Sutton v. Bell (683 F. Supp. 2d 640, 2010)

MEMORANDUM OPINION

THOMAS A. VARLAN, District Judge.

Table of Contents

I. PROCEDURAL BACKGROUND............................................647

II. FACTUAL BACKGROUND ................................................648

A. Trial Proof............................................................648

1. Evidence Presented by State ........................................648

a. Crime ........................................................651

b. Investigation ..................................................652

2. Testimony Presented on Behalf of Sutton..............................652

3. Testimony Presented on Behalf of Both Defendants.....................653

4. Rebuttal Evidence Presented by State................................653

5. Verdict ...........................................................653

B. Sentencing Proof......................................................653

C. PosE-Conviction Proof..................................................654

III. STANDARDS OF REVIEW................................................663

A. Habeas Claims Cognizable Under 28 U.S.C. § 2254 ........................663

B. Review of Habeas Claims on the Merits...................................663

C. Factual Bases for Habeas Claims........................................664

D. Procedural Default.....................................................665

E. Miscarriage of Justice: Actual Innocence.................................666

F. Summary Judgment....................................................668

IV. ANALYSIS...............................................................669

A. Failure to Investigate and Present Evidence and State Court’s Denial of Relief on This Claim was Objectively Unreasonable (Claim I)..............669

1. Ineffective Assistance of Counsel.....................................669

a. Brain Damage.................................................671

b. Dellinger’s Corrupting Influence and Control......................674

c. Sutton’s Family History.........................................675

B. Dr. Harlan Claim (Claim II).............................................681

C. Trial Counsel’s Irreconcilable Conflict of Interest (Claim III)................682

D. Lack of Prior Notice of Dr. Harlan’s Testimony (Claim IV)..................684

E. Counsel Failed to Present Evidence to Challenge the Branam Homicide (Claim V)...........................................................687

F. Denial of Severance Motion (Claim VI) ...................................689

G. Admission of Evidence of Ms. Branam’s Murder, Fight on Alcoa Highway, and Trailer Arson in Sevier County (Claim VII).................691

H. Confrontation Rights (Claim VIII).......................................694

I. Sutton’s Tape-Recorded Statement (Claim IX) ............................695

J. Biased Jury (Claim X)..................................................696

K. Revocation of Funding for Jury Consultant (Claim XI)......................698

L. Limiting Voir Dire (Claim XII)..........................................701

1. Restrictions on Death Penalty Questions..............................701

2. Mitigating Evidence................................................702

M. Alleged Error For Failing to Excuse Juror Who Had Been Bribed (Claim XIII)...............................................................703

N. Revelation of Sevier County Trial (Claim XIV).............................705

O. Conviction-Prone Jury (Claim XV).......................................707

P. Refusal to Instruct on Lesser Offense (Claim XVI).........................707

Q. Failure to Instruct Jury [Rebuttal Evidence & Last Person Seen] (Claim XVII)..............................................................709

1. Refusal of Rebuttal Instruction ......................................709

2. Last Person Seen Instruction........................................711

R. Reasonable Doubt Instruction (Claim XVIII)..............................712

S. Ineffective Assistance of Counsel (Claim XIX).............................714

T. Jury’s Misperception About Sutton’s Release Eligibility Date (Claim XX).....717

U. State’s Closing Argument (Claim XXI) ...................................719

V. Sentencing Instructions Reasonable Doubt and Aggravating Circumstance (Claim XXII)...........................................721

1. Reasonable Doubt Sentencing Phase Jury Instruction...................721

2. Omission of Jury Instruction.........................................722

3. Aggravating Circumstance [Insufficiently Supported and Manufactured]...................................................723

W. Refusal to Instruct on Non-Statutory Mitigation Evidence (Claim XXIII).....725

X. Other Constitutional Errors (Claim XXIV)................................725

1. Mandatory Death Sentence..........................................725

2. No Specific Findings as to Mitigating Circumstances....................726

3. The Death Penalty as Cruel and Unusual Punishment...................727

4. The Aggravator Did Not Narrow Class of Offenders....................728

5. Double Jeopardy...................................................729

6. Flawed Proportionality Review.......................................730

Y. Cumulative Error Argument (Claim XXV) ................................730

V. CONCLUSION............................................................730

Gary Wayne Sutton (“Sutton” or “Petitioner”), a death-sentenced inmate at the Riverbend Maximum Security Institution in Nashville, Tennessee, brings this amended petition for writ of habeas corpus against the Warden, Ricky Bell (“Respondent”), pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement for his 1996 conviction for first degree murder [Doc. 24]. Respondent has filed an Answer [Doc. 30] to the habeas corpus petition which conforms with Rule 5 but also contains an argument that the petition must be dismissed based upon procedural default and the deferential review standards set forth in § 2254(d) and Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Court construes the Answer as a Motion for Summary Judgment, to which Sutton filed a response to [Doc. 86], and Respondent filed a reply to Sutton’s response [Doc. 90]. Thus, the case is ripe for review.

After carefully considering the arguments of counsel and the applicable law, the Court will GRANT IN PART Respondent’s motion for summary judgment [Doc. 30]. Specifically, the Court will RESERVE RULING on the motion as to Claim II in its entirety (the issues pertaining to Dr. Harlan) and will permit those claims to proceed to an evidentiary hearing. In addition, the Court will RESERVE RULING on Petitioner’s cumulative error claim pending the resolution of the Dr. Harlan issues. In all other respects, the motion for summary judgment [Doc. 30] will be GRANTED.

1. PROCEDURAL BACKGROUND

On September 1, 1996, Petitioner Sutton and his co-defendant and uncle, James Dellinger, were convicted by a jury in Blount County, Tennessee of the 1992 first-degree murder of Tommy Griffin [Addendum No. 18, p. 5530]. After finding one aggravating circumstance — that Sutton was previously convicted of two felonies whose statutory elements involved the use of violence to the person — the jury determined death was the appropriate punishment for the premeditated murder [Addendum No. 18, p. 5512].

Petitioner’s conviction and sentence were affirmed on direct appeal. State v. Dellinger & Sutton (hereinafter “State v. Sutton”), No. # 1997-00196-CCA-R3-DD, 2001 WL 220186 (Tenn.Crim.App. Mar. 7, 2001) [Addendum No. 22], State v. Dellinger & Sutton (hereinafter “State v. Sutton”), 79 S.W.3d 458 (Tenn.2002), cert. denied, 537 U.S. 1090, 123 S.Ct. 695, 154 L.Ed.2d 635 (2002).

On direct appeal to the Tennessee Criminal Court of Appeals, Petitioner Sutton raised twenty-three issues — thirteen trial issues and ten sentencing issues. State v. Sutton, 2001 WL 220186, at *10-43.

Petitioner filed his original petition for post-conviction relief on March 3, 2003, in the Criminal Court of Blount County, Tennessee. Petitioner alleged twenty-three instances of ineffective assistance of counsel [Addendum No. 22], Petitioner filed amended petitions on June 2, 2003, and March 29, 2004 [Addendum No. 34, pp. 6631-45 and 6660-61], After an evidentiary hearing on May 25 and 26, 2004, the trial court denied relief [Addendum No. 34, pp. 6611-22],

On September 21, 2004, Petitioner filed a notice of appeal. Petitioner appealed to the Tennessee Court of Criminal Appeals raising ten claims. The Court of Criminal Appeals affirmed the denial of post-conviction relief. Sutton v. State, No. E200402305-CCA-R3-PD, 2006 WL 1472542 (Tenn.Crim.App. May 30, 2006). Petitioner’s application for permission to appeal was denied by the Tennessee Supreme Court on October 2, 2006 [Addendum No. 40, p. 7385],

Petitioner initiated the instant habeas proceedings on or about October 5, 2006, and filed his initial habeas petition on May 11, 2007 [Doc. 14], and an amended habeas petition on July 6, 2007 [Doc. 24], Respondent has filed an Answer [Doc. 30], which the Court construes as a motion for summary judgment, to which Petitioner has objected [Doc. 86].

During the course of this proceeding, Petitioner has filed numerous motions. A motion to appoint counsel to investigate and prepare and file a habeas petition was filed on Petitioner’s behalf and was granted [Doc. 2], Petitioner’s first and second motions for discovery [Docs. 15; 40] were granted in part and denied in part [Doc. 41]. Petitioner’s third motion for discovery [Doc. 54] was granted [Doc. 61], as was his motion to expand the record [Doc. 82],

II. FACTUAL BACKGROUND

A. Trial Proof

1. Evidence Presented by State

a. Crime

According to the evidence presented at Sutton’s Blount County trial by the State of Tennessee (“State”), on Friday, February 21, 1992, Jamie Carr was working at Howie’s Hideaway Lounge (“Howie’s”) from 10:00 a.m. until 5:00 p.m. During the last two hours of her shift, she served beer to Sutton, Dellinger, and Griffin who had arrived at Howie’s in a dark blue Firebird, Camaro, or Trans Am [Addendum No. 12, Vol. 1, pp. 2040-65]. Ms. Carr left when her shift ended and was replaced by Terri Newman. Ms. Newman served the men two or three drinks, and at about 7:00 p.m. the three men left the bar [Addendum No. 12, Vol. 1, pp. 2066-74].

At approximately 7:00 p.m., Cynthia Walker and her husband, who were driving on Alcoa Highway, observed a dark-colored Camaro parked on the side of the road with the passenger side door open and only one head light on [Addendum No. 12, Vol. 1, pp. 2079-99]. Ms. Walker saw a male outside the vehicle and some type of pulling and pushing activity going on inside the vehicle as though an altercation was taking place between the person outside and whoever was inside the car. Mr. Walker called the Blount County police station to report the fight [Addendum No. 12, Vol. 1, pp. 2083-88].

Also around 7:00 p.m., Sharon Davis and her family were driving on Alcoa Highway when she saw a lone shirtless man stumbling along the side of the road. They returned later and the man was no longer in that area. However, a short way beyond, past Hunt Road, Ms. Davis observed two men outside an older dark-colored Camaro who appeared to be looking for something [Addendum No. 12, Vol. 1, pp. 2106-12].

At 7:11 p.m., Blount County 911 dispatcher, Sandra Leone Hicks, received a call about a fight between people in a black or dark-colored Camaro [Addendum No. 12, Vol. 1, pp. 2132-33]. Within minutes, two City of Alcoa police officers separately responded. The first officer to arrive on the scene determined that the shirtless man was Griffin. According to the first officer, Griffin was nervously looking around as though he was waiting for someone to return, while explaining that some friends, who were not really his friends, had pulled him out of the car, but he just could not tell the officer what happened [Addendum No. 12, Vol. II, p. 2172]. According to the second officer, Griffin would give no information, had no identification, was upset, had an artificial leg, and appeared to have been in a fight because “his back was skinned up and his neck — had some abrasions ... like he had been fighting ... [h]is bottom lip was quivering like he was scared ... he smelled [strongly] of alcohol [and] had been drinking pretty heavily ....” [Addendum No. 12, Vol. 2, pp. 2153-54],

Although Griffin smelled of alcohol, the first officer did not think he was intoxicated. Nevertheless, the first officer arrested Griffin because “[s]omething ha[d] taken place that [was] not right,” and the officer did not have anywhere else to take him. Therefore, Griffin was charged with public intoxication and transported to the Blount County Jail, arriving at 7:35 p.m. [Addendum No. 12, Vol. 1, pp. 2132-42; Addendum No. 12, Vol. 2, pp. 2164-92].

Subsequently, Dellinger and Sutton came to the jail between 8:30 p.m. and 9:00 p.m. and asked to post bail for Griffin, but they were told to come back between 10:30 p.m. and 11:00 p.m. [Addendum No. 12, Vol. 3, pp. 2401-07].

About 9:00 p.m., Griffin’s and Dellinger’s neighbor, Alvin Lee Henry, was watching television when his dog began barking. Mr. Henry looked out his window and saw someone entering the passenger side of Dellinger’s truck, which then proceeded up the driveway to Dellinger’s trailer. Mr. Henry glanced back toward the road and saw that Griffin’s trailer was on fire. His wife called 911 [Addendum No. 12, Vol. 2, pp. 2224-28].

About 9:00 p.m., Jennifer Branam, Griffin’s seventeen-year old niece, was awakened by her sister and advised that Griffin’s trailer was on fire. Jennifer went to Dellinger’s trailer looking for her uncle, but Dellinger’s wife said Griffin was not there, and neither were Dellinger or Sutton. Immediately afterwards, Jennifer saw Dellinger and Sutton breathlessly walking down the hall wearing jackets and pants wet up to the knees, though it was not raining, snowing, or sleeting. She asked them if her uncle was in his trailer, and Sutton responded that he was in Blount County with someone else. Del-linger declined Jennifer’s request to go down to her uncle’s trailer explaining “they couldn’t go down there because they was [sic] in enough trouble as it is.” [Addendum No. 12, Vol. 2, pp. 2276-83].

Jennifer returned home and observed the two men leaving Dellinger’s house. She observed Dellinger remove a sheet-wrapped object, two and a half to three feet in length, and place it in the trunk of his wife’s car while Sutton waited in the car. She saw them drive off in the car [Addendum No. 12, Vol. 2, pp. 2285-89; 2230-31].

Herman Lewis, who was in the vicinity, also saw someone whom he believed to be Dellinger leave his trailer carrying an object, which he placed in the backseat of his car. Two people then got in the car and just sat there until Mr. Lewis left [Addendum No. 12, Vol. 3, pp. 2336-41],

At approximately 11:25 p.m., Dellinger and Sutton returned to the jail and were seen by two law enforcement officers. One of the officers saw either Dellinger or Sutton carrying a blue flannel-type shirt and heard one of them tell Griffin (who was shirtless when he was arrested), “we’ve go [sic] to get you back to Sevier County or something to that effect.” [Addendum No. 12, Vol. 3, p. 2435].

At 11:55 p.m., Jason McDonald, who lived about 500 yards from the Blue Hole on the Little River, was writing in his journal when he heard two or three gunshots coming from the bottom of the hill [Addendum No. 12, Vol. 3, pp. 2442-50]. His mother also heard the shots and discussed them with her son, who noted them in his journal [Addendum No. 12, Vol. 4, pp. 2473-90].

The next day, Saturday, February 22, 1992, between 12:00 p.m. and 1:00 p.m., Connie Branam, Griffin’s sister, who was concerned about Griffin’s unexplained absence, prepared to go to Blount County to find him [Addendum No. 12, Vol. 3, pp. 2382-90], Around 2:00 p.m., Ms. Branam arrived at Jerry Sullivan’s grocery store carrying a picture of her brother. Sullivan agreed to let Ms. Branam leave her car in his parking lot. Later, he observed her talking to two men in a white Dodge truck [Addendum No. 12, Vol. 4, pp. 2491-96],

On that date, Ms. Carr was again working the day shift at Howie’s when Dellinger and Sutton entered the bar with a woman who was crying. The woman introduced herself as Connie Branam and said she was there looking for her brother. As they discussed the previous day’s events, Ms. Carr described the third person with Dellinger and Sutton as having “a real bad limp,” whom Ms. Branam identified as her brother. During that conversation, Dellinger interrupted Ms. Carr several times asking if she remembered them and then asking if she was sure she remembered them. She acknowledged that she was sure she remembered them. Then Dellinger explained “we thought he would come back here because we got him out of jail yesterday and came in here and had a drink” [Addendum No. 12, Vol. 4, p. 2501]. Dellinger told Ms. Carr that he, Sutton, and Griffin returned to Howie’s after they bailed Griffin out of jail and asked her if she knew with whom Griffin left the bar. Ms. Carr responded that, when she left work the day before, they were still at Howie’s. Ms. Carr stated Dellinger told her the last time they had seen Griffin, he “was up the road with a woman, a short [,] dark-haired woman and she was ugly” and he asked her if they had come back to Howie’s [Addendum No. 12, Vol. 4, p. 2501]. Ms. Carr informed him she had not seen them [Addendum No. 12, Vol. 4, pp. 2497-2501].

Ms. Carr served Dellinger, Sutton, and Ms. Branam several beers, and the trio remained at Howie’s when Ms. Carr left around 5:00 p.m. Ms. Carr was concerned with Ms. Branam’s level of intoxication, but Dellinger informed her that his companion was not driving [Addendum No. 12, Vol. 4, pp. 2491-2512], Ms. Newman replaced Ms. Carr at the bar and continued to serve them beer. Ms. Branam asked her with whom Griffin had left the day before, and Ms. Newman “got a little confused because he had left with the two gentlemen that she was sitting with.” [Addendum No. 12, Vol. 4, pp. 2516-17], Dellinger insisted they had come in after they picked Griffin up from jail, but according to Ms. Newman, in fact, they had not returned after they left at 7:00 p.m. While Ms. Branam and Dellinger were dancing, Sutton persistently, but unsuccessfully, tried to persuade Ms. Newman to go with them to find Ms. Branam’s brother. After convincing Sutton she would not go, he asked her if she was married. When Ms. Newman told him “yes,” he said, ‘Your husband is going to be surprised whenever you’re missing one morning, when he wakes up and you’re missing.” [Addendum No. 12, Vol. 4, pp. 2516-19, 2534],

The three individuals left the bar at 7:00 p.m., with Ms. Branam walking between Sutton and Dellinger. Ms. Newman did not actually see them get in a vehicle but knew that a white truck similar to Dellinger’s was in the parking lot. Frightened by Sutton’s comment, Ms. Newman called her husband and asked him to come to Howie’s and follow her home when she finished her shift at midnight [Addendum No. 12, Vol. 4, pp. 2532-36],

About 8:00 p.m., James R. Gordon and his wife heard a high-pitched whistle coming from the woods. They could not identify the noise but saw a fire through the trees. Friends suggested it probably was just a campfire. About a week later, Mr. Gordon and his foster-son drove a dune buggy over a large area of the woods looking for the source of the flames. He saw no evidence of a fire until he stumbled upon a burned automobile with a body inside (later identified as Branam). He concluded that this was the location of the fire he had seen on Saturday and called the police [Addendum No. 12 Vol. 4, pp. 2567-76; 2582-83].

On Monday, February 24, 1992, at approximately 3:00 p.m., a fisherman and his children discovered a man lying face down with the back of his head covered in blood at the Blue Hole. The fisherman called 911 [Addendum No. 12, Vol. 4, pp. 2536-43] and returned to the scene with law enforcement to show them the location of the body, which was later identified as Griffin,

b. Investigation

On February 24, 1992, Gary Alan Hamilton, a crime scene technician and latent fingerprint examiner with the Blount County Sheriffs Department, photographed the scene where the body of Griffin was found at the Blue Hole. Mr. Hamilton assisted the lead investigator, Detective Widener, and the lead technician, Larry Muncy, in taking measurements at the crime scene and sketching the crime scene. Mr. Hamilton observed the victim’s body lying face-down on the ground angled downward toward the river. Two spent shotgun shells and two empty Budweiser cans were strewn nearby [Addendum No. 12, Vol. 4, pp. 2547-54],

On February 29,1992, Dr. William Bass, the State forensic anthropologist, traveled to the Foothills Parkway in Sevier County, where he saw an extensively-burned vehicle with a body lying on the front seat. Dr. Bass examined the burn pattern in the car and the degree of destruction of the body and concluded that an accelerant had been poured in the car. From her dental records, Dr. Bass positively identified the body as that of Connie Branam [Addendum No. 12, Vol. 5, pp. 2659-62]. Dr. Bass’s assistant found a rifle cartridge in the front floorboard of the car [Addendum No. 12, Vol. 5, pp. 2693-2704],

Later that same day, the State arson investigator, Mr. Gary Clabo, concluded someone placed an accelerant in the vehicle and ignited it, thereby setting the vehicle on fire [Addendum No. 12, Vol. 5, pp. 2705-27]. Similarly, Mr. Clabo concluded Griffin’s mobile home fire was also an incendiary fire in which an accelerant was used. Although the lab reports did not reveal an accelerant, Mr. Clabo explained that “[a] lot of time, we will have an accelerated fire and there will be no accelerants left due to evaporation and/or consumption of the product.” [Addendum No. 12, Vols. 5 & 6, pp. 2728-68],

Dr. Eric Patrick Ellington, a pathologist, conducted the autopsy on the remains of Griffin. Although he was unable to give a time of death, he determined the cause of death was massive trauma or injury to the brain stem caused by a gunshot [Addendum No. 12, Vol. 6, pp. 2881-2901],

Detective James Widener of the Blount County Sheriffs department, along with several other officers, executed a search warrant at Dellinger’s residence, recovering ballistic evidence that linked Dellinger to the shell casings that had been recovered at the scene where Griffin was found and the burned vehicle in which Ms. Branam was found [Addendum No. 12, Vol. 7, pp. 2915-29; 2973-98, 3020, 3031-39; Addendum No. 12, Vol. 9, p. 3261].

2. Testimony Presented on Behalf of Sutton

Ms. Carolyn Weaver, Sutton’s girlfriend at the time of the murders, gave a detailed accounting of Sutton’s whereabouts during the weekend of the murders. She testified that, on Friday, February 21, 1992, Sutton picked her up at approximately 7:00 p.m. and that the only time she was not with Sutton on that evening was from 10:00 p.m. until midnight. She further testified that they were apart most of Saturday, February 22, 1992, until that evening when they watched movies at Dellinger’s trailer [Addendum No. 12, Vol. 10, pp. 3490-3501; Vol. 11, pp. 3510-11; 3530; 3604-10], Ms. Weaver also presented evidence as to Sutton’s close friendship with Griffin [Addendum No. 12, Vol. 11, pp. 3504-09; 3511-13],

Mr. Jack Sutton, who had described himself as “somewhat” of a relative of Sutton who had visited Sutton in the past, also testified at trial [Addendum No. 12, Vol. 13, p. 3845]. He stated that he had spoken with Mr. Bill Cogdill, whom Jack Sutton described as untrustworthy and a liar, before Ms. Branam’s body was found. According to Jack Sutton, Mr. Cogdill said that “Connie would either be found in water or burned in a car.” [Addendum No. 12, Vol. 13, pp. 3845-47; 3849-50].

3. Testimony Presented on Behalf of Both Defendants

On February 21, 1992, at approximately 9:17 p.m., Mr. Tim Nichols, a volunteer firefighter, responded to the fire at Griffin’s trailer. The trailer was “all burnt,” but he searched through the rubble to make sure the victim was not present since Griffin’s sister had voiced concern that he may have been in the trailer [Addendum No. 12, Vol. 11, p. 3567]. An arson investigator was not called because Ms. Branam had told him the wiring in the trailer was faulty and at the time, Mr. Nichols did not suspect arson [Addendum No. 12, Vol. 11, pp. 3564-71].

At 5:59 p.m. on February 24, 1992, two Emergency Medical Technicians (“EMTs”) responded to the call when Griffin’s body was found. The EMTs testified that when they arrived the body was in rigor mortis and cold and stiff, but they had detected no significant odor of decomposition [Addendum No. 12, Vol. 12, pp. 3781-94].

Defendants also presented the testimony of Martha Blair, who testified that a few days before she learned of Griffin’s death on the news, her ex-husband (“Mr. Blair”) came in late, threw his clothes in the trash, and told her that he was throwing them away because they were muddy, which was something he had never done before. Then, the next morning, he took the trash bag and put it in his car, again something he had never done before [Addendum No. 12, Vol. 13, pp. 3806-23]. After Ms. Blair heard about the death of the victim on the news, the police came to her residence and searched Mr. Blair’s vehicle. Although Mr. Blair always carried a 12-gauge shotgun in the back seat of his car, the last time Ms. Blair saw the shotgun was two or three days before the police came to her residence. Id.

Defendants also relied on the testimony of Dr. Larry Elmo Wolfe. Dr. Wolfe was the medical examiner and coroner in Union County. At the time of the trial, he had been in the Union County position for about three years since his appointment in 1989. Dr. Wolfe, a licensed medical doctor, though not board certified in any field of medicine, testified that the time of Griffin’s death was 24 to 36 hours before the body was discovered which would have put his time of death between 3:00 a.m. and 3:00 p.m. Sunday, February 23, 1992. On cross-examination, however, he conceded that “[i]t’s maybe within the realm of conceivability” that Griffin died on Friday when the shots were heard [Addendum No. 12, Vol. 13, pp. 3853-55; 3914-15; 3923-25; 3941],

4. Rebuttal Evidence Presented by State

The State presented Dr. Charles Warren Harlan, a board-certified forensic pathologist, who had performed approximately 15,000 forensic autopsies. Considering the rigor mortis, the tissues on the microscopic slides, and the fact that the victim was seen alive around 11:30 p.m. on Friday, February 21, 1992, Dr. Harlan estimated Griffin’s time of death as between 11:30 p.m. on Friday, February 21 and 8:00 a.m. on Saturday, February 22 [Addendum No. 12, Vol. 14, pp. 4018-20].

5. Verdict

After hearing all the evidence and considering all the exhibits, the jury returned a verdict finding Sutton guilty of first degree murder as to Tommy Griffin [Addendum No. 18, p. 5530].

B. Sentencing Proof

During the penalty phase, the State introduced two prior convictions as aggravating factors against Sutton — the February 24, 1993, judgment of conviction for the first-degree murder of Ms. Branam in Sevier County Case 5033, and a 1983 aggravated assault conviction from Georgia.

Several family members and friends presented “good character” evidence about Sutton, testifying as to his kindness, generosity, reliability, dependability, and work ethic. In addition, evidence of Sutton’s good jail conduct was introduced, i.e., he only had one discipline report for failure to report as scheduled to his job site.

The majority of Sutton’s mitigating evidence was presented by Dr. Eric Engum, a clinical psychologist specializing in clinical neuropsychology, who had evaluated Sutton. Dr. Engum spent approximately seventeen hours with Sutton conducting clinical interviews and performing psychological and neuropsychological assessments to determine Sutton’s functioning, personality, and intellectual cognitive status.

Dr. Engum administered Sutton two IQ tests. Sutton scored 77 on the first test and 83 on the second test, both of which suggested Sutton was in the borderline range and functioned in the bottom 15 percent in terms of intellectual functioning. In Dr. Engum’s opinion,

What it really indicates is that this is a young man with limited intellectual ability; limited social judgment and knowledge; very limited abstract reasoning; very limited in the way of his vocabulary skills, the way in which he expresses and articulates himself; and very limited in that — what I call that just font of general knowledge that people need in order to navigate through life.

[Addendum No. 16, Vol. III, p. 5057]. On cross-examination, however, Dr. Engum acknowledged that Sutton was not within the range of even being mildly retarded and that a person with Sutton’s IQ has the capacity to appreciate the wrongfulness of his conduct [Addendum No. 16, Vol. III, p. 5067],

In addition, Dr. Engum presented evidence about Sutton’s family history. According to that testimony, Sutton’s parents divorced when he was young. His father was a chronic alcoholic, and Sutton followed in his father’s footsteps by abusing alcohol beginning at the age of twelve. According to Dr. Engum, Sutton was subjected to “a lot of mind games, a lot of head games” by his parents trying to bribe him to choose with whom to live [Addendum No. 16, Vol. Ill, pp. 5057-58]. Dr. Engum explained that there was quite a bit of physical and mental abuse and that Sutton was one of the least favored of all the children in the family. Sutton’s academic performance was very poor and “by eighth grade he had basically failed and had dropped out” [Addendum No. 16, Vol. Ill, pp. 5059-61].

Jimmy Ray Sutton, Sutton’s older brother, explained the circumstances surrounding his brother’s prior Georgia conviction for aggravated assault. Jimmy explained that Sutton was present at the scene when Jimmy attempted to shoot into a car, but instead, the bullet glanced off the car, shot into a mobile home, and struck a female occupant in the leg [Addendum No. 16, Vol. Ill, pp. 5080-82],

After finding one aggravating circumstance — that Sulton was previously convicted of two felonies whose statutory elements involved the use of violence by the person — the jury determined that death was the appropriate punishment for the previously found premeditated murder by Sutton [Addendum No. 18, p. 5512],

C. Post-Conviction Proof

Filing a pro se petition for post-conviction relief on March 3, 2003, Sutton initiated state court post-conviction proceedings. Sutton’s state post-conviction hearing was held on May 25-26, 2004. His first witness was one of his two his trial attorneys, Mr. John Goergen. Mr. Goergen was licensed to practice law in 1992 and was appointed to represent Sutton in 1994 or 1995 [Addendum 35, p. 6746].

At the time Mr. Goergen was appointed to represent Sutton, he had never handled a felony case and had only handled one misdemeanor criminal case (telephone harassment) which was disposed of with a plea. Mr. Goergen attended a capital defense training seminar in Nashville to help him prepare and try Sutton’s case. However, even though Mr. Goergen viewed his job as one of assisting Francis Duncan Gibson, III, lead counsel on the case, he filed a motion to withdraw from representing Sutton after the funds for a jury expert were withdrawn because he did not feel qualified to handle jury selection alone [Addendum No. 35, pp. 6752-58; 6802], but this motion was overruled by the trial court [Addendum No. 9, pp. 1588-89].

Mr. Goergen met with Mr. Gibson and Sutton three or four times before the first trial setting. Although Mr. Goergen did not investigate Sutton’s background, the attorneys had almost daily contact for about two years on Sutton’s case, and Mr. Goergen recalled some discussion about Sutton’s truancy, drinking at an early age, and Sutton’s abuse of alcohol. The attorneys were aware that there would be “two trials,” and Mr. Goergen’s function was to prepare for the guilt/innocence phase while Mr. Gibson took charge of the penalty phase [Addendum No. 35, pp. 6759-60].

Mr. Goergen testified that, although Sutton’s and Dellinger’s attorneys worked together on a defense, Mr. Gibson told Dellinger’s defense attorneys that “once we get into the trial, we’ll all be on our own ... if I have to cut your guy’s throat, I’ll do it.” [Addendum No. 35, p. 6769]. Mr. Goergen acknowledged that the defense teams in this case had an open-file policy with one another and shared an investigator. Although Mr. Gibson tided to have Sutton’s case severed from Dellingei’’s, the motion was denied and he did not appeal the denial of the severance. The attorneys were aware that there was no physical evidence against Sutton, and they were unable to locate Bill Cogdill to determine whether he was involved [Addendum No. 35, pp. 6769-75].

Although Dr. Wolfe was not board certified, Mr. Goergen testified that they believed that his experience as medical examiner of one of the counties in Tennessee for several years was sufficient experience for their purposes [Addendum No. 35, pp. 6817-22],

Mr. Gibson, Sutton’s lead trial attorney, testified he was licensed to practice law in 1967 and entered private practice in 1975. Although Mr. Gibson had seventeen years of experience at the time he was appointed to represent Sutton and had handled many criminal cases, including several homicide cases, this was his first death penalty case [Addendum No. 35, pp. 6989-90].

According to Mr. Gibson, he discussed sentencing with Sutton and his brother, and Dr. Engum was used as a psychologist and mitigation expert for the sentencing proceeding. Both Mr. Gibson and Dr. En-gum spoke with family members and other witnesses several times, and even had group meetings on occasions with the witnesses. Although Dr. Engum was working separately, they remained in contact, and Mr. Gibson received Dr. Engum’s input on whether to use certain witnesses from a psychological standpoint. In addition, the investigator utilized by Sutton’s defense team interviewed potential mitigation witnesses. Mr. Gibson testified they interviewed “forty or fifty” people in preparation for trial [Addendum No. 35, p. 6998]. Mr. Gibson said he was unable to locate Sutton’s wife and child, but he tried to have as many family members as possible attend the trial [Addendum No. 35, pp. 6999-7000],

According to Mr. Gibson, the investigation revealed that Sutton was an alcoholic, came from a broken family, depended heavily upon relatives, was socially withdrawn, was a follower, had a low IQ, did not graduate from high school, and had some discipline problems while in school. In addition, the investigation revealed that Sutton was working, was making money, was achieving a minimum level of independence, and was easily persuaded to do things [Addendum No. 35, pp. 6989-7002],

Before Sutton’s and Dellinger’s defense attorneys began working as a team, they contacted Mr. Lance Bracy of the Board of Professional Responsibility to determine if there would be a conflict if the two teams shared certain information. To Mr. Gibson’s knowledge, no ethical conflict ever arose. The relationship between the two sets of attorneys was described by Mr. Gibson as follows:

Before [they worked as a team], we contacted Mr. Lance Bracy of the Board of Professional Responsibility because there were a lot of issues that affected both people. And we were wanting to have a meeting, kind of like — I think at that time the “Dream Team” was the thing. The Simpson trial may have been going on. And we wanted to meet together to kind of assign things. Because there were issues that affected both, there were issues that affected one and issues that affected the other. So, we would periodically meet and assign tasks that, you know, research tasks, witness tasks, things of that nature, to get together and meet together and decide how best to use it to benefit both or — and, you know .... But if there was an issue that directly involved Gary that I didn’t think the other side should know, I dealt with it outside of those meetings. And there were some of those.

[It was necessary to contact Lance Bracy] [b]ecause of two teams, two Defendants meeting together, their teams sharing information. We wanted to make sure there was no conflict as long as we were doing that. And our idea was the joint issues, because we filed for severance and didn’t get it. So, we wanted to meet together to kind of reduce the responsibility. Like it was silly for me to be working on the same issue another lawyer was, when we could use that time — better to work on issues that would benefit both.

... [I]f we wanted something dealt with that did not — that we didn’t think Mr. Dellinger’s team would need to know, we never brought it up at these meetings and Mr. Goergen and I would deal with it outside. And I’m sure they did the same. There were people that we talked to that we didn’t divulge to the other side that might have had some effect ... I know we checked out several lawyers with several theories from the Sevier County team that we never let the other side know about.

[Addendum No. 35, pp. 7002-04].

Prior to trial, Mr. Gibson filed an ex parte motion requesting a ballistics expert, an arson expert, psychological expert, and an investigator. The Sutton and Dellinger defense teams agreed to use one investigator for both defendants, and Mr. Gibson thought they discussed this fact with Mr. Bracy. To his knowledge, no conflict ever arose in relation to the investigator. Mr. Gibson believed that he probably covered the potential conflicts with Sutton and his family. Mr. Gibson spoke alone with the Sevier County attorneys about the Sevier County case; that case was not investigated as a team [Addendum No. 35, pp. 7005-07].

As to the denial of Sutton’s motion for a severance, Mr. Gibson testified that he considered filing an interlocutory appeal on the denial, but decided not to do so because:

My personal opinion of interlocutory appeals is they are rarely successful. And these gentlemen were wanting to get it over with, as I recall. And an interlocutory appeal on a severance is basically a judge’s discretion, which is, you know— and I felt like that it was a good issue for an appeal, that he didn’t grant a severance. Because there was some evidence that we went to that [sic] affected Dellinger and didn’t affect Sutton — you know, could have, that we dealt with pretrial. So, I felt it was more appropriate to bring it up on direct appeal, particularly having our own separate jury

[Addendum No. 35, p. 7008]. However, on direct appeal, the trial court’s denial of severance and two separate juries was affirmed. State v. Sutton, 79 S.W.3d 458, 468 (Tenn.2002).

When asked to assume that a complaint was made by Sutton that his trial attorneys failed to obtain deposition testimony of unavailable witnesses, Joyce Tipton, Bill Cogdill, and Janice Reed, Mr. Gibson responded:

Well, Bill Cogdill testified. So, I didn’t see any need to get a deposition of him. We knew what he was going to say. And we brought him down to testify. As I recall, [Joyce] Tipton was a lady that — in the record, noticed that there was some reports that she may have had some mental problems we were attempting to use her. And she had about five minutes worth of testimony from a prior trial about some weird statements that were attributed to Bill Cogdill. And we honestly didn’t know why thefy] got into the evidence anyway, because they were clearly hearsay. But in any event, notwithstanding that, it was a trial decision. We decided it wasn’t worth putting her on and trying to get that in, when the State could then bring in the psychologist from Lakeshore to say she had been having ongoing mental problems, trying to make it look like she was, you know, not capable of being a good witness, shall I say ... I don’t specifically recall [Janice Reed], I’m sure we went over it. If it was given to us, we went over that and made a decision whether or not to use them.

[Addendum No. 35, pp. 7017-18].

According to Mr. Gibson, he selected Dr. Wolfe because he was a friend and Mr. Gibson had used Dr. Wolfe in the past when Mr. Gibson needed a medical opinion. When asked if he had any concerns that Dr. Wolfe was not board certified, Mr. Gibson explained:

Well, he was appointed as the coroner of Union County, Tennessee, and I didn’t have any concerns about it. Because he was a good witness, he was a conscientious man. I think he was — at that time, he was, I thought would come across — he was a country doctor who gave up a very lucrative practice to go into a clinic in the poor folks area, and he was translating the Dead Sea Scrolls, and I felt like this would — you know, his personality would overcome that. I knew he wasn’t Board certified, but he’s a doctor and he was certified as a coroner' — or listed as a coroner in Union County for several years.

[Addendum No. 35, pp. 7010-11].

Sutton’s lawyers also used Dr. Ellington, the State’s witness, to obtain information the lawyers thought valuable to their case theories, and, as Mr. Gibson further explained, contacted other experts to assist them:

Well, as I recall, I used the Tennessee Criminal Defense Lawyer’s e-mail list, so any questions that come up on that, I may have gotten some ideas from other fellow attorneys, as most of us do in a case like this. I know we consulted with several leading lawyers — Herb Moncier, Tom Dillard, Bob Ritchie. Jerry Cunningham actually testified for us in the preliminary hearing for getting us a jury selection expert. So, we kind of picked the brains of those persons. We also talked to Dr. Ellington, who was not on our list; Dr. Blake, who we chose not to use — and effectively prevented him from being used by the State. Because one of our objections was he had already been interviewed by us, and Judge Thomas wouldn’t let him testify for the State. I also — perhaps, maybe the investigator may have talked to some of them. But, now ... I pretty much knew who I wanted to use because of past experience, like most lawyers. I was comfortable with the team I had.... We were investigating the shotgun shells — I mean, the blast that was heard by the witness up in the area where they found the body. They had heard shots the night before, and I think we attempted, through the University, to talk to people to see how far sound would carry and what weather conditions would have been, just for some information. I think we also made inquiry, written inquiry, of — well, what I call a bug expert. When a body is located and it’s been there for a certain period of time, what type of insects and all should be around the body, just for our cross-examination purposes and assistance in developing a lead — or a theory that we were going to have concerning the rigor mortis theory ... I’ve forgotten his name. He was out of LLSU, I think it was. And we called him down there at LSU — the expert, we talked to at LSU. And the sound laboratory was over at the University of Tennessee. And also we talked to a music studio, you know, where they record records.

[Addendum No. 35, pp. 7020-21].

Mr. Gibson’s strategy during sentencing was to portray Sutton in the most positive light he could by letting the jury know how much good he had done for other people and how he had behaved in jail, all in an effort to convince the jury that Sutton’s life should be spared. Although Dr. En-gum touched on some of Sutton’s harsh upbringing, Mr. Gibson did not want to use that aspect as an excuse for the crime. According to Mr. Gibson, the defense also said they tried to portray that only one person shot the victim. Specifically, they attempted to show Sutton was friends with the victim and would not have shot him, thus insinuating it was Dellinger who actually shot Griffin and that Sutton was just following Dellinger [Addendum No. 35, pp. 7043-47].

Dr. Pamela Mary Auble, a psychologist with a specialty in neuropsychology and forensic psychology, testified that Sutton’s defense team did not present a comprehensive social history during the sentencing phase of the trial, which she believed to be absolutely necessary when presenting mitigating evidence in a death penalty case. According to Dr. Auble, although Dr. Engum mentioned there was abuse in Sutton’s background, there was no explanation or detail concerning Sutton’s background provided to the jury. Moreover, according to Dr. Auble, there is little in Dr. Engum’s testimony or notes that reflects any social history gathered from Sutton though the notes do reflect a small amount of information gathered from a short interview with the family as a group [Addendum No. 35, pp. 6831-32],

Dr. Auble believed that Sutton’s alcoholism and the fact that Dellinger provided Sutton with alcohol at a young age were relevant mitigation issues that should have been explored [Addendum No. 35, pp. 6823-34]. Dr. Auble explained that this evidence was relevant mitigating evidence because:

Mr. Dellinger was much older than Mr. Sutton, like fifteen years older than he was. And Mr. Sutton grew up in a family where his parents were not there for him, basically. He didn’t live with his mother. His mother was afraid of intervening too much in the father’s family, for fear she would not see her son anymore. His father was alcoholic and was a very hard worker and was not really there much.

The person that Mr. Sutton had the most contact with during his childhood was his stepmother, who was very emotionally unstable and physically abusive. And there’s just numerous accounts of her lashing out and striking Mr. Sutton, even biting Mr. Sutton, for little or no provocation. So that Mr. Sutton was growing up in a family where he really didn’t have a parent, except for his stepmother who was abusive. He would have been flattered by the attentions of Mr. Dellinger, who was older, kind of a parental figure.

He would have also seen Mr. Dellinger as a potential protector from his stepmother. Apparently, he stayed with Mr. Dellinger pretty frequently while he was a child — or when he was a young adolescent. So, this would also have influenced him in starting to drink so young. And being provided with alcohol by Mr. Dellinger, he would be prone to take it and to use it.

... I think that he was under the domination of Mr. Dellinger since he was a child; both, as I said, as sort of an escape or as a parental figure. And then later, I think he grew to fear Mr. Dellinger.

[Addendum No. 35, pp. 6835-36].

Dr. Auble interviewed Sutton; conducted psychological and neuropsychological testing on Sutton; reviewed records from Middle Tennessee Mental Health Institute, Dr. Engum, and schools Sutton attended; and examined psychiatric history records from Sutton’s stepmother. In addition, Dr. Auble reviewed the testimony offered at the sentencing hearing and reviewed summaries of interviews with various family members. Based on her investigation and testing, Dr. Auble concluded there was relevant mitigation evidence not presented on behalf of Sutton [Addendum No. 35, pp. 6831-32],

Dr. Auble explained that two defense teams working so closely together would have created a problem because, for example, the juvenile charges from Georgia involved Sutton, Sutton’s older brother, and Dellinger. That incident, according to Dr. Auble, could have been used to illustrate Dellinger’s propensity toward violence and aggression and could have explained why Sutton was afraid of Dellinger. Dr. Auble found Sutton to be of limited intelligence. She noted that he has consistently been in the borderline range of functioning on the Wexler tests, as demonstrated by evaluations performed by the Tennessee Mental Health Institute, Dr. Engum, and herself. Sutton’s IQ has been in the 70’s, which is the lower end of intellectual ability. Dr. Auble testified that Sutton’s weaknesses are mainly in the area of verbal knowledge and reasoning, with the lowest score being in verbal comprehension [Addendum No. 35, pp. 6844-45].

Dr. Auble discussed studies that indicate presenting positive information about a defendant as mitigating evidence, which is what Sutton’s defense introduced during his sentencing hearing, is fairly ineffective mitigating evidence and carries very little weight in jury decision-making in capital cases. Therefore, she concluded within a reasonable degree of psychological certainty that a defense strategy focused only on positive-type information “is unlikely to carry significant weight with the jury in their decision-making process” in a sentencing hearing [Addendum No. 35, p. 6846]. However, she acknowledged that innocence and mental retardation, two factors that are not applicable to Sutton, carry the most weight during sentencing. She also testified that brain injury carries weight and negative childhood carries some weight, though not a great deal, but does have some impact on juries depending on how it is developed. To carry some weight, however, Dr. Auble insisted the defense must present an expert to testify about the negative childhood experiences, along with lay witnesses who testify about the same subject. Dr. Auble concluded that Sutton’s defense team failed to prepare a thorough and proper investigation of his social background [Addendum No. 35, pp. 6846-48].

On cross-examination, Dr. Auble explained that her opinion concerning a lack of social background investigation was based on the information provided to her, which did not include defense attorneys’ files nor a conversation with defense counsel. She admitted that she lacked any knowledge as to the kind of investigation or social history the defense attorneys had performed or constructed. Dr. Auble also admitted that the evidence reflects that Dr. Engum interviewed Anna Morris, Sutton’s mother, who told him that both Sutton’s father and Dellinger had exposed Sutton to alcohol. Dr. Engum’s notes reflect that Sutton’s father had locked him out of his house and that Sutton had stayed in the dog house on at least one occasion; however, Dr. Auble noted that Dr. Engum obtained that information after he prepared his report and did not present that information to the jury [Addendum No. 35, pp. 6849-54],

Sutton’s family members testified at the post-conviction proceeding about Sutton’s life and his upbringing. Jimmy Sutton, Sutton’s older brother, testified that Sutton came to live with him and their father when Sutton was six or seven. Their father married Shirley Gregory, and Sutton lived with them for a year or two. Jimmy said there was a lot of hollering, screaming, and arguing in the household. Jimmy said that Shirley would beat Sutton and her children, and that Shirley would beat Sutton with clothes hangers, sticks, and belts when she got angry [Addendum No. 35, pp. 6867-68; 6871-73].

When Sutton was a pre-teenager, Del-linger started picking up Jimmy and Sutton almost every weekend, and they would drive around and drink. One night, Sutton’s father called law enforcement three times. Each time officers took Sutton out of Dellinger’s car and brought him home, but Dellinger would return to the house and get Sutton [Addendum No. 35, pp. 6874; 6880-81]. Jimmy was afraid of Del-linger because he often saw him fight. One time while they were in Georgia, Del-linger threw a knife at Jimmy and hit him in the arm. When Sutton was about 16 years old he moved to Georgia with Del-linger who left Tennessee because he had numerous outstanding warrants in Sevier County for rape, stealing, and other offenses [Addendum No. 35, pp. 6866-6900].

Diane Sutton, Sutton’s sister-in-law, also testified that she observed Sutton’s stepmother abusing Sutton. According to Diane, Shirley was unstable and would attack Sutton with her hands and fists. According to Diane, she treated her own children the same way and that is why she did not have custody of them. When Sutton’s father would go to work, he would make Sutton go to Diane and Jimmy’s house or to his grandmother’s house so that he would not be left alone with his stepmother, Shirley. Diane further testified that Dellinger had a rough reputation. She related that Dellinger shot the windshield out of Sutton’s car on one occasion, shot at his car another time, and also pulled a gun on Sutton in Georgia during the same incident in which Dellinger stabbed Jimmy [Addendum No. 35, pp. 6901-25].

Anna Moms divorced Sutton’s father when Sutton was three. She remarried and lived in North Carolina and Kentucky before moving back to Tennessee. When Sutton was six, he moved in with his father and grandmother because the grandmother said she would help with Sutton and take him back and forth to school. According to Ms. Morris, she was not concerned when her ex-husband married Shirley until Sutton started telling her what Shirley was doing to him. According to Ms. Morris, Sutton basically had to raise himself and was living in Georgia working to support himself at 15 years of age [Addendum No. 35, pp. 6925-42],

Pat Sutton is the wife of Sutton’s uncle, Jim Sutton. She lived within 500 feet of Sutton’s father’s home during Sutton’s childhood. Pat testified that Sutton’s mother had very little contact with Sutton and that Shirley was always cussing, yelling, and beating him. When Sutton was nine or ten, he lived in a camper on his father’s property because Shirley did not want him in the house. Pat also testified that she would observe bite marks on Sutton’s arms and scratches on his arms, face, and neck. Often, these observations were preceded by sessions of Shirley cussing and yelling at Sutton. This behavior occurred for three to five years. On one occasion, a Department of Human Services caseworker went to Sutton’s house, saw where Shirley had pulled out Sutton’s hair, and observed scratch marks on Sutton. However, the caseworker never returned, and no one ever followed up on the complaint [Addendum No. 35, pp. 6958-59].

Pat also observed Sutton being locked out of the house when his father and Shirley went to work. Sutton would have to drink water from the outside spigot and would have to eat at someone’s house unless he had food in the camper. She observed Sutton crying with an earache and fluid running out of his ears, but neither his father nor Shirley ever took him to the doctor. Pat and his grandmother were the only ones who took him to see the doctor. Pat described the inside of Sutton’s home as “nasty” with dishes on the bar and in the sink, clothes everywhere, and beds unmade [Addendum No. 35, p. 6960].

Although Sutton was put on the school bus or taken to school, Pat further testified, Dellinger would go around the back of the school and pick him up. As a result, Sutton rarely attended school. Pat testified that this pattern started when Sutton was eight or nine years old and when Dellinger was in his twenties. According to Pat, Sutton liked the attention because Dellinger showed him the attention his mother and father never showed him. Pat believes that if Sutton had been loved and taken care of he would not be where he is today [Addendum No. 35, pp. 6954-63].

The State called Sutton as a witness at the post-conviction proceeding with the understanding that it would not be permitted to question him about the crime for which he was convicted. Sutton admitted to drinking and being an alcoholic. While in Georgia, Sutton met his future wife when both were 15 years old. After dating for almost two years they moved to Tennessee and lived together in Sutton’s old camper. They finally married when they were both approximately 21 years of age. Sutton’s daughter was born in 1990. When Sutton returned to Tennessee, he worked for his grandfather on his farm and for his uncles in their excavating businesses doing bulldozer work. Later, he went to work at A.J. King’s Lumber Company with his father and then worked for Goodin Homes [Addendum No. 35, pp. 6970-84],

Dellinger remained in Georgia for approximately four years after Sutton moved back to Tennessee. Sutton testified he did not have any contact with Dellinger during that period of time except for two or three occasions when Dellinger tried to kill him. Sutton, however did not provide any details about Dellinger’s alleged attempts to kill him, and Sutton appeared to contradict himself when he testified:

Actually, I guess the first time actually that I had actually talked to him, probably, was when I was seventeen, when they had locked me up over the incident we had had in Georgia, they had actually put him in the jail cell with me. And the guys actually was — I had been there for like seven or eight months, something like that. And they had — the guys there that I was telling, you know, that he had had me arrested, we had been setting and talking about it, you know. And there was some guys there — actually about six guys there that was charged with murder. And, you know, they was sitting there talking about it and they wanted to jump on him when he come in. You know, they had got knives and stuff and was talking about killing him there in the jail cell. And, you know, I told them, you know, I didn’t want them to do it and stuff. I said, it’s my brother’s brother and stuff, you know, and I said you know, I really ain’t got nothing for him. But I kind of talked them out of doing anything to him, you know. And that was basically the first time we had talked in — it was probably — I guess probably seven or eight months after that, he showed up at my dad’s one day, you know, after that, after we had got out. And that was the first time I’d actually got back around him.

... Sometimes, we’d get together on the weekends and drink. And sometimes it might — you know, through the week, it just — it depended. Sometimes we’d get out and sometimes we’d stay out a week or something, drinking. But ... we’d go, like, on the weekends out maybe to bars and stuff like that, you know. And usually it was riding around, like, in the mountains, drinking and stuff like that, you know occasionally .... [That went on] [p]robably five or six years, I guess, me and him and Tommy Griffin. Basically, we was together about most every day. You know, after I’d get off from work — they was usually done together, you know, and I’d get off from work and we’d all three be out drinking, you know.

[Addendum No. 35, pp. 6985-88].

According to Sutton, he was not afraid of Dellinger when he was a child or as an adult, although he did worry over the incident in Georgia where Dellinger threw a knife at Sutton’s brother and threatened to shoot Sutton. Sutton claimed, without elaborating, that there were other occasions when he and Dellinger had problems [Addendum No. 35, p. 6988].

III. STANDARDS OF REVIEW

A. Habeas Claims Cognizable Under 28 U.S.C. § 2254

A federal district court has jurisdiction to grant a writ of habeas corpus pursuant to § 2254 of Title 28 to the United States Code. Section 2254(a) limits the court’s jurisdiction to those cases in which a petitioner “in custody pursuant to the judgment of a state court” alleges “he is in custody in violation of the Constitution or laws or treaties of the United States.” The initial question in a habeas petition is, therefore, whether the petitioner raises claims cognizable under § 2254(a).

B. Review of Habeas Claims on the Merits

Section 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), limits a federal district court’s jurisdiction to review habeas claims on the merits. In particular, a court considering a habeas claim must defer to any decision by a state court concerning that claim unless the state court’s