Hines v. Carpenter

ANTHONY HINES, Petitioner, v. WAYNE CARPENTER, Warden, Respondent.

Case No. 3:05-0002

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 16, 2015

Judge Haynes

MEMORANDUM

TABLE OF CONTENTS

A. Request for An Evidentiary Hearing.................................................................................................9

1. Petitioner's New Medical Proof...........................................................................................16

2. Petitioner's DNA and Fingerprint Proof.............................................................................23

3. Petitioner's Other Suspects Proof.......................................................................................34

4. Petitioner's Trial and Post Conviction Counsel Declarations..............................................39

B. Review of the State Record............................................................................................................40

1. Procedural History..............................................................................................................40

2. State Courts' Findings of Fact.............................................................................................41

C. Conclusions of Law......................................................................................................................44

1. Petitioner's Undisputed Exhausted Claims........................................................................47

a. Sufficiency of the Evidence and Related Claims..................................................47

b. Ineffective Assistance of Counsel Claims............................................................52

1. Ineffectiveness of Trial Counsel............................................................... 53

i. Competency of Trial Counsel...................................................54

ii. Failure to Challenge the Jury Panel..........................................60

iii. Ineffective Cross Examination of Jones...................................64

iv. Failure to Acquire Forensic Evidence.......................................69

v. Failure to Discover Impeachment and Exculpatory Evidence..................................................................70

vi. Failure to Make Closing Argument..........................................76

2. Counsel's Ineffectiveness on Direct Appeal................................................813. Ineffectiveness of Counsel at Resentencing...........................................82

c. Aggravating Circumstances Claims...................................................................96

d. Trial Court's Failure to Recuse..............................................................................104

2. Procedurally Defaulted Claims..........................................................................................105

a. Martinez Claims.....................................................................................................105

b. Brady and Giglio Claims.................................................................................109

c. Remaining Defaulted Claims.................................................................................116

1. Noncompliance with Applicable State Rules.............................................118

2. "Firmly Established" and "Regularly Followed" State Rules..............119

3. Independent and Adequate State Rule.................................................120

4. The Cause and Prejudice Requirement................................................122

i. Cause.........................................................................................122

ii. Prejudice........................................................................................123

D. Conclusion....................................................................................................................................124

E. Appendix of Defaulted Claims...............................................................................................125

Petitioner, Anthony Hines, filed this pro se action under 28 U.S.C. § 2254 seeking the writ of habeas corpus to set aside his conviction of first degree murder for which Petitioner received the death sentence. Petitioner moved for appointment of counsel and the Court granted that motion. Petitioner's counsel filed two amended petitions (Docket Entry Nos. 14 and 23). In his last amended petition, Petitioner asserts the following core claims¹:

9. In violation of the Sixth, Eighth, and Fourteenth Amendments, Darrell Hines was denied his rights to due process, equal protection, and to juries selected free from discrimination and from a fair cross-section of the community, given discrimination against women in the selection of the petit jury, the grand jury, and the grand jury foreperson[.]

10. In violation of the Sixth, Eighth, and Fourteenth Amendments and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and in order to convict Darrell Hines and sentence him to death, the prosecution knowingly presented false testimony and withheld exculpatory evidence which was material to both the conviction and the imposition of the death sentence.

11. Counsel was ineffective at the guilt phase of the proceedings, and absent counsel's failures, there is a reasonable probability that Darrell Hines would not have been convicted and/or sentenced to death. Counsel was ineffective for the following reasons[.]

12. In violation of the Eighth and Fourteenth Amendments, Darrell Hines is actually innocent of the offense for which he has been convicted. He was erroneously convicted based on, for example, the withholding of evidence, false testimony, ineffectiveness of trial counsel, prosecutorial misconduct, and other errors and failures that occurred at the trial which led to an erroneous conviction[.]

13. In violation of the Sixth, Eighth, and Fourteenth Amendments, counsel was ineffective at the re-sentencing proceedings, and absent counsel's failures, there is a reasonable probability that Petitioner would not have been sentenced to death.

14. Counsel was ineffective on appeal, and absent counsel's failures, there is a reasonable probability that Darrell Hines would have received relief on direct appeal.

15. In violation of the Sixth, Eighth, and Fourteenth Amendments, Darrell Hines' death sentence was based on a felony-murder aggravating circumstance which duplicated the jury's guilt finding and failed to meaningfully narrow the class of persons eligible for the death penalty. SeeClemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441 (1990); State v. Middlebrooks, 840 S.W.2d 317 (Term 1992).

16. In violation of the Sixth, Eighth, and Fourteenth Amendments, the jury weighed an unconstitutional "heinous, atrocious, or cruel" aggravating circumstance when imposing the death sentence.

17. In violation of the Sixth, Eighth, and Fourteenth Amendments, Darrell Hines' 1989 death sentence was unconstitutional because the 1981 first-degree assault conviction which served as a prior violent felony aggravating circumstance under Tenn. Code Ann. § 39-2-203(i)(2) was void, invalid, and unonstitutional.

18. At re-sentencing, Darrell Hines' jury was misled into believing that mitigating circumstances had to be found unanimously, in violation of the Eighth and Fourteenth Amendments.

19. In violation of the Sixth, Eighth, and Fourteenth Amendments, jury instructions lessened the prosecution's burden of proof at the guilt and re-sentencing stages [.]

20. In violation of the Sixth, Eighth, and Fourteenth Amendments, the prosecution introduced inflammatory statements at the guilt/innocence trial which were irrelevant to the issue of guilt[.]

21. In violation of the Sixth, Eighth, and Fourteenth Amendments, the prosecution made improper arguments during closing statements at the guilt/innocence trial, including arguments which undermined the presumption of innocence and lessened the prosecution's burden of proof. This misconduct rendered Darrell Hines' trial fundamentally unfair.

(Docket Entry No. 23 at 4, 9, 13, 25; Docket Entry No. 23-1 at 16-17, 18, 19, 25, 27, 28 and 30).

22. In violation of the Sixth, Eighth, and Fourteenth Amendments, at the re-sentencing trial, the prosecution made misleading, unconstitutional, and fundamentally unfair statements to the jury which violated Darrell Hines' constitutional rights.

23. In violation of the Sixth, Eighth, and Fourteenth Amendments, Darrell Hines' death sentence is arbitrary under United States v. Jackson, 390 U.S. 570,88 S. Ct 1209 (1968), and unconstitutional.

25. In violation of the Sixth, Eighth, and Fourteenth Amendments, the judge was and appeared to be biased, and should have been recused because of lack of impartiality.

26. In violation of the Sixth, Eighth, and Fourteenth Amendments, prior to the re-sentencing trial, the court failed to grant a continuance when the prosecution failed to provide timely notice of aggravating circumstances, and where Darrell Hines was prevented from securing attendance of necessary out of state witnesses.

27. In violation of the Sixth, Eighth, and Fourteenth Amendments, Darrell Hines' conviction and death sentence is unconstitutional because the empaneling of the jury at both the guilt/innocence trial and at the re-sentencing trial was improper.

30. In violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments and Miranda v. Arizona, 384 US. 436, 86 S.Ct. 1602 (1966), the introduction of Darrell Hines' post-arrest statements at the 1986 guilt/innocence trial and the 1989 re-sentencing trial was unconstitutional.

31. In violation of the Sixth, Eighth, and Fourteenth Amendments, Darrell Hines was denied his right to compulsory process and due process by the trial court's failure to have witnesses Norman Johnson and Bill Andrews produced to testify at the re-sentencing hearing. This likewise violated Darrell Hines' rights to present any and all available mitigating evidence in support of a

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