Hodges v. Bell (548 F. Supp. 2d 485, 2008)

MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

TABLE OF CONTENTS

I. Introduction.

A. Discovery and Evidentiary Hearing Issues.

1. Review of State Court Record.

2. Conclusions of Law.

II. Petitioner’s Non-Defaulted Claims.

A. Procedural History.

B. State Courts’ Findings of Fact.

C. Conclusions of Law.

1. Ineffective Assistance of Counsel Claims ...

a. Ineffectiveness of Trial Counsel.

b. Ineffectiveness of Counsel at Sentencing

c. Ineffectiveness of Appellate Counsel ...

d. The Validity of Petitioner’s Guilty Plea .

2. Petitioner’s Jury Claims .

a. Voir Dire.

b. Jury Exemption.

c. Jury Instruction.

3. State’s Insufficient Proof of Aggravating Circumstances

4. Victim’s Mother’s Presence at Trial.

5. The Testimony of the State’s Medical Examiner.

6. Denial of Expert Services.

7. Exclusion of TDOC Evidence.

8. Admission of Petitioner’s Georgia Murder Conviction ..

9. Tennessee’s Proportionality Review of Death Sentences

10. Unconstitutional Death Penalty Statute.

11. Production of Dr. Nurcombe’s Notes.

12. Dr. Kyser’s Testimony.

III. Defaulted Claims .

A. Claims Found by the State Court to be Defaulted.

B. Claims Challenged by Respondent as Defaulted.

C. Conclusions of Law.

1. Noncompliance with Applicable State Rules .

2. “Firmly Established” and “Regularly Followed” State Rules

3. Independent and Adequate State Rule.

4. Cause and Prejudice Requirement.

a. Cause.

b. Prejudice.

IV. Conclusion ........................___

Petitioner, Henry Eugene Hodges, a state prisoner, filed this action under 28 U.S.C. § 2254, seeking the writ of habeas corpus to set aside his first-degree murder conviction for which he received the death sentence. The Court granted Petitioner’s motion for appointment of counsel. (Docket Entry Nos. 3 and 5). Petitioner’s counsel filed an amended petition asserting claims under Article I § 9 and Article III of the United States Constitution as well as the Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments to the United States Constitution (Docket Entry No. 32). The Respondent filed an answer (Docket Entry No. 39). In earlier proceedings, collateral issues arose about the Petitioner’s conditions of confinement that the Court addressed in an Order (Docket Entry No. 100) that the Sixth Circuit later vacated. (Docket Entry No. 291).

In summary, Petitioner’s amended petition includes the following claims with numerous subparts, discussed infra:

(1) Denial of a fair and impartial jury in violation of the Sixth, Eighth, and Fourteenth Amendments, because the trial court precluded Petitioner from asking proper questions necessary to empanel a fair and impartial jury;

(2) denial of the effective assistance of counsel at trial and on appeal in violation of the Sixth and Fourteenth Amendments;

(3) the trial court’s instructions at the sentencing proceeding were inaccurate and incomplete, in violation of the Eighth and Fourteenth Amendments;

(4) the trial court admitted testimony from prosecution witnesses that Petitioner showed no remorse in violation of the Eighth and Fourteenth Amendments;

(5) the trial court denied Petitioner funding for an expert in the field of genetic transmission of drug and alcohol dependency, and the effects of drug and alcohol abuse in violation of the Eighth and Fourteenth Amendments;

(6) the trial court allowed admission, as an aggravating circumstance, a Georgia conviction that occurred after the offense here in violation of the Due Process Clause of the Fourteenth Amendment;

(7) the State withheld material exculpatory evidence in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments;

(8) Petitioner’s death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution because the State withheld material exculpatory evidence and presented false testimony at the sentencing phase of trial;

(9) the trial court allowed the State to intrude unconstitutionally into Petitioner’s preparation for the sentencing hearing in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendment by: 1) ordering Petitioner to provide the State notice of witnesses Petitioner would present at his sentencing hearing; 2) ordering Petitioner to provide the State with his expert’s report; 3) ordering Petitioner to submit to an evaluation performed by the State’s experts, Drs. Kyser and Morgan; and 4) ordering that Petitioner to produce Dr. Nurcombe’s notes from his interview of Petitioner and in preparation of his report;

(10) the trial court allowed educated persons fitting occupational categories to exempt themselves from jury service and denied Petitioner funds to employ an expert to provide statistical evidence in support of this claim in violation of the Sixth, Eighth, and Fourteenth Amendments;

(11) the trial court precluded Petitioner from inquiring of prospective jurors 1) whether they could consider mitigation evidence if they learned that Petitioner had previously been convicted of another murder; and 2) whether they believed that Petitioner would be incarcerated for the remainder of his life if the jury sentenced him to life imprisonment in violation of the Sixth, Eighth, and Fourteenth Amendments;

(12) the trial court failed to strike for cause prospective jurors who stated that they would automatically impose a death sentence; 2) struck for cause prospective jurors who, while they expressed reservations respecting the death penalty, indicated that they could follow the law; 3) failed to strike incompetent jurors; and 4) failed to strike a former girlfriend of a police officer who was involved in the investigation into the murder in violation of the Sixth, Eighth, and Fourteenth Amendments;

(13) the trial court and the prosecution obtained from prospective jurors a promise that if Petitioner was found guilty of first-degree murder, and if they found that aggravating evidence outweighed mitigating evidence, they would do their “duty and obligation” to return a death sentence in violation of the Sixth, Eighth, and Fourteenth Amendments;

(14) the trial court did not prevent or rectify the prosecutors inflammatory conduct in violation of the Sixth, Eighth, and Fourteenth Amendments;

(15) the trial court denied Petitioner funds necessary to employ an expert to testify about genetic and environmental causes of substance abuse in violation of the Eighth and Fourteenth Amendments;

(16) the trial court denied Petitioner the right to present the jury with relevant mitigating evidence in violation of the Sixth, Eighth, and Fourteenth Amendments;

(17) the trial court denied Petitioner’s request for specific sentencing instructions and gave the jury improper instructions in violation of the Eighth and Fourteenth Amendments;

(18) Petitioner’s conviction and death sentence violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because Petitioner as incompetent to stand trial due to neurological, bio-chemical, and psychological impairments of the central nervous system and brain;

(19) Petitioner’s conviction and death sentence violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because Petitioner was incompetent to plead guilty due to neurological, bio-chemical, and psychological impairments of the central nervous system and brain;

(20) Petitioner’s conviction and sentence violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because Petitioner’ guilty plea was not made knowingly, intelligently or voluntarily;

(21) Petitioner’s conviction and death sentence violate the Fifth, Sixth, Eight and Fourteenth Amendments to the United States Constitution because the prosecuting and/or law enforcement authorities coerced Trina Brown into changing her statement that she was in fact the true killer of the victim, Ronald Bassett;

(22) Petitioner’s death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the prosecutor knowingly presented the false testimony;

(23) Petitioner’s conviction and death sentence violate the Sixth, Eighth, and Fourteenth Amendments because Petitioner is actually innocent of the crime of first degree, premeditated murder;

(24) Petitioner’s death sentence violates the Sixth, Eighth, and Fourteenth Amendments because of juror misconduct;

(25) Petitioner’s death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because Tennessee’s death penalty statute is unconstitutional;

(26) Petitioner’s death sentence violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because the trial court denied Petitioner the right to participate in the voir dire process and to make an un-sworn statement to his sentencing jury;

(27) The Tennessee appellate courts’ proportionality review violated Article I, §§ 8 and 16 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the United States Constitution;

(28) Electrocution constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments;

(29) Lethal injection constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments;

(30) In violation of the Eighth and Fourteenth Amendments, Petitioner is not competent to be executed. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986);

(31) The cumulative effect of the errors at trial denied Petitioner due process of law under the Fourteenth Amendment; and

(32) Petitioner was denied a full and fair state post-conviction proceeding due to errors of the post-conviction court.

(See Docket Entry No. 32, Amended Petition at pp. 3-41). Within these claims are numerous subparts that are discussed infra. From the Court’s review, in his supplemental brief, Petitioner presents additional claims. See Docket Entry Nos. 303 and 307.

In earlier proceedings, the Court entered several orders granting Petitioner’s discovery requests. (Docket Entry Nos. 30, 79, 80 and 82). The Court also held a hearing on Petitioner’s additional discovery requests and on whether to conduct an evidentiary hearing on the merits of Petitioner’s claims. The Court addresses those two issues first and thereafter decides the merits of Petitioner’s exhausted claims and Respondent’s procedural default contentions.

A. Discovery and Evidentiary Hearing Issues

For his discovery subjects, Petitioner contends that in his state post-conviction proceedings: (1) the state trial court did not allow his counsel adequate time for discovery; (2) the state trial court denied funding of a mitigation specialist and physician with expertise in drug abuse disorders; (3) the state trial court denied his post-conviction counsel’s request for a continuance despite the report of the mitigation specialist that her report was incomplete; (4) Petitioner’s post-conviction counsel were unable to locate two witnesses: Trina Brown, Petitioner’s accomplice who now insists that she murdered the victim and Leroy Thompson, a juror whose pain allegedly precluded him from deliberating at the sentencing; and (5) subsequent events reveal false testimony and misconduct by Dr. Charles Harlan, the medical examiner who testified at Petitioner’s sentencing hearing.

For specific discovery, Petitioner seeks all of the files of the Federal Bureau of Investigation (“FBI”) and the Tennessee Bureau of Investigation (“TBI”) on the victim’s murder, the files of the Metropolitan-Davidson County Medical Examiner’s Office, and Petitioner’s institutional records at the Metropolitan-Nashville Davidson County jail during his pretrial and pre-sentence confinement. Petitioner’s requests for the FBI and TBI files are premised on Brown’s incriminating statement and are cited as potential sources of Brady materials. The requests for the medical examiner’s records are based upon Petitioner’s assertions about Dr. Harlan. Petitioner also requests to take the depositions of detectives Bill Pridemore and Pat Postilone of the Metropolitan-Davidson County Police Department and Dr. Harlan. The Pridemore and Postilone deposition requests are also premised upon Brown’s statement and the search for Brady material.

Petitioner requests an evidentiary hearing on the issues of:(l) the ineffective assistance of his trial and appellate counsel (Docket Entry No. 32, Amended Petition at ¶ 2); (2) his competency at the time of his trial, id. at ¶ 30, 31, 32; (3) the prosecutors’ withholding of exculpatory evidence namely, that Trina Brown and Dr. Charles Harlan’s testimony was false, id. at ¶ 18, 19, 33, 34, 35; (4) a related claim that Brown and Dr. Harlan testified falsely; (5) the improper conduct of juror Thompson, id. at ¶ 36; (6) the State’s method of execution that constitutes cruel and unusual punishment, id. at ¶ 42; and (7) his responses to the Respondent’s contentions of procedural default. See Docket Entry No. 219, Petitioner’s Response.

Respondent argues that Petitioner has not shown good cause for discovery and the discovery sought will not result in ha-beas relief and does not impact the claims that are properly before the Court. (Docket Entry No. 28).

The discovery and evidentiary hearing issues are factually interrelated. As discussed infra, the legal standards are also similar. Therefore, the Court will analyze these requests jointly. An initial review of the state court record is necessary to decide both issues.

1. Review of the State Court Record

Prior to the scheduled trial, the state trial court entered several orders appointing experts for the Petitioner. For sentencing issues, Petitioner had the assistance of a psychiatrist and psychiatric testing by a clinical psychologist who has a Ph.D. as well as private investigative services. (Docket Entry No. 40, Addendum No. 1, Volume 1, Order dated May 19, 1992). Dr. Barry Nurcombe, an accomplished and experienced psychiatrist interviewed Petitioner on several occasions. Dr. Pamela Auble, Ph.D., a clinical psychologist and neuropsychologist, administered a battery of psychiatric tests to Petitioner. Dr. Ann Charvet, a clinical sociologist and mitigation specialist also provided services as reflected in the state courts’ orders and their billing statements. Id. at Addendum No. 1, Orders of September 13, 1991, January 2, 1992 and May 19, 1992. Dr. Nurcombe’s report was filed on December 13, 1991. Id. See also Hodges v. State, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865 at **3-4 (Tenn.Crim.App. Oct.20, 2000).

The state court record includes has extensive transcripts of the sentencing hearing and voir dire of the jury. (Docket Entry No. 40, Addendum No. 2, Volumes 1 through 10). The voir dire transcript includes the examination of juror Thompson. Id. at Volume 7, at pp. 926-43. At Petitioner’s sentencing hearing, Petitioner’s mother and brother testified about Petitioner’s personal history. Dr. Nurcombe presented his evaluation of Petitioner at sentencing. Petitioner also had an eviden-tiary hearing on his motion for a new trial where the defense team unsuccessfully attempted to attack the veracity of Dr. Harlan’s testimony.

For his post-conviction proceeding, the state trial court authorized payment for a forensic expert and mitigation specialist. Hodges, 2000 WL 1562865 at **28-30. As summarized by the Tennessee appellate court, Petitioner also presented testimony of Dr. Ann Charvet, a clinical sociologist about the mitigation efforts to Petitioner’s trial. Id. at **9-10. Julie Hackenmiller, a mitigation specialist who was retained for the post-conviction hearing also testified about her research. Id. at **11-12. Hackenmiller had Petitioner’s high school, medical and juvenile records, as well as Petitioner’s family records and his psychiatric reports. Id. Hackenmiller did not have Petitioner’s Georgia and Florida prison records and assert that she “needed more time to interview one of the [Petitioner’s] school principals regarding teasing by other students endured by the [Petitioner]”. Id. at *11. Petitioner’s counsel also attained a concession from Dr. Bruce Levy, the medical examiner for Metropolitan-Davidson County and Chief Medical Examiner for the State of Tennessee, that he disagreed with Dr. Harlan’s opinion on the length of time before the victim died. Id. at *13.

The State post-conviction record also includes an affidavit of Dr. Kris Sperry that Dr. Harlan’s testimony “grossly exaggerates the time” the victim was conscious. Id. at **15-16. Petitioner examined his three trial counsel extensively. Id. at **4-9. In addition to his three trial counsel, Petitioner called the chief counsel of the Tennessee District Public Defender agency to opine on Petitioner’s trial counsel’s work. Id. at *10. The testimony of Petitioner’s trial counsel in the post-conviction proceeding is two volumes. (Docket Entry No. 40, Addendum No. 8, Volumes 1 and 2).

In a videotaped statement, Trina Brown recants her testimony at Petitioner’s trial. This videotaped statement represents another instance of Brown’s inconsistency about her role in the victim’s death. At Petitioner’s sentencing hearing, Brown also claimed responsibility for the victim’s death. As the state appellate court found:

Trina Brown testified that the appellant did not want to kill the victim and that it was she, not the appellant, who made the decision to kill the victim. She was afraid that if the victim was permitted to live, he would have the appellant arrested, and as a result, she would lose the appellant. Therefore, she told the appellant to kill the victim. The appellant admitted on cross-examination that both he and Brown tried to manipulate each other. He admitted that he had previously stated that Brown “would jump off a building” if he asked her.

State v. Hodges, No. 01-C-01-9212-CR00382, 1995 WL 301443, at *4- (Tenn.Crim.App. May 18, 2005) (emphasis added).

As to Dr. Harlan, Petitioner states that “Harlan’s bias, prejudice, incompetence and fraudulent activities were not brought to light and available to Mr. Hodges until initial charges were brought in 2002 and proceedings were conducted before the Board of Medical Examiners in 2003.” (Docket Entry No. 230, Petitioner’s Supplemental Memoranda at p. 43 n. 12).

Petitioner also filed six volumes of documents (Docket Entry Nos. 230 through 284) consisting of thousands of pages, but without any detailed analysis of those documents and their specific relevance to the evidentiary hearing. First, many of the documents, such as Petitioner’s personal, medical, school and juvenile records, as stated earlier, were reviewed and relied upon by psychiatrists and psychologists in the State court proceedings. Those documents do not justify an evidentiary hearing. Some documents are of questionable probative value, e. g., a copy of Petitioner’s 1980 doctor visit when he was 14 for an infection of his tonsils and adenoids, id. at Volume I at Exhibit 11, and documents of Trina Brown’s parents’ divorce proceedings that did not decide any relevant matters for Trina Brown. Id. at Exhibit 55. Much of the Petitioner’s institutional records are not shown to have any apparent probative value to his claims in this action. The only different information on Petitioner’s medical condition are' the two affidavits of physicians discussed infra. Without detañed analysis of these massive materials to show their relevance on discovery and evidentiary issues, the Court considers the effect of these voluminous submissions that the Court had to search for possible relevance, is a delay of the proceedings.

Petitioner submitted affidavits by Dr. Murray Smith, an internist who specializes in drug disorders and Dr. George Woods, a psychiatrist. Id. at Volume II, Exhibits 4 and 5. In his one page affidavit, Dr. Smith opines that Petitioner has a bipolar disorder and if retained, he would have recommended that counsel retain a psychiatrist. Id. at Exhibit No. 4. In his two page affidavit, Dr. Woods who has been evaluating Petitioner since 2004, opines that Petitioner has serious bipolar disorder and traumatic stress. Id. at Exhibit 5. Dr. Woods opines that Petitioner was unable or incapable of deliberating at the time of the murder and was unable to conform his conduct to the law because Petitioner had a severe emotional disturbance. Although Dr. Woods’s affidavit references his two prior reports, those reports are not attached to his affidavit.

The record reflects that Petitioner has had numerous mental evaluations by psychiatrists and psychologists. In 1981, Dr. Joseph Fishbein, a psychiatrist, examined Petitioner, cited his drug use, and found a “conduct disorder”, but did not diagnose Petitioner as having a bipolar disorder. Id. at Exhibit 12. Dr. James Campbell, a psychologist, did not find any “disturbance of psychotic proportion” but who found a “behavioral disorder of adolescence”. Id. In 1981 Dr. Michael E. Slezah, a clinical psychologist found Petitioner to have impulsive behavior and “poor internal controls”. Id. at Exhibit 13. In 1983, Dr. Ross Campbell, a psychiatrist opined that Petitioner had “all criteria of antisocial personality disorder” and was the “aggressive type with psychopathic tendencies.” Id. A 1990 psychological assessment by the Georgia correctional psychologist diagnosed Petitioner with an Axis II Antisocial Personality Disorder. Id. at Exhibit 21 at p. 15. This report reflects Petitioner’s statement that he “hates homosexuals-would go out seeking them and killing them”. Id at p. 46.

In 1992, prior to his trial, Dr. Leonard Morgan, a clinical psychologist evaluated Petitioner for the state court on whether Petitioner had a “diminished capacity.” Dr. Morgan found that Petitioner’s “intellectual ability is within normal range. There is no evidence of disorder of mood, memory orientation or thought patterns.” Id. at Attachment 14. As noted, Dr. Nur-combe, a psychiatrist for the defense at the sentencing hearing did not find any such bipolar disorder. Finally, Dr. Morgan and Dr. James Kyser, forensic psychiatrist evaluated Petitioner for the State. These doctors found Petitioner to have an antisocial personality, but he was not suffering from any mental illness or emotional disturbance and “was in complete control of his behavior”. State v. Hodges, 944 S.W.2d 346, 351 (Tenn.1997).

2. Conclusions of Law

Rule 6(a) of the Rules Governing Section 2254 Actions provides a good cause standard for discovery.

A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.

In Bracy v. Gramley, 520 U.S. 899, 908-909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997), the Supreme Court described the standard for good cause under Rule 6(a) as “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)). Accord Williams v. Bagley, 380 F.3d 932, 974 (6th Cir.2004).

Petitioner argues that as an initial petition involving a death sentence, he is entitled to discovery to discern any constitutional violations in his conviction and sentence. If this were the initial proceeding, the Court is inclined to agree, but Petitioner has had two extensive proceedings in the state courts with opportunities for discovery. In addition, the law in this Circuit as stated in Stanford v. Parker, 266 F.3d 442 (6th Cir.2001) is that there is not an automatic right to discovery.

Habeas petitioners have no right to automatic discovery. A district court has discretion to grant discovery in a habeas case upon a fact specific showing of good cause under Rule 6. See Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir.2000) ... The burden of demonstrating the materiality of information requested is on the moving party. See Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir.2000).

The district court applied the correct legal standard in light of the evidence and the state court proceedings. The discovery sought by Stanford would not resolve any factual disputes that could entitle him to relief, even if the facts were found in his favor. To the contrary, Stanford’s requested discovery, when reviewed in light of the recently examined record, falls more in the category of a fishing expedition. We will not find that a district court erred by denying a fishing expedition masquerading as discovery.

Id. at 460.

“Conclusionary allegations are not enough to warrant discovery under Rule 6 of the Federal Rules Governing Section 2254 Petitions; the petitioner must set forth specific allegations of fact.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994). In addition, discovery is unavailable “where undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.” Williams v. Bagley, 380 F.3d 932, 976-77 (6th Cir.2004) (quoting Byrd v. Collins, 209 F.3d 486, 518 (6th Cir.2000)). In this regard, the state courts’ determinations of the facts are entitled to a statutory presumption of correctness, 28 U.S.C. § 2254(e)(1) and with certain exceptions, this Court’s review is limited to “the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Discovery requests must also be considered in the context of 28 U.S.C. § 2254(e)(1) on the presumptive correctness of state court finding.

Because Petitioner failed to rebut the statutory presumption of correctness that the federal habeas court must award to the factual findings of the state courts, the district court properly concluded that it was required to defer to those factual findings. Furthermore, given this conclusion, we would be hard-pressed to say that the district court abused its discretion in denying further discovery on these issues.

Byrd 209 F.3d at 516. See also Moen v. Czerniak, No. Civ.02-10-JE, 2004 WL 1293920 at *1 (D.Or. June 10, 2004) (“Discovery under Rule 6 must be considered in light of the provisions of 28 U.S.C. 2254(e)(2) which limit the scope of federal habeas corpus review to the state court record except [in] certain specified circumstances ... ”).

Also relevant is consideration of the ha-beas petitioner’s failure to utilize any available state discovery procedures. In Byrd, the Sixth Circuit stated:

We find nothing in the record to indicate that Petitioner’s counsel otherwise utilized the August 5th order or Ohio Rev. Code § 149.43 to pursue further discovery. Counsel claims that, on an undisclosed date, he met with an employee of the Ohio Auditor of State to discuss a “Furtherance of Justice Account” and was informed that the Hamilton County Auditor’s Office would have audit oversight responsibility for the prosecutor’s disbursements from such an account. There is no indication whatsoever that, after receiving such information, counsel either attempted to obtain these records from Hamilton County or pursue a public records action.

209 F.3d at 507. As discussed infra, Tennessee law on post-conviction proceeding provide ample overview for discovery.

For Petitioner’s request for an eviden-tiary hearing, in the Antiterrorism and Effective Death Penalty Act, (“AEDPA”), Congress redefined the standards for conducting an evidentiary hearing in a habeas action:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claims relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

In Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), the Supreme Court explained that if the petitioner demonstrated diligence, then the inquiry ends, but if there is an issue of diligence the focus is on whether the petitioner or his counsel knew of the matters at issue and failed to pursue the matter:

The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts ... Diligence for purposes of the opening clause [of Section 2254(e)(2) ] depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful.

For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must to diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.

* * *

Given knowledge of the report’s existence and potential importance, a diligent attorney would have done more. Counsel’s failure to investigate these references in anything but a cursory manner triggers the opening clause of § 2254(e)(2).

As we hold there was a failure to develop the factual basis of this Brady claim in state court, we must determine if the requirements in the balance of § 2254(e)(2) are satisfied so that petitioner’s failure is excused ... upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error.

Id. at 435, 437, 439-440, 120 S.Ct. 1479.

Independent of § 2254(e)(2), the Court also has the inherent authority to set an evidentiary hearing in a habeas action. Abdur’Rahman v. Bell, 226 F.3d 696, 705-06 (6th Cir.2000). “[A] district court does have the inherent authority to order an evidentiary hearing even if the factors requiring an evidentiary hearing are absent.” Id. at 705. Such hearings are set “to settle disputed issues of material fact.” Id. at 706. Yet, “if [the court] concludes that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, [the court] may, and ordinarily should accept the facts as found in the hearing, but [the court] need not. In every case [the court] has the power, constrained only by [its] sound discretion, to receive evidence bearing on the applicant’s constitutional claim.” Id. (quoting Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). This authority extends to determine factual issues or if an inadequate record exist, on a procedural default controversy. Alcorn v. Smith, 781 F.2d 58, 60 (6th Cir.1986).

Even prior to ADEA, a habeas petitioner had to show cause for his failure to develop the state record or that “a fundamental miscarriage of justice would result from failure to hold an evidentiary hearing,” Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In a word, the distinction between § 2254(e)(2) and the Court’s inherent authority to order a hearing is “when a petitioner is entitled to a hearing [under § 2254(e)(2) ] ... versus whether a district court has the inherent authority to order a hearing [that] is still intact following Williams.” Abdur’Rahman, 226 F.3d at 706. Evidentiary hearings have been held to be appropriately denied where the habe-as petitioner “has not shown that his ... claims would result in no reasonable fact-finder finding him guilty of the underlying offenses ... We therefore conclude that the district court did not abuse its discretion by declining to conduct an evidentiary hearing.” Abdus-Samad v. Bell, 420 F.3d 614, 626-27 (6th Cir.2005).

Moreover, the Supreme Court and the Sixth Circuit have observed that: “The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings.” Keeney, 504 U.S. at 9, 112 S.Ct. 1715. Accord Byrd v. Collins, 209 F.3d 486, 516-17 (6th Cir.2000) (quoting Keeney, 504 U.S. at 9, 112 S.Ct. 1715). More recently, the Supreme Court stated “[W]e have made clear that whether a state court’s decision was unreasonable must be assessed in light of the record the court had before it”. Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004).

After the conference with counsel, a review of the state court record and Petitioner’s submissions, the Court concludes that Petitioner has not shown good cause for additional discovery. Petitioner contends that he was constrained in the state post-conviction proceeding by the trial court’s failure to provide funding and adequate time for post-conviction counsel to prepare. This contention is without merit. First, Tennessee case law and statutes authorize discovery in state post-conviction proceedings. Under Tennessee law, Petitioner could have sought discovery, filed affidavits, taken depositions and requested subpoenas in the post-conviction proceeding. See Tenn.Code Ann. § 40-30-109. Under the habeas corpus statutes, a party can petition the presiding Court to issue subpoenas. Tenn.Code Ann. § 29-21-121(a). The availability of depositions in the state post-conviction proceeding is reflected in Strouth v. State, 755 S.W.2d 819, 827 (Tenn.Crim.App.1987) (“In a deposition taken in 1982 for Dicks’s post-conviction hearing, McMahan testified that he had been offered money and accepted the offer, because ‘[y]ou know, no man is going to turn down a thousand bucks to tell the truth’ ”).

Moreover, from 1992 to 1995, the Tennessee courts held that law enforcement files are subject to the Tennessee Public Records Act for disclosure and that attorneys could seek access to such files for clients with capital sentences in post-conviction proceedings. See Capital Case Resource Center Tennessee, Inc. v. Woodall, No. 01-A-019104CH00150, 1992 WL 12217 at *5 (Tenn.Ct.App. Jan.29, 1992). Although Woodall was later modified by statute in 1995, Waller v. Bryan, 16 S.W.3d 770, 774-75 (Tenn.Ct.App.1999), Petitioner had this window of opportunity to review the State’s files after his death sentence in 1992. With certain exceptions, FBI records are subject to disclosure under the Freedom of Information Act (“FOIA”). 5 U.S.C. § 552(a) through(g).

As to Petitioner’s contention of denial of necessary expert services in the state post-conviction process, first, “[tjhere is no constitutional requirement that the State provide a psychiatrist for post-conviction proceedings.” Deputy v. Taylor, Civ. A. No. 93-387 LON, 1993 WL 643368 at *5 (D.Del.1993). Second, in 1995, the Tennessee Supreme Court rendered Owens v. State, 908 S.W.2d 923 (Tenn.1995) that authorizes such funding in capital cases in post-conviction proceedings. As a matter of fact for Petitioner’s trial and post-conviction proceedings, the state trial court authorized several experts to assist the Petitioner’s counsel with one exception, the a physician specializing in drug addiction. The Tennessee courts found that Petitioner’s drug use and history were factual matters that could be argued by counsel. Given the appointment of a psychiatrist and a psychologist, this Court deems the state court’s ruling on this issue to be reasonable.

As to Petitioner’s submission of medical evidence, Drs. Woods’s and Smith’s affidavits reflect their conclusions without any consideration of the facts of the murder, the findings of the state courts or the opinions of other psychiatrists who examined Petitioner throughout his life and at, or shortly after the murder. Such eonclu-sory opinions do not warrant an evidentia-ry hearing and lack probative value. Any psychiatric evaluation of a habeas Petitioner’s mental competence years after the critical events or “well after trial” “lack[s] the same relevance” as evaluations prior to trial. Harries v. Bell, 417 F.3d 631, 636 (6th Cir.2005). In Harries, the Court ruled that notwithstanding a “bipolar disorder” and “anxiety disorder”, the habeas petitioner was competent for trial purposes based upon mental evaluations with different diagnoses prior to trial. Id. at 635, 636. Here, as outlined above, there were multiple evaluations of Petitioner prior to trial and prior to sentencing and none corroborate Dr. Woods’s opinion.

Dr. Woods’ opinion is wholly at odds with the facts of the murder, as described by Petitioner’s girl friend and as found by the state courts. These facts reflect that Petitioner planned the murder and how he would commit the murder, announced his intentions, solicited a customer, went to the victim’s house, handcuffed and taped the victim, went to get his girl friend and returned to murder the victim. Thereafter, the Petitioner took the victim’s personal property, used his bank card, withdrew funds, commanded the victim’s vehicle and later escaped to Georgia, where he planned and committed a second murder in a similar modus operandi. These facts clearly reflect the Petitioner’s sustained deliberative plan and execution of his murder plan. Dr. Woods’s failure to address any of these facts and his stated reliance upon Petitioner and his counsel for information deprives his opinion of any probative value as a matter of fact.

Petitioner submits the affidavits of his trial counsel that if they had had Dr. Woods’s opinion about Petitioner having a bipolar disorder, then they would have gone to trial or presented this condition as a defense and as mitigation evidence. Several defendants in Tennessee with bipolar disorders have been convicted by jury trial, State v. Thacker, 164 S.W.3d 208, 219-20, 232 (Tenn.2005); Morris v. State, No. W2005-00426-CCA-R3-PD, 2006 WL 2872870 *19-20, 22-23, 62 (Tenn.Crim.App. Feb.26, 2007) (discussing and rejecting the opinion of Dr. Woods and others) and had their guilty pleas upheld. See e.g., Henderson v. State, No. W2003-01545-CCA-R3-PD, 2005 WL 1541855 at **17-20, 37 and 47 (Tenn.Crim.App. Dec. 5,2005). See also United States v. Moore, 180 Fed.Appx. 571, 573 (6th Cir.2006) (upholding sentence based upon a guilty plea of a defendant who had been diagnosed with bipolar disorder).

The Court has reviewed Brown’s affidavit adopting her statement on the videotape as well as the videotape itself. Based upon that review and her demeanor on the videotape, her prior testimony at sentencing and the Tennessee appellate court’s findings about Brown’s credibility, the Court does not find Brown’s videotaped statement to be credible so as to justify the additional discovery sought nor to hold an evidentiary hearing.

The critical issue with Dr. Harlan is his opinion that the victim could have lived for up to five minutes after Petitioner started his strangulation of the victim. Here, Dr. Levy testified that he disagreed with that opinion. There is not any showing that any such questionable testimony or conduct of Dr. Harlan occurred prior to the time of Petitioner’s trial. The cited proof about Dr. Harlan involves events that occurred in 1995 that is three years after Petitioner’s trial. Because the questionable events did not come to light until 2002, long after Petitioner’s trial, and despite discovery in the state courts and this Court, there is not any reason to conclude that the state prosecutors were aware of the conduct that required disclosure under Brady. In any event, Brown who was present at the murder, testified at sentencing that about five minutes passed before the victim died. See infra at p. 45. Aside from Dr. Harlan’s disputed testimony, Brown’s testimony at sentencing constitutes a wholly independent factual basis for the jury’s finding of an aggravating circumstance, in addition to the Tennessee court’s ruling on the issue. Supra at p. 75. This contention does not merit additional discovery nor an evidentiary hearing.

On the necessity for an evidentiary hearing on Petitioner’s claims about his trial and appellate counsel’s performance, given the multi-volume transcript of the state post-conviction evidentiary hearings as well as the expert services to assist counsel in those proceedings, the Court concludes that Petitioner had a full and fair hearing for his claims. As to matters that were not pursued in the state post-conviction hearing, Petitioner does not have a constitutional right to counsel in post-conviction hearings. Under Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) and Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) the right to counsel does not extend beyond the first appellate process. Thus, counsel errors in state post-conviction proceedings are not grounds for cause because there is no right to counsel for these proceedings. As the Supreme Court explained in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991):

[W]e decline[ ] ... to extend the right to counsel beyond the first appeal of the criminal conviction. We held in Ross that neither the fundamental fairness required by the Due Process Clause nor the Fourteenth Amendment’s equal protection guarantee necessitated that States provide counsel in state discretionary appeals where defendants already had one appeal as of right____ Similarly, in Finley, we held there is no right to counsel in state collateral proceedings after exhaustion of direct review. ...

Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that Coleman had a right to counsel to appeal a state collateral determination of his claims of trial error.

Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman’s claims in state court cannot constitute cause to excuse the default in federal habeas.

501 U.S. at 756-57, 111 S.Ct. 2546. Accord Ritchie v. Eberhart, 11 F.3d 587, 591-92 (6th Cir.1993) and 28 U.S.C. § 2254(i) (codifying this principle).

The Court applies the same principle to the evidentiary hearing issue. If Petitioner’s post-conviction counsel failed to pursue a matter, that omission could not be considered on the merits and therefore, cannot justify an evidentiary hearing.

For these collective reasons, the Court concludes that Petitioner has not shown good cause for his discovery requests and his request for evidentiary hearing is not justified under the circumstances here.

II. Petitioner’s Non-Defaulted Claims

A. Procedural History

On August 31, 1990, the Petitioner was indicted on charges of first degree murder, first degree murder during commission of a crime and aggravated burglary. In 1991, Hodges pled guilty in the Circuit Court of Davidson County, Tennessee, to first-degree murder and aggravated robbery. In 1992, after a sentencing hearing, and based upon the jury’s findings of aggravating circumstance, the judge sentenced Hodges to death on the first degree murder charge and to a forty year sentence on the aggravated robbery conviction to be served consecutive to his death sentence. The Tennessee Court of Criminal Appeals affirmed his conviction and sentence. State v. Hodges, 1995 WL 301443 (Tenn.Crim.App.1995). The Tennessee Supreme Court upheld Petitioner’s death sentence. State v. Hodges, 944 S.W.2d 346 (Tenn.1997).

Hodges filed his only state petition for post-conviction relief that the trial court denied. The Tennessee Court of Criminal Appeals affirmed the trial court’s order denying the petition. Hodges v. State, No. M1999-00516-CCA-R3-PD 2000 WL 1562865 (Tenn.Cr.App. Oct. 20, 2000). The Tennessee Supreme Court denied his application for permission to appeal on March 26, 2001.

B. State Courts’ Findings of Facts

In its decision, the Tennessee Supreme Court made the following factual findings on the circumstance of the Petitioner’s conviction.

The defendant, Henry Eugene Hodges, entered a guilty plea and was convicted of premeditated first-degree murder. Thereafter, the penalty phase of the trial commenced. The State presented proof of the circumstances of the offense through the testimony of Trina Brown, the defendant’s fifteen-year-old girlfriend. Brown testified that one week before the murder she and the twenty-four-year-old defendant, who were living with the defendant’s brother in Smyrna, Tennessee, decided to move to Florida. To get money for the move, Hodges, a male homosexual prostitute, told Brown that he would rob and kill the next person who propositioned him. Hodges discussed with Brown how the crimes would be carried out. Hodges repeated these statements on May lk, 1990, the day of this murder.

On the night of May 14, Brown and Hodges went to Centennial Park in Nashville. When the victim, Ronald Bassett, approached, Hodges talked with him, and they left together in the victim’s vehicle and went to the victim’s residence at 3133A Parthenon Avenue, across from Centennial Park. Ten or fifteen minutes later, Hodges returned to the park on foot, and along with Brown, drove back to the victim’s residence in his own car. Hodges told Brown to lie down in the backseat of the car so no one could see her. When they arrived at the victim’s residence, Hodges told Brown to wait in the car. After an unspecified period of time, Hodges returned to the car, wearing gloves, and asked Brown to come into the house. Brown testified that when she arrived, Bassett was lying face down on the bed in his bedroom with a pillow over his head. Hodges had bound his feet together with duct tape and had handcuffed his hands. While Bassett lay helplessly, Brown and the defendant ransacked the house searching for items of value. After obtaining the personal identification number for the victim’s automatic teller card, Brown and the defendant “took a break, ” drank a coke, and discussed whether to kill Bassett. Brown testified that she told Hodges to kill Bassett to prevent their arrest. Hodges then went into the bedroom and, ignoring the victim’s pleas not to kill him, strangled Bassett to death with a nylon rope. Brown testified that she heard Bassett moan and make a choking sound and that it took about five minutes for Bassett to die.

In an attempt to remove any fingerprints, the defendant wiped off various items in the residence. After turning the air conditioner in Bassett’s bedroom on high to prevent discovery of the body, Hodges and Brown left the victim’s residence, taking the victim’s automobile and several items of personal property, including jewelry, a gun, and a VCR. After using Bassett’s automatic teller card to withdraw the twenty-four-hour maximum of four hundred dollars from his account, the pair returned to the house of the defendant’s brother and went to bed. The next day, having learned that the victim’s body had been discovered, Brown and the defendant abandoned the victim’s car in rural Rutherford County and drove to Georgia in their own car. They were eventually arrested in North Carolina. Items of the victim’s personal property were found in their possession at this time. Also, the defendant’s fingerprints were found on items inside Bassett’s home, and Brown had been photographed withdrawing money with Bassett’s automatic teller card.

949 S.W.2d at 349-50.

As to the facts on Petitioner’s sentencing, the Tennessee Supreme Court made the following findings.

Testifying for the State at the sentencing hearing, Dr. Charles Harlan, the chief medical examiner for Metropolitan Nashville and Davidson County, confirmed that Bassett had died from ligature strangulation. Dr. Harlan opined that Bassett would have remained alive and conscious for at least three and perhaps as long as five minutes during the strangulation. Harlan also found abrasions on the victim’s wrists consistent with handcuffs.

The State proved that the defendant had been convicted of armed robbery, attempted kidnaping and robbery in Hamilton County in 1984. The State also established that the defendant had been convicted of murder in Fulton County, Georgia, in July 1990. The record reveals that the Georgia killing occurred when the defendant and Brown arrived in Atlanta after murdering Bassett. Hodges made arrangements with a man to engage in homosexual acts for an agreed price. Hodges accompanied the man to his motel room, but when the man was unable to pay the agreed price, Hodges murdered him.

In mitigation, the defendant testified and also presented the testimony of his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist. This proof showed that the defendant was the next to youngest of his mother’s five sons. His mother and father were not married. His father was actually married to another woman, but engaged in what one of the witnesses described as an “irregular union” with the defendant’s mother for eighteen years. The defendant’s father abused the defendant’s mother and was strict with the defendant’s brothers, three of whom were the children of another man. The defendant, however, was his father’s favorite and was spoiled. Financial difficulties forced the family to move about frequently, and defendant’s father supported the family only sporadically.

The defense introduced proof to show that Hodges seemed normal until he was twelve years old. At that time, he began to associate with older boys, sniff glue and gasoline, be truant from school, and run away from home. He also engaged in sexual activities with his younger brother and attempted sexual activities with a female cousin. He became involved with the juvenile authorities and was confined to a juvenile facility in Chattanooga.

Through his mitigation proof, the defendant attempted to establish that a catalyst and major contributing cause of his delinquent and later criminal behavior was his rape and sexual abuse by a stranger when he was twelve years old. According to the defendant, he accepted a stranger’s offer of a ride home when he was playing a short distance from his home on Fessler’s Lane in Nashville. Rather than driving Hodges home, the stranger drove Hodges to his home and raped him. Fearing rejection by his homophobic father and driven by guilt, the defendant told no one of this incident until he was arrested in 1990.

Dr. Nurcombe testified that, while the defendant suffered from an antisocial personality disorder, low self-esteem, and substance (marijuana) abuse, the killing was motivated by a subconscious desire for revenge for the sexual abuse inflicted on him when he was twelve, coupled with Hodges’ fear that his family might discover that he was engaged in homosexual prostitution since Brown had told Hodges’s sister-in-law shortly before the killing that he was a homosexual prostitute. The defense also introduced testimony that Brown dominated and manipulated the defendant.

In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and Dr. Leonard Morgan, a clinical psychologist. Both had examined the defendant and concluded that he suffered from an antisocial personality disorder. They described persons with this disorder as having “no conscience,” being “self centered,” being “notoriously dishonest and untruthful,” and having “very little regard for the feelings of others and ... willing to use any means to get what they want, no matter who it hurts.” While acknowledging the complicated factors involved in antisocial personality disorders, the State’s experts discounted the singular importance of the one incident of alleged sexual abuse in causing the defendant’s actions. Dr. Morgan concluded that the defendant “was in complete control of his behavior” and not suffering from mental illness or emotional disturbance.

Id. at 350-51.

In Petitioner’s earlier appeal, the Tennessee Court of Criminal Appeals’s made other factual findings on Petitioner’s personal history and post-offense conduct at Petitioner’s sentencing.

When the appellant and Brown arrived in Atlanta, the appellant made arrangements with a man to engage in homosexual acts for an agreed price. They went to the appellant’s motel room. When the person revealed that he did not have sufficient funds to pay the agreed price, the appellant murdered him. The appellant was subsequently convicted of murder in the first degree in Fulton County, Georgia, on July 31, 1990.

The state proved that the appellant had been previously convicted of robbery with a deadly weapon, simple robbery, and attempt to commit a felony, namely, kidnapping. The appellant was convicted of these offenses on January 26, 1984 in Hamilton County. The state also proved the conviction on July 31, 1990 for first degree murder in the Fulton County, Georgia case. This established the aggravating circumstance embodied in TenmCode Ann. § 39 — 13—204(i)(2).

The state also established that the murder was committed during the commission of a felony: robbery. As indicated, the victim was handcuffed and his legs taped, rendering him helpless. The appellant took several items of personal property from the residence. This established the aggravating circumstance embodied in Tenn.Code Ann. § 39-13-204(i)(7).

The appellant presented evidence to mitigate his punishment for this murder. He presented evidence of his childhood, his family life, the sexual abuse he suffered when he was twelve years of age, his mental illness or disturbance, Brown’s alleged dominance of him, his immaturity, and his drug abuse.

* * *

According to family members, the appellant was his father’s favorite. The appellant was never punished while his brother and two half-brothers were the subject of harsh punishment. If the appellant’s mother punished him, his father would become angry at her. The appellant’s mother and half-brother described the appellant as “spoiled.” The half-brother stated that the appellant could do whatever he desired without fear of punishment.

The record reveals that the appellant lived a normal life until he was twelve years of age. When he reached this age, he refused to go to school, began to associate with older men, and started sniffing glue — anything that would make him “high.” He frequently ran away from home and occasionally would stay away for weeks before returning home. Although the appellant’s mother moved the family frequently, the appellant’s lifestyle did not change. He was in custody of juvenile authorities on sixteen different occasions. While confined to a juvenile treatment facility in Chattanooga, the appellant escaped. He subsequently committed several serious offenses, which resulted in his convictions for robbery with a deadly weapon, simple robbery, and an attempt to commit a felony: kidnaping.

The appellant’s maternal grandfather was an alcoholic. One of the appellant’s half-brothers is a recovering alcoholic. The appellant has a history of abusing marijuana. He smoked as many as eight marijuana cigarettes in a twenty-four hour period.

The appellant testified that he was sexually abused by a complete stranger when he was twelve years old. However, he never revealed this abuse to any member of his family. Nor did he tell the juvenile authorities or the Tennessee prison officials that he had been sexually abused. The sexual abuse did not surface until he had been arrested for the Fulton County, Georgia murder. He related this to an official at the Georgia Diagnostic Center. The appellant refused to tell his parents about the sexual abuse because his father was homophobic and the appellant felt his mother would blame him for the occurrence. He did not tell the juvenile authorities because he knew they would tell his mother.

* * *

Shortly after the sexual abuse incident, the appellant made his brother perform fellatio on him. He took a young female cousin into a closet for the purpose of engaging in sexual conduct. When the murder occurred, he was living with Trina Brown. He was also engaging in homosexual male prostitution.

* * *

The appellant’s mother opined that fifteen-year-old Trina Brown completely dominated the appellant. Trina Brown testified that the appellant did not want to kill the victim and that it was she, not the appellant, who made the decision to kill the victim. She was afraid that if the victim was permitted to live, he would have the appellant arrested, and as a result, she would lose the appellant. Therefore, she told the appellant to kill the vietim.FN8 The appellant admitted on cross-examination that both he and Brown tried to manipulate each other. He admitted that he had previously stated that Brown “would jump off a building” if he asked her.

Dr. Barry Nurcombe, a child psychiatrist, testified as an expert for the defense. He described the appellant as having an anti-social personality disorder. He outlined the appellant’s family life, his childhood, the incident involving sexual abuse, his drug dependence, the murder, his relationship with Brown, his difficulty coping with stress, his poor judgment, which was aggravated by the use of marijuana, and other facts prior to expressing his professional opinion. He concluded that the appellant had a low self-esteem. He also concluded that although a grown man, the appellant reacts the same as a seven or eight-year-old child. He found that the appellant had established the rudiments of psychological disturbance prior to the incident involving sexual abuse. According to Dr. Nurcombe, the appellant wanted revenge for the sexual abuse that he encountered in his childhood; and he viewed homosexuals as a class rather than individuals. Nur-combe related that Brown had told the appellant’s sister-in-law the appellant was a homosexual. This was related by the sister-in-law to the appellant’s half-brother, who confronted the appellant with this fact. Dr. Nurcombe opined that the stress resulting from this incident, coupled with the fear that the appellant’s family might discover his homosexual lifestyle, motivated the appellant to kill the victim-the next homosexual that propositioned him.

The appellant told Dr. Nurcombe that “he did not wish to be thought [of as] crazy, that he felt that he did things deliberately [on the night in question, and] that any attempt to explain what he had done on psychological grounds was hogwash.” The following colloquy occurred during Nurcombe cross-examination:

Q. Henry Hodges told you exactly why he killed Mr. Bassett but you think that you have a better grasp on why he did it than Mr. Hodges does, himself, is that correct?

A. Yes, I do.

The state called Dr. James G. Kyser, a psychiatrist, and Dr. James Morgan, a psychologist, in rebuttal. These two expert witnesses had examined the appellant for the state. Both experts had talked to the appellant on several occasions, reviewed certain medical records, and viewed an interview the appellant gave a television station concerning the murder and the appellant’s background.

Dr. Kyser concluded that the appellant had an anti-social persona