman necessary to discover facts the critical knew says explicitly that statement chael’s earlier Spearses. the possessed information testified at know Sheila. Michael he did not Spearses had assisted knew Martin hearing that he the district court habeas composite of the drawing in police 11:30 Hat & between arrived at the Cane composite resembled that suspect and night the mur- midnight on the p.m. and also knew that Robert O’Guinn. Martin a.m. der, at a.m. or 12:30 rather than 12:15 photo Robert from a Spearses had identified taking her now was a The man with Sheila had been graph knew Robert on the despite had confessed knowledge, him that because O'Guiim Martin had this 3. Because murders, testimony contention, Debbie’s his and Brady stand to viola- was no O'Guinn’s there they Michael could leave. was not needed respect of the to nondisclosure tion with testimony saying he feared his concluded Jury Counly Grand Indictment Madison sealed claiming safety to be an seal, because a for his woman O'Guinn, placing it under the Order Robert with agent, not connected who in fact was F.B.I. Attorney District to a letter from the State T.B.I., recently him had contacted the F.B.I. or requesting Attorney the issu- States the United testimony gave similar case. Debbie about the flight against warrant Robert of an unlawful ance hearing. O’Guiim. put revealed dis- Testimony State testimony and Debbie that he 4. Michael's aspect Spears- every of the crepancies in almost morning stop on the at a truck Jackson arrived in testimony. prosecutor at O’Guinn’s trial es’ 21, 1985, testify trial. January to at O’Guinn’s agent to a one T.B.I. that he had sent testified that, arriving, upon he called the dis- He stated up Spearses, the T.B.I. stop pick but truck agents driv- attorney’s four T.B.I. trict office and of ice road because agent’s vehicle slid off the shortly ing tan cruisers arrived appeared unmarked Ford Wit- Spearses at trial. never and the Michael testi- take to court. were not thereafter to them that trials State nesses for the testified agents building the State drove them to and that Supreme that the T.B.I. Court fied held in reasonably building took nothing could there was or surveillance with a surveillance as a to a conference characterized conference them room County Last- Courthouse. adjacent where Madison to a court room room in the window located Michael, did that the T.B.I. According ly, witnesses progress. two State testified a trial was in later, at that agent not use tan Fords time. thirty told minutes a T.B.I. around that, pickup van instead of a towards a blue white cates that Dees also told the T.B.I. truck. Debbie likewise had not mentioned party, the same Joanie had told Dees’s cousin Finally, van earlier. in blue contrast story night a different about the of the mur- testimony, his earlier Michael testified that der. club,

by the time he left the and the Sheila Additionally, Johnnie Howard told the gone. Spearses’ man were Because the testi- T.B.I. Sheila and Stewart had been ar- mony easily, could be discredited so it is night guing the of Sheila’s death. William unlikely exculpated it would have Dix told the T.B.I. that he and Stewart went had it been offered at trial. night to the Hat & Cane that Dix’s blue police van. The Jackson had a lead that Suggesting b. Statements ready Sheila was seen Dix on leave with Others Were Involved night. The undisclosed information contained Dell Ehrett told the T.B.I. that he left the which, according from statements witnesses just Hat & Cane with a “Debbie” met O’Guinn, implicate others in mur- Sheila’s around 1:00 a.m. a.m. night 7:30 people gave der. Several statements to the the murder and that he went to “Debbie’s” T.B.I. that on the weekend before the mur- trailer. This woman was later determined to Cupples argument der Joanie had an Scott, be Diana who stated that she had not Sheila’s mother and father front of the Hat left with Ehrett but had waited her trailer & Cane about Sheila’s whereabouts because until he arrived at around 2:30 a.m. to 3:00 underage. during Sheila Sheila arrived a.m. argument. eyewitness One stated that pulled mother, Joanie knife on Sheila’s but To the extent that this information con- leads, another stated they appear that Joanie threatened to cut tained to have been fol- person up by Sheila with the knife. investigators. One stated lowed To the extent yelled, you,” that Joanie “I’ll kill as Sheila pro- information could have been parents away. trial, and her drove in an Handwritten duced admissible form at it is not police likely notes from Jackson said that about that it would have had effect on 1:15 a.m. or night jury. 1:30 a.m. on the Most of the evidence about Joa- murder, a man sitting saw Joanie ear they her nie’s threats indicates that were direct- Hat parking looking mother, & Cane lot sick ed towards Sheila’s with whom she “shaking dog.” like a fighting. Joanie testified trial that whiskey, she drank beer and and took two Renee Dees told Septem- the T.B.I. that in pills night Valium and four Darvon of the (she party thought ber someone at a murder, likely cause of her sickness. No Joanie, probably but Dees had been too in- implicates other credible evidence Joanie sure) toxicated the time to be had told her any respect. Dees could not be certain of 1) person that an put unidentified had the source of the information she heard and drug Cupples’s unidentified in Sheila coke Finally, it is not believable in event. 2) murder, night of the that Sheila had anyone actually there is no that evidence saw 3) drinking nothing night, but coke that Sheila leave the Hat & with Dix Cane that persons unidentified had taken Sheila Ehrett. into a parking blue van in the lot of the Hat 4) Cane, & the van hit a car Implicating Harper c. Evidence Richard 5) parking lot leaving,5 as was that the van went to a motel Dorothy information, where Sheila’s aunt The T.B.I. had which it did (Joannie’s mother), Cupples trial, Alice Cox Stew- not disclose at the time of O’Guinn’s room, art and Joanie indicating and all of Harper, that Richard a former 6) nude, officer, them were police that Sheila tried to Jackson was worried that he person leave the room but brought might who have killed Sheila since he had been her to the motel would not let her leave. too drunk to remember what he had done report The T.B.I. night of the Dees statement indi- of her murder. This information has 5. Police night. notes did corroborate the fact that a van hit a car at around 1:00 a.m. on that III. exculpating little, weight in O’Guinn. any, if Harper’s room- including persons, Several dissent, I of this As indicated at the outset Harper had arrived mate, the T.B.I. told remaining issues raised address disap- that Sheila the time home around appeal only separate because the T.B.I. also Cane. The from the Hat & peared concurring opinion undertakes to instruct on mentally Harper was had information I do not believe that that those issues and links whatsoever No evidence unstable. in its statements relative opinion is accurate own other than his Harper to the murder to the facts or the law. might have done while what he fears about drinking. Warninys A Miranda Sanders of Wanda

d. Statement claims that while he was incarcer- O’Guinn Alabama, proffered given O’Guinn he was inaccurate One statement ated unworthy cre- completely right counsel. exculpatory is information relative to his T.B.I. that requested told the Sanders does not contend dence. Wanda died, interrogation Sanders during any hours before Sheila ses- several counsel threatening Rather, July heard “voices” after 4. he claims that he was in bed and sions later told “narMng.” Sanders so but for a statement Mil would have done Sheila “voices” but allegedly July had not heard 4 Alabama investi- police that she made together facts she merely put Duffey pro- could not be gator that O’Guinn instead attempt to aid in an to court. on the street vided counsel until he went had heard police admonished investigation. The held, separate court and the The district Clearly, this “aid.” refrain from such her to by Judge concurring opinion filed Merritt way in no affect the State’s statement could misinformed agrees, that O’Guinn had been against O’Guinn.6 case right to the nature of his counsel about right to the waiver of his have counsel Kyles Analysis under during questioning was therefore not present whole, evi the undisclosed Viewed as For knowing intelligent. the reasons not “material” under in this case was dence follow, court I believe that the district Kyles, the Court Kyles standard. concurring opinion are in error. and the because undis found constitutional error significantly weakened the evidence closed of Review 1. Standard case, eye respect to prosecution’s both with — preliminary or threshold standard “The physical evidence. and the witnesses [habeas] the district court’s at -, which we review at 1574-75. novo, complete def judgment is de but Here, strongest against evidence-supported erence to confessions. Even consid was his detailed Campbell, 888 Lundy v. findings of fact.” collectively, information is the withheld ‍‌​​​‌​​‌‌‌​​‌​​​​​​​​‌​​​​​‌​​​‌‌​‌‌‌‌​​​‌​​‌​‌​‍ered (6th denied, Cir.1989), 467, cert. damning F.2d strong enough undercut the 109 L.Ed.2d 538 say I cannot these confessions.7 effect of (1990). by findings made a state Factual reasonably taken “could that the evidence by a hearing and evidenced after a light” ... court put whole case in a different correct,” presumed to be writing “shall be in is under confidence the verdict such that meet one of -, petitioner can mined, unless the 115 S.Ct. at id. in spelled out 28 U.S.C. eight conditions Brady violation. find no thus would section which I enumerate in “narking" 7. For the reasons is one other reference There dissent, I do not believe Rickey B of this exculpatory. Erwin III. O’Guinn contends reasonably be said to can O'Guinn’s confessions told a man from the T.B.I. that he was told Henderson, separate as the or unreliable be either coached had Sheila killed for concurring opinion them. To characterizes Testimony by “narking" Erwin about on him. accuracy contrary, they chilling their are inadmissible and no statement would be this many to the mur- regard the facts material explanation supports for her other evidence der. death. 2254(d) 2254(d)(l)-(8). 445, 450-51, (1985); § § 88 L.Ed.2d 405 See U.S.C. Self (1994). Collins, (5th 1198, 1203-04, 973 F.2d denied, Cir.1992), cert. 507 U.S. 2254(d)(8) plainly Section states that (1993); 2 S.Ct. Steven findings presumed state court are correct Davis, A. & Martha Childress S. Federal they fairly supported by unless are not “the (1992) (“[I]f § Review 1306 Standards of proceeding of the court in which record State federal district court decides habeas is of such factual issue was the determination evidentiary hearing, sues without an then repeated in made.” This is the flush lan- court, by findings there are no fact 2254(d): § guage of “the record the State appeal, effectively the circuit court occu 2254(d)(8) Thus, proceeding.” § per- court pies place the same as the district federal pre- mits а federal court to overcome the proceed court and reviews state court sumption of factual correctness that attaches illustrate, ings way.”). in the same To at the to state court determinations if the fed- court, evidentiary hearing in the district (“as concludes, reviewing court eral after Spears, O’Guinn called as a whole”) witness Michael pro- “the record of the State court who testified about O’Guinn’sclaims that the ceeding in which the determination of [the Spears state secreted made,” Michael Debbie disputed] factual issue that the during represented jury trial and then to the “fairly supported factual determination is not 2254(d)(8) Spearses would have testified for by § the record.” 28 U.S.C. (1994). state but were unable to attend permit This statute does not a feder- because of the weather. This court al habeas court to use does evidence dehors the clearly review under proceeding erroneous standard record to reach finding the district court’s the conclusion that the state court’s factual Michael findings fairly Spears’s testimony supported by hearing are not at that “com pletely record. incredible.” The same would be true for all the other issues on which the district provide adequate In order to basis for evidentiary hearing court held an and for review, appellate Court has said finding. which there is no state court But on provide that a federal district court must issue, the Miranda the district court did not justification deferring written for not to the rather, testimony; take it relied on historical by facts found the state court. suppression facts as set out the two hear now [W]e hold a habeas court should ing transcripts.8 opinion granting include its the writ the reasoning which led it to conclude that Findings 2. State Court Factual present, of the first seven factors were reasoning admissibility led it to conclude that The issue of the of finding fairly supported the state “not confessions has been considered several the record.” times the Tennessee courts. O’Guinn’s pretrial sup- trial counsel filed a motion to Mata, 539, 551, 101 Sumner v. press O’Guinn’s four confessions to Sheila’s 764, 771, 66 L.Ed.2d 722 murder, and both O’Guinn and Alabama in- Finally, although we review for clear error Duffey vestigator hearing testified at the findings of fact made a district court that motion. O’Guinn testified on direct ex- evidentiary hearing, after its own when we amination as follows: interpretation review the court’s of historical Q. Investigator Duffey explain And did record) (e.g., facts those found the state we your rights you? to independent conduct an review. See Miller Fenton, 104, 111-12, Yes, sir, 474 U.S. 106 A at that time. 316, (11th properly taking Cir.1992), Singletary, The district court acted in not 963 F.2d 319 denied, 950, 1362, testimony Duffey from and O’Guinn on this issue. cert. 113 S.Ct. 122 (1993); Collins, 76, Where there is a factual basis in the state court L.Ed.2d 741 Ellis v. 956 F.2d issue, (5th Cir.) ("Federal record retry to decide an the district court 78 courts do not facts courts.”), denied, already not conduct its own mini-trial in order to find found cert. 503 findings new facts and overrule the of the state U.S. 112 S.Ct. 2254(d) (1994); (1992). § court. See 28 U.S.C. Meeksv. pros- always attempting to discuss his response to your Q. And what murder? pect of explanation? my Yes, statement give ahead and A. sir. I went

A. charge of Alabama charge [the on point in Q. it true at a certain Now isn’t he started rape], and then and assault to O’Guinnhad indicated time that Mr. charge, and I a murder talking about you going continue you that if were to I volun- said, minute now. “Wait a that he have to discuss murder better on the give you a to statement teered lawyer? his this murder charge, but on assault No, sir, my knowledge. not to A a to need going I’m charge, I know a there was Q. Now it is correct He to have one.” lawyer, so I’d like Huntsville, before hearing in Alabama get said, you able won’t be “Well regarding Mueller Judge Page you go to lawyer until court.” murder down there. [sic] that? Q. Now when Yes, sir. A. July of ’83.9 on the 4th A. That was fact, suppression again was a Q. And Duffey on cross exami- testified Investigator hearing; was it not? nation as follows: Yes, A sir. you Now, a time—Do there come Q. did you Now, you Q. going I’m to ask you when the first time remember —show I’ll suppose. I ask first a document interroga- your interview raised hearing you you if can recall possibility of Mr. O’Guinn the tion of that Mr. you made the statement murder, in Ala- either committing a say that or did could Tennessee? bama or that? said July 4th. A No, sir, saying that I remember A. don’t reports that we have Q. the time Is that suppress in the motion him for a you arrested that indicate he re- I was asked did down there. brought that you rape assault and and I him not attorney and told quest an mur- you this unsolved up because inter- knowledge my because der, down Mr. O’Guinn broke 1983, Ken- August 12th of on view Is occasion? cried? Wayne advised neth Yes, sir. A. tape, he an- rights his me you the second Q. remember Now can rights. he understood his swered that murder with you time discussed knowledge did Ken- my no time to At O’Guinn, it be Alabama whether Mr. attorney. Wayne ask an neth for or Tennessee? I talked next time it was the imagine A. [intervening colloquy] to him. he made August 12th when On within the Q. And that have would this, it was pertaining statement week? my tape, and at no time placed Yes, A sir. an attor- ever ask knowledge he did Now, it a fair statement Q. ney. your exami- the course throughout 3,1985), (Motions Hearing Jan. Trial Keeord nation, you interro- [sic] therefore added). The IV, (emphasis p. O’Guinn, I of you vol. Mr. gations with case, I’d going about a murder you’re talk testimony is discussed in 9. This lawyer.” opinion. v. denied, like to have See Court's State cert., what, anything, (Tenn.), did if Attorney: right. And All S.W.2d point? Duffey you 93 L.Ed.2d at that Mr. tell have to point told me I’d he At that O’Guinn: evidentiary similarly at the O’Guinn testified just got attorney, get go but to court to petition: post-conviction hearing on first state subject quit talking about off talking about officers] started O’Guinn: [The said, case. murder a minute. If “Wait murder case and I 1442 sup by Duffey,

state trial court denied the motion to tions O’Guinn confessed to mur- press, apparently disbelieving well, O’Guinn’stes dering prior Muller as to trial in timony requested attorney that he an Alabama, he filed a motion suppress Duffey believing when said O’Guinn did confession for the same reason he forwards request attorney. not After his convic in this court. At suppression the Alabama tion, appealed his sentence and ar hearing, which occurred before the Tennes- gued Supreme before the Tennessee Court suppression hearing, see O’Guinn testified suppress that his motion to his confessions during he had asked for counsel granted. should have been The Tennessee July 4 interrogation Duffey and that Supreme transcript Court reviewed the get advised him lawyer that he would when portions clearly found of it that supported Duffey’s testimony he went to court. at that the denial of the motion. The court cited all hearing question request on the of O’Guinn’s three of the italicized statements above in during for interrogation counsel his support O’Guinn, of its see finding, State v. equivocal: somewhat 561, (Tenn.), denied, 709 S.W.2d cert. Q: express you, Did af- [O’Guinn] you ter rights, had advised him of his (1986), and concluded that while the trial you him, at the time advised that be- court did not findings render detailed of fact cause it was going murder he felt he was issue, on the “[i]mplicit in the trial lawyer? to need a findings investigator court’s ... Duffey have, it, A: He could I don’t remember misrepresented never right defendant’s but he could have. counsel. The trial denial court’s of the mo suppress tion to credibility resolves the is against

sues the defendant.” Id.10 Q: you Is that not what told Mr. O’Guinn on this yes, they occasion that would Findings 3. The District Court’s Factual give lawyer him a got when he to court? Despite the state courts’ resolution of this A: have him that if told he went to issue, the district court concluded that court that the appoint courts would him O’Guinn had in fact asked for counsel. one. view, my court district committed two (Ala. State v. First, distinct So.2d doing errors so. reaching conclusion, Crim.App.1985). the district court considered testimony from an suppression Alabama Supreme The Tennessee Court had held hearing which was not introduced into evi- that the state trial against court had resolved dence proceedings question O’Guinn the of O’Guinn’scredibility. time, and part therefore of the rec- The district court determined that the Ten- ord in second, the state court. And even if must, therefore, nessee the district court had been within its discre- presumed that the state trial court had found evidence, tion to consider that the court did that testimony concerning his re- reject not have discretion to the state court’s quest for counsel contradicted the State’s findings of fact because the district court was evidence that request O’Guinn did not coun- able to construct an plausible alternative and sel. The expressly district disagreed factual scenario. presumption with that because “[Considering testimony impermis- district court whole, the record as a the Tennessee sup- sibly considered arose pression context of the transcript ambiguous on this State Alabama’s prosecution of point.” Dutton, O’Guinn v. F.Supp. for Muller, the murder of (M.D.Tenn.1993). Linda a crime The district court which was unsolved at the time O’Guinn was analyze questions went asked of arrested on the rape Alabama assault and Duffey during and his answers both the Ala- charges. During the course of interróga- suppression bama hearing and the Tennessee again 10. O'Guinn raised this issue in his first Court and the Ap Tennessee Court of Criminal petition post-conviction O'Guinn, peals. relief. His conten See State v. 786 S.W.2d tion was denied both Tennessee Criminal (Tenn.Crim.App.1989). 244-46 interrogations, and was August 12th Duffey and the regarding what hearing suppression O’Guinn’s, such in conflict therefore right to counsel. about to O’Guinn said clearly finding erroneous because was concluded: court district The testimony properly before was not Alabama then, conclusion, is only reasonable Thus did the dis- trial court. the Tennessee truthfully Ten- at the Duffey testified that testimony use the same Alabama trict court he misunderstood hearing, that but nessee properly before the state it was not that held only to to refer lawyer’s question per- was not and that the state court court requested counsel whether properly it not to use because was mitted Consequently, the testimo- [August] 12th. court, that the state to before that conclude hearing suppression ny at the Tennessee fairly sup- findings of fact were not court’s conflict, was there and because not in was court ported by the state record. testimony, this court cannot conflicting no necessarily re- court that the trial agree § a state court’s Under 28 U.S.C. him. credibility against solved O’Guinn’s presumed to findings generally are be factual by consid- Id. 784. The district erred correct. court interpreting Duffey’s Tennessee tes- ering, in that “[e]ven court held Finally, district testimony, which was timony, his Alabama deter- the factual make trial court did if the in the Tennes- as evidence never introduced conflict, testimony was mination not, hearing. district court was see transcript suppression the Alabama since therefore, the Alabama permitted to use record, court part of the state not a deciding the Tennessee transcript paragraph of 28 last pursuant to the finds fairly supported the Ten- finding not 2254(d) finding would that such a §USC any If inconsisten- there was nessee record. n. Id. at 784 10. clearly erroneous.”11 Duffey’s testimony in Alabama cy between nutshell, court decided the district In a Tennessee, testimony up it was and his not be trial court could the Tennessee to draw this out Tennessee counsel O’Guinn’s credibility any determi- to have resolved said Duffey in cross-examining Tennessee. when tes- unless O’Guinn’s against O’Guinn nations did, exactly what counsel This is O’Guinn’s Duffey’s. The timony district contradicted III.A.2, although to the supra section see was no that there contra- then decided court Duffey’s reading Alabama testimo- extent Duffey’s Tennessee testimo- because diction offering the Alabama ny into record or interroga- August 12 ny to the referred sup- transcript as evidence session, July 4th not to tion hearing. pression therefore, Duffey and O’Guinn both course, sense, tempts us to So, court con- Common the district telling the truth. resolving credibility all available evidence consider cluded, had no court people would disputes, because most factual the Tennessee make determinations really hap- question “What believe wrong when held Supreme Court Duffey-O’Guinn conversation?” pened in the credibility issues court had resolved the trial correct answer. more than one cannot have court found district O’Guinn. The against metaphysical correctness in Ala- But factual testimony at the because O’Guinn’s here; concern properly our sense is hearing was uncontradiet- suppression bama authority review limit our federal habeas ed, for counsel in fact asked O’Guinn had procedures whether the avail- determine about its July had been misinformed con- evidence state court took which on the misinformation. ability, and had relied standards, federal constitutional if formed Further, court concluded the district that, find- the factual only whether light and after that in court had determined the state be- by the record fairly supported ings are Duffey’s testimony, Tennes- of his Alabama not claim does court.12 O’Guinn July 4th fore that testimony to both referred see if the issue were be the would not case 12. This the district came This is the closest crime, for then actual innocence of making required about written statement permit petitioner process 2254(d) concerns would applied and due exceptions § whatsoever present from source why. 1444 procedure taking testimony necessarily objectionable

that the is not that the state unfair, fundamentally findings only and there is no evi- trial court’s “implicit.” Marshall, suggest 433, it was. The dence to district court’s See 459 U.S. at 103 at S.Ct. then, task, 850; Rose, only 692, to determine 695, whether Delle 410 U.S. at fairly 1204, sup- the Tennessee record as a whole place S.Ct. at 1206. It is the of the ported interpret the factual conclusion of the Tennes- trial court meaning of a testimony see state courts. in light witness’s of his demeanor. Zant, 214, 227, See Amadeo v. 486 U.S. making finding, In its the district court 1771, 1779, (1988); S.Ct. 100 L.Ed.2d 249 exclusively relied almost on the conflict it Yount, 1025, 1038 14, Patton v. 467 U.S. & n. perceived Duffey’s between Alabama and 14, 104 S.Ct. 2892 & n. 81 L.Ed.2d 847 testimony, Tennessee and as to the Tennes- (1984) (considering given by pro answers suppression transcript, see the district court dire). spective jurors during voir A trial “ambiguous” found that it was as to judge may properly conclude that a witness Duffey whether testified that O’Guinn never particular thing, means one even when his requested lawyer July. Duffey a in never testimony “ambiguous is and at times contra expressly during suppres- said the Tennessee Yount, dictory.” 1039-40, 467 U.S. at hearing, sion request “O’Guinn did not a (holding S.Ct. at 2893 that the federal court lawyer July Duffey 4th.” But when an- appeals reject on habeas review erred in “No, sir, my knowledge,” swered not to he ing judge’s finding state trial that certain answering question gave that as its prospective jurors could impartial render an scope point “a certain time” and that had decision); Amadeo, see also 486 U.S. at immediately preceded by been a discussion of Finally, 108 S.Ct. at 1779. where the find July following the events of 4th and the ings of fact support state court find week. mention August No of the events of record, control, findings those must not up question. Duffey’s led to this testimony withstanding findings federal habeas court later in that cross-examination that O’Guinn might support also find in the record. request lawyer August did not does not Goode, Wainwright 78, 85, See 464 U.S. finding contradict the state courts’ 378, 382-83, (1983) 104 S.Ct. 78 L.Ed.2d 187 request lawyer July. O’Guinn did not (holding that if two different conclusions find Duffey’s testimony Because at the Tennessee record, support fair a federal court suppression hearing internally consistent, may not substitute its view of the facts for concluding there is no basis for that the trial court); that of Lonberger, the state 459 U.S. unsupported by court’s decision is the record. 430-38, 103 at S.Ct. 848-53. We are therefore bound the state court’s finding Duffey misrepresent Furthermore, did not rejected even if we High rights O’Guinn’s to him. Court’s order to implicit heed the finding of court, the state trial we still owe deference to We ruling must assume that inarguably explicit finding of the Tennes suppress, motion the state see Court on this issue. See applied courts the correct standards of feder Goode, 382-83; 464 U.S. at 104 S.Ct. at law, interpret al and we must the state trial Mata, 539, 545-47, Sumner v. 449 U.S. court’s denial of the motion suppress as an 764, 768-69, understanding indicator of its of the testimo ny. Rose, conclusion, See LaVallee v. Delle 410 U.S. say I do not that the district 690, 694-95, 1203, 1205-06, 93 S.Ct. findings 35 court’s of fact could not be an accu- (1973); L.Ed.2d 637 see also Marshall v. description rate really happened what Lonberger, 74 here. plausible The district court makes a L.Ed.2d (reversing argument this circuit for testimony suppres- failing to (or accord the state court’s hearing conclusions sion hearings) even does not deference). requisite high measure of It necessarily dictate the conclusion reached which established that he did not commit the in this case can be read to raise an issue of actual Judge crime for which was convicted. Unlike innocence. Merritt, however, I do not believe that the record warning not contain the stаndard did facts could and that courts the state lawyer right to have a testimony language about the given But otherwise. Therefore, during questioning. even present before presented findings say agree that we can if I were to court, I not believe do request regard proper, did not I court in this finding that O’Guinn district record; by the fairly supported court was agree that the is not would not district counsel say properly court the district holding could that writ should be neither correct must therefore court Rather, habeas The federal I that this case granted. so. would hold court’s con finding. district The that accept fight should be remanded consideration Duffey ques misunderstood clusion Eagan.13 v. of Duckworth creation him and the court’s to posed tion assuming was Finally, even that O’Guinn are of the evidence plausible view another explanation of his Mi- inadequate given 2254(d) Section permissible. simply not question arises: Did rights, another randa no to courts license habeas “gives federal through carry to misrepresentation a such credibility whose of witnesses redetermine to the Ten- confessions and taint O’Guinn’s by the state has observed demeanor nessee murder? Lonberger, 459 court, by but them.” trial the Miranda It must be remembered that 434, 103 at S.Ct. at U.S. required by are not warnings themselves Duffey Constitution, warning by inadequate that an Warning Con- Given 4. Was stitutionally Inadequate? per se. See not a constitutional violation Arizona, 436, 444, 86 v. 384 Miranda U.S. Duffey did if we were assume Even (1966); 1602, 1612, 16 L.Ed.2d 694 S.Ct. he would not be incorrectly tell O’Guinn Duckworth, 109 S.Ct. court, lawyer he went get a until able J., (O’Connor, concurring); Oregon 2883-84 questions the district court one of Elstad, 298, 306-10, 470 105 S.Ct. v. U.S. fail ad- concurring opinion separate (1985). 1291-93, 222 The 84 L.Ed.2d suf- was whether this misinformation dress is question is O’Guinn whether constitutional warnings inadequate to render ficient against him a witness to be “compelled” was rights invalid. later waiver and O’Guinn’s admissible, self, meaning that in order to be Duffey’s explanation of when believe confession(s) have been vol must O’Guinn’s lawyer requests if he receive a would O’Guinn Duf whether untary. we must consider So Miranda expressed the adequately ed one regard to the fey’s to O’Guinn statement Eagan, 492 U.S. v. rights. See Duckworth investigation O’Guinn Alabama murder —that 106 L.Ed.2d lawyer only if went to court— get a he could form that Rights (holding that Advice of confessions to four later O’Guinn’s rendered way no language “We contained crime, a different interro made to a different appoint- will be you lawyer, but one giving by full Miranda accompanied gator, and wish, you go to you if and when you, if ed for interrogator,14 compelled by warnings constitutionally defective was not court” Fifth meaning of Amend him within suspect of Mi- apprised adequately did not. See hold that I would ment. warnings con- fight rights, in of other randa (6th Daniel, F.2d 517 v. United States form). concedes that O’Guinn tained Cir.) assuming a first con (holding even rights, and of his informed Miranda was involuntarily because of given fession not contain although the record does girlfriend, leniency to defendant’s promise of Duffey used inform language exact voluntary and admissi- confession suggestion second rights, there is no of his O’Guinn law, ruling could be similar suppressed current state O’Guinn’s 13. The Alabama court on the basis of to the murder incorrect. Muller confession regarding when Duffey's O'Guinn statement lawyer, appeals and the state receive could course, Leach, of confession 14. The first O’Guinn, 462 So.2d See State v. affirmed. warning adminis- accompanied a Miranda (Ala.Crim.App.1985). Alabama court’s issue is addressed Leach. This tered admissibility confes- ruling of O’Guinn’s on the opinion. subpart of this next Eagan. preceded v. Under Duckworth sion denied, 890, 112 (in ble), 252, Duffey (in July August) cert. and Leach L.Ed.2d 206 July). Therefore, I would hold that the Mir andized confessions that followed O’Guinn’s Oregon 5. The Issue Elstad first Cupples confession to the murder were voluntary and untainted the first confes question One final remains on the confes- sion. sions issue: whether Leach’s failure to read- rights,

vise of his Miranda after Duffey given Miranda warnings B. The Confessions day, earlier rendered O’Guinn’s first separate concurring opinion character- Cupples confession to the murder inadmissi- izes four “lack[ing] confessions as confessions, following ble or tainted the reliability cursory even on a reading because though argued both. Even O’Guinn has statements, heavily O’Guinn’s when not that his first was confession inadmissible be- by pоlice, coached completely the were incon- repeat cause to warnings Leach failed the police sistent with the facts known to the earlier, given to him the State has conceded Further, about the opinion murder.” the the first confession was inadmissible indicates that these suspect confessions are (because unaccompanied by it was a Mi- because experiencing O’Guinn “excruci- was Leach, warning given by randa not because ating pain extractions,” from numerous tooth by Duffey’s it alleged was tainted misinfor- physical and his state alone at the time he O’Guinn) simply mation to argued has gave the questiona- confessions makes them its admission was harmless error. I ble. briefly. therefore address this issue by Oregon This issue is controlled v. El Although cross-appeal O’Guinn his stad, 298, 105 S.Ct. 84 L.Ed.2d claims that by his confessions were coerced Elstad, In respondent the had investigators mentally while he was given incriminating a first statement without physically infirm, alleged he never as a basis warnings, Miranda under circumstances in suppression for statements that his he was warnings which the State the conceded were any physical coercion, under mental or such 302, 105 required. Id. 1289. The argument has never by been addressed police respondent later advised the of his courts, presents state and he no new rights Miranda and secured second confes evidence in proceedings these sup- habeas sion. The state held that because of port such a separate claim. And the concur- period confessions, the brief between the two ring opinion’s characterizations of the confes- sufficiently the “cat bag was out of the by sions are not supported the record. impact” respondent’s exert coercive on the himself, testifying O’Guinn at the state court second confession render it inadmissi hearing on suppress his motion to his confes- ble. Id. at 105 S.Ct. at 1290. Revers sions, strongest made the statement about ing, held that the second his condition at time he made those inadmissible; confession was not rendered why confessions. Asked he had confessed to rejected bag” theory, the “cat out the Tennessee if murder his confession was finding statement, although first un true, process O’Guinn said “I was in the warned, voluntary, was held the second state getting my pulled. teeth getting properly ment admitted. Id. at 105 nothing pain.” for the Asked if he had been S.Ct. at 1297-98. time, said, able eat sandwiches at that “Yes, sir, There is little basis for distinguishing type sandwich, considering the O’Guinn’scase fact, from that of Elstad. ham sandwich mayonnaise.” And he admissibility case agreed agents breaks, had taken first stronger confession is during made because they which brought time him prior warnings given by to O’Guinn cigarettes.15 both coffee and note, however, interesting 15. It is charged some O'Guinn was with the murder of an earlier, pretrial woman, nine pro- months motion very Alabama O’Guinn was asked simi- court, ceedings in the questions Alabama why given where lar about he had confessions ques- response leading provided in record voluminous nothing There anything that tions, of it was concur- none separate because support the in this case to known, investigators mental could have but that O’Guinn’s claim ring opinion’s condition, or the two trunk were corrobo- physical about O’Guinn’s or his details condition combination, render his days by as to were such ten later Robert approximately rated suspect unreliable. for the detailed confessions when he was interviewed the claim support the record Cupples does Rob- Nor about the first time murder. regurgita- simply a were those confessions investigators that Ken- told the ert O’Guinn supplied to murder details tion of to be trunk had no lock and had neth’s interroga- during- the course using something such as a opened screwdri- there are question no There is tion. ver, not know whether Kenneth that he did gath- between inconsistencies that a purpose for that a tire iron but used given confessions police and ered worked, and that Ken- iron would have tire confessions, all, after O’Guinn. full of a lot of “stuff’ kept his trunk neth Cupples years two after given more than tires, clothes, Robert described after committed and well murder “junk.” and other tools murder, con- to which O’Guinn Muller similar investigators, “Let me When asked ques- no time. There is at the same fessed this, Kenneth, any you give her you did ask forthrightly confess not did tion that O’Guinn any was with drugs? Did she while she take body Cupples’s having Sheila mutilated to given you?” that Sheila had replied O’Guinn forthrightly Neither did he a tire iron. with investigators that drugs. He told the him However, sup- simply no there is deny it. bar what he given the had others Sheila con- for the statements in the record port described, any coaching prompt- or without concurring opinion separate in tained the capsules” he “gray and black ing, as ‘matched’ statements never that “O’Guinn’s specifically be Darvon. O’Guinn believed to say until wanted him the authorities what the had laid some of that Sheila recalled him,” and that or led prompted police the Cane, and at the Hat & capsules on the table coached questioned and had been “O’Guinn up picked some after he he had taken and had Cupples murder for weeks about the floor. glasses from Earlier her knowledge from quite a bit of obtained “Did question response in questioning, murder.” about the police had told glasses or not?” O’Guinn she have true that simply it importantly, More that he knew that Sheila investigators are, concurring as the confessions bar, had at the Sheila glasses because wore the broadest says, “stated opinion up picked them he had dropped them and provided any details were and that terms” ques- During to her. them handed A few police. coaching from only after photograph tioning, O’Guinn identified examples will suffice. trial, among glasses. Witnesses Sheila’s investigators that he al- told the Sheila testified that Cupples, them Joanie car because a tire iron ways carried murder, night of the Darvon the taken had gone, for the mechanism trunk the lock at the capsules to others given black had trunk. open tire iron and he used the bar. body in put he had Sheila’s O’Guinn said that fact, not mentioned telling is the Most trunk, I car, “my and that of his the trunk concurring opinion, separate fact, I had in it. Matter of alot of had stuff location which map of the drew a in O’Guinn her get it with on the shut to sit trunk body. asked When he had left the said said, he the tire he had used And he there.” draw whether he could Investigator Leach body out to take the open trunk iron to he al- responded that map, then done such sure what had and he was not so, how that he wasn’t ready done sure information None of this the tire iron. He questioned to be left alone. days and wanted very same murder on the to the Alabama teeth, pain, murder, ina- whatsoever made no mention Cupples if those to the that he confessed eat, physi- infirmity, There, either bility any other said O'Guinn not true. confessions were being cal or mental. tired of because he was that he confessed was, good and that he had not showed it required by ness the Sixth Amendment. The Duffey. Investigator In one of his confes- State contends that O’Guinn has waived this sions, the location as argument by O’Guinn described be- asserting that, it earlier and ing event, of 1-40 near the intersection and the 1-45 in argument is meritless. For Bypass follow, and not more than five minutes the reasons that I think that car from the intersection. He further said separate district court and the concurrence that there were motels and restaurants are in error. the area of intersection and that he could procedural threshold issue is that of Bypass place see the from the where he left default. O’Guinn did not assert ineffec- (attached fact, body. map hereto trial, appeal tive assistance claim at on direct A) very good, Appendix compari- as a of his conviction to the Tennessee highway map son of it to the of Jackson Court, post-conviction petition or in his first (attached B) Appendix hereto as makes clear. post-conviction relief.16 It was his second body Cupples was found at Sheila petition, se, pro filed which —for the first Drive, dead end of Conrad stone’s throw time—attacked the effectiveness of his trial Bypass,

from the and about a mile and a half (and counsel, appeal) direct as well as his south of the intersection I—40 and the 1-45 appointed counsel post-conviction on the first Bypass. petition. The state court denied his sеcond Finally, investigators asked O’Guinn petition, stating that O’Guinn’sclaims had all anything whether he had “save[d] as a re- ‘previously been either ‘“waived’ or deter- ” this,” specifically member of whether he mined’ under Tennessee law. State v. any newspaper clippings had seen or articles O’Guinn, No. 1990 WL at *1 about responded the murder. O’Guinn (Tenn.Crim. 1990). App. May Even nothing, he had seen that he had heard noth- though procedural express default was the ing news, of the murder on the and that the basis of the state court’s refusal to hear only read, paper, paper Huntsville had claims, the federal district court not mentioned the murder. issue; did not even mention the waiver simply proceeded perfor- to consider the O’Guinn’sconfessions were not obtained in of mance trial counsel. rights Constitution, violation of his under the any they and claim that were coerced was I exhaustively have reviewed the entire defaulted, procedurally may and its merits in record this case and carefully have consid properly not in be reviewed these habeas ered each of O’Guinn’sclaims. I think that proceedings. The confessions are neither argument that O’Guinn’sineffective assis suspect they nor unreliable. And were be- tance claim was proceduraEy defaulted is jury, prerogative lieved whose it was insupportable. undisputed It is that judge credibility. their failed to in post-conviction raise his first peti tion the of issue ineffective assistance of trial C. Ineffective Assistance of Counsel at argues, counsel. O’Guinn Judge as does Sentencing Phase of Trial separate Merritt in his concurring opinion, In petition his federal habeas ar- that this failure does not call play into “cause gued, the district separate prejudice” court held and the analysis, and generally see Harris concurring opinion agrees, Reed, that his trial 255, 262, coun- v. 489 U.S. 109 S.Ct. performance sentencing phase sel’s at the 103 (quoting L.Ed.2d 308 Mur Carrier, his trial fell ray below the standards of 478, 485, effective- v. (brief post-conviction 16. O'Guinn did raise in his first appeal 52 of state court's denial of first petition a claim that he received ineffective assis- post-conviction O’Guinn, petition); State v. attorney tance of counsel from his in Alabama (ad- S.W.2d (Tenn.Crim.App.1989) 246-47 (representing charges), O’Guinn on the Alabama dressing issue of ineffective assistance of Ala- who told O’Guinn that it was fine for him to talk counsel). This, course, bama does not amount to the Tennessee authorities about the Tennessee raising the issue of ineffective assistance of investigation. See O’Guinn’s Petition for Post- sentencing phase counsel at the of his Tennessee 29, 1987, ¶ 5; Conviction Relief filed Jan. Brief trial, see discussion infra. 18, 1989, Petitioner-Appellant filed Jan. at 49- post- (1986)), have raised in his first O’Guinn could 2643-44, be- L.Ed.2d 397 petition his claim of ineffective post-convic- conviction cause state first during sentencing assistance of counsel on the ef- sponte ruled sua proceeding tion undisputed trial. It is phase of his murder trial, sentencing, appellate fectiveness Rather, his ineffective assis- that he did not. this counsel, therefore has waived and he petition untenable, claim that first tance argument is issue. believe proceedings that his the Alabama counsel of the argument the order as is had been ineffective. Appeals did not Criminal Court of Tennessee proce- clearly expressly on rely noted that a Circuit Court The Tennessee affirming the denial of O’Guinn’s dural bar in assistance of Alabama claim of ineffective raising this petition post-conviction second assis- a claim of ineffective counsel was not claim. assistance ineffective proceed- in the Tennessee tance counsel here, evidentiary hearing Tennes- During period ings, relevant and that at O’Guinn, post-conviction petition, relief was governing post-conviction the first law see counsel, §§ to through explicitly chosen not to 40-30-101 out set Ann. Tenn.Code (1990).17 any regard claims present 40-30-111 defines Section inadequate proceedings: than claim of Alabama scope post-conviction other counsel, expressed had in fact satisfac- hearing to all shall extend of the scope The mur- with his counsel the Tеnnessee tion have, except petitioner grounds the dicta, the circuit court “found” der trial. finds should grounds which the court those it, coun- on the before Tennessee record they because be excluded sel had been State effective. determined, as here- previously waived or (Tenn.Crim.App.1989). S.W.2d in defined. grounds circuit court none found added). pro- 40-30-112 Section (emphasis merit, petition had alleged in denied “previ- of “waived” vides definitions petition. ously determined”: Appeals Court of Criminal (a) “previously relief is de- ground A opinion, the court said Id. In its affirmed. jurisdic- competent if court of termined” assistance claim ineffective a full and on the merits after tion has ruled petition in first was ‘“waived’ raised hearing. fair 40- meaning of within Tenn.Code Ann. (b)(1) if the ground for relief is “waived” A 30-111, it had been and 112” because understanding^ knowingly and petitioner suppress ap- motion to on raised on the in it for present determination failed to 247. The court noted peal. Id. at compe- court of any proceeding before a post-conviction in this had not raised O’Guinn jurisdiction ground in could tent any fault with trial counsel. proceeding presented. have been However, affirm court did not on presumption a rebuttable There is affirmative “find- of the court’s basis circuit any in not raised such ground for relief counsel, trial ing” assistance of of effective waived. which was held was proceeding Also issue was waived. but because the Court of Crimi- opinion, the Tennessee Thus, proceedings Tennes- post-conviction Appeals explicitly addressed O’Guinn’s petition- nal proceedings in which see are not claim, noting trial Fifth collaterally prior holdings of a Amendment may attack er Tennessee Court court and which were not raised or raise claims no that there had appeal had held been direct opportunity. at the earliest however, clear, those it is for relief. I think chapter Code has subse- This of the Tennessee 17. (like repealed replaced law’s quently the rest of the new been new definitions Tenn.Code through applicable §§ pe- considerably 40-30-201 less favorable provisions) are Ann. May petitions post-conviction relief filed after ones, for and neither were the old titioners than sug- concurring separate opinion The anything in the else nor those new definitions “waived” gests law’s definitions the new provides further avenues new law “previously afford determined” state courts. for relief in the petition courts an avenue O'Guinn (1990). § Miranda violations. Because this issue had See Tenn.Code Ann. 40-30-112 appeal, been resolved on direct appeals clearly Tennes- of criminal The court stated Appeals see Court of Criminal held that post- that the record before it in the second Fifth Amendment claim had proceedings conviction included the first “previously meaning determined” within the post-conviction proceedings. ‘Waived” and §§ of Tenn.Code Ann. 40-30-111 to 112 “previously determined” had the same mean- ing Therefore, proceedings. both the rul- ing that the proceeding claims the second first raised the ineffective assis- previously were either waived or determined sentencing phase tance of counsel at the meaning within the of the statute can mean his Tennessee murder in his second only that the ineffective assistance of counsel post-conviction petition, along with a claim claim petition raised the second was ei- penalty that the Tennessee death statute was ther a knowingly claim O’Guinn unconstitutional. The Tennessee under- Circuit standingly present previously post- Court held that all claims in the failed second i.e., determination, “waived,” petition conviction had been “waived” or or a claim “previously previously determined.” which was ruled on after a full i.e., hearing, and fair “previously deter- Appeals The Tennessee Criminal Thus, mined.” post-convic- unless the first affirmed. 1990 WL at *1. proceeding tion included a full and fair hear- date, proceedings The court reviewed the claim, ing on the ineffectiveness that claim noting post-conviction petition that the first was “waived” under the Tennessee statute. had raised both a Fifth Amendment сlaim and a claim of violation of the Sixth Amend- language The § of Tenn.Code Ann. 40-30- right counsel, ment to effective assistance of (1990), simply support finding will not petition that the denial of the first had been “previously that the claim was determined.” affirmed, post-conviction and that the second There was a full hearing never and fair petition raised two claims—ineffective assis- post-conviction the issue before the first unconstitutionality tance of counsel and the court because O’Guinnnever raised the issue penalty of the Tennessee death statute. The presented any might and never evidence that court of appeals criminal then held: support a claim ineffective assistance from petition alleges before the Court which the court could have made such a ineffective assistance of counsel and that simply determination. O’Guinn did not make Statute, Penalty Tennessee Death the claim. Both the circuit court and the 39-2-203, § T.C.A. is unconstitutional. Appeals explic- Court Criminal record, which includes the records itly pointed out that O’Guinn did not raise in appeal trial and of the conviction post-conviction proceeding any the first claim hearing appeal and the prior during ineffective assistance of counsel post-conviction proceeding, supports the Tennessee murder trial. The circuit court’s finding trial court’s that the issues raised sponte sua performance remarks about the proceeding in this have been “waived” or of prefaced by Tennessee counsel were “previously determined” within the mean- explicit the court’s statement that O’Guinn ing § of T.C.A. 40-30-112. presented no hearing evidence at that rela- judgment is affirmed. performance tive to the of his trial counsel. O’Guinn, appel- 1990 WL at *1. The Although language the circuit court used the expressed ground late court no other for its specific findings, of I think it is clear that ruling. language dicta, unnecessary was and “previously

“Waived” and holding determined” that there is no actual from the state explicit meanings have regard the Tennessee court with to ineffective assistance of governing post-conviction statutes relief. sentencing phase.18 counsel contrary approach simply 18. The would including opinions elimi- well refrain from in their full nate properly distinction between substanti- open explanation discussion and for their findings ated of fact and conclusions of law and views. dicta, gratuitous might with the result that courts record, true, it fully-developed is of ineffec- of this claim argues that O’Guinn above, nev- precisely because procedurally is not of counsel stated tive assistance court sua Tennessee he never and therefore because raised issue barred er however, it; he claims ruled on sponte developed the record. error constitutional court committed view, my of the Finally, in the decision inadequately devel- of an ruling, basis on the Appeals af- Court of Criminal Tennessee find- wholly unsubstantiated oped record and ineffective firming the denial O’Guinn’s not ineffective. counsel was that his trial ings, the re- claim meets counsel assistance the issue record on true that It is held that “a Harris quirements Harris. com- of counsel was ineffective assistance consider- default does not bar procedural But in the state court. undeveloped pletely claim on either direct or of a federal ation ways. It is it have both cannot court the last state review unless habeas to raise the O’Guinn failed precisely because ‘clearly judgment in the case rendering a petition post-conviction claim his first judgment that its rests expressly’ hearing any evi- states at the present declined procedural bar.” 489 U.S. than his a state any claim relative to other dence counsel, Here, at 1043. Tennessee Alabama complaint about wholly Appeals undevel- the last state that court Court of Criminal record before his adequacy of of the the issue. a decision oped on the issue to rule on court statute, counsel. resting squarely Tennessee trial on the Tennessee solely claims court held two gra the state court’s аssuming that Even post-conviction second raised express find language constituted tuitous “ ‘previ- “waived’or had been either petition issue, not serve this alone ing on this does meaning of ously within the determined’ peti requiring the purposes for the statute’s § 1990 WL 40-30-112.” T.C.A. first available at the an issue tioner raise was the at *1. of those claims One Annotated Tennessee Code opportunity. of counsel assistance claim ineffective 40-30-112(b)(1) ground for relief says, “A § It is murder trial. during the Tennessee ... failed petitioner “waived’ if necessary purposes of for Harris (emphasis ...” it for determination present opinion in that spell out added). Tennessee court purposes of the waiver of the One “previ- exactly the terms “waived” and raise issues what defendants to require rule is to Because, as I mean. ously be addressed —at determined” those can best when issues above, Sykes, 433 U.S. Wainwright explained See Ann. trial. Tenn.Code 2507-09, a find- 88-91, permit L.Ed.2d simply § does 40-30-112 for (offering several reasons claim had been ing that the ineffectiveness rule). purpose determined,” Another waived-if-not-raised “previously order efficiently adjudicate expeditiously is to does Appeals of Criminal when those petitioner’s all of the claims pro- rely on the state clearly expressly example, For available. claims become for ground as the sole cedural bar waiver really claim was not O’Guinn’sineffectiveness rejecting this claim. appeal, since he trial or on direct available at review, a district habeas On federal counsel represented the same proce that has an issue consider both, obviously when available but was petitioner can only if the durally defaulted petition. As post-conviction filed first (1) procedural for his good “cause” show illustrates, goals ear clearly case this (2) result that would “prejudice” default and adjudication are expeditious ly, efficient and consider refusal to federal court’s from the if court raises by holding that ill-served 478, Carrier, U.S. Murray v. the issue. issues, enough. good sponte, is these sua 2644-45, 2639, 397 487, 91 L.Ed.2d 106 S.Ct. petitioner served of the Nor are interests fails to petitioner habeas Where a criti ruling, a as one O’Guinn’s such ha- “prejudice,” the “cause” establish and/or in this case decision court’s cisms state claim may the defaulted consider beas court the post-conviction If it is true that proves: proba- petitioner is able show only if the without the benefit this issue court discussed 1452 496, 106

bility I exclusively of actual innocence. See id. at note that relies 2649-50. S.Ct. at his ineffective assistance claim to establish regard “cause” with to his failure to assert on Here claims that his counsel at appeal direct inor his first collateral attack sentencing phase of his trial was ineffec- his claim of ineffective assistance of counsel tive, post-conviction and that his counsel sentencing. at Since contention is insuf timely raise failed to this claim because his (and “cause,” ficient to show our review post-conviction first counsel was ineffective. review that should have been undertaken may ineffective assistance of While counsel court) extremely the district is narrow: default, procedural constitute “cause” for sentence is O’Guinris reviewable to de cannot do so here. “actually termine whether he is innocent” of Supreme Court has held that because penalty. extraordinary the death “[I]n right there is no constitutional in counsel case, where a constitutional violation has post-conviction proceedings, see Penn probably in resulted the conviction of one 551, sylvania Finley, v. 481 107 U.S. S.Ct. innocent, actually who is a federal habeas 1990, (1987), 95 L.Ed.2d 539 there can be no may grant writ even the absence constitutionally ineffective assistance of coun showing of a procedural of cause for the proceedings, sel in such see Coleman v. Carrier, 478, Murray default.” v. 477 U.S. 722, 752-53, Thompson, 501 U.S. 111 S.Ct. 496, 2639, 2649, 91 L.Ed.2d 397 2546, 2566-67, (1991).19 (1986) added); (emphasis Sawyer see also Coleman, petitioner untimely blamed his Whitley, 333, 339, 2514, S.Ct. appeal notice of of a state habeas determina (1992) 2518-19, 120 L.Ed.2d 269 (finding that attorney’s tion on his ineffective assistance. the “actual exception innocence” to waiver held that this did not establish applies procedurally rule defaulted claims “cause” and that the federal court therefore itself). that relate to death sentence could not hear issues raised that state action, petitioner procedurally habeas since While recognized Court has appealing. defaulted See id. See also the “actual exception innocence” Torna, 586, 102 Wainwright v. S.Ct. apply cases, penalty phase capital to the 1300, (holding L.Ed.2d 475 “very the Court has described it as a narrow right where there is no constitutional exception.” Sawyer, 505 U.S. at deprivation counsel there can be no of effec at 2520. To establish “actual inno- assistance). tive Because O’Guinn cannot penalty, cence” of the petitioner death “cause,” analysis show our is limited to re “by must show convincing clear and view for “actual innocence.” error, that but for constitutional no reason- juror able eligible [have believe the district court would him found] therefore erred failing first in engage penalty the death cause and under law.”20 [state] Id. prejudice analysis, second, added). granting (emphasis S.Ct. at 2523 independent the writ based on its review of ‘actual requirement “[T]he innocence’ must performance. trial counsel’s focus on those elements which render a de- require 19. I would not appeal O’Guinn to show cause as on direct not assert claims of ineffective why he failed to trial; raise his ineffectiveness claim approach assistance at better is to raise appeal. or on direct He had the same post-conviction petition issue in first instead of stages, counsel for both of these courts have held that in such a and Tennessee denied, (Tenn. appeal), appeal July on direct case, an ineffec 1990). meaning tiveness is not claim waived within the § of Tenn.Code Ann. 40-30-112 because it would course, petitioner may 20. Of also show that he expect be unreasonable to trial counsel to call to actually penalty by innocent of the death dis- (if incompetence the court's attention their own proving underlying an element of the crime. See State, any). See Nelson v. No. 1990 WL 340-41, Sawyer, 505 U.S. at 112 S.Ct. at 2519- *3, Tenn.Crim.App. 149226 at LEXIS However, very thorough review of the 9, 1990); (Tenn.Crim.App. at ‍‌​​​‌​​‌‌‌​​‌​​​​​​​​‌​​​​​‌​​​‌‌​‌‌‌‌​​​‌​​‌​‌​‍*5-6 Oct. Tenn. inescapable entire record in this case leads to the 40-30-112(b)(l)(1990); § State v. Code Ann. cf. Sluder, 1236, *7, accomplish conclusion that O'Guinn is unable to No. WL 1990 26552 at 1990 222, (Tenn.Crim. showing Tenn.Crim.App. App. Cupples LEXIS at of actual innocence of the *23 14, 1990) (recommending rape Mar. that counsel and murder. testimony Spears of Michael and Debbie and the penalty, the death eligible for fendant which mitigating evidence misrepresentation additional the as to the not on State’s being as a from introduced prevented (the claim), Spearses’ “Spears” whereabouts Id. constitutional error.” of a claimed result (b) King intimidation of Dianna the State’s added). (emphasis (the claim), testimony procure “King” false (c) sug- that his trial counsel impermissibly assertion use of an O’Guinn’s State’s mitigating additional presented should have array securing Danny gestive photo Sawyer standard. does not meet the Dunn’s identification of O’Guinn as the man put on the testi- trial counsel Had O’Guinn’s with whom Sheila had left the Hat & Cane friends about the aw- mony of relatives and (the “Dunn” night on the of her murder Club childhood, this would fulness of O’Guinn’s (d) claim), presentation “sur- the State’s of of nothing presence to rebut the done have testimony regarding Dr. prise” of Harlan aggravating circumstances that caused premortem infliction of the wound to Sheila’s eligible for the death jury to find O’Guinn (the claim), vaginal surprise testimony vault they him upon sentenced penalty (e) unconstitutionality of the Tennessee met the O’Guinn has not to death. Because case, penalty applied statute as death establishing inno- Sawyer for actual standard (f) reliability degree of of O’Guinn’scon- penalty, and because cence of the death required as viction sentence waived his ineffective as- otherwise Amendment, Eighth (g) the ineffective assis- court errone- argument, the district sistance guilt stage tance of counsel at on the basis of the ously granted the writ (h) trial, alleged violation O’Guinn’s of O’Guinn’s counsel ineffective assistance (due process) Amendment of the Fourteenth sentencing.21 taking statements. The district O’Guinn’s Cross-Appeal contentions to D. O’Guinn’s court found each O’Guinn’s these, be without merit. As to most claim, Brady alleged In addition to his separate concurring opinion suggests that peti- cross-appeal argues that they they may or that should be have merit have corpus of habeas should tion for writ pursuant to the new (a) raised the state alleged granted based on the State’s Procedures Act. ability present Tennessee Post-Conviction interference with O’Guinn’s probability findings, it would not ists a reasonable court's own 21. Even under the district O'Guinn to die for the murder granted. have sentenced have been the writ should not Cupples," far from clear that the independent Sheila it is the standard for court described applied. actually the court latter is the standard claim as re review of an ineffective assistance unprofessional quiring error, for counsel’s that "but And, course, standard is even the Strickland likely proceeding would the result actually applies cry in this a far from the one different,” finding the court’s own have been but one must ‘actual innocence’ case: "to show Dutton, O’Guinn v. fails to meet this standard. convincing evidence that but clear and show 779, (M.D.Tenn.1993). F.Supp. 785-86 error, juror reasonable a constitutional no investigat "had counsel district court found that petitioner eligible for the would have found character, they background ed O'Guinn’s penalty....” Sawyer, 505 U.S. at death mitigating presented strongly evi added). could have (emphasis O’Guinn now S.Ct. at 2523 jury might upon Delo, based which the dence attempts argue Schlup -U.S. penalty” (emphasis impose death -, (1995), refused L.Ed.2d 808 has 115 S.Ct. added). "might however, have" lan The district court’s Sawyer; clear that superseded it is likely satisfy guage Strickland's “would Murray does not v. Car Schlup rier, the standard of holds that satisfy require Nor does it have” standard. 91 L.Ed.2d 477 U.S. Fretwell, 364, 372, (1986), Sawyer ment of Lockhart v. standard is rather than (1993), 838, 842-44, 122 L.Ed.2d 180 required 113 S.Ct. actual innocence of when the claim is recognize result is not Schlup mere likelihood of a different crime. continues the applicability is, here, enough ”[u]nreliability does Sawyer or unfairness the issue since when U.S. at -, penalty. does - eligibility the ineffectiveness of counsel death not result if for the deprive were not so and the defendant of substantive at 867. Even if this applied stringent right law entitles him.” Carrier standard procedural to which the the less case, Although still would have show the dis 113 S.Ct. at 844. in O’Guinn's Id. likely no reason than not that properly Strickland that it was more court later recited the trict wrote, eligible juror him for the would have found finds that able when it “The court standard evidence, penalty. death jury there ex- considered this §§ (Supp. cognitive two-year 40-30-201 to 222 limited abilities and the Tenn.Code Ann. 1995). lapse I believe that most of these claims time between the crime and the time defaulted, proeedurally they and that were photo array that Dunn was shown the makes properly be considered the feder- testimony inherently his unreliable. The dis- proce- that al habeas court. Those were not trict court failed to address this claim. durally defaulted are without merit. The fourth and fifth claims that are conviction O’Guinn’s and death sentence fail Proeedurally 1. Defaulted Claims carry heightened degree reliability pro- court did not The district address the required by Eighth and Fourteenth defense raised cedural default State. Amendments and that his statements were However, it is clear that most of these claims by investigators coerced while he was men- proeedurally are defaulted and cannot be infirm, tally physically in violation of his by petitioner raised in this federal habeas process rights. Fourteenth Amendment due petition. explain appeal, He does not these claims on One of these claims involves Michael and complains but that the district court faded to potential Spears, Debbie witnesses for either them. address The sixth claim is O’Guinn’s petitioner the State or trial. O’Guinn claim of ineffective assistance of counsel at right argued that his constitutional to a fair guilt phase. trial was violated when the State interfered any O’Guinn never raised of these claims ability Spearses with interview appeal any on direct or in post-convic- of his cooperating intimidated them into not tion motions. The Tennessee Post-Convic- Spearses the defense. He contends three-year tion Procedures Act contains a testimony had beneficial information to his period statute of limitations for filing claims alleges He defense. also the State se- clearly petitioner were available to the Spearses during creted the trial and then during period: that time jury misrepresented they to the prisoner custody A under sentence of a unable to attend the because of adverse petition post- court of this state must weather, they attended, they that if but conviction relief chapter under the within would have been witnesses for the State. As (3) years three of the date of the final supra, discussed court district heard tes- highest action of the appellate timony Spears regarding from Michael these appeal to which an is taken or consider- claims, rejected incredible, completely it as petition ation of such shall be barred. and denied O’Guinn’sclaim. (1990). § 40-30-102 claim Be second involves O’Guinn’sasser- Tenn.Code Ann. timely cause of his failure raise these tion that the intimidated State witness Dian- claims, post-conviction remedy no state King testimony giving na into false at trial. See, available which to raise night murder, them now.22 She testified that on the State, e.g., v. Caruthers she danced S.W.2d 69-70 with O’Guinn the Hat & Cane (Tenn.Crim.App.1991) (stating petition evidentiary At hearing Club. before the filed court, period outside statute of King district limitations testimony, recanted her dismissed). summarily should be As a claiming investigator that an re threatened her sult, O’Guinn’sclaims giving testimony. are deemed exhausted into false The district Lane, § Teague under 2254. See v. King court found not to be credible and 288, 298, 1060, 1066, 109 S.Ct. 103 L.Ed.2d denied claim. O’Guinn’sthird claim is that state witness Danny testimony Dunn’s identification Teague Wainwright Sykes, Under upon impermissibly suggestive based pho- 433 U.S. array. argued (1977), O’Guinn also raising Dunn’s O’Guinn is barred from these post-conviction peti- Even if O'Guinn's second proceeding for relief not raised in such broadly allege any tion can be construed to or all held was waived.” Tenn.Code Ann. claims, of these he nonetheless failed to over- 40-30-112(b)(2) (1990). § presumption ground come the rebuttable “that a

1455 destroying petitioner’s the factual basis for for the cause he can show both unless claims resulting argument. nothing from it. I find in cause the record prejudice and default 297-99, at 109 S.Ct. at credibility 489 U.S. Teague, to indicate that the district court’s 107, Isaac, v. 456 U.S. (citing Engle 1068-69 determinations are erroneous.23 Conse- 1558, 1564-65, 113-114, 117, 124-35, 102S.Ct. Further, quently, cause has not been shown. 1570-76, (apply L.Ed.2d 783 71 incredibility findings demonstrate to claim that had default rule ing procedural cannot the Carrier this evidence meet court)); also in state see raised never been /Schlup test for actual innocence. McMackin, 790, 792-93 935 F.2d v. Riggins solely relating go to Dunn Cir.1991) O’Guinn’sclaims (6th (finding procedural bar where reliability credibility no of Dunn’s in court and to the and raised claim was never available). And, remedy testimony, questions appropriately answered state court in extraordinary ease infra, jury, noted and to identification of O’Guinn. “probably error has a constitutional which I the entire record relative to have reviewed actu of one who is in the conviction resulted array photo claimed O’Guinn to be innocent, may court ally a federal habeas first, impermissibly suggestive, and conclude in of a the absence grant the writ even array characterization of O’Guinn’s default,” procedural for the showing of cause record, second, supported by and is not Carrier, at 2649. 106 S.Ct. 477 U.S. at Manson that this claim is without merit. See satisfy Brathwaite, cause and 98, 112-14, failed to has v. 432 U.S. S.Ct. (1977). of these requirements as prejudice 2243, 2252-53, claims, claim of actual has raised a and he reliability hinged on the heightened claim only some. crime as to innocence of the claims, Spears, King and Dunn success of the However, materi- actual innocence is because are merit. all of which believe without claims, I review each of these defaulted al to argued (although he O’Guinn also light in claim of them each rehearing hаve abandoned this claim on en actual innocence. banc) post-conviction the Tennessee of the crime of actual innocence Claims minimally provide him a ade statute did not out under the standard set be reviewed must to discover and air quate forum Carder, 478, 106 S.Ct. at not mirror the these claims because does —Delo, Schlup U.S. and reaffirmed argues provisions. He habeas federal -, L.Ed.2d 808 S.Ct. proce court should therefore overlook requisite probability [that “To establish him a forum. provide and dural default probably has result ‘a constitutional violation post-conviction or not Tennessee’s Whether actually conviction of one who is ed closely the federal more track statute should Carrier, innocent,’ U.S. question does not address habeas statute 2649], that it is petitioner must show arguments failing to raise these of cause for juror likely than not that no reasonable more clearly and could knew of below. O’Guinn light him in the of the convicted would have evidence_ throughout his di these claims have raised requires peti new Carrier ” proceedings. post-conviction ‘actually appeal rect he is innocent.’ tioner to show that — at -, at 867. of Tennessee’s Post Conviction Schlup, U.S. His criticisms question Procedures Act do not address claims, Spears King Kegarding the prejudice. Because O’Guinn of cause and not discover petitioner argues that he could failing to raise cause for has not established egregious of the the claims earlier because the Tennessee courts these claims before intimidating government conduct allegations used none of the factual because Their tes- threatening these witnesses. argument provides evidence support his pre- timony petitioner was the juror likely than not no reasonable that more misconduct, the district of such sented mur guilty of the have found O’Guinn would by these found the stories told wit- — at -, der, 115 S.Ct. at incredible, Schlup, thereby see completely nesses to be 23. See footnote

867, the federal habeas court is barred from firm the district court’s denial of both claims reviewing these claims. on the merits. statements, Regarding the coercion of his Surprise Testimony a. Dr. Harlan Claim attempts bootstrap this claim O’Guinn During trial, preparation their for defense However, onto his Fifth Amendment claim. Franseseo, counsel contacted Dr. a medical dissenting I in opin as indicated earlier custody examiner who had autopsy of the

ion, alleged never as a basis for reports prepared by patholo- which had been suppression of his statements that he was gist Dr. Harlan. Dr. Franseseo told defense coercion, any physical under or mental such reports counsel that the no contained deter- argument by an has never been addressed mination of whether victim had been courts, presents and he the state no new penetration. alive the time of sexual At proceedings sup evidence in these habeas trial, Dr. Harlan testified that it was his Therefore, port a claim. such this claim has opinion medical the victim had been defaulted, procedurally also been no cause alive at the penetrated time she was awith prejudice resulting for or from the default object blunt metal or wooden that lacerated shown, having been and because the confes vaginal her wall. O’Guinn moved for a mis- suspect, sions are neither unreliable nor no grounds testimony trial on the that this sur- justice miscarriage of would result from our prised him in process violation of his due at -, failure to hear this claim. Id. rights. denied, The motion was and on di- Carrier, (citing S.Ct. at 864 477 U.S. at appeal rect Supreme the Tennessee 2649-50) (federal 106 S.Ct. at habeas court rejected challenge, ruling O’Guinn’s that de- may grant extraordinary the writ case surprise fense counsel’s could not be attrib- where there has been a fundamental miscar uted the State because the State had riage justice even in the absence of a provided the copy defense with a default). Dr. showing procedural of cause for the autopsy report Harlan’s required by Ten- Finally, O’Guinn has not shown cause for discovery nessee rules. failing timely to raise his claim of ineffective During evidentiary the federal habeas during assistance of guilt phase counsel hearing, testimony the district court trial, heard prejudice of his as a result of the Sperry. from Dr. argued that Dr. ineffective assistance. The district court Sperry could have held, been used to rebut Dr. albeit without statement of its rea testimony Harlan’s had he sons, known advance that this claim was Nothing meritless. of the content of Dr. testimony. Harlan’s preju the record indicates that cause and rejected The district court argu- shown, dice can be and therefore this claim ment. It although found that Dr. Harlan’s procedurally defaulted. As with the oth testimony surprise was a to O’Guinn as claims, well wholly er defaulted O’Guinn has State, as to Sperry Dr. would not have actually failed to demonstrate that he is inno been able to testimony rebut Dr. Harlan’s that, cent and but for the ineffective assis and therefore O’Guinnhad failed to counsel, show tance of likely it is more prejudice stemming surprise from the testi- than juror not that no reasonable would have mony. at -, him. convicted Id. 115 S.Ct. at 867. I agree with the district court that Dr. Surprise Testimony Application of Sperry’s testimony could not have rebutted Penalty Death Statute testimony. Dr. Sperry Harlan’s Dr. testified O’Guinn’sfinal two claims involve the sur- that he could not make a determination prise testimony pathologist the state Dr. whether the victim was alive when she constitutionality Harlan and the appli- penetrated of the with the blunt metal or wooden penalty object. cation of the death Consequently, this case. although Dr. Harlan’s properly preserved These claims were testimony may surprise as a come habeas review. Both surprise were addressed did not stem from ac- Supreme appeal. fact, Court on direct tion or inaction State. below, explained As I believe surprised by we should af- State was itself Dr. Harlan’s Further, First, testimony. the content of may apply every the sur- it defendant testimony prise primarily Second, related to the sen- convicted of murder. Id.

tencing explained determination. As unconstitutionally vague. Id. and as found the Tennes-

next subsection penalty Tennessee death statute Court, regardless see of the testi- effect when O’Guinn was convicted and sen- mony regarding timing rape, sub- provided: tenced support jury’s stantial evidence existed to penalty No death imposed shall be but penalty. recommendation death upon a finding unanimous ... of the exis- Therefore, agree with the district court tence of one or statutory more of the ag- prejudicially surprised. that O’Guinn was not circumstances, gravating which shall be following: limited to the Constitutionality b. of the Death Penalty in this Statute Case heinous, The especially murder was challenges constitutionality the of atrocious, or cruel in that it involved tor- penalty applied Tennessee’s death statute as depravity or ture of mind. eases, capital punishment this case. In 39-2-203(i)(5) (1982).24 § Tenn.Code Ann. Eighth places requirements Amendment argues “depravity” that the words decisionmaking: eligibility on two areas of and “torture” unconstitutionally vague are — Tuilaepa California, and selection. because provide those words do not adequate —, -, 2630, 2634, 114 U.S. guidance jury deciding to the whether to L.Ed.2d Federal court review of impose penalty. the death penalty a state death vagueness statute for regard eligibility and selection factors Supreme Court considered quite at -, “heinous, atrocious, deferential. Id. 114 S.Ct. at or cruel” aggravating providing 2635. “In analyzed for individualized sen circumstance and its constitutional tencing, recognized Williams, validity must be that the States State v. 690 S.W.2d 517 (Tenn.1985). may adopt capital sentencing processes that comparable court reviewed rely upon jury, in judgment, aggravating its sound provisions circumstances in oth- at -, statutes, exercise penalty wide discretion.” Id. 114 er states’ noting death purposes vagueness S.Ct. at 2636. “cruelty” “For pain involves the and distress the analysis, ... [proposi victim, our concern is that upon murderer inflicts while “de- tional challenged pravity” factor of the statute concerns the mental state and atti- being grounds vagueness] void on by tude of the murderer as evinced his words meaning some ‘common-sense core of ... and actions at the killing. time of the Id. at juries Thus, that criminal capable should un considering be 525-29. courts similar ” Texas, derstanding.’ (quoting statutory language Id. Jurek v. had drawn a distinction 262, 279, 2950, 2959, statutory language describing between the (1976) (White, J., (“cruel”) (“de- concurring L.Ed.2d 929 in the crime and the criminal judgment)). praved”). Id. at 528-29. The court Williams determined first clause challenge eligibility is to the as ie., provided murder, that the the crime of pect penalty of the Tennessee death statute. conviction, heinous, “especially must be atro- In order for a eligible defendant to be found cious, or cruel.” Id. According at 529. penalty ease, for the death in a homicide court, clause, the second “in that it in- required jury Court has to con mind,” depravity volved torture or is a vict the defendant of murder and find one limiting provision which serves restrict the “aggravating guilt circumstance” at the or first clause. Id. penalty phase. at -, Id. 114 S.Ct. at 2634. aggravating An circumstance aggravating must meet two The words of limitation in the requirements. at -, provision Id. S.Ct. at 2635. circumstance at issue here are in substantially provision 24. A similar is now found cruel or in that it involved torture or serious 39~13-204(i)(5) (Supp.1995): physical beyond § necessary produce abuse Tenn.Code Ann. heinous, atrocious, especially "The murder was death.” fairly drawn cannot be inference aggravating cir- is an disjunctive; there depravity of mind possessed the if murderer penalty the support death cumstance inflicted, “depravi- the fatal blows or at the time “torture” involved either murder murder, said that Supreme Court it cannot then The Tennessee ty of mind.” itself, depravity of mind. “torture” and defined involved specifically in Williams narrowing mind,” thereby “depravity omitted). (citations explained As Id. 529-30 purpose of for the terms of these definition court, involves acts addi- “torture” atrocious, aggravating “heinous, or cruel” necessary to cause act was tion to whatever According to the court: circumstance. Williams, Thus, in the Tennessee death. infliction of severe means “Torture” definition of narrowed the Supreme Court pain upon the victim or mental physical it involved torture phrase “in that alive and con- or she remains while he depravity may be mind” so that depravity of torture oc- that such proving scious. (such as mutila- acts torture or shown necessarily, proves State, also curred, the tion) following the occurring in time close depravity of mind involved that the murder of the victim.25 death murderer, the state mind because Supreme by the Tennessee As defined willfully inflicts such severe of one who atrocious, “heinous, ag Court, or cruel” pain on the victim the is physical or mental require the satisfies gravating circumstance depraved. — at -, Tuilaepa, in U.S. set out ments “depravity of However, we hold neither The terms are 114 2635. circumstances, S.Ct. may, in some be mind” they unconstitutionally vague, apply nor do torture, de- although as hereinabove shown A of murder. every convicted defendant fined, occurring If acts did not occur. sentencing is not unconstitu capital scheme are of the victim relied death after the “ ‘meaningful a tionally vague provides if it mind of depravity of the upon to show distinguishing the few cases murderer, basis acts must be shown to such imposed the penalty] is from [the to the time the which so close have occurred Gregg v. death, many in which it is not.’” have been of such cases and must victim’s 153, 188, 96 S.Ct. nature, fairly Georgia, can be 428 U.S. that the inference (quoting Fur of mind of depraved state 49 drawn that the L.Ed.2d 859 238, 313, fatal Georgia, at the time the S.Ct. existed man v. the murderer (1972) (White, J., upon 2726, 2764, the victim. This blows were inflicted narrowing it “the murderer’s state the definition of concurring)). because is In is true killing” “heinous, atrocious, aggravating of the or cruel” of mind at the time the depraved. circumstance, have been by requiring jury shown to must be and instructed, the Tennessee Su body specifically Thus, be the dead the mutilation of or elimi reduced depravi- preme Court Williams constitute may be victim found penalty, the death based mind, nated the risk that only if mutilation oc- ty but factor, would “be inflict aggravating on that death of the victim so soon after the curred arbitrary capricious manner.” in an and fairly drаwn ed that the inference Consequently, the narrowed definition depravity Id. possessed the murderer narrowly passes tailored killing. is actual If Williams the time of the mind at Likewise, nar intervening between constitutional muster. length time legal terms of this of the time of rowed definition victim and the time of death of the factor, requisite jury aggravating body great that is so mutilation of the Williams, Supreme has legal States narrowing United definition of these 25. After [may uphold] appellate terms, court that "a state supreme held that held court the state part in improper is based penalty a death sentence that imposition un of the death aggravating improperly cir defined fully valid or jury instructed re has first been less the reweighing aggra by ... either cumstance garding nous,” "atrocious,” legal significance of the terms "hei "torture,” by “cruel,” mitigating vating evidence or harmless- Mississippi, 494 aggravating review.” error Clemons "depravity used of mind” as 1441, 1444, 738, 741, Williams, at 533. U.S. S.W.2d circumstance. (1990), discussed L.Ed.2d 725 Supreme Court decision in Since the Tennessee infra. “heinous, instruction, jury ensures that the atro- before the to determine whether cious, every apply supported factor will not finding or cruel” of the “hei- nous, atrocious, convicted of murder. It cannot be defendant or aggravating cruel” cir- cumstance, that all murders involve the “infliction of said as defined the narrowed con- physical pain upon or mental the vic- severe struction. The court it found that did. he or she remains alive and con- tim while v. Mississippi, Clemons the United Williams, 690 S.W.2d at 529. Nor scious.” States Court held that the Consti- mutilating do all murders involve the killer’s tution prevent appellate “does not a state body immediately mur- his victim’s after the upholding court from a death sentence that is der such as would demonstrate the murder- part based in on an improperly invalid or depravity er’s of mind. Id. aggravating defined circumstance either trial, At instructed the reweighing aggravating mitigating jury that it could sentence defendant evidence or harmless-error review.” 494 heinous, “especially if the death murder was 738, 741, 1441, 1444, atrocious, or cruel involved torture Court, According L.Ed.2d 725 to the jury depravity of mind.” The did not appellate is a routine task of “[i]t courts to regarding receive further instruction decide whether supports jury the evidence aggravating circumstance. After delibera- capital verdict and in ‘weighing’ cases in tion, jury returned a written verdict stat- States, to consider whether the evidence is ing: jury such that the could have arrived at the

We, jury, unanimously imposed.” find the follow- death sentence that was Id. at 748-49, ing statutory aggravating list of circum- Responding 110 S.Ct. at 1448. argument stances: Clemons’ Mississippi that the Su- preme actually reweighed Court had not the heinous, especially The murder was atro- case, simply evidence but had instead cious, cruel, or that it [in] involved torture aggravating held that when an circumstance depravity of mind. by jury invalidated, relied on the the jury unanimously the find that We there sentence could nonetheless be affirmed be- mitigating are no circumstances suffi- cause at ag- least one valid and undisturbed ciently substantially outweigh the statuto- remained, gravating circumstance the Su- ry aggravating circumstances or circum- preme Court noted: stances so listed. opinion We find the below unclear with jury Because the was not instructed re- respect Mississippi to whether the Su- garding the definition of the terms the preme perform weighing Court' did func- “heinous, atrocious, aggravating or cruel” cir- tion, by entirely disregarding either the Williams, by cumstance as narrowed “especially weighing heinous” factor and argues jury the relied on a only remaining aggravating the circum- constitutionally impermissible factor when it evidence, against mitigating the or .stance weighed aggravating against factors by including in “especially the balance the mitigating appeal, factors. On the Tennes- by prior heinous” factor as narrowed its Supreme jury agreed see Court decisions and embraced in this ease. properly regard. been instructed this 751, Consequently, supreme Accordingly, the state court un- at Id. 110 S.Ct. at 1449.26 dertook reevaluation of the evidence which we must determine whether Tennessee Florida, required. 26. The Court in Clemons made it clear that less-error review is Sochor v. appellate 527, 2118-19, necessarily required 532, 2114, courts were not 504 U.S. 119 engage reweighing analysis or Black, harmless-error (1992); Stringer L.Ed.2d 326 v. 503 U.S. capital sentencing when errors had occurred in a proceeding. 222, 232, 1130, 1137, 112 S.Ct. Clemons, 754, 494 U.S. at 110 S.Ct. (1992) ("When weighing process itself has Court, According holding "[o]ur to the skewed, only constitutional harmless-error only procedures constitutionally that such are analysis reweighing appellate or at the trial or Subsequent permissible.” Id. to the Court’s guarantee level suffices to the defendant Clemons, however, opinion in the Court has stat sentence.”). received an individualized reweighing ed times that several either or harm circumstances); Wainwright aggravating two reweighed or conduct- either Supreme Court Goode, 104 S.Ct. v. 464 U.S. review. ed a harmless-error curiam) (1983) (per (finding L.Ed.2d 187 Williams, aggravating by As narrowed circumstances). In eases aggravating three the “fac here contains at issue circumstance those, reviewing court is faced such as so crime or the defendant to the tual nexus factors from combination of with a different process rationally reviewable the as to ‘make ” jury considered and must therefore those the death,’ required imposing a sentence remaining aggravating cir reweigh only the — at -, 114 S.Ct. by Tuilaepa. any mitigating factors. against cumstances Creech, v. Arave (quoting ease, however, evidence and the 1534, 1540, L.Ed.2d 188 by the of factors considered combination heinous, (1993)). atrocious “especially The Supreme is the same as Court must involve torture murder or cruel” con combination of factors evidence and the taken mind. “Torture” —actions depravity jury. jury in this sidered beyond killing of go mere killer which aggravating circum one case found pain inflict before victim and especially murder was hei stance: that “the per mind”—-the “depravity of death —and atrocious, nous, that it involved [in] or cruel of mind of the killer —are and vile state verse jury depravity of mind.” The torture or and on on the crime itself factual limitations aggravating circum that this further found killer, supported which must substantially “sufficiently out- was not stance case. evidence by any mitigating circumstances. weighted]” case, Supreme the Tennessee In O’Guinn’s Supreme Court did not invali The Tennessee present- that the evidence determined Court circumstance, aggravating but rath date that testimony jury, including of Dr. ed to the properly narrowed construc applied the er Harlan, jury’s finding supported aggravating circumstance and tion of that narrowly as it was aggravating circumstance clearly sup determined in Williams. See State defined jury’s finding under that nar ported the (Tenn.1986). Applying 709 S.W.2d The Tennessee rowed definition. case, definition O’Guinn’s the Williams nothing “reweigh.” thus had that Dr. Supreme found Tennessee Court by the proper course was the one taken and, testimony, pro- was admissible Harlan’s Supreme apply Tennessee Court: jury permit the evidence to vided sufficient properly aggravating circumstance defined at the time that the victim was alive to infer jury’s findings a harmless-error under brutal acts and was penetration and other Clemons, 752, at 110 494 U.S. review. See by petitioner. therefore tortured S.Ct. at 1450. alternative, the In the 709 S.W.2d at 567. Arizona, 639, 110 v. 497 U.S. In Walton if the arguendo that even court reasoned (1990), 3047, 111 L.Ed.2d 511 Su S.Ct. rape, the at the time of the victim was dead essentially when held even preme Court of such a nature of the killer were actions improp jury using vague a a is instructed fairly timing the inference can be “that circumstance, erly aggravating defined possessed req- that the defendant drawn by upheld a federal court sentence should be ” at 568. I do ‘depravity of mind.’ Id. uisite (1) appellate courts have defined if the state findings say can these not believe we meaning aggrava of the specifically more erroneous; contrary, they to the are (2) appellate ting circumstance and a state amply supported by the record. reviewing ease has deter court the instant distinguishable from others supports This case is mined that the evidence the ease multiple aggravating circum- properly which one of defined. See the circumstance jury 653-54, found to be found a 110 at 3057-58. The stances id. at S.Ct. Florida, Seе, e.g., Supreme analysis v. 504 U.S. com invalid. Sochor Tennessee Court’s (1992) 527, 2114, ports requirements 119 L.Ed.2d 326 of Walton. 112 S.Ct. circumstances); Likewise, aggravating by applying properly narrowed (finding four “heinous, atrocious, 738, or cruel” Mississippi, 494 U.S. 110 definition of the Clemons v. circumstance, (1990) the Tennessee Su- 1441, (finding aggravating L.Ed.2d 725 S.Ct. 108

1461 “actually perform[ed] preme holding Court a new that federal courts are authorized Lewis, sentencing calculus.” Richmond v. to assess the error committed in a sentencing 40, 49, 528, 535, 506 113 S.Ct. 121 proceeding U.S. prior grant harmlessness ing 411 Dixon, L.Ed.2d habeas relief. Smith v. 14 F.3d — “ (4th 956, Cir.1994), denied, 976 cert. U.S. error, reviewing When for harmless ‘[t]he -, 129, (1995); 115 S.Ct. 130 L.Ed.2d 72 question is whether there is a reasonable Clarke, 1529, (8th Williams v. 40 F.3d 1540 possibility that the evidence complained — Cir.1994), denied, -, cert. U.S. 115 might have contributed to the conviction.’” 1397, (1995); S.Ct. contra 18, 23, Chapman California, v. 386 U.S. Puckett, Wiley 86, (5th 969 F.2d 94 n. 8 824, 827, 17 (1967) (quoting S.Ct. L.Ed.2d 705 Cir.1992) (stating only that “Clemons and Connecticut, Fahy 85, v. State 375 U.S. Stringer clear, quite however, are 86-87, 229, 230, L.Ed.2d 171 such analysis performed must the state (1963)). review, conducting the court courts.”). words, magic ] need “utter[ not ‘harmless Florida, error.’” Sochor v. 504 U.S. Supreme Court expressly has never 2114, 2123, 119 L.Ed.2d 326 stated whether or not federal habeas courts (1992) (O’Connor, J., concurring). The re may conduct a analysis harmless-error of a viewing court must believe that the error was vague aggravating circumstance error. The beyond a Chap harmless reasonable doubt. Court, however, distinguished has between man, 87 S.Ct. at reviewing errors that a may review for Supreme explicit Court has in requiring not, harmless error and may those that reviewing specific finding a court to make a and has spoken to the issue of which Sochor, of harmless error. See 504 U.S. at courts conduct the harmless-error anal (O’Connor, 112 S.Ct. at 2123-24 Smith, ysis. See 14 F.3d at (citing J., concurring). cases). Thus, Supreme because the Court has held that weighing the error caused a Supreme The Tennessee Court conducted vague by a state circumstance sentencer is underlying detañed examination of the evi- type subject error to harmless-error proof clearly sup- dence found that the Clemons, analysis, (citing id. at 976 ported aggravating circumstance as de- 1450), logical S.Ct. at conclu thereby proved fined Williams. The court sion is that supply federal courts can adequately the fañure to instruct analysis. harmless-error jury imposition did contribute to Although death penalty. believe Although in Supreme simñar cases the implicitly found appeñate Court has authorized state courts harmless error the fañure adequately to in weighing reweigh state to or conduct a jury case, instruct I ac- analysis, opin harmless-error “none of the knowledge may court explicitly containing language ions this were ones in have done so. I although think that conducted, which a lower court had federal or Supreme Court did not make an conduct, refused to harmless error review.” error, explicit finding of harmless that court Smith, 14 F.3d at 977. In Sochor and Clem adequately weigh did aggravating the sole ons, Supreme hearing Court was an ap against the mitigating circumstance evidence peal appeñate on direct review from state presented weighed at trial and that the court “explaining court and was what avenues of correctly. these factors analysis appel [were] avañable to the state Williams, I split note that the circuits have over late courts.” 40 n. F.3d at 1540 5. may perform whether a federal court Stringer and Richmond both involved an ha analysis in harmless-error context. beas action “where harmlessness was not at Eighth would follow the Fourth and Circuits issue.”27 Id. Stringer, weighing judicial system." Stringer, the court stated that the "use of a 237, vague aggravating weighing ... factor in the 503 U.S. at 112 S.Ct. at 1140. As the out, process requires pointed invalidates the sentence and ... Fourth Circuit "the has better read- analysis ing passage judicial constitutional harmless-error or re- of this is that ‘in the state

1462 evidence, through the defendant’s state- entirely it not be although

Finally, mind, through ments, depravity either I think precedent, Supreme Court from clear (1) killing; the victim before torture of the circum under appropriate it (2) body while mutilation of the victim’s the federal ease of this stances still alive or thought the victim was analysis.28 Ac killer harmless-error perform the alive; of the vic- or mutilation possibly Smith, (citing Brecht v. at 976 F.3d cord death, knowing immediately upon 1710, body 619, tim’s Abrahamson, 113 S.Ct. 507 U.S. (1993)). she was dead. Brecht stated “ tri state criminal into intrusions ‘[f]ederal Therefore, jury could have found both sovereign pow both States’ als frustrate mind, tor- depravity of or either torture and good-faith their punish offenders er enough depravity. Since would ture or rights.’” attempts honor constitutional for Tennessee statute under the narrowed 635, Brecht, at 1720 at 113 S.Ct. 507 U.S. or jury found either torture to have 128, Isaac, 107, 456 U.S. (quoting Engle v. support there was evidence depravity, and (1982)). 71 L.Ed.2d 102 S.Ct. depravity or finding either torture or concluded, As the Fourth Circuit both, which of is no need to determine there presumptively overturning final and before jury actually found the two alternatives or sentences state convictions correct alternatives). (or jury found both whether review, courts must federal federal habeas that, tracking language of the The fact those errors that for harmlessness assess (and statute, jury in the alternative found this review order eligible are unable to tell whether may in fact have been extraordinary provid- relief assure that the or the victim before death the killer tortured only to those granted writ is ed immediately body after her mutilated her society grievously whom has ‘“persons death) cannot be used now ” wronged.’ Obviously, penalty. escape the death upon acts committed Brecht, grotesque and deviant Smith, (quoting 14 F.3d at 976 immediately or after- the victim before death (quoting Fay v. at 1719 113 S.Ct. ward, both, “depravity of mind.” exhibit 822, 850, Noia, 372 U.S. Furthermore, Supreme as the Tennessee (1963))). L.Ed.2d 837 noted, always depravi- involves torture Court reviewing exhaustively the record After Williams, at 529. ty of mind. 690 S.W.2d anal- applying a harmless-error this case and Thus, to instruct the the failure of the court vague jury instruc- ysis, I find that the would jury of these terms regarding the definition Supreme harmless. The Tennessee tion was would, most, error.29 be harmless sup- correctly that the evidence found Court conclusively has finding in- As the jury’s that the murder ports the held, may be some constitutional er depravity of mind.” “there “torture or See volved setting particular of a ease It is obvious rors which at 567. S.W.2d unimportant insignificant are so jury there was evidence of believed (Dr. they may, consistent with the Federal Con testimony and other torture Harlan’s stitution, harmless, requiring be deemed alive when the evidence that the victim was of the conviction.” nipples with a the automatic reversal “twisted one of her defendant 18, 22, California, Chapman v. ridged until it left a pliers-like instrument 824, 827, abrasion, hard, object firm and rammed a S.Ct. “‘promotes ‍‌​​​‌​​‌‌‌​​‌​​​​​​​​‌​​​​​‌​​​‌‌​‌‌‌‌​​​‌​​‌​‌​‍public rule re it tore harmless error vagina with such force that

into her tissue”). by focusing on spect process for criminal vaginal Id. There is also the elastic removing any "depravity ‘reweighing' -just of mind” system’ ‘con 29. Even after modifies as — torture, analy only 'harmless-error the acts of stitutional’ modifies circumstance unrelated to the ” Smith, (citing Stringer, mitigating sis.' F.3d easily outweigh cir- the sole torture 1140). U.S. at 112 S.Ct. at poor relationship O'Guinn's cumstance of exemplified by his father’s affair his father as analysis required is if the state 28. Whether such jury gave no former wife. The with O’Guinn’s not, correctly, weighed is court in fact and did so mitigating weight circumstance. to this my judgment clear. underlying subject fairness of the trial rather the evidence that is the of that claim considered, virtually presence along is than on the inevitable with the entire records ” Clark, proceedings of the immaterial error.’ Rose v. Tennessee courts court, 570, 577, 106 3101,8105, and the federal district I think it 92 L.Ed.2d is apparent (1986) (citations omitted). that none of O’Guinn’s case, claims of In this constitutional error has merit. It is not the beyond would find a reasonable doubt that prerogative of the federal habeas court to jury regarding the failure to instruct the disregard findings the factual of the state “heinous, meaning legal terms in the except courts on the basis of one or more of atrocious, aggravating or cruel” circumstance explicit grounds doings so set out in jury’s imposition did not contribute to the 2254(d). § 28 U.S.C. None of grounds those penalty. the death present Accordingly, here. I think that proper disposition of this case is to re- CONCLUSION verse the district court’s grant conditional persuaded writ, I am that this court can and deny and to petition in its Brady entirety. should decide O’Guinn’s claim. When A

APPENDIX A

APPENDIX

Case Details

Case Name: Kenneth Wayne O'Guinn v. Michael Dutton, Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 3, 1996

Citation: 88 F.3d 1409

Docket Number: 93-5578, 93-5620

Court Abbreviation: 6th Cir.