Full opinion text
ORDER OF DISMISSAL ORDER DENYING CERTIFICATE OF AP-PEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER VACATING STAY OF EXECUTION DONALD, District Judge. TABLE OF CONTENTS A. INTRODUCTION .601 B. STATE COURT PROCEDURAL HISTORY.602 C. PETITIONER’S FEDERAL HABEAS CLAIMS.607 D. ANALYSIS OF THE MERITS.612 I.Claims Not Cognizable In Federal Habeas.612 II.Analysis Of Procedurally Defaulted Claims.612 A. Legal Standard for Procedural Default.612 B. Specific Procedurally Defaulted Claims.614 1. Judicial Bias.614 2. Procedurally Defaulted Claims of Withholding of Evidence.618 3. Improper Jury Instructions .620 4. Caldwell Error .622 5. Unconstitutionality of Death Penalty Statute.628 6. Electrocution Violates the Eighth Amendment.630 7. Prosecutorial Misconduct During Voir Dire.630 8. Denial of the Right to Sit at Counsel Table.631 9. Denial of the Right to Not be Viewed in Jail Garb.632 10. Unconstitutional Victim-Impact Evidence or Argument.632 11. Ineffective Assistance of Counsel.632 III.Analysis of Claims Considered on the Merits .633 A. Legal Standard for Merits Review. B. Specific Claims for Substantive Review. 1. Judicial Bias. 2. Evidentiary Rulings Deprived Petitioner of a Defense 3. Unconstitutional Aggravating Circumstance. 4. Unconstitutional Jury Instruction on Reasonable Doubt 5. Unconstitutional Jury Instruction on Malice. 6. Unconstitutional Use of Victim-Impact Evidence. 7. Unconstitutional Exclusion of Jurors Jarred and Todd . 8. Prosecutorial Misconduct During Cross-Examination ... U5 9. Prosecutor’s Improper Use of Victim-Impact Evidence . ID 10. Insufficient Evidence of Deliberation. ÍO 11. Insufficient Evidence of Premeditation. ÍO 12. Improper Instructions on Deliberation and Premeditation ID 13. Burden-Shifting Instructions on Mitigation. lo 14. Prosecutor’s Misconduct During Voir Dire. lo 15. Ineffective Assistance of Counsel. U5 C. Legal Standard for Sixth Amendment Claims.659 D. Analysis of Specific Claims . CO 1. Inadequate Preparation. CO 2. Failures to Make Objections to Victim-Impact Evidence W CO 3. Failure to Object to Prosecution Arguments and Jury Instructions . CO co Failure to Seek Trial Judge s Recusal for Bias. ^ CO co Inadequate Cross-Examination of Expert Witnesses Ü1 CO co Inadequate Presentation of Mitigating Evidence ... 05 CO co Inadequate Closing Argument. CO CO Failure to Raise Insufficient Evidence. CO CO CO Failure to Challenge Constitutionality of Tennessee Death Penalty Statute . CD CO Failure to File a Petition for Rehearing on Direct Appeal O ko CO E. APPEAL ISSUES .666 I. Certificate of Appealability.666 II. In Forma Pauperis Appeal.667 III.Vacation of Stay of Execution.667 TABLE OF AUTHORITIES FEDERAL CASES Adams v. Jago, 703 F.2d 978, 981 (6th Cir.1983).125 Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)."... .103 Amos v. Scott, 61 F.3d 333, 340-41 (5th Cir.1995).53-55, 59 Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982).25 Austin v. Bell, 126 F.3d 843, 847 (6th Cir.1997) .94-96 Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).141 Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).54 Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481 (1921). 73, 74 Blanton v. Elo, 186 F.3d 712 (6th Cir.1999). 69, 81 Booth v. Maryland, 482 U.S. 496,107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).101 Boyde v. California, 494 U.S. 370, 376, 110 S.Ct. 1190,108 L.Ed.2d 316 (1990).124 Boysiewick v. Schriro, 179 F.3d 616, 621 (8th Cir.1999) .76 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 38, 39 Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) . 102, 111, 112 Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1991).93 Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). 45 Caldwell v. State, 1994 WL 716266 (Tenn.Crim.App. Dec.28,1994) 51 Campbell v. State, 1993 WL 122057 (Tenn.Crim.App. Apr.21,1993) 51 Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.1998).69 Carpenter v. Mohr, 163 F.3d 938, 944-45 (6th Cir.1998). 48, 60, 74 Cartwright v. Maynard, 822 F.2d 1477,1485 (10th Cir.1987). 86, 88 Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).111-113 Coe v. Bell, 161 F.3d 320, 330 (6th Cir.1998). 48, 50, 56, 96, 99 Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) .23, 25, 26, 37, 53, 59, ' 61, 65, 67,103, 138 Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).80 Crane v. Sparkman, No. 97-5321, 1998 WL 598725 at * 6 (6th Cir. Aug.27,1998) .76- Dorman v. Wainwright, 798 F.2d 1358, 1363 (11th Cir.1986).64 Dugger v. Adams, 489 U.S. 401,109 S.Ct. 1211,103 L.Ed.2d 435 (1989).52 Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995).25 Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) 92 Estelle v.’ McGuire, 502 U.S. 62, 72-73, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).99 Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).66 Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991).49 Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).66 Glenn v. Tate, 71 F.3d 1204,1210 (6th Cir.1995).126 Godfrey v. Georgia, 446 U.S. 420,100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).86 Granberry v. Greer, 481 U.S. 129, 133-34, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) .24 Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) . 24, 25, 29, 59 Hall v. Iowa, 705 F.2d 283, 287 (8th Cir.1983).22 Hannah v. Conley, 49 F.3d 1193,1194-95 (6th Cir.1995). 28, 49 Herbert v. Billy, 160 F.3d 1131,1135 (6th Cir.1998) .71 Houston v. Dutton, 50 F.3d 381 (6th Cir.1995).86 In Re Murchison, 349 U.S. 133, 134, 75 S.Ct. 623, 99 L.Ed. 942 (1955). 31, 72 In Re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).95 Isabel v. United States, 980 F.2d 60, 64 (1st Cir.1992) .125 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).114 Johnson v. State, 1991 WL 111130 (Tenn.Crim.App. June 26,1991).51 Johnson v. State, 1994 WL 90483 (Tenn.Crim.App. Mar.23,1994) .51 Jones v. Toombs, 125 F.3d 945, 947 (6th Cir.1997). 48,60, 74 Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir.1997).142 Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.1986) .22 Knapp v. Kinsey, 232 F.2d 458, 461-62 (6th Cir.1956). 32, 36 Koteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557(1946) .102 Lambrix v. Singletary, 520 U.S. 518, 537-38, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). 91, 92 Lewis v. Alexander, 11 F.3d 1349,1352 (6th Cir.1993) .125,127 Liteky v. United States, 510 U.S. 540, 550-51, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).29, 73, 74, 75, 76, 77, 79 Lockhart v. Fretwell, 506 U.S. 364, 368,113 S.Ct. 838,122 L.Ed.2d 180 (1993).126 Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997).141 Lyons v. Stovall, — F.3d -■, 1999 WL 639577 at *12 (6th Cir. Aug.24,1999) . 42, 43, 92 Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir.1997).68 Maekall v. Murray, 109 F.3d 957 (4th Cir.1997).68 Marshall v. Jerrico, Inc., 446 U.S. 238, 242,100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) . 31, 72, 87, 88 Martin v. Ohio, 480 U.S. 228, 234,107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).122 Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986).22 Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). 85, 87-89, 93 McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir.1991).49 MeGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.1997).142 McQueen v. Patton, 118 F.3d 460, 464 (6th Cir.1997).63 Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). 80, 81 Morgan v. Illinois, 504 U.S. 719,112 S.Ct. 2222,119 L.Ed.2d 492 (1992).107 Murray v. Carrier, 477 U.S. 478, 488 (1986) .26 Nelson v. Nagle, 995 F.2d 1549 (11th Cir.1993) .47 Nelson v. Solem, 714 F.2d 57, 60 n. 2 (8th Cir.1983) .22 Nevers v. Killinger, 169 F.3d 352, 361 (6th Cir.1999).69-72,112 Norton v. Parke, 892 F.2d 476,479 n. 7 (6th Cir.1989) .76 O’Brien v. Dubois, 145 F.3d 16, 20 (1st Cir.1998).69-71 O’Guinn v. Dutton, 88 F.3d 1409,1411 (6th Cir.1996) .71 O’Guinn v. State, 1997 WL 210890 *1 (Tenn.Crim.App. Apr.29, 1997).'..62 O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732-33, 144 L.Ed.2d 1 (1999).25 Prtiz v. Stewart, 149 F.3d 923, 939 (9th Cir.1998) . 23, 76 Parker v. Rose, 728 F.2d 392, 394 (6th Cir.1984).52 Patterson v. New York, 432 U.S. 197, 206-07, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) .122 Payne v. Tennessee, 501 U.S. 808, 824, 827, 111 S.Ct. 2597,115 L.Ed.2d 720 (1991) .101 Pendleton v. State, 510 U.S. 1084,114 S.Ct. 916,127 L.Ed.2d 205,1994 WL 14231 (Tenn.Crim.App. Apr. 21, 1994).51 Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) .138 Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989).66 Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).24 Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir.1987). 25,29, 59 Poland v. Stewart, 117 F.3d 1094,1103-04 (9th Cir.1997).76 Porter v. Singletary, 49 F.3d 1483 (11th Cir.1995).29 Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). 85,126 Rickman v. Dutton, 854 F.Supp. 1305 (M.D.Tenn.1994) .86 Robison v. Johnson, 151 F.3d 256, 267 (5th Cir.1998) .43 Rose v. Lundy, 455 U.S. 509, 519,102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).24 Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).138 Rust v. Zent, 17 F.3d 155,160 (6th Cir.1994) . 24, 26 Sandstrom v. Montana, 442 U.S. 510, 513, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).98 Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).42 Schlup v. Delo, 513 U.S. 298, 327,115 S.Ct. 851,130 L.Ed.2d 808 (1995). 26, 27 Shannon v. United States, 512 U.S. 573, 579-81, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). 41, 42 Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990).85 South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) .103 Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 57,125-127 Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).93 Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). 26, 42, 55, 92 Tillett v. Freeman, 868 F.2d 106,108 (3d Cir.1989).22 Turney v. Ohio, 273 U.S. 510, 520, 47 S.Ct. 437, 71 L.Ed. 749 (1927). 32, 72 United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). 73, 74 Uited States v. Levine, 80 F.3d 129,135 (5th Cir.1996).43 Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).93 Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).26 Wainwright v. Witt, 469 U.S. 412, 424-26, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) .103,105 Walton v. Arizona, 497 U.S. 639, 651-52, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) .61 Westv. Johnson, 92 F.3d 1385,1411 n. 47 (5th Cir.1996). 30, 76 Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776(1968) .103 Wong v. Money, 42 F.3d 313, 324-26 (6th Cir.1998)....!. 82, 83 Wooden v. State, 1998 WL 511133 at *7 (Tenn.Crim.App. Aug.20,1998).58 Workman v. Bell, 178 F.3d 759, 776-77 (6th Cir.1998). 96,136 Workman v. Tate, 957 F.2d 1339,1345 (6th Cir.1992).127 Wright v. State, 1994 WL 115955 (Tenn.Crim.App. Apr.7,1994).51 Yates v. Evatt, 500 U.S. 391, 401-02, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). 97, 99 STATE CASES Adkins v. State, 911 S.W.2d 334 (Tenn.Crim.App.1994).51 Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994).12 Alley v. State, 958 S.W.2d 138 (Tenn.Crim.App.1997). 12, 59, 60,122,125, 127-130,137 Buchanan v. State, 488 S.W.2d 724 (Tenn.1973).52 Burford v. State, 845 S.W.2d 204 (Tenn.1992).62 Carroll v. State, 532 S.W.2d 934, 937 (Tenn.Crim.App.1975) .52 Carter v. State, 952 S.W.2d 417, 420 (Tenn.1997).27 Cone v. State, 927 S.W.2d 579, 581-82 (Tenn.Crim.App.1995). 58, 59 Delbridge v. State, 742 S.W.2d 266, 267 (Tenn.1987).51 Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802 (Tenn.App. Aug.30,1991).50 House v. State, 911 S.W.2d 705, 713-14 (Tenn.1995). 49, 50, 58 Kinsey v. State, 545 So.2d 200, 203 (1989).138 Pryor v. State, 632 S.W.2d 570 (Tenn.Crim.App.1982).52 Roberts v. State, 335 So.2d 285 (Fla.1976).44 Sands v. State, 903 S.W.2d 297 (Tenn.1995) .62 Shell v. State, 554 So.2d 887, 903 (Miss.1989).86 State v. Alley, 776 S.W.2d 506 (Tenn.1989).3, 6, 7, 12, 80-82, 114, 124,138,139 State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978).81 State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997) .115,117 State v. Brown, 836 S.W.2d 530, 543 (1992). 115,119,120 State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn.Crim.App.1993) .115 State v. Hines, 919 S.W.2d 573, 581 (Tenn.1995).91 State v. Lee, 634 S.W.2d 645, 647 (Tenn.Crim.App.1982).52 State v. Williams, 690 S.W.2d 517, 526-27 (1985).86 State v. Wilson, 530 S.W.2d 766, 768-69 (Tenn.1975).51 Stewart v. State, 534 S.W.2d 875 (Tenn.Crim.App.1976).52 Strouth v. State, 755 S.W.2d 819, 822 (Tenn.Crim.App.1986).51 Swanson v. State, 749 S.W.2d 731, 734 (Tenn.1988).55 Wooden v. State, 898 S.W.2d 752, 754 (Tenn.Crim.App.1994).50 Workman v. State, 868 SW.2d 705 (Tenn.Crim.App.1993).51 FEDERAL STATUTES 18 U.S.C. § 1361 . 74, 75 21 U.S.C. § 848(q).2 28 U.S.C. § 144 .73 28 U.S.C. § 455 . 75 28 U.S.C. § 1913 .142 28 U.S.C. § 1915 .2 28 U.S.C. § 1917 .142 28 U.S.C. § 2251 . 2,143 28 U.S.C. § 2254 . 2, 12, 18, 22 28 U.S.C. § 2254(a).21 28 U.S.C. § 2254(b). 23, 24 28 U.S.C. § 2254(d). 68,105 28 U.S.C. § 2254(e)(1).106 28 U.S.C. § 2253(c).140 Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, Title I, § 102,110 Stat. 1220 (Apr. 24,1996). 2,141 F.R.A.P. 24(a).142,143 Insanity Defense Reform Act, 18 U.S.C. §§ 17, 4241-4247 . 41 Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915(b) .142 Rule 4, Rules Governing Section 2254 . 24 Rule 8(a), Rules Governing Section 2254 .140 STATE STATUTES Tenn.Code Ann. § 33-7-303.40 Tenn.Code Ann. § 39-2-20 .122 Tenn.Code Ann. § 39-2-203©.85 Tenn.Code Ann. § 40-30-102.27 Tenn.Code Ann. § 40-30-102 (1990).50 Tenn.Code Ann. § 40-30-112. 27, 49 Tenn.Code Ann. § 40-30-201. 27, 62 Tenn.Code Ann. § 40-30-202(a).44 Tenn.Code Ann. § 40-30-217(a)(l). 40, 62 Tenn.Code Ann. §§ 40-30-101 to 124.27 OTHER AUTHORITIES 16 Whittier Law Review 645, 666-69 (1995) .44 68 U.S.L.W. 3008 (June 22,1999).48 81 A.L.R.4th 659 .44 Ala. Rules of App. Proc. 39.138 A. INTRODUCTION Petitioner, Sedley Alley, is confined as an inmate on death row at the Riverbend. Maximum Security Facility in Nashville, Tennessee. Alley filed a series of motions related to his capital murder conviction and death sentence in the United States District Court for the Middle District of Tennessee. In preparation for filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254, Alley filed a motion for stay of execution under 28 U.S.C. § 2251, a motion under 28 U.S.C. § 1915 to proceed in forma pauperis in filing the habeas petition, an affidavit in support of the § 1915 motion, and an application under 21 U.S.C. § 848(q) for appointment of counsel to prepare and file a § 2254 habeas petition. The Middle District Court granted a stay of execution, granted leave to proceed in forma pauperis, and transferred the petition to this District. This Court appointed counsel for Alley, and counsel has filed a habeas petition and two subsequent amendments. The State has filed answers to the petition and both amendments and has filed the complete state court record with the Court. The Court has previously-entered a number of orders, the most significant of which for purposes of this final order are the orders holding inapplicable to this petition Chapter 154 of Title 28 of the United States Code, enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, Title I, § 102, 110 Stat. 1220 (Apr. 24, 1996), and holding applicable to this petition Chapter 153 of Title 28, as amended by the AEDPA. B. STATE COURT PROCEDURAL HISTORY In March of 1987, a Shelby County, Tennessee, Criminal Court jury convicted petitioner of kidnapping, raping, and murdering United States Marine Corps Lance Corporal Suzanne Marie Collins and sentenced him to death by electrocution. The Tennessee Supreme Court affirmed the conviction and sentence. State v. Alley, 776 S.W.2d 506 (Tenn.1989). A proper consideration of this federal habeas petition requires a detailed recitation of the procedural history in state court, beginning with the facts of the murder itself. The following recitation is taken from the Tennessee Supreme Court’s opinion. At approximately 10:00 p.m. on 11 July 1985 [Collins] left her barracks dressed in physical training gear, a red Marine T-shirt, red Marine shorts, white socks and tennis shoes and went jogging on the Base, north of Navy Road. Her roommate indicated that the victim had been too busy that day to work out at the gym, which was closed at that time of night. Her body was found the next morning in Orgill Park, which adjoins the Naval Base, north of Navy Road. Defendant was not in the military service but was married to a military person and they lived on the Naval Base. He was employed by a Millington heating and air conditioning company. He was almost 30 years old, had two children, born of an earlier marriage, living in Kentucky, and had a history of alcohol and substance abuse. After appropriate Miranda warnings defendant waived the presence of an attorney and gave a lengthy statement of his activities that resulted in the death of Suzanne Collins to officers of the Naval Investigating Service on the morning of 12 July 1985. The statement was tape recorded with defendant’s permission. A narrative account of the relevant events of that evening as he related them to the Naval officers follows. About 7:00 p.m. on 11 July 1985, his wife left with two women to go to a Tupperware party. Defendant had been drinking beer before they left and by approximately 9:00 p.m. he had consumed an additional six-pack and a fifth of wine. At that time he drove his 1972 Mercury station wagon, with a Kentucky license tag to the Mini Mart ánd purchased another six-pack. He was depressed, lonely and unhappy. He had no friends “of his own” here. He missed his two children, his mother and father, all Kentucky residents. He was torn between going to Kentucky, staying where he was, or driving the car into a wall to kill himself. He drove to the north side of the Base, parked on a lot near the golf course and started running toward Navy Lake. He ran past a girl jogging and before he got to the lake he stopped, she caught up with him and they had a brief conversation. He did not know her name and had never seen her before. They turned around and jogged back to his car. He stopped there out of breath, and she continued on toward the gate at Navy Road. He started driving down the road toward that gate in spite of his apparent recognition that he was drunk and weaving from side to side on the roadway. Parenthetically, the asphalt road in that vicinity has narrow lanes, no curb, the grass covered shoulders and nearby terrain are approximately level with the roadway. He heard a thump and realized he had struck the girl jogger. Quoting from his statement, “she rolled around and screamed a couple of times and I ran over and grabbed her and told her I was going to take her to the hospital. I helped her into the car and we started towards.... ” On the way to the hospital defendant said that she called him names such as a drunken bastard and threatened to get him in trouble and he tried to calm her down, without success. When he reached the traffic light on Navy Road near the 7/11 store he turned left and again went to the north part of the Base in the vicinity of the lake. He described in considerable detail the subsequent events, that included hitting her a few times, holding her down on the ground, and sticking a screwdriver in the side of her head, [FN1] under circumstances apparently calculated by defendant to appear to be accidental. All of these actions were because she would not listen to his pleas not to turn him in. FN1. The forensic pathologist testified that she did not have an injury to her head inflicted in the manner or means described by defendant, nor did she have any injuries that could have been caused by being struck by an automobile. He insisted that he did not have sex with her at any time, nor did he even try at any time. He insisted that he was scared of the trouble she was threatening him with and was drunk and could not think clearly. After sticking the screwdriver in her head and her collapse, he decided to make it appear that she had been raped. He took off her clothes, and dragged her by the feet over near a tree. There he broke off a tree limb, inserted it in her vagina and “pushed it in.” He then ran to the car and drove away. The State called numerous witnesses who observed some of the movements of defendant and victim that night. A Naval officer driving north toward the lake on the Base passed two male Marines jogging north, and later saw a female Marine in red T-shirt and red shorts also jogging north. After passing the lone Marine he saw a white male near an old station wagon with wood paneling that was parked on an empty lot near the buffalo pens. The two Marines testified that as they jogged north a female Marine was jogging south and shortly thereafter they encountered a station wagon with wood grain paneling also going south that swerved over into the north lane towards them. The car continued on southward and when they were several hundred yards further north they heard a female voice screaming in distress, “Don’t touch me”, “Leave me alone.” They immediately turned around and ran south in the direction of the scream. It was too dark to see any activity very far ahead and before they reached the scene they saw the station wagon drive off toward the main gate. At that time they were about 100 yards away and were able to observe that the station wagon was off the road in the grass, near the fence, on the left or wrong side for a vehicle going south. Suspecting a kidnapping they continued on to the gate and gave a full report of what they had witnessed. They accompanied military security personnel on a tour of the residential areas of the Base looking for the station wagon, without success. However, after they returned to their barracks, they were summoned to the security offices where they identified the station wagon. Defendant had been stopped and brought in for questioning as had his wife. Their responses had allayed any suspicion that defendant had been connected with a kidnapping and they were allowed to go home. All of these events occurred before approximately 1:00 a.m., 12 July 1985. The victim’s body was found shortly before 6:00 a.m. on that date and defendant was promptly arrested by the military police. After completing the statement, defendant voluntarily accompanied officers over the route he had taken the night before and to the location of the murder and accurately identified various things, including the tree where he had left the body and where it was found by others and from which the limb he used had been broken. The pathologist, Dr. James Bell, testified that the cause of death was multiple injuries. He also identified several specific injuries, each of which could have been fatal. The victim had bruises and abrasions over her entire body, front and back. He testified that the injuries to the skull could have been inflicted by the rounded end of defendant’s screwdriver that was found near the scene, but not by the pointed end. He identified the tree branch that was inserted into the victim’s body. It measured 31 inches in length and had been inserted into the body more than once, to a depth of twenty inches, causing severe internal injuries and hemorrhaging. The pathologist was of the opinion that the victim was alive when the tree limb was inserted into her body. There were also bruises on the victim’s neck consistent with strangulation. Id. at 508-10. On October 25, 1985, the Shelby County Grand Jury returned indictments against petitioner on charges of First Degree Murder, Murder During the Perpetration of a Kidnapping, and Murder During the Perpetration of Rape (case number 85-05085), Aggravated Kidnapping (case number 85-05086), and Aggravated Rape (case number 85-05087). State Trial Court Record, Addendum 1 (hereinafter Addendum 1) at 2-11. On October 31, 1985, Shelby County Criminal Court Judge W. Fred Axley arraigned petitioner, found him indigent, appointed the Shelby County Public Defender to represent him, and set a report date for December 5, 1985. Id. at 14. On December 5 the defendant, through Edward G. Thompson and Robert Jones of the Public Defender’s Capital Defense Team moved to continue the case for motions and report until January 6, 1986, and requested an extension of time to file pretrial motions. Judge Axley granted this motion. Id. at 15. On December 9, 1985, the defendant filed a variety of pre-trial motions. Id. at Table of Contents pp. 1-2. On January 6, 1986, Judge Axley granted the defendant’s motion to continue the case for motions and report until January 31, 1986. Id. at 15. On January 29, 1986, the defendant’s counsel appeared in open court and made an oral motion to transfer defendant to a hospital for a complete neurological examination to determine if he suffered from brain damage. Id. at 19. Judge Axley granted this motion. Id. On January 31, 1986, Judge Ax-ley ruled on most of the above pre-trial motions, continued the case for consideration of other motions until February 28, 1986, and scheduled the trial for March 17, 1986. Id. at 80-81. On February 28, 1986, the prosecution filed a Tenn. R.Crim. P. 12.2(a), (b) motion seeking notice of the defendant’s intent to rely on a defense of insanity. Id. at 96. That same day, Judge Axley ruled on some of the remaining motions, continued the case until March 5, 1986, for consideration of those motions not then decided, and set a new trial date of April 14, 1986. Id. at 97. On Friday, April 4, 1986, however, the defendant filed a motion seeking a transfer to a hospital for a mental examination. Id. at 104; Transcript of Hearing on Transfer Motion, Addendum 2 (hereinafter Addendum 2) at 8. At the request of defense counsel, Judge Axley conducted an in camera examination of clinical psychologist Dr. Allen Overton Battle to determine whether to order the defendant’s hospitalization. Addendum 2. On April 2 and 3, 1986, Dr. Battle examined the defendant in the jail, at the request of his attorneys. Id. at 20. Dr. Battle testified at the April 4 hearing that he had concerns over whether Alley suffered from multiple personalities and that a temporary commitment at the City of Memphis Hospital was needed to ascertain whether a thirty-day psychiatric evaluation was necessary. Id. at 21, 64. Although the prosecution at that hearing requested that Judge Axley deny any continuance of either the trial date or the suppression motions set for that day, Judge Axley expressly found that he could not rule on a motion to suppress the defendant’s confession without resolving whether he was competent at the time he confessed, and that he could not rule on the defendant’s competence without adequate testimony from expert witnesses. Id. at 68-69. Judge Axley continued the motion to hospitalize the defendant until the following Monday, April 7, 1986. Id. at 69. On Monday, April 7, Judge Axley entered an order directing a mental evaluation of the defendant to determine his competence to stand trial. Addendum 1 at 105. That afternoon, Judge Axley conducted a hearing on the defendant’s competency. Transcript of Hearing, Addendum 3. The prosecution presented testimony by Dr. Lynne Zager, Ph.D., a clinical psychologist and director of forensic services at the Midtown Mental Health Center. Id. at 2-3. Dr. Zager recommended a thirty-day psychiatric evaluation to determine whether the defendant was competent at the time he committed the murder, and Judge Axley ordered the evaluation. Id. at 8; Order Directing Transfer for Mental Evaluation, Addendum 1 at 106. Judge Axley continued the case until May 27, 1986, for a hearing to consider the results of the evaluation. Addendum 2 at 10. Judge Axley thereafter twice continued that hearing, first to June 23, 1986, Addendum 1 at 111, and then to September 22, 1986. Id. at 112. At the September 22 report date, Judge Axley set the competency hearing for October 3. Transcript of September 22 Pretrial Motions Hearing, Addendum 4 at 20. In the interim, on July 23, 1986, the mental evaluation team from the Tennessee Department of Mental Health and Mental Retardation had filed its report, indicating that the defendant was not then competent to stand trial and that the Department and its experts needed further time to assess whether the defendant was competent at the time he committed the crime. Addendum 1 at 113-16. Dr. Willis Marshall filed a report expressing his opinion that the defendant suffered from multiple personality disorder. Id. at 115. On October 3 and 7, 1986 (a Friday and a Tuesday), Judge Axley presided at a competency hearing. Id. at 128, 129, 132; Transcript of Competency Hearing, Addenda 5 & 6. At the conclusion of that hearing, Judge Axley took the issue under advisement until October 24, 1986. While the hearing was recessed, on Monday, October 6, 1986, Judge Axley ordered the Department of Mental Health and Mental Retardation to provide the Court with a copy of a videotape of a hypnosis session of the defendant conducted by Dr. Battle and of a videotape of each of the sodium amy-tal induced sessions conducted by Dr. Marshall. Addendum 1 at 130. On October 24, 1986, Judge Axley found that the defendant was not then presently competent to stand trial and directed his commitment to the Department for an additional sixty days for further evaluation, setting the next competency hearing for January 9, 1987. Id at 135. Judge Axley thereafter continued that hearing twice more, until Monday, February 9, 1987. Transcript of Compentency Hearing, Addendum 7 (hereinafter Addendum 7). Consideration of the prosecution’s motion to review the tape of the hypnosis session consumed that day, and Judge Axley reset the competency hearing itself for the following day, February 10. The hearing eventually consumed all of February lO.and part of February 11. Addendum 7. At the conclusion of the hearing, Judge Axley ruled that the defendant was competent to stand trial. Id at 273-74. He then set the trial for March 2, 1986. Id at 274. At that time, defense counsel raised a possible need for a continuance beyond March 2, but the Court insisted that the case would go to trial on that date. Id at 277-79. Despite this explicit ruling, and three weeks notice that the trial would definitely proceed, on February 27 defendant’s counsel sought a continuance of the trial. Judge Axley granted a continuance of three working days. Transcript of Hearing on Motion for Continuance. Addendum 8 at 8. On March 2, the defendants made an oral motion in open court for a further continuance. At that hearing Judge Axley specifically noted that most of the expected medical testimony at trial would duplicate, testimony at the three previous competency hearings, and denied the motion. Transcript of Hearing on Motion for Continuance, Addendum 9 at 12-13. On Wednesday, March 4, the Office of the Public Defender filed a motion to withdraw because of an inadequate chance to prepare. Transcript of Hearing on Motion to Withdraw, Addendum 10. Judge Axley then announced that the jury would not be selected until Monday, March 9, and that various pre-trial motions would be heard until Thursday, March 5. Id at 3^1. Defense counsel then expressed appreciation for not beginning jury selection until the following Monday. Judge Axley proceeded’ to conduct motion hearings on Thursday and Friday, and began jury selection on Monday, March 9. The trial itself did not begin until Tuesday, March 10. Judge Axley sequestered the jury. Addendum 1 at 201. The trial lasted through Wednesday, March 18, 1987. Id at 204-09; Trial Transcript, Addendum 12 (hereinafter Addendum 12) at 1755. The jury began deliberating at 2:15 p.m., Addendum 12 at 1764, and returned a guilty verdict on all three crimes at 4:46 p.m. Id at 1766. Judge Axley presided at the sentencing phase of the trial, at which the prosecution presented no evidence but relied on the evidence presented at the guilt phase. Id at 1777. The jury retired at 8:46 p.m. Id at 1839. At 10:50 p.m. the jury returned with a verdict of death. Id at 1841-43. The defendant thereafter filed a new trial motion. On May 11, 1987, Judge Axley denied that motion and sentenced the defendant to two consecutive forty-year sentences on the rape and kidnapping convictions. Alley took an appeal directly to the Tennessee Supreme Court, which affirmed the conviction and sentence. State v. Alley, 776 S.W.2d 506 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 758, 107 L.Ed.2d 775 (1990). Alley thereafter pursued post-conviction remedies through the state court system. See Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994)(vacating denial of post-conviction petition and remanding for further proceedings); Alley v. State, 958 S.W.2d 138 (Tenn.Crim.App.1997), perm. app. denied, (Tenn. Sept. 29, 1997). The state courts denied all relief and Alley, through counsel, now brings this petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. C. PETITIONER’S FEDERAL HABEAS CLAIMS Petitioner brings the following claims: I.CLAIMS OF JUDICIAL BIAS Petitioner claims Judge Axley deprived him of due process by failing to conduct the trial fairly and impartially, as evinced by the following actions that demonstrated bias: 1. Judge Axley deprived petitioner of due process by engaging in an undisclosed ex parte conversation with two law students during the trial and expressing an opinion about the likelihood that petitioner would ever actually be put to death. Petition, ¶ 26(a)(1) at 8. 2. Judge Axley deprived petitioner of due process by engaging in an undisclosed ex parte conversation with jurors during trial while they were at a weekend picnic. Petition, ¶ 26(a)(2) at 8; First Amended Petition, ¶ 3 at 2. 3. Judge Axley deprived petitioner of due process by providing legal instructions to the jury during deliberations without the presence of petitioner or his counsel. First Amended Petition, ¶ 4 at 2. 4. Judge Axley deprived petitioner of due process by engaging in undisclosed ex parte contact with members of the victim’s family, who sent him a) a letter, and b) a Christmas card. Petition, ¶ 26(a)(3) at 8. 5. Judge Axley deprived petitioner of due process by engaging in ex parte contact through his wife’s sitting in the courtroom with the victim’s family during the trial. Petition, ¶ 26(a)(4) at 9. 6. Judge Axley deprived petitioner of due process by permitting members of the victim’s family to enter a hallway through which access could be had to the judge’s chambers and the jury room. Petition, ¶ 26(a)(5) at 9. 7. Judge Axley deprived petitioner of due process by pressuring mental health professionals to speed up the mental examination of petitioner. Petition, ¶ 26(a)(6) at 9. 8. Judge Axley deprived petitioner of due process by excluding videotapes of the petitioner under hypnosis based on his personal belief in petitioner’s lack of credibility. Petition, ¶ 26(a)(7) at 9. 9. Judge Axley deprived petitioner of due process by demonstrating hostility towards petitioner’s counsel and using profanity. Petition, ¶ 26(a)(8) at 9. 10. Judge Axley deprived petitioner of due process by including false statements in the Rule 12 trial report. Petition, ¶ 26(a)(9) at 9. 11. Judge Axley deprived petitioner of due process by displaying relief at imposing the death penalty. Petition, ¶ 26(b)(1) at 10. 12. Judge Axley deprived petitioner of due process by making comments during the post-conviction proceedings that ultimately resulted in his recusal. Petition, ¶ 26(b)(2) at 10. 13. Judge Axley deprived petitioner of due process by expressing dissatisfaction with the litigation of post-conviction proceedings in other capital cases. Petition, ¶ 26(b)(3) at 10. II. CLAIMS OF A DUE PROCESS VIOLATION BASED ON EVI-DENTIARY RULINGS THAT DEPRIVED PETITIONER OF THE RIGHT TO PRESENT A COMPLETE DEFENSE DURING THE GUILT AND PENALTY PHASES OF THE TRIAL Petitioner claims that Judge Axley deprived him of a fair trial by ruling inadmissible the videotapes of hypnosis sessions conducted by Dr. Battle and sodium amytal interrogation sessions conducted by Dr. Marshal. 1. The exclusion of the tapes undermined petitioner’s fundamental right to present a complete defense of insanity during the guilt phase of the trial. Petition, ¶ 27(a) at 11. 2. The exclusion of the tapes significantly undermined fundamental elements of petitioner’s insanity defense during the guilt phase, depriving him of a fair trial. Petition, ¶ 27(b) at 12. 3. The exclusion of the tapes eliminated the cornerstone of petitioner’s insanity defense during the guilt phase, depriving him of a fair trial. Petition, ¶ 27(c)(6) at 13. 4. Judge Axley excluded the' tapes based on his personal viewpoint of the petitioner’s credibility, thereby interfering with the jury’s role as the judge of the evidence. Petition, ¶ 27(i) at 18. 5. The exclusion of the videotapes during the penalty phase deprived petitioner of evidence of his character and mental state, both of which were admissible as a critical mitigation factor. Petition, ¶ 28(a)(1), (2) at 19-20. III.UNCONSTITUTIONALLY VAGUE AGGRAVATING CIRCUMSTANCE Tennessee’s murder statute permits imposition of the death penalty based on an unconstitutionally vague aggravating circumstance: that the murder is “heinous, atrocious or cruel in that it involved torture or depravity of mind.” 1. The definition of the circumstance is facially vague. Petition, ¶ 29(a) at 23. 2. The state trial court used an unconstitutionally vague jury instruction in defining the terms heinous, atrocious, and cruel. Petition, ¶ 29(b) at 23. IV. UNCONSTITUTIONAL JURY INSTRUCTIONS ON REASONABLE DOUBT The trial court gave an unconstitutional jury instruction defining reasonable doubt during the guilt and penalty phases of the trial. Petition, ¶¶ 30, 30(n) at 27, 32. V. UNCONSTITUTIONAL JURY INSTRUCTIONS ON MALICE The trial court gave an unconstitutional jury instruction defining malice during the guilt phase of the trial. Petition, ¶ 31 at 33-34. VI. UNCONSTITUTIONAL USE OF VICTIM-IMPACT EVIDENCE The prosecution deprived petitioner of a fair trial by seeking to persuade the jury to convict and sentence him based on sympathy for the victim and her family instead of on evidence of his guilt, as demonstrated by the following evidence and arguments at trial and sentencing. 1. The trial court permitted the display of an enlarged graduation photograph of the victim during the first two days of trial. Petition, ¶ 32(a)(1) at 35. 2. The prosecutor made opening remarks regarding the victim’s character. Petition, ¶ 32(a)(2) at 35. 3. The victim’s father offered irrelevant testimony regarding her character and background. Petition, ¶ 32(a)(3) at 35. 4. The prosecutor stated during guilt phase closing arguments that the victim and her family deserved justice. Petition, ¶ 32(a)(4), (5) at 35. 5. The prosecutor stated during closing arguments that the jury should put themselves in the shoes of the victim’s family. Petition, ¶ 32(a)(6), (8) at 35-36. 6. The prosecutor stated during closing arguments that the victim’s family had been wronged and the jury should feel sympathy for them. Petition, ¶ 32(a)(7), (9), (10) at 36. 7. The prosecutor stated during the penalty phase arguments that “I feel like I know” the victim. Petition, ¶ 32(a)(ll) at 36. VII. IMPROPER EXCLUSION OF JURORS JARRED AND TODD Petitioner claims that the trial court erred by excluding jurors Jarred and Todd for cause. Petition, ¶ 34 at 42. VIII. WITHHOLDING OF EVIDENCE The trial court and prosecutor deprived petitioner of due process by withholding evidence of bias and mitigation. 1. Judge Axley deprived petitioner of a fair trial by withholding evidence of his bias. Petition, ¶ 35 at 43. 2. The prosecution withheld mitigating evidence by withholding Dr. Za-ger’s opinion on mitigation. Petition, ¶ 35 at 43. IX. UNCONSTITUTIONAL JURY INSTRUCTION ON EFFECT OF VERDICT OF NOT GUILTY BY REASON OF INSANITY The trial court deprived petitioner of due process by instructing the jury that a not guilty by reason of insanity verdict would result in the petitioner’s automatic detention in a mental facility. Petition, ¶ 36 at 43. X. PROSECUTORIAL MISCONDUCT The prosecution employed improper cross-examination and jury arguments, and presented irrelevant evidence, in violation of the Sixth, Eighth, and Fourteenth Amendments. 1. On cross-examination of petitioner’s brother during the petitioner’s proof at the penalty phase, the prosecution asked whether he knew if petitioner had ever been charged with any crimes in another state, despite a complete lack of evidence that any such charges existed. Petition, ¶¶ 37, 38 at 44. 2. The prosecution’s summation during the penalty phase denigrated mercy and tended to diminish the jury’s responsibility for the death sentence. Petition, ¶ 37 at 44. 3. The prosecutor displayed the victim’s high school graduation photograph, inviting the jury to decide the case on the basis of sympathy for her instead of the evidence of petitioner’s guilt. Petition, ¶ 38 at 44. XI. INSUFFICIENT EVIDENCE OF DELIBERATION There was insufficient evidence of the essential element of deliberation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44. XII. INSUFFICIENT EVIDENCE OF PREMEDITATION There was insufficient evidence of the essential element of premeditation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44. XIII. IMPROPER JURY INSTRUCTIONS ON DELIBERATION The trial court deprived petitioner of a fair trial by delivering jury instructions that misstated the prosecution’s burden of proof on the essential element of deliberation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44. XIV. IMPROPER JURY INSTRUCTIONS ON PREMEDITATION The trial court deprived petitioner of a fair trial by delivering jury instructions that misstated the prosecution’s burden of proof on the essential element of premeditation required to convict petitioner of first degree murder. Petition, ¶ 39 at 44. XV. UNCONSTITUTIONAL APPLICATION OF TENNESSEE DEATH PENALTY STATUTE The Tennessee Death Penalty Statute is unconstitutional as applied to petitioner. 1. The statute requires jury unanimity on mitigating factors. Petition, ¶ 40 at 45. 2. The trial court failed to inform the jury of the effect of a non-unanimous verdict. Id. 3. The jury instructions shifted the burden of proof to the petitioner to show mitigating circumstances. Id. 4. The statute requires imposition of a death sentence in the absence of mitigating factors. Id. XVI. ELECTROCUTION IS INHERENTLY CRUEL AND UNUSUAL PUNISHMENT Petitioner claims that any electrocution automatically violates the Eighth Amendment’s ban on cruel and unusual punishment. Petition, ¶ 41 at 45. XVII. PROSECUTORIAL MISCONDUCT DURING VOIR DIRE Petitioner claims that various remarks by the prosecutor during voir dire diminished the jury’s responsibility for imposing the death penalty, invited jurors to feel sympathy for the victim and her family, referred to unconstitutional aggravating factors, and referred to unconstitutional instructions regarding unanimity in finding mitigating factors. Second Amended Petition, ¶ 44. XVIII. DENIAL OF RIGHT TO SIT AT COUNSEL TABLE Petitioner claims that the requirement that he sit behind counsel, rather than at the counsel table, interfered with his counsel’s ability to represent him. Second Amended Petition, ¶ 45. XIX. JURORS’ VIEW OF PETITIONER IN JAIL CLOTHING Petitioner claims that the jury viewed him in jail clothing, in violation of his right to a fair trial. Second Amended Petition, ¶ 46. XX. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner presents numerous claims that his trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment. 1. Counsel failed to prepare effectively for trial, in part due to the Judge’s failure to grant a continuance. Petition, ¶ 33(a) at 38. 2. Counsel failed to properly interview and prepare Dr. Battle for presentation of his opinions, causing his testimony to not directly support petitioner’s insanity defense. Petition, ¶ 33(b) at 38. 3. Counsel failed to object to the presentation of victim impact evidence, including the victim’s graduation photograph and questions about the victim. Petition, ¶ 33(c) at 38-39. 4. Counsel on direct appeal of the conviction failed to raise a claim that references to the victim and her family in the prosecutor’s closing arguments deprived petitioner of a fair trial. Petition, ¶ 33(c) at 38-39. 5. Counsel failed to seek recusal of the trial judge despite evidence of bias. Petition, ¶ 33(d) at 39. 6. Counsel failed by not properly cross-examining the prosecution’s expert medical witnesses so as to demonstrate that: a) petitioner was insane; b) mitigating evidence existed; and c) each expert’s opinion failed to consider relevant medical evidence, including records of petitioner’s medical history. Petition, ¶ 33(e) at 39. 7. Counsel failed to have Dr. Wyatt Nichols evaluate petitioner for purposes of eliciting mitigating evidence. Petition, ¶ 33(f) at 39. 8. Counsel failed to investigate and present medical evidence that petitioner’s mental health problems supported both his defense and that mitigating circumstances existed. Petition, ¶ 33(g) at 39-40. 9. Counsel failed to investigate and present medical evidence to establish that petitioner’s genetic disorders supported both his defense and the existence of mitigating circumstances. Petition, ¶ 33(h) at 40. 10. Counsel failed to investigate and present medical evidence to establish that petitioner has suffered brain damage, thus supporting both his defense and the existence of mitigating circumstances. Petition, ¶ 33(i) at 40. 11. Counsel failed to investigate and present evidence of the urethral dilation medical procedure performed on petitioner as a child, which would have supported both his defense and the existence of mitigating circumstances. Petition, ¶ 33(j) at 41. 12. Counsel failed to investigate and present during the penalty phase testimony from Dr. Lynn Zager as to the existence of mitigating circumstances. Petition, ¶ 33(k) at 41. 13. Counsel failed to present all available mitigating evidence during the penalty phase. Petition, ¶ 33(2) at 41. 14. Counsel failed to make a forceful closing argument at the close of the penalty phase. Petition, ¶ 33(2) at 41. 15. Counsel failed to object to cross-examination of the defendant’s brother regarding non-existent prior criminal charges. Petition, ¶ 33(m) at 41. 16. Counsel failed to object to the Court’s instructions on reasonable doubt during either the guilt or penalty phases of the trial. Petition, ¶ 33(n) at 41. 17. Counsel failed to object to the Court’s instructions on malice. Petition, ¶ 33(o) at 41. 18. Counsel failed to raise a defense that the State did not adduce sufficient evidence to establish the essential elements of premeditation and deliberation. Petition, ¶ 33(p) at 41. 19. Counsel failed to object to the exclusion for cause of juror Jarred. Petition, ¶ 33(q) at 41. 20. Counsel failed to raise on direct appeal the unconstitutionality of the prosecution’s closing arguments. Petition, ¶ 33(r) at 42. 21. Counsel failed to object to the prosecutor’s closing arguments that denigrated mercy and diminished the jury’s responsibility for imposing the death sentence. Petition, ¶ 33(s) at 42. 22. Counsel failed to object to the unconstitutionality of penalty phase instructions. Petition, ¶ 33(t) at 42. 23. Counsel failed to obtain all appropriate experts for the presentation of a defense at the guilt phase. Petition, ¶ 33(u) at 42. 24. Counsel failed to obtain all appropriate experts for the presentation of mitigating circumstances at the penalty phase. Petition, ¶ 33(u) at 42. 25. Counsel failed to challenge the constitutionality of the Tennessee Death Penalty Statute as applied to petitioner. Petition, ¶ 33(v) at 42. 26. Counsel failed to object to the Tennessee Supreme Court’s improper characterization of Dr. Marshall’s testimony on direct appeal. Petition, ¶ 33(w) at 42. 27. Counsel failed to raise any and all issues presented in this petition on direct appeal or in post-conviction proceedings. Petition, ¶ 33(x) at 42. 28. Counsel failed to object to the petitioner’s being dressed in jail clothes in the presence of the jury. Second Amended Petition, ¶ 46. D. ANALYSIS OF THE MERITS I. Claims Not Cognizable In Federal Habeas Under 28 U.S.C. § 2254(a), a district court may entertain “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (emphasis added). The threshold question in any federal habeas petition, therefore, is whether the petition even raises such claims. See, e.g., Tillett v. Freeman, 868 F.2d 106, 108 (3d Cir.1989); Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986); Nelson v. Solem, 714 F.2d 57, 60 n. 2 (8th Cir.1983); Hall v. Iowa, 705 F.2d 283, 287 (8th Cir.1983). Claims 1.12 (Petition, ¶ 26(b)(2)) and 1.13 (¶ 26(b)(3)) relate only to the trial judge’s conduct related to the first post-conviction proceeding. Error committed during the state post-conviction proceedings cannot provide a basis for federal habeas relief. [T]he writ [of habeas corpus] is not the proper means by which prisoners should challenge errors or deficiencies in state post-conviction proceedings such as [petitioner] claims here because the claims address collateral matters and not the underlying state conviction giving rise to the prisoner’s incarceration. Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.1986). To the extent that petitioner is now attempting to contend that the judge’s comments during the post-conviction proceedings somehow support a claim of bias during the original trial, his contention is utterly frivolous and without foundation. Petitioner points to nothing in the five-thousand-plus page state court record to connect Judge Axley’s isolated comments during state post-conviction proceedings with the manner in which he conducted the original trial. Furthermore, expressions of impatience with the necessity of conducting post-conviction proceedings, after a presumptively valid state court trial and a presumptively valid conviction that has been upheld on direct appeal including a denial of certiorari by the United Supreme Court, provide no support for a contention that the trial judge’s conduct of that original criminal proceeding was not above board and completely impartial. See Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir.1998). This contention is a frivolous attempt to create an issue where none exists, and is utterly devoid of even arguable merit as a claim for federal habeas relief. Accordingly, claims 1.12 (Petition, ¶ 26(b)(2)) and 1.13 (Petition, ¶ 26(b)(3)) are not cognizable claims for relief under § 2254(a). Similarly, to the extent that claim XX.27 (Petition, ¶ 33(x)) should be construed as contending that petitioner’s state post-conviction counsel provided ineffective assistance, he has no claim because there is no right to effective assistance of counsel during state collateral proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). II. Analysis Of Procedurally Defaulted Claims A. Legal Standard for Procedural Default Twenty-eight U.S.C. § 2254(b) states, in pertinent part: (b)(1) An application for a writ of habe-as corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that- (A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. Thus, a habeas petitioner must first exhaust available state remedies before requesting relief under § 2254. See, e.g., Granberry v. Greer, 481 U.S. 129, 133-34, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987); Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. A petitioner has failed to exhaust his available state remedies if he has the opportunity to raise his claim by any available state procedure. Preiser v. Rodriguez, 411 U.S. 475, 477, 489-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). To exhaust these state remedies, the applicant must have presented the very issue on which he seeks relief from the federal courts to the courts of the state that he claims is wrongfully confining him. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). “[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (citing Picard, 404 U.S. at 271, 92 S.Ct. 509). “ ‘[T]he substance of a federal habeas corpus claim must first be presented to the state courts.’ ” Gray, 518 U.S. at 163, 116 S.Ct. 2074 (quoting Picard, 404 U.S. at 278, 92 S.Ct. 509). A habeas petitioner does not satisfy the exhaustion requirement of 28 U.S.C. § 2254(b) “by presenting the state courts only with the facts necessary to state a claim for relief.” Gray, 518 U.S. at 163, 116 S.Ct. 2074. Conversely, “[i]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance’ of such a claim to a state court.” Id. When a petitioner raises different factual issues under the same legal theory he is required to present each factual claim to the highest state court in order to exhaust his state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732-33, 144 L.Ed.2d 1 (1999) (holding that exhaustion requirement mandates presentation of all claims to state court through discretionary review process). See also Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir.1987). He has not exhausted his state remedies if he has merely presented a particular legal theory to the courts, without presenting each factual claim. Pillette, 824 F.2d at 497-98. The claims must be presented to the state courts as a matter of federal law. “It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”). Cf. Gray, 518 U.S. at 163, 116 S.Ct. 2074. Moreover, the state court must address the merits of those claims. Coleman, 501 U.S. at 734-35, 111 S.Ct. 2546. If the state court decides those claims on an adequate and independent state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, the petitioner is barred by this procedural default from seeking federal habeas review, unless he can show cause and prejudice for that default. See Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). When a petitioner’s claims have never been actually presented to the state courts but a state procedural rule prohibits the state court from extending further consideration to them, the claims are deemed exhausted, but proeedurally barred. Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546; Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Wainwright v. Sykes, 433 U.S. at 87-88, 97 S.Ct. 2497; Rust, 17 F.3d at 160. A petitioner confronted with either variety of' procedural default must show cause and prejudice for the default in order to obtain federal court review of his claim. Teague, 489 U.S. at 297-99, 109 S.Ct. 1060; Wainwright v. Sykes, 433 U.S. at 87-88, 97 S.Ct. 2497. Cause for a procedural default depends on some “objective factor external to the defense” that interfered with the petitioner’s efforts to comply with the procedural rule. Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A petitioner may avoid the procedural bar, and the necessity of showing cause and prejudice, by demonstrating “that failure to consider „ the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. Tennessee’s post-conviction statute specifies types of procedural default that may bar the state court from reviewing the merits of a constitutional claim. The conduct of petitioner’s post-conviction proceedings were governed by Tennessee’s original post-conviction statute, since replaced. See Tenn.Code Ann. §§ 40-30-101 to 124. A three year statute-of-limitations governed the filing of petitions under that statute. Id. at § 40-30-102. It also enunciated a standard by which state courts were to determine whether to consider the merits of. post-conviction claims. Id. at 40-30-112. On May 10, 1995, however, Tennessee replaced the three-year statute in Tenn. Code Ann. § 40-30-102 with the one-year statute in Tenn.Code Ann. § 40-30-201. In Carter v. State, 952 S.W.2d 417, 420 (Tenn.1997), the Tennessee Supreme Court interpreted the statute of limitations as not reviving previously barred claims. The Sixth Circuit has previously upheld the dismissal of a Tennessee prisoner’s habeas petition as- barred by a procedural default caused by failing to file within the Tennessee statute of limitations on post-conviction relief. Hannah v. Conley, 49 F.3d 1193, 1194-95 (6th Cir.1995) (construing first statute and stating “the language of Tenn.Code Ann. § 40-30-102 is mandatory.”). In this case, petitioner’s right to file any further state post-conviction petition is barred .by the new one-year statute of limitations. B. Specific Proeedurally Defaulted Claims 1. Judicial Bias The Court examines each of petitioner’s claims in turn for procedural default. Regarding his claims of judicial bias, petitioner has never presented claims 1.1 (¶ 26(a)(1)), 1.2 (¶ 26(a)(2)), 1.3 (First Amended Petition, ¶ 4), 1.4(b) (¶ 26(a)(3)), 1.8 (¶ 26(a)(7)), 1.9 (¶ 26(a)(8)), or Ill (¶ 26(b)(1)) to the Tennessee co